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As filed with the Securities and Exchange Commission on July 12, 1995
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_______________________
BAYBANKS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2008039
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
175 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110
(Address of Principal Executive Offices)
BAYBANKS, INC. STOCK OPTIONS ISSUED UPON CONVERSION OF
NFS FINANCIAL CORP. STOCK OPTIONS
(Full title of the plan)
MICHAEL W. VASILY
Executive Vice President
BayBanks, Inc.
175 Federal Street
Boston, Massachusetts 02110
(617) 482-1040
(Name, address and telephone number of agent for service)
with copies to:
JERRY V. KLIMA, ESQUIRE
Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
_______________________
<TABLE>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
<CAPTION>
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price aggregate offering registration
per share(1) price(1) fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $2.00 par value 29,778 shares $28.76 $856,226.44 $295.25
- ---------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and
based upon the average exercise price of the option shares being registered.
</TABLE>
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Exhibit Index appears at Page 8
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994;
(b) All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year ended December 31, 1994; and
(c) The description of the Registrant's Common Stock
contained in its Registration Statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents filed after the date of this Registration
Statement by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act prior to the filing of a post-effective amendment which
indicates that all shares of Common Stock offered hereunder have been sold or
which deregisters all shares of Common Stock remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts Business
Corporation Law provides that a corporation may indemnify any director,
officer, employee or agent to whatever extent permitted by the corporation's
Articles of Organization, By-Laws or a vote adopted by the holders of a
majority of the shares entitled to vote thereon, unless the proposed indemnitee
has been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the corporation
or, to the extent that the matter for which indemnification is sought relates
to service with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such employee benefit plan. Such
indemnification may include payment by the corporation of expenses incurred in
defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he or she shall be adjudicated to
be not entitled to indemnification under the statute.
Article VI of the Registrant's By-Laws provides that the
Registrant shall, to the fullest extent legally permissible, indemnify each
person at any time elected or appointed a director or officer of the
Registrant, or who serves at the Registrant's request as a director or officer
of another organization or
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in any capacity with respect to any employee benefit plan against any and all
costs and expenses (including but not limited to court costs and legal fees)
reasonably incurred by, and any and all liabilities imposed upon, him or her in
connection with, or arising out of, or resulting from, any claim made, or any
action, suit or proceeding (whether civil, criminal, administrative or
investigative) threatened or brought, against him or her or in which he or she
may be involved as a party or otherwise by reason of having so served or by
reason of any action taken or omitted or alleged to have been taken or omitted
by him or her in such capacity unless in any proceeding such person shall have
been finally adjudicated with respect to the matter or matters as to which
indemnification is sought not to have acted in good faith in the reasonable
belief that his action was in the best interest of the Registrant or, to the
extent that such matter or matters relate to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan. Such indemnification shall
include payment by the Registrant of expenses incurred in defending any such
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding, upon receipt of an undertaking by or on behalf of the
person indemnified to repay such payment if he or she shall be adjudicated to
be not entitled to indemnification under Article VI, which undertaking shall be
accepted without reference to the financial ability of such person to make
repayment.
The right of indemnification under Article VI does not extend
to amounts incurred or paid in connection with any matter that shall be
disposed of through a compromise payment or other settlement prior to final
adjudication, whether by or pursuant to a consent decree or otherwise, unless
such compromise or other settlement is approved by the Registrant, which
approval shall not unreasonably be withheld, or by a court of competent
jurisdiction. Article VI sets forth certain circumstances under which the
payment of indemnification is conclusively deemed approved by the Registrant.
Article VI also contains certain procedural and other provisions that provide
additional protection for persons seeking indemnification.
The indemnification provided for in Article VI is a contract
right inuring to the benefit of the directors, officers and others entitled to
indemnification. In addition, the indemnification is expressly in addition to
and not exclusive of any other rights to which such director, officer or other
person may be entitled and inures to the benefit of the heirs, executors,
administrators and legal representatives of such a person.
Section 13(b)(1 1/2) of Chapter 156B of the Massachusetts
Business Corporation Law provides that a corporation may, in its Articles of
Organization, eliminate a director's personal liability to the corporation and
its stockholders for monetary damages for breaches of fiduciary duty, except in
circumstances involving (i) a breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii)
unauthorized distributions to stockholders and loans to insiders, and (iv)
transactions from which the director derived an improper personal benefit. The
Registrant's Articles of Organization include a provision providing that no
director shall be personally liable to the Registrant or its stockholders for
monetary damages for any breach of fiduciary duty as a director, except to the
extent that such exculpation is not permitted under the provisions of the
Massachusetts Business Corporation Law summarized above. No amendment or
repeal of the provision of the Articles of Organization shall apply or have any
effect on the liability of any director for or with respect to acts or
omissions occurring prior to the amendment or repeal.
The Registrant maintains an insurance policy on behalf of the
directors and officers of the Registrant and its subsidiaries covering certain
liabilities that may arise as a result of the actions of said directors and
officers.
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The provisions described above may be sufficiently broad to
indemnify directors and officers and control persons of the Registrant against
liability arising under the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant has been informed that, in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on page 8.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) that, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered
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therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, as of
the 3rd day of July, 1995.
BAYBANKS, INC.
