<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 15, 1997
REGISTRATION STATEMENT NO. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
BOSTON PRIVATE BANCORP, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2976299
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
--------------------
TEN POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 556-1900
(Address, including zip code and telephone number, including
area code, of Registrant's principal executive offices)
--------------------
TIMOTHY L. VAILL
President and Chief Executive Officer
Boston Private Bancorp, Inc.
Ten Post Office Square
Boston, Massachusetts 02109
(617) 556-1900
(Name, address, including zip code, and telephone number,
including area code of agent for service)
--------------------
Copies of all communications should be sent to:
WILLIAM P. MAYER, ESQ.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
<CAPTION>
Proposed Proposed
Title of Each Class of Amount Maximum Maximum Amount of
Securities to Be to Offering Price Aggregate Registration
Registered Be Registered Per Share(1) Offering Price(1) Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value 730,000 Shares $5.25 $3,832,500 $1,162
===========================================================================================================================
<FN>
(1) Based upon the average of the high and low sale prices reported on the Nasdaq SmallCap Market System on January 9, 1997 and
estimated solely for purposes of calculating the registration fee in accordance with Rule 457(c) under the Securities Act
of 1933.
</TABLE>
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
- --------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS
BOSTON PRIVATE BANCORP, INC.
730,000 Shares of Common Stock
This Prospectus relates to 730,000 shares (the "Shares") of common stock,
$1.00 par value per share (the "Common Stock"), of Boston Private Bancorp, Inc.
(the "Company") to be sold by certain stockholders of the Company (the "Selling
Stockholders") from time to time. The Selling Stockholders may sell the Shares
from time to time in transactions on the Nasdaq SmallCap Market System, in
negotiated transactions or by a combination of these methods, at fixed prices
that may be changed, at market prices at the time of sale, at prices related to
market prices or at negotiated prices. The Selling Stockholders may effect these
transactions by selling the Shares to or through broker-dealers, who may receive
compensation in the form of discounts or commissions from the Selling
Stockholders or from the purchasers of the Shares for whom the broker-dealers
may act as an agent or to whom they may sell as a principal, or both. See
"Selling Stockholders" and "Plan of Distribution." The Common Stock of the
Company is traded under the symbol "BPBC" on the Nasdaq SmallCap Market. On
January 9, 1997, the reported closing price for the Common Stock on the Nasdaq
SmallCap Market was $5.125.
The Company will not receive any of the proceeds from the sale of the
Shares. The Company has agreed to bear all of the expenses in connection with
the registration and sale of the Shares (other than underwriting discounts and
selling commissions and the fees and expenses of counsel or other advisors to
the Selling Stockholders).
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN SPECIAL
FACTORS WHICH SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN PURCHASING THE
SHARES OF COMMON STOCK OFFERED HEREBY.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------------
THE DATE OF THIS PROSPECTUS IS _______, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C. 20549, a Registration Statement (which term
shall include all amendments, exhibits and schedules thereto) on Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act") with respect to
the shares of Common Stock offered hereby. This Prospectus, which constitutes a
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission, to which
Registration Statement reference is hereby made. For further information with
respect to the Company and the securities covered hereby, reference is made to
the Registration Statement and to the exhibits thereto filed as a part thereof.
The Registration Statement and the exhibits thereto may be inspected and copied
at prescribed rates at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, New York 10048 and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661, and copies may be obtained at the
prescribed rates from the Public Reference section of the Commission at its
principal office in Washington, D.C. The Commission also maintains a Web site at
http://www.sec.gov containing reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission. Statements made in this Prospectus as to the
contents of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
the exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files proxy statements, reports and other information with the
Commission. Such proxy statements, reports and other information filed by the
Company may be inspected and copied at prescribed rates at the aforementioned
public reference facilities maintained by the Commission. The Common Stock of
the Company is traded on the Nasdaq SmallCap Market System. Reports and other
information concerning the Company may be inspected at the National Association
of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in, and made a part of, this Prospectus by reference as of their
respective dates: (1) the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1995; (2) the Company's Quarterly Reports on Form 10-QSB
for the fiscal quarters ended March 31, June 30 and September 30, 1996; (3) the
definitive Proxy Statement of the Company for the Annual Meeting of Stockholders
held May 15, 1996; (4) the Company's Current Report on Form 8-K dated December
9, 1996; and (5) the description of the Common Stock of the Company contained in
the Company's Registration Statement on Form SB-2, filed on August 30, 1993,
including all amendments and reports updating such description.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering shall be deemed to be incorporated by reference in this
Prospectus and shall be a part hereof from the date of filing of such document.
