<PAGE>
As filed with the Securities and Exchange Commission
on May 30, 1996
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
WESTPORT BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1094350
- -------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
87 Post Road East, Westport, Connecticut 06880
----------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1985 Incentive Stock Option Plan 1990 Restatement
Stock Option Plans and Agreements dated December 17, 1992
Amended and Restated 1995 Incentive Stock Option Plan
---------------------------------------------------------
(Full title of the plans)
Michael H. Flynn
President and Chief Executive Officer
Westport Bancorp, Inc.
87 Post Road East
Westport, Connecticut 06880
-------------------------------------
(Name and address of agent for service)
(203) 222-6911
-----------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
Howard I. Flack, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
Calculation Of Registration Fee
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per share aggregate offering price registration fee
(1) (1) (1)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 1,225,000 $6.00 $7,350,000.00 $2,534.00
- ---------------------------------------------------------------------------------------------------------------------
<FN>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933
based on the average of the high and low price for shares of the registrant's
Common Stock reported on the National Association of Securities Dealers
Automated Quotation ("Nasdaq") National Market System on May 24, 1996 solely for
the purpose of calculating the registration fee.
</FN>
</TABLE>
Exhibit Index is on page 10
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Westport Bancorp, Inc. (the "Company") hereby incorporates by reference
into this registration statement the following documents:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended, since December 31,
1995; and
(c) All documents filed by the Company subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold.
Item 4. Description of Securities.
The following summary description of the capital stock of the Company
does not purport to be complete and is subject to the provisions of the
Company's Restated Certificate of Incorporation, as amended (the "Certificate"),
and to the provisions of applicable law.
The Company is authorized under the Certificate to issue an aggregate
of 22,500,000 shares, consisting of 2,000,000 shares of Serial Preferred Stock,
par value $.01 per share (the "Serial Preferred Stock"), and 20,500,000 shares
of Common Stock, par value $.01 per share (the "Common Stock"). On May 8, 1996,
40,100 shares of Series A Convertible Preferred Stock (the "Preferred Stock")
and 5,643,531 shares of Common Stock were outstanding. In addition, the Company
had outstanding as of May 8, 1996 warrants for the purchase of 300,000 shares of
Common Stock at a purchase price of $.75 per share, which will expire on
December 31, 1996. All of the currently outstanding shares of Preferred Stock
and Common Stock are, and the shares of Common Stock to be issued upon the
exercise of such warrants and offered by the Company hereby will be, when
issued, validly issued, fully paid and nonassessable under the General
Corporation Law of the State of Delaware. The Common Stock is listed on the
Nasdaq National Market System.
Each holder of the Common Stock is entitled to vote one vote per share
and each holder of the Preferred Stock is entitled to vote 100 votes per share
on all matters upon which stockholders have the right to vote. The Certificate
does not provide for cumulative voting and accordingly the holders of shares of
the Common Stock and the Preferred Stock having a majority of the votes entitled
to vote in any election of directors may elect all of the directors standing for
election. In addition, the approval of a majority of the outstanding shares of
the Preferred Stock voting together as a class is required to amend the
Certificate to affect adversely the rights of the holders thereof or to create
or increase the number of authorized shares senior or superior to the Preferred
Stock with respect to dividends or upon liquidation.
The holders of the Preferred Stock are entitled to receive, when, as
and if declared by the board of directors, out of funds legally available
therefor, dividends at a rate to be determined by the board of directors. The
-2-
<PAGE>
holders of Common Stock are entitled to receive such dividends as may be
declared by the board of directors out of funds legally available therefor. In
the event of the liquidation, dissolution or winding up of the affairs of the
Company, the Preferred Stock shall rank prior to the Common Stock and any class
and series of equity securities now or hereafter authorized, issued or
outstanding, except any class or series of equity securities ranking on a parity
with or senior to the Preferred Stock as to rights upon liquidation. The holders
of Preferred Stock are entitled to receive $100.00 per share upon liquidation of
the Company, subject to the rights of creditors. The holders of Common Stock are
entitled to share ratably in all assets remaining after payment of or provision
for all liabilities and after payment of or provision for the full amount to
which holders of securities that are senior to the Common Stock are entitled in
the event of liquidation, dissolution or winding up of the Company.
