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Exhibit 10.25
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ESOP Stock Purchase Agreement
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This Agreement dated as of January 22, 1990 is between BayBanks, Inc. (the
"Company"), a Massachusetts corporation, and Marine Midland Bank, N.A. (the
"Trustee"), as Co-Trustee under the Trust Agreement under the Savings, Profit
Sharing and Stock Ownership Plan for Employees of BayBanks, Inc. and Affiliated
Companies (the "Plan"). The Company desires to sell, and the Trustee desires to
purchase 800,000 shares of Common Stock, par value $2.00 per share, of the
Company (the "Shares"), for the purposes of the Plan's employee stock ownership
plan feature (the "ESOP"), at the price of $23.25 per share, which is the lower
of (i) the last reported sale price of the Common Stock on the National
Association of Securities Dealers Automated Quotation System on the Closing
Date and (ii) the average of such last reported sale price on each of the three
consecutive business days ending with and including the Closing Date, or an
aggregate amount equal to $18,600,000 (the "Purchase Price").
Accordingly, the parties hereby agree as follows:
1. Acquisition of Stock.
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1.1. Upon the terms and subject to the conditions hereof, the Company
shall issue, sell, transfer, and deliver the Shares to the Trustee, and the
Trustee shall purchase the Shares for the Purchase Price in the manner set
forth below.
1.2. The consummation of the purchase and sale contemplated hereby shall
take place on January 22, 1990, or such other date as the parties may mutually
agree (the "Closing Date").
1.3. On the Closing Date, the Trustee shall deliver or cause to be
delivered to the Company a bank check or wire transfer in an amount equal to
the Purchase Price, and the Company shall deliver to the Trustee a duly
executed Certificate or certificates representing 799,400 of the Shares. The
Company shall deliver to the Trustee a duly executed certificate or
certificates representing 600 of the Shares as soon as practicable, but not
later than thirty days, after the Closing Date.
1.4. No Commission will be charged to or payable by the Trustee in
connection with the purchase of the Shares hereunder.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
represents, warrants and covenants as follows (capitalized terms used in this
Section 2 and not defined in this Agreement are used with the same respective
meanings as in the Term Loan and Guaranty Agreement of even date herewith among
the Company, the Trustee, and Westpac Banking Corporation (the "Loan
Agreement")):
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2.1. When the Shares are issued and delivered against payment
therefor, all of such Shares shall have been duly and validly authorized and
will constitute fully-paid and non-assessable shares of Common Stock of
the Company.
2.2. The Company has full right and authority to issue, sell, transfer,
and deliver the Shares and will effectively transfer to the Trustee, on the
Closing Date, the full right, title, and interest therein and thereto, free and
clear of all options, claims, charges, encumbrances, agreements, trusts,
equities, and rights, whether contingent or absolute, of any nature whatsoever,
except for beneficial interests accruing to ESOP participants under the Plan
and applicable law and the matters referred to in Section 4.
2.3. The ESOP has been duly authorized and is an employee stock ownership
plan within the meaning of Section 4975 of the Internal Revenue Code of 1986,
as amended.
2.4. The Company (i) is a corporation duly organized and validly existing
and in good standing under the laws of the Commonwealth of Massachusetts, (ii)
is duly licensed or qualified to do business and in good standing in each
jurisdiction where the failure to be so licensed or qualified could have a
material adverse effect on its ability to perform any of its obligations under
this Agreement, and (iii) has all requisite power and authority to own its
properties and conduct its business as presently conducted and to execute and
deliver, and to perform its obligations under, this Agreement.
2.5. The consolidated financial statements of the Company and its
Subsidiaries for the year ended December 31, 1988, previously delivered to the
Trustee fairly present in accordance with GAAP the consolidated financial
position of the Company and its Subsidiaries as of the date thereof and the
consolidated results of their operations for the year then ended. The financial
information contained in the Company's press release dated January 12, 1990,
furnished to the Trustee was prepared by the Company in good faith. Except as
disclosed to the Trustee in such press release or otherwise in writing prior to
the date hereof, since December 31, 1988, there has been no material adverse
change in the financial condition or business of the Company and its
Subsidiaries, taken as a whole, and no change which could materially impair the
ability of the Company to perform its obligations hereunder.