The Company will furnish without charge to each person, including any beneficial
owner, to whom this Prospectus is delivered, upon request, a copy of any or all
of the documents that have been incorporated by reference to the Registration
Statement of which this Prospectus is a part, other than exhibits to such
documents. Requests should be addressed to: Boston Private Bancorp, Inc., Ten
Post Office Square, Boston, Massachusetts 02109, Attention: Corporate Secretary
(telephone number (617) 556-1900).
2
<PAGE> 4
This Prospectus, including the information incorporated herein by
reference, contains forward-looking statements within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act. The Company's actual
results could differ materially from those projected in the forward-looking
statements set forth in this Prospectus including the information incorporated
herein by reference. Investors should carefully consider the discussion of risk
factors below, in addition to the other information contained in this
Prospectus, in connection with an investment in the Shares offered hereby.
RISK FACTORS
In addition to the other information contained or incorporated by reference
in this Prospectus, the following factors should be considered carefully in
evaluating an investment in the shares of Common Stock offered by this
Prospectus.
COMPETITION
The ability of Boston Private Bank & Trust Company (the "Bank"), the
wholly-owned subsidiary of the Company through which it conducts substantially
all of its business, to attract loans and deposits may be limited by its small
size relative to its competitors. The Bank maintains a smaller staff and has
fewer financial and other resources than larger institutions with which it
competes in its market area.
In particular, in attempting to attract deposits and making loans, the Bank
encounters competition from other institutions, including larger downtown Boston
and suburban-based commercial banking organizations, savings banks, credit
unions, other financial institutions and non-bank financial service companies
serving eastern Massachusetts and adjoining areas. The principal modes of
competition include the interest rates charged on loans, the interest rates paid
on deposits, efforts to obtain deposits, the range of services provided and the
quality of those services.
In this competitive environment, the Bank may be unable to attract
sufficient and high-quality loans in order to continue its loan growth, which
may materially adversely affect the Bank's results of operations and financial
condition, including the level of its non-performing assets. The Bank's
competitors include several major financial companies whose greater resources
may afford them a marketplace advantage by enabling them to maintain numerous
banking locations and mount extensive promotional and advertising campaigns. In
particular, the Bank's current commercial borrowing customers may develop needs
for credit facilities larger than it can accommodate.
In addition, the Company's ability to attract investment management and
trust business may be inhibited by its relatively short history and limited
record of performance. With respect to its investment management and trust
services, the Bank competes primarily with commercial banks and trust companies,
mutual fund companies, investment advisory firms, stock brokerage firms, law
firms and other financial companies. Competition is especially keen in the
Bank's market area, because Boston has a well-established investment management
industry. Management believes that the Company has improved its ability to
attract investment management business as a result of the acquisition of
Cunningham, Henderson, and Papin Incorporated in July of 1995.
ASSET QUALITY
The success of bank holding companies, such as the Company, depends to a
significant extent upon the quality of their assets. Non-performing assets of
the Company, which include non-performing loans and real estate acquired through
foreclosure proceedings and through acceptance of a deed in lieu of foreclosure
(collectively, other real estate owned or "OREO"), can lead to charge-offs and
an increase in the Bank's allowance for possible loan losses. Other adverse
effects of non-performing assets include, but are not limited to, foregone
interest income and increased operating expenses as a result of the allocation
of management time and resources to the collection and work-out of these
non-performing assets.
Management of the Bank determines the Bank's allowance for possible loan
losses based on the facts and circumstances available to it at the time of
determination. The net carrying value of OREO is determined by Management to
equal the lower of (i) the assets' balances when transferred to OREO or (ii) the
estimated net fair value, after reduction for estimated selling costs, of the
property acquired. The allowance for possible loan losses, however, can only be
estimated by the Company, based upon, among other things, the quality of the
loan portfolio, economic conditions, the value of the underlying collateral and
the level of non-accruing loans held by the Bank. Future provisions to the
allowance for possible loan losses or provisions in carrying values of OREO
could become necessary as a result of deterioration in the real estate
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<PAGE> 5
market and/or the economy in the Company's primary market area, future increases
in non-performing assets or for other reasons. Such provisions could adversely
affect the Company's financial condition and results of operations.