The board of directors is empowered to issue additional authorized
shares of Common Stock for general corporate purposes, including declaration of
stock dividends or in connection with acquisitions. The Certificate provides
that the board of directors is authorized to provide for the issuance of shares
of Serial Preferred Stock in one or more series and to determine the
designations, preferences, limitations and relative or other rights of the
Serial Preferred Stock or any series thereof, including the rate and manner of
payment of dividends, whether shares may be redeemed and, if so, the redemption
price and terms and conditions thereof, the amount payable in the event of
liquidation, dissolution or other winding-up, sinking fund provisions, the terms
and conditions on which shares may be converted or exchanged, and voting rights,
if any. Such action may be taken by the board without further stockholder
approval. While providing flexibility in connection with possible financings,
acquisitions and other corporate purposes, the issuance of Serial Preferred
Stock, among other things, could adversely affect the voting power of the
holders of Common Stock and, under certain circumstances be used as a means of
discouraging, delaying or preventing a change in control of the Company. The
holders of the Common Stock have no preemptive, subscription, redemption or
conversion rights. The rights, preferences and privileges of holders of Common
Stock will be subject to the rights of the holders of any shares of any series
of Serial Preferred Stock that the Company may issue in the future. Holders of
the Preferred Stock are entitled to convert each share of the Preferred Stock
into 100 fully paid and nonassessable shares of Common Stock, subject to
adjustment upon certain events, including the issuance of Common Stock as a
dividend, subdivisions or combinations of Common Stock, the issuance of rights
or warrants to subscribe for Common Stock (other than a rights distribution
authorized by the board before March 1, 1992, the exercise of stock purchase
rights pursuant to warrant certificates dated February 14, 1992 issued by the
Company to purchasers of Preferred Stock and employee compensation and benefit
plans, employee agreements and contracts), or the distribution to holders of
Common Stock generally of evidences of indebtedness, assets (excluding dividends
in cash out of retained earnings) or rights or warrants to subscribe for
securities of the Company other than those mentioned above. The holders of
Preferred Stock have no preemptive, subscription or redemption rights.
Business Combination Provisions. The Company is subject to the
provisions of Section 203 of the General Corporation Law of the State of
Delaware. In general, the statute prohibits a publicly held Delaware corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless prior to the date the stockholder
became an interested stockholder the board of directors approved either the
business combination or the transaction that resulted in the stockholder
becoming an interested stockholder or unless one of two exceptions to the
prohibitions are satisfied: (i) upon consummation of the transaction that
resulted in such person becoming an interested stockholder, the interested
stockholder owned at least 85% of the corporation's voting stock outstanding at
the time the transaction commenced (excluding, for purposes of determining the
number of shares outstanding, shares owned by certain directors or certain
employee stock plans) or (ii) on or after the date the stockholder became an
interested stockholder, the business combination is approved by the board of
directors and authorized by the affirmative vote (and not by written consent) of
at least two-thirds of the outstanding voting stock excluding that stock owned
by the interested stockholder. A "business combination" includes a merger, asset
sale or other transaction resulting in a financial benefit to the interested
stockholder. An "interested stockholder" is a person who (other than the
corporation and any direct or indirect majority owned subsidiary of the
corporation), together with affiliates and associates, owns (or, as an affiliate
or associate, within three years prior, did own) 15% or more of the
corporation's outstanding voting stock.