By: /s/ Michael W. Vasily
-----------------------------------
Michael W. Vasily
Executive Vice President
POWER OF ATTORNEY
We, the undersigned officers and directors of BayBanks, Inc. hereby
severally constitute and appoint William M. Crozier, Jr., Michael W. Vasily,
Ilene Beal, and Joan E. Tonra, and each of them singly, our true and lawful
attorneys-in-fact, with full power to them in any and all capacities, to sign
any and all amendments to this Registration Statement on Form S-8 (including
any post-effective amendments thereto), and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact may do or cause to be done by virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Chairman of the Board,
/s/ William M. Crozier, Jr. President and Director July 3, 1995
- ---------------------------- (Principal Executive Officer)
William M. Crozier, Jr.
/s/ Michael W. Vasily Executive Vice President July 3, 1995
- ---------------------------- (Principal Financial Officer)
Michael W. Vasily
/s/ Joan E. Tonra Senior Vice President and July 3, 1995
- ---------------------------- Controller
Joan E. Tonra (Principal Accounting Officer)
/s/ Donald L. Isaacs Vice Chairman of the Board and July 3, 1995
- ---------------------------- Director
Donald L. Isaacs
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Richard F. Pollard Vice Chairman of the Board July 3, 1995
- --------------------------- and Director
Richard F. Pollard
/s/ John A. Cervieri Jr. Director July 3, 1995
- ---------------------------
John A. Cervieri Jr.
/s/ Robert L. Gable Director July 3, 1995
- ---------------------------
Robert L. Gable
/s/ Samuel J. Gerson Director July 3, 1995
- ---------------------------
Samuel J. Gerson
/s/ Norman E. MacNeil Director July 3, 1995
- ---------------------------
Norman E. MacNeil
/s/ Arlene A. McNamee Director July 3, 1995
- ---------------------------
Arlene A. McNamee
/s/ Thomas R. Piper Director July 3, 1995
- ---------------------------
Thomas R. Piper
/s/ Glenn P. Strehle Director July 3, 1995
- ---------------------------
Glenn P. Strehle
/s/ Joseph H. Torras Director July 3, 1995
- ---------------------------
Joseph H. Torras
</TABLE>
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<TABLE>
EXHIBIT INDEX
-------------
<CAPTION>
Exhibit Page
Number Description Number
------ ----------- ------
<S> <C> <C>
4.1 Articles of Organization as amended through June 28, 1988. Filed as
Exhibit 4 to Registration Statement on Form S-8 No. 33-22834 and
incorporated herein by reference. *
4.2 Certificate of Vote of Directors Establishing a Series of a Class of
Stock filed March 10, 1989. Filed as Exhibit 3.1(b) to the
Registrant's Annual Report on Form 10-K for the year ended December
31, 1993 and incorporated herein by reference. *
4.3 Certificate of Vote of Directors adopted July 26, 1990, electing to
have certain Massachusetts legislation concerning the classification
of boards of directors apply to the Registrant. Filed as Exhibit
4.1(d) to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1990 and incorporated herein by reference. *
4.4 By-Laws as amended through October 24, 1994. Filed as Exhibit 3.1 to
the Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1994, and incorporated herein by reference.
4.5 Specimen Common Stock Certificate. Filed on August 6, 1992 as
Exhibit 4.5 to Registration Statement on Form S-3 No. 33-50558, and
incorporated herein by reference. *
4.6 Rights Agreement between the Registrant and The First National Bank
of Boston, as Rights Agent, dated December 23, 1988. Filed as
Exhibit 1 to the Registration Statement on Form 8-A dated December
29, 1988, and incorporated herein by reference. *
5.1 Opinion of Palmer & Dodge. Filed herewith. 9
23.1 Consent of KPMG Peat Marwick LLP. Filed herewith 10
23.2 Consent of Palmer & Dodge (contained in Opinion of Palmer & Dodge
filed as Exhibit 5.1.) 9
24.1 Power of Attorney. Included on the Signature Page to this
Registration Statement 6
<FN>
*Incorporated by reference
</TABLE>
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EXHIBIT 5.1
PALMER & DODGE
One Beacon Street
Boston, Massachusetts 02108
July 3, 1995
BayBanks, Inc.
175 Federal Street
Boston, MA 02110
We are rendering this opinion in connection with the
Registration Statement on Form S-8 (the "Registration Statement") filed by
BayBanks, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, on or about the
date hereof. The Registration Statement relates to 29,778 shares of the
Company's Common Stock, $2.00 par value (the "Shares"), offered pursuant to the
exercise of stock options (the "Options") issued upon conversion of options
issued by NFS Financial Corp.
We are general counsel to the Company and are familiar with
the proceedings of its stockholders and Board of Directors. For purposes of
this opinion, we have examined and relied upon such documents as we consider
necessary to enable us to render this opinion.
Based upon the foregoing, we are of the opinion that when
issued in accordance with the terms of the Options, the Shares will be duly
authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as a part of
the Registration Statement and to the use of our name therein and in the
related prospectus.
Very truly yours,
/s/ Palmer & Dodge
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EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
BayBanks, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-8 of BayBanks, Inc., with regard to the shares of BayBanks, Inc.
Common Stock offered pursuant to the exercise of stock options issued upon
conversion of options issued by NFS Financial Corp., of our report dated
January 24, 1995, relating to the consolidated balance sheets of BayBanks, Inc.
and subsidiaries as of December 31, 1994 and 1993, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1994, which report
appears in the December 31, 1994, annual report on Form 10-K of BayBanks, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Boston, Massachusetts
July 12, 1995
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