In addition, bank regulatory agencies, as an integral part of their
examination process, periodically review the Bank's allowance for possible loan
losses and the carrying value of its OREO. Such agencies could require the Bank
to make further provisions to the allowance for possible loan losses and
adjustments to the carrying values of OREO based on their judgments at the time
of examination. The Company was most recently examined by the Board of Governors
of the Federal Reserve Board (the "Federal Reserve Board") in December 1993, and
the Bank was most recently examined by the Federal Deposit Insurance Corporation
("FDIC") in September 1994 and the Massachusetts Commissioner of Banks in
September 1995.
LOAN CONCENTRATIONS
The Bank's loans are concentrated with respect to geography, type of
customer and type of collateral. Since the Bank serves primarily individuals and
smaller businesses located in eastern Massachusetts and adjoining areas, with a
particular concentration in the Greater Boston Metropolitan Area, the Bank's
asset quality is affected by the economic conditions in these areas. The Bank's
commercial loans are generally concentrated in the following customer groups:
(i) real estate developers and investors, (ii) financial services, (iii)
technology, manufacturing and communications, (iv) professional services and
(v) general commercial, industrial and personal loans. The Bank's commercial
loans, with limited exceptions, are secured by either real estate (income
producing residential and commercial properties), marketable securities or
corporate assets (accounts receivable, equipment and inventory). Substantially
all of the Bank's residential mortgage and home equity loans are secured by
residential property in eastern Massachusetts. Conditions in the real estate
market specifically, and the Massachusetts economy generally, could impact the
ability of these borrowers to service their loans in the future and/or the value
of the collateral securing these loans. In addition, this loan concentration
coupled with adverse economic conditions in the area could negatively impact the
asset quality of the Company in future periods. See "--Asset Quality."
INTEREST RATE ENVIRONMENT
The general interest rate environment affects the Company's financial
results. The Bank's main source of income is its net interest income, which is
defined as the difference between the interest income received on its
interest-bearing assets, including loans and investment securities, and the
interest expense incurred in connection with its interest-bearing liabilities,
including deposits and borrowings. The Bank's net interest income can be
affected significantly by changes in market interest rates. The Bank has adopted
asset and liability management policies to minimize the potential adverse
effects of changes in interest rates on its net interest income, primarily by
altering the mix and maturity of the Bank's loans, investments and funding
sources.
An increase in interest rates could also have a material adverse effect on
the Company's results of operations by reducing the ability of its borrowers to
service their current indebtedness, thereby increasing the Bank's delinquent and
non-performing loans and necessitating further provisions to the Bank's
allowance for possible loan losses.
SOURCES OF FUNDS
The Bank has traditionally obtained funds principally through deposits and
through borrowings. The Bank's ability to obtain deposits depends upon general
economic conditions, market interest rates and competitive pressures. Thus, in
order to provide liquidity and flexibility to its operations, the Bank may have
to rely more heavily on borrowings as a source of funds in the future.
Moreover, the volatility of the Bank's deposits may impact the Bank's
overall liquidity. Historically and in comparison to commercial banking
averages, the Bank has had a higher percentage of its time deposits in
denominations of $100,000 or more. Within the banking industry, these deposits
are generally considered to be volatile.
4
<PAGE> 6
THE COMPANY
The Company is incorporated under the laws of the Commonwealth of
Massachusetts and is registered with the Board of Governors of the Federal
Reserve System as a bank holding company under the Bank Holding Company Act of
1956, as amended. On July 1, 1988, the Company became the parent holding company
of Boston Private Bank & Trust Company (the "Bank"), a trust company chartered
by the Commonwealth of Massachusetts and insured by the Federal Deposit
Insurance Corporation. The Company conducts substantially all of its business
through its wholly-owned subsidiary, the Bank, and the Bank's wholly-owned
subsidiaries, BPB Securities Corporation and Boston Private Asset Management,
Inc.
The Company pursues a "private banking" business strategy and is
principally engaged in providing banking, investment and fiduciary products to
high net worth individuals, their families and their businesses in the greater
Boston area and New England and, to a lesser extent, Europe and Latin America.