The Certificate requires the affirmative vote of the holders of at
least two-thirds of the voting power of the then outstanding shares of capital
stock of the Company to effect (i) any amendment to, or restatement of, the
Certificate, (ii) any consolidation or merger of the Company into or with any
individual, corporation, partnership, trust, estate or other entity, (iii) any
sale, lease or exchange of all or substantially all of the property and assets
of the
-3-
<PAGE>
Company, and (iv) the dissolution of the Company; provided, however, that such
provision shall not be construed to require a vote of stockholders of the
Company with respect to any action for which a vote of stockholders is not
required to be taken under Delaware law. In addition, the Certificate requires
the affirmative vote of the holders of at least 85% of the voting power of the
then outstanding shares of capital stock of the Company to effect certain (a)
mergers, (b) sales of assets, (c) stock issuances or transfers and similar
transactions involving the Company and an "interested stockholder" (as defined
below) or any affiliate or associate thereof in exchange for cash, securities or
other property (or a combination thereof) having an aggregate fair market value
of $2 million or more, (d) plans or proposals for liquidation of the Company
proposed by or on behalf of an interested stockholder or any affiliate thereof
or (e) reclassifications of securities or recapitalizations of the Company that
have the effect of increasing the proportionate share of the outstanding shares
of any class of equity or convertible securities of the Company owned by any
interested stockholder or any affiliate or associate thereof; provided, however,
that such higher vote shall not be applicable if any such transaction shall have
been approved by a majority of the "disinterested directors" (as defined below).
Generally, "interested stockholder" means a person or entity that directly or
indirectly beneficially owns more than five percent of the voting power of the
outstanding voting securities of the Company. Generally, "disinterested
directors" means directors who are unaffiliated with any interested stockholder
involved in the transaction and who were members of the board of directors of
the Company before such interested stockholder became an interested stockholder.
These provisions could discourage nonnegotiated takeover attempts that some
stockholders might deem to be in their best interests.
Regulatory Provisions. Pursuant to the Change In Bank Control
Act, as amended (the "CBCA"), and the regulations promulgated thereunder, any
"person" must give 60 days notice to the Federal Reserve Board prior to
acquiring "control" of a bank holding company such as the Company. For purposes
of the CBCA, the term "control" is defined as ownership of 25% of any class of
voting stock of a bank holding company, or the power to direct the management or
policies of the bank holding company. Moreover, control is presumed upon
ownership of 10% or more of any class of voting stock if (i) the bank holding
company's shares are registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (as are the shares of Common Stock), or (ii)
the acquiring party would be the largest stockholder of the class of voting
stock of the bank holding company. The CBCA and underlying regulations authorize
the Federal Reserve Board to disapprove a proposed acquisition on certain
specified grounds, such as the competence, experience or integrity of the
acquiror or the proposed management, the financial condition of the acquiror, or
if the proposed acquisition would lessen competition.
Under the Bank Holding Company Act of 1956, as amended (the
"BHCA"), and the regulations promulgated thereunder, the prior approval of the
Federal Reserve Board is required if a "company" proposes to "control" a bank
holding company such as the Company. For purposes of the BHCA, the term
"company" includes certain trusts, partnerships, corporations and other business
entities, but does not include individuals. The term "control" is defined as (i)
ownership, control or the power to vote 25% or more of any class of voting
securities of a bank holding company, (ii) control in any manner of the election
of a majority of the directors of a bank or a bank holding company, or (iii)
direct or indirect exercise of a controlling influence over the management or
policies of a bank holding company, as determined by the Federal Reserve Board.
A company that is required to obtain prior approval under the BHCA to become a
bank holding company is exempt from the prior approval requirement of the CBCA.
The BHCA and underlying regulations authorize the Federal Reserve Board to
disapprove a proposed transaction on certain specified grounds, such as if the
proposed acquisition would lessen competition or if the competence, experience
or integrity of the officers, directors or principal shareholder of the acquiror
or bank are at issue.