2.6. There is no action, suit, proceeding or investigation at law or in
equity by or before any court, governmental body, agency, commission or other
tribunal now pending or, to the best knowledge of the Company after due
inquiry, threatened against or affecting the Company or any of its Subsidiaries
or any of their respective property or rights (i) which, if adversely
determined, may have a material adverse impact on the financial condition or
business of the Company and its Subsidiaries, taken as a whole, or could
materially impair the ability of the Company to perform its obligations
hereunder (except as disclosed to the Trustee in writing on or before the date
of this Agreement) or (ii) which questions or would question the validity of
this Agreement.
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2.7. The execution, delivery and performance of this Agreement will not
(i) conflict with, result in a breach of, or constitute a default under, any
terms or provisions of any indenture, mortgage or other agreement or instrument
to which the Company or any Subsidiary is a party or by which it or any of its
assets is bound, or any existing applicable law, rule, regulation, license,
judgment, order or decree of any government, governmental body or court having
jurisdiction over the Company or any Subsidiary or any of its activities or
properties, or the Articles of Organization or By-Laws of the Company or (ii)
result in, or require the creation or imposition of, any lien upon or with
respect to any properties now or hereafter owned by the Company or any
Subsidiary, except as may be contemplated hereby or thereby.
2.8. The execution, delivery and performance of this Agreement has been
duly authorized by all necessary action of the Company. This Agreement has
been duly executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company, enforceable according to its terms.
2.9. All authorizations, consents, approvals, registrations, filings,
exemptions and licenses with or from governmental or regulatory authorities
that are necessary for the execution, delivery and performance of this
Agreement have been effected and obtained and are in full force and effect.
2.10. Each member of the Controlled Group has fulfilled its
Obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is not in violation of any presently applicable
provisions of ERISA and the Code with respect to any Plan, which violation
would have a material adverse effect on the Company's ability to perform its
obligations under this Agreement, and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA other than liability for PBGC premiums
in accordance with ERISA . As of each Plan's most recent valuation date, the
present value of its liabilities (utilizing PBGC assumptions) did not exceed
its assets.
2.11. The Company has filed all tax returns required to be filed by it
and has paid all taxes and other governmental charges due pursuant to such
returns or pursuant to any assessment received by the Company except any taxes
or governmental charges that are being contested in good faith and by
appropriate proceedings. The charges, accruals and reserves on the books of the
Company in respect of any taxes or other governmental charges are adequate to
the extent required by GAAP to provide for the liabilities in respect thereof.
2.12. Neither the Company nor any Subsidiary of the Company is in
violation of any law, rule, regulation, order, writ, judgment, decree,
determination or award applicable to it or any indenture, lease, loan or other
agreement to which it is a party or by which it or its properties may be bound
or affected, the violation of which would have a material adverse effect upon
the business or financial condition of the Company or such Subsidiary or upon
the ability of the Company to perform any of its obligations under this
Agreement.
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2.13. At least 95% of the issued and outstanding capital stock of each
Subsidiary of the Company is owned beneficially and of record by the Company,
free from any Lien. Each such Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation or laws of the United States, as the case may be, and has the
corporate power and authority to own its assets and to carry on its business as
it is now being conducted.
2.14. The Company shall as soon as practicable apply for, and use its
best efforts to obtain and deliver to the Trustee as promptly as practicable, a
determination letter from the Internal Revenue Service to the effect that the
ESOP meets the requirements for qualification under Sections 401(a) and
4975(e)(7) of the Code and tax exemption under Section 501(a) of the Code.