The Bank offers its clients a broad range of basic deposit services, including
checking and savings accounts, with automated teller machine ("ATM") access, and
cash management services through sweep accounts and repurchase agreements. The
Bank also offers commercial, residential mortgage, home equity and consumer
loans, as well as credit card services. In addition, the Bank provides
investment advisory and asset management services, securities custody and
safekeeping services, trust and estate administration and IRA and Keogh
accounts.
On July 31, 1995, the Company acquired substantially all of the assets and
assumed certain liabilities of the investment management business of Cunningham,
Henderson, and Papin Incorporated ("CH&P, Inc.") for a total purchase price of
approximately $4.2 million, of which $2.1 million, consisting of $1.5 million in
cash and 166,667 shares of the Company's Common Stock, was paid at closing. In
each of January and July 1996, the Company paid an additional $375,000 in cash
and 41,667 shares of Common Stock of the Company. The balance of the purchase
price is payable in semi-annual installments due January 15 and July 15, 1997.
The amount of each installment payment will be $375,000 in cash and 41,667
shares of Common Stock of the Company. The acquisition was accounted for as a
purchase and, as such, subsequent to the date of acquisition, the results of
operations of CH&P, Inc. have been included with those of the Company.
INVESTMENT MANAGEMENT. The Company provides a range of investment
management services to individuals, families, trusts, endowments, foundations
and retirement plans. These services include management of equity portfolios,
fixed income portfolios, balanced portfolios, liquid asset management portfolios
and mutual fund holdings. Portfolios are managed based on the investment
objectives of each client, with each portfolio being positioned to benefit from
long-term market trends. In addition, the Company offers advisory services with
respect to alternative forms of investment.
TRUST ADMINISTRATION. Acting as a fiduciary, the Company provides trust
administration and estate settlement services. The services provided by the
Company include the ongoing fiduciary review of the trust instrument, the
collection and safekeeping of assets, the investment of trust assets, the
distribution of income, the preparation of reports for court and tax purposes,
the preparation of tax returns, the distribution of assets as required and
communication with grantors, beneficiaries and co-trustees.
CUSTODY SERVICES. Custody services provided by the Company include the
safekeeping of securities, the settlement of security transactions, the
execution of trades and the automatic investment of cash balances.
LENDING ACTIVITIES. The Bank specializes in lending to individuals and
small businesses, including non-profit organizations, partnerships and
professional corporations and associations. Loans made by the Bank to
individuals include residential mortgage loans, unsecured and secured personal
lines of credit, home equity loans, mortgage loans on investment and vacation
properties, letters of credit and overdraft protection. Loans made by the Bank
to businesses include commercial mortgage loans, revolving lines of credit,
working capital loans, equipment financing and letters of credit. Generally, the
Bank lends only to borrowers located in eastern New England or to borrowers who
may be located farther away, but who have collateral deposited with the Bank in
the form of cash or marketable securities or other collateral within the Bank's
market area.
ASSET AND LIABILITY MANAGEMENT. The objective of the Company's asset and
liability management is to maximize profit potential while minimizing the
vulnerability of its operations to changes in interest rates by means of
managing the ratio of interest rate sensitive assets to interest rate sensitive
liabilities within specified maturities or repricing dates. The Company's
actions in this regard are taken under the guidance of the Asset and Liability
Management Committee which is comprised of members of senior management. This
committee is involved in formulating the economic assumptions that the
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<PAGE> 7
Company uses in its financial planning and budgeting process and establishes
policies which control and monitor the sources, uses and pricing of funds. The
Company has not engaged in any hedging activities.
INVESTMENT ACTIVITIES. The investment activity of the Company is an
integral part of the overall asset/liability management of the Company. The
Bank's investment policy is to establish a portfolio which will provide
liquidity necessary to facilitate funding of loans and to cover deposit
fluctuations while at the same time achieving a satisfactory return on the funds
invested. The securities in which the Bank may invest are subject to regulation
and limited to securities which are considered "investment grade" securities.
SOURCES OF FUNDS. Deposits made at the Bank's office location and through
ATM's have traditionally been the principal source of funds for use in lending
and for other general business purposes. However, while the Bank has not
traditionally placed significant reliance on borrowings as a source of
liquidity, it has established various borrowing arrangements, including Federal
Home Loan Bank of Boston ("FHLB") advances, the sale of securities to
institutional investors under repurchase agreements and, from time to time, the
purchase of federal funds from other banking institutions.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Stockholders.