Under Connecticut banking law, no person may acquire the beneficial
ownership of more than 10% of any voting security or any security convertible
into a voting security of a bank or bank holding company engaged in business in
the state of Connecticut unless the Connecticut Commission of Banking does not
disapprove of the acquisition. The Connecticut Commission of Banking may
disapprove an acquisition if the Commissioner finds, among other things, (i) the
target bank will not carry on the business of banking to the same extent and in
the same manner as it was authorized to carry on such business immediately prior
to the acquisition, (ii) the financial condition of the acquiror may jeopardize
the financial stability of the target bank or bank holding company, (iii) the
terms of the tender or exchange offer are unfair and inequitable to the security
holders of the bank or bank holding company, (iv) the acquiror has operational
plans that are unfair or prejudicial to depositors or security holders of the
bank or bank holding company, (v) the competence, experience and integrity of
the acquiror are not in the interest of the depositors or security holders of
the bank or bank holding company or in the public interest, or (vi) the
-4-
<PAGE>
benefits to the public are clearly outweighed by possible adverse effects,
including but not limited to concentration of resources or unfair competition of
a bank chartered by the State of Connecticut or having its principal office in
Connecticut or a bank holding company thereof, unless the Commissioner approves
such acquisition.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) Section 145 of the General Corporation Law of the State of Delaware
("Section 145") provides for the indemnification of directors, officers,
employees and agents of corporations organized thereunder in certain
circumstances. In addition, Section 145 grants to each such corporation the
power to indemnify its directors, officers, employees and agents against
liability for certain of their acts. Section 145 is set forth as Exhibit 99 to
this registration statement and incorporated herein by reference.
(b) Article Fifth of the Certificate provides that the Company shall
have the power to indemnify its directors, officers, employees and agents to the
full extent permitted by the General Corporation Law of the State of Delaware.
The Company's Bylaws, as amended, provide that the Company shall indemnify any
and all of its officers, directors, employees and agents, and former officers,
directors, employees and agents, against any and all expenses or other matters
to the extent permitted by Section 145. Such indemnification is not exclusive of
any other rights of indemnification under any by-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
(c) The Company has in effect a policy of liability insurance covering
its directors and officers.
* * *
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. See the Company's undertaking concerning
indemnification set forth in Item 9(c).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
- ------ -----------
4.1 1985 Incentive Stock Option Plan 1990 Restatement. (Filed as
Exhibit 10(n) to Annual Report on Form 10-K for the year ended
December 31, 1992, File No. 0-12936 ("1992 Form 10-K"), and
incorporated herein by reference.)
4.2 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Thomas P. Bilbao. (Filed as
Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated herein by
reference.)
4.3 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Richard T. Cummings, Jr.
(Filed as Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated
herein by reference.)
4.4 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Michael H. Flynn. (Filed as
Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated herein by
reference.)
-5-
<PAGE>
4.5 Amended and Restated 1995 Incentive Stock Option Plan.
(Filed as Exhibit 10(y) to Amendment No. 1 to Annual Report on
Form 10-K for the year ended December 31, 1995 on Form 10-K/A,
File No. 0-12936, and incorporated herein by reference.)
4.6 Restated Certificate of Incorporation of Westport Bancorp,
Inc., as amended on February 21, 1992, May 27, 1992 and May
21, 1996. (Restated Certificate and amendments filed on
February 21, 1992 and May 27, 1992 filed as Exhibits 3(a) and
3(b) to Annual Report on Form 10-K for the year ended December
31, 1991, File No. 0-12936, and Exhibit 3(c) to Annual Report
on Form 10-K for the year ended December 31, 1995, File No.
0-12936, respectively, and incorporated herein by reference.)
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hogan & Hartson L.L.P. (See Exhibit 5)
23.2 Consent of Arthur Andersen LLP.
99 Section 145 of the General Corporation Law of the State of
Delaware.
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 the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the 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
registration statement is on Form S-3 or Form S-8, and 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 the
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 which 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement 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.
-6-
<PAGE>
(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 Securities Act of 1933 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
-7-
<PAGE>
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 Town of Westport, State of Connecticut, on this 29th day of
May, 1996.
WESTPORT BANCORP, INC.
By: /s/ Michael H. Flynn
------------------------------------------------
Michael H. Flynn
President, Chief Executive Officer and Director
(principal executive officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Michael H. Flynn
- ------------------------------------ President, Chief Executive Officer May 29, 1996
Michael H. Flynn and Director
(principal executive officer)
/s/ William B. Laudano, Jr.
