EXHIBIT 10.28
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 20, 2002, between BancWest
Corporation, a Delaware corporation ("SELLER"), and BNP Paribas, a French
societe anonyme ("BUYER").
WHEREAS, Seller owns all 3,276,535 issued and outstanding shares of Common
Stock, par value $5.00 per share (the "SHARES"), of Bank of the West, a
Californian banking corporation, (the "BANK"); and
WHEREAS, on March 15, 2002, the Seller acquired all of the 10,864,198
outstanding common shares of United California Bank; and
WHEREAS, on April 1, United California Bank merged with and into the Bank,
and as a result of such merger, Seller received in exchange for its shares of
United California Bank, 1,456,238 shares of common shares of the Bank, including
the shares represented by the share certificate number 31 issued by the Bank on
November 20, 2002, representing 485,413 common shares of the Bank with an
aggregate fair market value and U.S. Federal income tax basis of $800 million
(the "MINORITY SHARES");
WHEREAS, Buyer desires to purchase the Minority Shares from Seller upon
the terms and conditions hereinafter set forth; and
WHEREAS, Buyer and Seller have entered into a Stockholders' Agreement of
even date herewith (the "STOCKHOLDERS' AGREEMENT") concerning the Minority
Shares;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Sale of Minority Shares. Upon the terms and subject to the
conditions set forth in this Agreement, Seller shall sell, transfer and assign
the Minority Shares to Buyer, and Buyer shall purchase the Minority Shares from
Seller for an aggregate purchase price of $800,000,000 (the "PURCHASE PRICE").
Closing of the transactions contemplated hereby shall occur on November 22, 2002
or such other date as the parties may mutually agree (the "PURCHASE DATE"). On
the Purchase Date, (i) Seller shall deliver to Buyer Bank share certificate
number 31 for the Minority Shares duly endorsed to Buyer, or accompanied by a
stock power duly endorsed to Buyer, and (ii) Buyer shall deliver $800,000,000 to
Seller by interbank transfer in immediately available funds to an account
designated by Seller.
2. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer as follows:
(a) Due Authorization; Enforceable Obligation. Seller has full
power and authority to execute and deliver this Agreement and
to perform its obligations hereunder. This Agreement has been
duly authorized by all necessary corporate action on the part
of Seller, has been duly executed and
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delivered by Seller and constitutes the valid and binding
obligation of Seller enforceable against Seller in accordance
with its terms.
(b) Conflicting Instruments. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will violate or result in any violation of
or be in conflict with or constitute a default under any term
of the Certificate of Incorporation or By-Laws of Seller or
any judgment, decree or order of any court or administrative
body applicable to it or any agreement or other instrument or
law applicable to it.
(c) Title. Except as provided in this Agreement, (i) Seller is the
record and beneficial owner of the Minority Shares with sole
power to vote and to dispose of the Minority Shares and (ii)
the Minority Shares are owned by Seller free and clear of all
security interests, liens, claims, encumbrances, charges,
restrictions on transfer, proxies and voting and other
agreements.
(d) Delivery. Seller has, and upon consummation of the
transactions contemplated hereby Buyer will acquire, good and
marketable title to the Minority Shares, free and clear of all
security interests, liens, claims, encumbrances, charges,
restrictions on transfer, proxies and voting and other
agreements.
3. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller that (i) this Agreement has been duly authorized by all
necessary corporate action on the part of Buyer, (ii) this Agreement has been
duly executed and delivered by Buyer and (iii) this Agreement constitutes the
valid and binding obligation of Buyer enforceable against Buyer in accordance
with its terms.
4. Miscellaneous
(a) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
(b) Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement
nor any rights hereunder shall be assigned by Buyer without
the prior written consent of the Seller.
(c) Entire Agreement; Amendments. This Agreement constitutes the
entire agreement of the parties with respect to the subject
matter hereof, notwithstanding any provision of any such
documents to the contrary. This Agreement may not be modified,
amended, altered or supplemented except upon execution and
delivery of a written agreement executed by the Buyer and
Seller.
(d) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be
given (and shall be deemed to have
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been duly received if so given) by delivery in person or by
cable, telegram or telex to the respective parties as follows:
If to Seller:
BancWest Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel & Secretary
If to Buyer:
BNP Paribas
▇ ▇▇▇ ▇'▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Telecopy: + 33 1 40 14 93 96
Attention: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
or to such other address as any party may have furnished to
the other in writing in accordance herewith.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
(f) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
(g) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction hereof.
(h) Further Assurances. Seller shall, upon the reasonable request
by Buyer, execute and deliver any additional documents
necessary or desirable to complete the sale, conveyance,
transfer and assignment of the Minority Shares.
(i) Survival. The warranties, representations, covenants and
agreements made pursuant to this Agreement shall survive and
continue irrespective of any investigation made by or on
behalf of any party.
(j) Specific Performance. Seller acknowledges that performance of
its obligations hereunder will confer a unique benefit on
Buyer and, accordingly, that a failure of performance by
Seller is not compassable by money damages. Buyer shall
therefore be entitled, without prejudice to the rights and
remedies otherwise available to it, to specific performance of
all obligations of Seller hereunder.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BNP Paribas SA
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
BancWest Corporation
By /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇.
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Name ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Chairman & CEO
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