REGISTRATION RIGHTS
The registration of the Shares pursuant to the Registration Statement of
which this Prospectus is a part will discharge certain of the Company's
obligations under the terms of Stock Purchase Agreements dated December 9, 1996,
which the Company entered into in connection with the private placement of
730,000 shares of Common Stock to the Selling Stockholders (the "Registration
Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed to
pay all expenses of registering the Shares (other than brokerage and
underwriting commissions, taxes of any kind and any legal, accounting and other
expenses incurred by a holder thereunder). The Company also has agreed under the
Registration Rights Agreement to indemnify each Selling Stockholder and its
officers, directors and other affiliated persons and any person who controls any
Selling Stockholder against losses, claims, damages and expenses arising under
the securities laws in connection with the Registration Statement or this
Prospectus, subject to certain limitations. In addition, each Selling
Stockholder under the Registration Rights Agreement severally agreed to
indemnify the Company and its respective directors, officers and any person who
controls the Company against all losses, claims, damages and expenses arising
under the securities laws insofar as such loss, claim, damage or expense relates
to information furnished to the Company by such Selling Stockholder for use in
the Registration Statement or Prospectus or an amendment or supplement thereto
or the failure by such Selling Stockholder (through no fault of the Company) to
deliver or cause to be delivered this Prospectus or any amendment or supplement
thereto to any purchaser of Shares covered by the Registration Statement from
such Selling Stockholder.
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<PAGE> 8
SELLING STOCKHOLDERS
<TABLE>
The Shares are to be offered by and for the respective accounts of the
Selling Stockholders. The following table sets forth the name and number of
shares of Common Stock owned by each Selling Stockholder as of January 1, 1997.
The Shares offered by this Prospectus may be offered from time to time by the
Selling Stockholders. Because the Selling Stockholders may sell all, some or
none of the Shares, the Company has assumed that the Selling Stockholders will
sell all of the Shares in determining the number and percentage of shares of
Common Stock that each Selling Stockholder will own upon completion of the
offering to which this Prospectus relates. The amounts set forth below are based
upon information provided by the Selling Stockholders and are accurate to the
best knowledge of the Company.
<CAPTION>
Shares of Shares of
Common Stock Shares of Common Stock Owned
Beneficially Owned Common Stock After the Offering(2)
Selling Stockholder as of January 1, 1997(1) Offered Hereby Number(1) Percent(3)
- ------------------- ------------------------ -------------- --------- -----------
<S> <C> <C> <C> <C>
Banc Fund IV L.P. ........................ 28,650 28,650 0 0%
Banc Fund IV Trust ....................... 96,350 96,350 0 0
John M. Barry(4),(5) ..................... 101,076 10,000 91,076 1.4
Bay Pond Investors (Bermuda) L.P. ........ 125,000 125,000 0 0
Calkins Newspaper Pension Trust .......... 55,000 1,575 53,425 *
Eugene S. Colangelo(4),(5),(6),(7) ....... 86,599 23,000 63,599 *
Michael M. Davis(4),(8) .................. 11,400 5,000 6,400 *
James D. Dawson(9),(10) .................. 8,750 5,000 3,750 *
Financial Stocks L.P. .................... 175,000 125,000 50,000 *
Kate S. Flather(4),(11) .................. 10,000 5,000 5,000 *
Torrence C. Harder ....................... 5,385 2,385 3,000 *
James D. Henderson(9),(12) ............... 34,275 2,000 32,275 *
Lynn Thompson Hoffman(4),(8),(13) ........ 53,400 23,000 7,400 *
Paul R. Hoffman(4),(14) .................. 53,400 23,000 7,400 *
Barbara M. Houlihan(9),(15) .............. 5,025 1,000 4,025 *
Axel LeBlois ............................. 5,000 5,000 0 0
Lodewyk A.S. Lemmer ...................... 40,000 3,640 36,360 *
Charles McDermott ........................ 23,000 23,000 0 0
Milynn and Affiliates Profit Sharing