- ------------------------------------ Senior Vice President May 29, 1996
William B. Laudano, Jr. and Chief Financial Officer
(principal financial officer
and principal accounting officer)
/s/ George H. Damman Director May 29, 1996
- ------------------------------------
George H. Damman
/s/ William L. Gault Director May 29, 1996
- ------------------------------------
William L. Gault
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kurt B. Hersher Director May 29, 1996
- ------------------------------------
Kurt B. Hersher
/s/ William E. Mitchell Director May 29, 1996
- ------------------------------------
William E. Mitchell
/s/ David A. Rosow Director May 29, 1996
- ------------------------------------
David A. Rosow
/s/ William D. Rueckert Director May 29, 1996
- ------------------------------------
William D. Rueckert
/s/ Jay Sherwood Director May 29, 1996
- ------------------------------------
Jay Sherwood
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------ ----------- ----
<C> <C>
4.1 1985 Incentive Stock Option Plan 1990 Restatement. (Filed as
Exhibit 10(n) to Annual Report on Form 10-K for the year ended
December 31, 1992, File No. 0-12936 ("1992 Form 10-K"), and
incorporated herein by reference.)
4.2 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Thomas P. Bilbao. (Filed as
Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated herein by
reference.)
4.3 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Richard T. Cummings, Jr.
(Filed as Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated
herein by reference.)
4.4 Stock Option Plan and Agreement dated December 17, 1992 by and
between Westport Bancorp, Inc. and Michael H. Flynn (Filed as
Exhibit 10(i)(3) to 1992 Form 10-K, and incorporated herein by
reference.)
4.5 Amended and Restated 1995 Incentive Stock Option Plan. (Filed
as Exhibit 10(y) to Amendment No. 1 to Annual Report on Form
10-K for the year ended December 31, 1995 on Form 10-K/A, File
No. 0-12936, and incorporated herein by reference.)
4.6 Restated Certificate of Incorporation of Westport Bancorp,
Inc., as amended on February 21, 1992, May 27, 1992 and May
21, 1996. (Restated Certificate and amendments filed on
February 21, 1992 and May 27, 1992 filed as Exhibits 3(a) and
3(b) to Annual Report on Form 10-K for the year ended December
31, 1991, File No. 0-12936, and Exhibit 3(c) to Annual Report
on Form 10-K for the year ended December 31, 1995, File No.
0-12936, respectively, and incorporated herein by reference.)
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hogan & Hartson L.L.P. (See Exhibit 5)
23.2 Consent of Arthur Andersen LLP.
99 Section 145 of the General Corporation Law of the State of
Delaware.
</TABLE>
-10-
<PAGE>
CERTIFICATE OF AMENDMENT
of
RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED,
of
WESTPORT BANCORP, INC.
Westport Bancorp, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), hereby certifies as follows:
FIRST: This Certificate of Amendment was duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware, and was approved by the affirmative vote of the holders
of at least two-thirds of the outstanding stock of the Corporation entitled to
vote thereon.
SECOND: The Restated Certificate of Incorporation of the
Corporation, as amended, hereby is amended to insert the following new Article
Ninth, and Article Ninth currently appearing in the Restated Certificate of
Incorporation of the Corporation, as amended, hereby is renumbered Article
Tenth:
"NINTH: No director of the Corporation shall be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director;
provided, that nothing contained in this Article Ninth shall
eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from
which the director derived an improper personal benefit. No
amendment to or repeal of this Article Ninth shall apply to or
have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or
omissions prior to such amendment or repeal."
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment of Restated Certificate of Incorporation, as Amended,
to be signed by Michael H. Flynn, its President and Chief Executive Officer, and
attested to by John J. Henchy, its Secretary, on this 17th day of May, 1996.
WESTPORT BANCORP, INC.
By: /s/ Michael H. Flynn
------------------------------------
Michael H. Flynn
President and Chief Executive Officer
ATTEST:
By: /s/ John J. Henchy
-----------------------
John J. Henchy
Secretary
<PAGE>
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
TEL: 202/637-5600
FAX: 202/637-5910
May 30, 1996
Board of Directors
Westport Bancorp, Inc.