2.15. The Company acknowledges that, in purchasing the Shares
hereunder, the Trustee is relying upon the accuracy and completeness of the
information made available to the public by the Company as reflected in
filings, distributions or disclosures required by federal, state or local
statutes, rules, orders or regulations, or as otherwise have been made
available to the public and upon such other information as the Company or its
agents have provided to the Trustee or its agents prior to the date hereof.
3. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee represents and
warrants as follows:
3.1. The Trustee is properly authorized to execute and deliver this
Agreement.
3.2. The Shares to be acquired pursuant to this Agreement will be acquired
for investment, and not with a view to the distribution or resale thereof,
except in compliance with the requirements of the Securities Act of 1933 and
the terms of the ESOP.
4. STOCK CERTIFICATE LEGEND. Each Certificate representing Shares held by the
Trustee shall bear the following legend:
The shares represented by this certificate have not been registered under
the Securities Act of 1933 (the "Act") and may not be offered, sold or
otherwise transferred unless registered under the Act and any applicable state
securities laws or, in the opinion of counsel satisfactory to the issuer, in
form and substance satisfactory to the issuer, such offer, sale or other
transfer is exempt from registration or otherwise in compliance with the Act
and such laws.
5. REGISTRATION RIGHTS. The Company agrees that, upon the reasonable written
request of Trustee B under the Trust Agreement or its successor ("Trustee B"),
it will, at its expense, prepare and file as promptly as practicable after such
request, and use its best efforts to cause to become effective, a registration
statement on an appropriate form, including a final Prospectus (the
"Registration Statement") under and complying with the Securities Act of
1933, as
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amended, and the rules and regulations thereunder, relating to the number of the
Shares the public sale of which shall be necessary for Trustee B to carry out
its responsibilities under the Plan and the Trust Agreement. Whenever Shares are
so registered, the Company shall also use its best efforts to register or
qualify the Shares covered by the Registration Statement under the "blue sky" or
securities laws of such jurisdictions within the United States as Trustee B may
reasonably request; provided, however, that the Company shall not be required to
consent to the general service of process for all purposes in any jurisdiction
where it is not then qualified to do business.
6. CERTAIN LIMITATIONS. The execution and delivery of this Agreement and the
performance by the Trustee of this Agreement and under the terms of the Plan and
Trust have been, or will be, effected by the Trustee in its capacity as Trustee.
Nothing in this Agreement shall be interpreted to increase, decrease or modify
in any manner any liability of the Trustee to the Company or to any trustee,
representative or other claimant by right of the Company resulting from the
Trustee's performance of its duties under the constituent instruments of the
Plan or the Trust, and no personal liability shall be asserted or enforceable
against said entity by reason of the covenants, statements or representations
contained in this Agreement.
7. Miscellaneous Provisions.
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7.1. This Agreement constitutes the entire agreement between the parties
hereto relating to the purchase of the Shares by the Trustee and supersedes any
prior agreement or understanding relating to the transactions contemplated
hereby. This Agreement may be modified or amended only by a written instrument
executed by or on behalf of the parties hereto. The headings and captions
contained herein are solely for convenience of reference and do not constitute
a part of this Agreement or affect its meaning or construction.
7.2. The representations and warranties of the Company contained in
Section 2 hereof shall survive the Closing hereunder.
7.3. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same instrument.
7.4. This Agreement shall be binding upon, and inure to the benefit of,
the successors and assigns of the Company and the Trustee.
7.5. This Agreement shall be construed and enforced in accordance with the
laws of the Commonwealth of Massachusetts.
7.6. In case any term of this Agreement shall be held invalid, illegal, or
unenforceable in whole or in part, neither the validity of the remaining part
of such term nor the validity of any other term of this Agreement shall be
affected thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers on the date stated above.
BAYBANKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Vice Chairman of the Board
MARINE MIDLAND BANK, N. A.,
solely as Trustee of the Savings, Profit Sharing and Stock
Ownership Trust for Employees of BayBanks, Inc. and
Affiliated Companies and not in its individual or corporate
capacity
By: /s/ Xxxxx XxXxxxxx
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Vice President
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