Plan and Trust ......................... 50,000 13,640 36,360 *
John Bryan Mims Revocable Trust .......... 40,000 3,640 36,360 *
Susan Mims Revocable Trust ............... 20,000 1,820 18,180 *
Carey S. Morrissey(9) .................... 2,000 2,000 0 0
Walter M. Pressey(7),(9),(16) ............ 6,000 1,000 5,000 *
Robert A. Radloff(4),(5) ................. 55,400 25,000 30,400 *
Eugene F. Rivers, 3rd(4),(5),(7).......... 7,684 2,000 5,684 *
Elie Rivollier, Jr. ...................... 10,000 2,500 7,500 *
Mary Rivollier ........................... 41,345 10,300 31,045 *
Alfred S. Ross ........................... 23,000 23,000 0 0
Saranow Investments, L.L.C. .............. 25,000 25,000 0 0
Richard J. Sheehan, D.V.M. ............... 15,500 7,500 8,000 *
Allen Sinai(4),(8) ....................... 26,900 22,000 4,900 *
Tapley Stephenson Jr. .................... 15,900 5,000 10,900 *
James Avery Sterling ..................... 13,900 3,000 10,900 *
Timothy L. Vaill(4),(9),(17),(18) ........ 267,741 5,000 262,741 3.9
Wood Investment Partners(4),(19) ......... 525,000 70,000 455,000 6.9
--------- ------- ---------
Total .................................... 2,062,680 730,000 1,286,680
</TABLE>
- -----------------
* Less than 1%.
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<PAGE> 9
(1) Includes options to purchase shares of Common Stock of the Company that
are exercisable within 60 days of January 1, 1997.
(2) Assumes that all Shares are sold by the Selling Stockholders.
(3) Based on 6,592,496 outstanding shares of Common Stock of the Company.
Options to purchase Common Stock that are exercisable within 60 days of
January 1, 1997 are deemed outstanding for computing the ownership of
each Selling Stockholder as a percentage of the total number of shares
outstanding, but are not deemed outstanding for computing the percentage
of any other person or group.
(4) The Selling Stockholder is a Director of the Company. Mr. Hoffman is the
spouse of a Director of the Company. Charles O. Wood, III, the managing
partner of Wood Investment Partners, is Chairman of the Board of Directors
of the Company.
(5) Includes 4,400 shares subject to options which are currently exercisable
granted pursuant to the Directors' Plan.
(6) Includes 6,766 shares owned by Mr. Colangelo's spouse and 16,236 shares
owned by the children of Mr. Colangelo. Mr. Colangelo disclaims beneficial
ownership of all such shares other than the Shares offered hereby.
(7) The Selling Stockholder owns the Shares offered hereby with his spouse as
joint tenants with rights of survivorship.
(8) Includes 2,400 shares subject to options which are currently exercisable
granted pursuant to the Directors' Plan.
(9) Mr. Dawson is Executive Vice President and Chief Lending Officer. Mr.
Henderson is Executive Vice President, Investment Management & Trust. Ms.
Houlihan is Senior Vice President, Director of Technology and Operations.
Ms. Morrissey is Director of Marketing Communications. Mr. Pressey is
Senior Vice President and Chief Financial Officer. Mr. Vaill is President
and Chief Executive Officer.
(10) Includes 3,750 shares subject to options which are currently exercisable
granted to Mr. Dawson pursuant to the Employee Plan.
(11) Includes 3,400 shares subject to options which are currently exercisable
granted to Ms. Flather pursuant to the Directors' Plan.
(12) Includes 32,275 shares subject to options which are currently exercisable
granted to Mr. Henderson pursuant to the Employee Plan.
(13) Includes 23,000 shares owned by Ms. Hoffman's spouse. Ms. Hoffman
disclaims beneficial ownership of all such shares.
(14) Includes 28,000 shares owned by Mr. Hoffman's spouse and 2,400 shares
subject to options which are currently exercisable granted to Mr.
Hoffman's spouse pursuant to the Directors' Plan. Mr. Hoffman disclaims
beneficial ownership of all such shares.
(15) Includes 4,025 shares subject to options which are currently exercisable
granted to Ms. Houlihan pursuant to the Employee Plan.
(16) Includes 5,000 shares which are currently exercisable granted to Mr.
Pressey pursuant to the Employee Plan.
(17) Includes 185,971 shares subject to options which are currently
exercisable granted to Mr. Vaill pursuant to the Employee Plan.