87 Post Road East
Westport, Connecticut 06880
Dear Gentlemen:
We are acting as special counsel to Westport Bancorp, Inc., a
Delaware corporation (the "Company"), in connection with its registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission relating to 1,225,000 shares of common stock, par value
$.01 per share (the "Shares"), issuable in connection with (a) the Company's
1985 Incentive Stock Option Plan 1990 Restatement (the "1985 Plan"), (b) the
Stock Option Plan and Agreement dated December 17, 1992 by and between the
Company and Thomas P. Bilbao (the "Bilbao Plan"), (c) the Stock Option Plan and
Agreement dated December 17, 1992 by and between the Company and Richard T.
Cummings, Jr. (the "Cummings Plan"), (d) the Stock Option Plan and Agreement
dated December 17, 1992 by and between the Company and Michael H. Flynn (the
"Flynn Plan"), and (e) the Company's Amended and Restated 1995 Incentive Stock
Option Plan (the "1995 Plan"). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection with the Registration
Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Restated Certificate of Incorporation of the
Company, as amended, as certified by the Secretary of
the State of the State of Delaware on April 24, 1996
and by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
<PAGE>
Board of Directors
Westport Bancorp, Inc.
May 30, 1996
Page 2
3. The Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
4. A copy of the 1985 Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
5. A copy of the Bilbao Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
6. A copy of the Cummings Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
7. A copy of the Flynn Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
8. A copy of the 1995 Plan, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect.
9. Resolutions of the Board of Directors of the Company
adopted on December 19, 1985, June 25, 1987,
September 24, 1987 and February 22, 1990, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect, relating to authorization of the 1985 Plan,
amendments to the 1985 Plan and authorization of the
Shares under the 1985 Plan.
10. Resolutions of the stockholders of the Company
adopted on April 10, 1986 and May 3, 1990, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect, relating to stockholder approval and adoption
of the 1985 Plan and of amendments to the 1985 Plan.
<PAGE>
Board of Directors
Westport Bancorp, Inc.
May 30, 1996
Page 3
11. Resolutions of the Board of Directors of the Company
adopted on December 17, 1992 and May 16, 1996, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect, relating to authorization of the Bilbao Plan,
the Cummings Plan and the Flynn Plan, and to
authorization of the Shares under the Bilbao Plan,
the Cummings Plan and the Flynn Plan.
12. Resolutions of the stockholders of the Company
adopted on April 29, 1993, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect, relating to
stockholder approval and adoption of the Bilbao Plan,
the Cummings Plan and the Flynn Plan.
13. Resolutions of the Board of Directors of the Company
adopted on March 16, 1995 and May 16, 1996, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect, relating to authorization of the 1995 Plan,
to authorization of the Shares under the 1995 Plan
and to amendments to the 1995 Plan.
14. Resolutions of the stockholders of the Company
adopted on May 25, 1995, as certified by the
Secretary of the Company on the date hereof as then
being complete, accurate and in effect, relating to
stockholder approval and adoption of the 1995 Plan.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations or ordinances.
<PAGE>
Board of Directors
Westport Bancorp, Inc.
May 30, 1996
Page 4
Based upon, subject to and limited by the foregoing, we are of
the opinion that following (i) issuance of the Shares pursuant to the terms of
the 1985 Plan, the Bilbao Plan, the Cummings Plan, the Flynn Plan or the 1995
Plan, as the case may be, and (ii) receipt by the Company of the consideration
for the Shares contemplated by the 1985 Plan, the Bilbao Plan, the Cummings
Plan, the Flynn Plan or the 1995 Plan, as the case may be, the Shares will be
validly issued, fully paid and nonassessable under the General Corporation Law
of the State of Delaware.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
/s/HOGAN & HARTSON L.L.P.
--------------------------
HOGAN & HARTSON L.L.P.
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 25, 1996
included in Westport Bancorp, Inc.'s Amendment No. 1 to Form 10-K on Form 10-K/A
for the year ended December 31, 1995.
/s/Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
New York, NY
May 29, 1996
<PAGE>
ss. 145. Indemnification of officers, directors, employees and agents;
insurance.
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section.
<PAGE>
Such expenses (including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
-2-
<PAGE>