(18) Includes 3,000 shares owned by the children of Mr. Vaill. Mr. Vaill
disclaims beneficial ownership of all such shares.
(19) Wood Investment Partners is a Pennsylvania general investment partnership
of which the Company's Chairman Charles O. Wood, III is the managing
partner. Includes 5,000 shares subject to options which are currently
exercisable granted to Mr. Wood pursuant to the Directors' Plan.
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold from time to
time by the Selling Stockholders. The Selling Stockholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. Such sales may be made in transactions on the
Nasdaq SmallCap Market or otherwise at prices related to the then current market
price or in negotiated transactions. The Selling Stockholders may also make
private sales either directly or through a broker or brokers. The Shares may be
sold by one or more of the following methods: (a) purchases by the broker-dealer
as principal and resale by such broker or dealer for its account pursuant to
this Prospectus; (b) ordinary brokerage transactions and transactions in which
the broker solicits purchasers; and (c) block trades in which the broker-dealer
so engaged will attempt to sell the Shares as agent, but may position and resell
a portion of the block as principal to facilitate the transaction. The Company
has been advised by the Selling Stockholders that they have not, as of the date
hereof, made any arrangements relating to the distribution of the Shares covered
by this Prospectus. In effecting sales, broker-dealers engaged by the Selling
Stockholders may arrange for other broker-dealers to participate. Broker-dealers
will receive commissions or discounts from the Selling Stockholders in amounts
to be negotiated immediately prior to the sale.
In offering the shares of Common Stock covered hereby, the Selling
Stockholders and any broker-dealers who execute sales for the Selling
Stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any profits realized by the
Selling Stockholders and the compensation of such broker-dealer may be deemed to
be underwriting discounts and commissions under the Securities Act.
The Company has agreed to indemnify each Selling Stockholder against any
liabilities, under the Securities Act or otherwise, arising out of or based upon
any untrue or alleged untrue statement of a material fact in the Registration
Statement or this Prospectus or by any omission of a material fact required to
be stated therein except to the extent that such liabilities arise out of or are
based upon any untrue or alleged untrue statement or omission in any information
furnished in writing to the Company by the Selling Stockholder expressly for use
in the Registration Statement.
8
<PAGE> 10
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
LEGAL MATTERS
The validity of the issuance of the Shares offered hereby will be passed
upon for the Company by its counsel, Goodwin, Procter & Hoar LLP, Exchange
Place, 24th Floor, Boston, Massachusetts 02109-2881.
EXPERTS
The consolidated financial statements of Boston Private Bancorp, Inc. and
its subsidiaries included in the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1995 have been incorporated by reference herein and in
the Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, and upon the authority of said firm as
experts in accounting and auditing.
9
<PAGE> 11
================================================================================
No dealer, sales representative or any other person has been authorized to
give any information or to make any representations in connection with this
offering other than those contained in this Prospectus, and, if given or made,
such information or representations must not be relied upon as having been
authorized by the Company or any other person. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any securities
other than the shares of Common Stock to which it relates or an offer to, or a
solicitation of, any person in any jurisdiction where such an offer or
solicitation would be unlawful. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company or that information
contained herein is correct as of any time subsequent to the date hereof.
---------------------------
TABLE OF CONTENTS
---------------------------
Page
----
Available Information............................ 2
Incorporation of Certain Documents by Reference.. 2
Risk Factors..................................... 3
The Company...................................... 5
Use of Proceeds.................................. 6
Registration Rights.............................. 6
Selling Stockholders............................. 7
Plan of Distribution............................. 8
Legal Matters.................................... 9
Experts.......................................... 9
---------------------------
================================================================================
================================================================================
730,000 SHARES
BOSTON PRIVATE
BANCORP, INC.
COMMON STOCK
-----------------------
Prospectus
-----------------------
_______, 1997
================================================================================
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.(1)
<CAPTION>
The following are the estimated expenses of issuance and distribution of
the Shares registered hereunder on Form S-3:
<S> <C>
SEC Registration Fee ............................ $ 1,162
Nasdaq Listing Fee .............................. 7,300
Legal Fees and Expenses ......................... 5,000
Blue Sky Qualification Fees and Expenses......... 2,000
Miscellaneous ................................... 538
-------
Total ..................................... $16,000
<FN>
(1) The amounts set forth above, except for the SEC Registration Fee and the Nasdaq Listing Fee, are estimated.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13 of the Massachusetts Business Corporation Law (the "MBCL"),
which enables a corporation in its original articles of organization or an
amendment thereto to eliminate or limit the personal liability of a director for
monetary damages for violations of the director's fiduciary duty, except (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) pursuant to Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
illegal distributions and for making loans to directors, officers and certain
stockholders) or (iv) for any transaction from which a director derived an
improper personal benefit. The Company has adopted such provisions in its
Articles of Organization.
Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors. 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 shall be adjudicated to be not entitled to indemnification
under Section 67, which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification may
be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to any employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The Company and its directors and officers currently carry liability
insurance.
II-1
<PAGE> 13
ITEM 16. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
- --- -----------
5 Opinion of Goodwin, Procter & Hoar LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5)
24 Power of Attorney (included on signature page)
99.1 Form of Stock Purchase Agreement dated as of December 9, 1996,
between the Company and the Selling Stockholders
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes to:
1. File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) Include any additional or changed material information on
the plan of distribution.
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) herein do
not apply if the information required in a post-effective amendment is
incorporated by reference from periodic reports filed by the
undersigned Registrant under the Exchange Act.
2. For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that
time to be the initial bona fide offering.
3. File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) 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.
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 and is,
therefore,
II-2
<PAGE> 14
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 and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 15
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-3 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, on
January 15, 1997.
BOSTON PRIVATE BANCORP, INC.
By: /s/ Timothy L. Vaill
------------------------
Timothy L. Vaill
President, Chief Executive Officer and
Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, each of the undersigned officers and
directors of Boston Private Bancorp, Inc. hereby severally constitutes Timothy
L. Vaill, Eugene S. Colangelo and Charles O. Wood, III and each of them singly,
his or her true and lawful attorneys with full power to them, and each of them
singly, to sign for the undersigned and in his or her name in the capacity
indicated below, the Registration Statement filed herewith and any and all
amendments to said Registration Statement, and generally to do all such things
in his or her name and in his or her capacity as an officer or director to
enable Boston Private Bancorp, Inc. to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming his or her signature as it may be
signed by his or her said attorney, or any of them, to said Registration
Statement and any and all amendments thereto.
<TABLE>
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 dates indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Timothy L. Vaill President, Chief Executive January 15, 1997
- ------------------------------ Officer and Director
Timothy L. Vaill (Principal Executive Officer)
/s/Walter M. Pressey Senior Vice President and January 15, 1997
- ------------------------------ Chief Financial Officer
Walter M. Pressey
/s/Herbert S. Alexander Director January 15, 1997
- ------------------------------
Herbert S. Alexander
Director
- ------------------------------
John M. Barry
/s/Peter C. Bennett Director January 15, 1997
- ------------------------------
Peter C. Bennett
/s/Eugene S. Colangelo Director January 15, 1997
- ------------------------------
Eugene S. Colangelo
</TABLE>
II-4
<PAGE> 16
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Michael M. Davis Director January 15, 1997
- ------------------------------
Michael M. Davis
/s/ Kate S. Flather Director January 15, 1997
- ------------------------------
Kate S. Flather
/s/Lynn Thompson Hoffman Director January 15, 1997
- ------------------------------
Lynn Thompson Hoffman
/s/E. Christopher Palmer Director January 15, 1997
- ------------------------------
E. Christopher Palmer
/s/Robert A. Radloff Director January 15, 1997
- ------------------------------
Robert A. Radloff
Director
- ------------------------------
Eugene F. Rivers, 3rd
/s/Allen Sinai Director January 15, 1997
- ------------------------------
Allen Sinai
/s/Charles O. Wood, III Director January 15, 1997
- ------------------------------
Charles O. Wood, III
</TABLE>
II-5
<PAGE> 17
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
5 - Opinion of Goodwin, Procter & Hoar LLP
23.1 - Consent of KPMG Peat Marwick LLP
23.2 - Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5)
24 - Power of Attorney (included on signature page)
99.1 - Form of Stock Purchase Agreement dated as of December 9, 1996,
between the Company and the Selling Stockholders
II-6
<PAGE> 1
EXHIBIT 5
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 523-1231
January 13, 1997
Boston Private Bancorp, Inc.
Ten Post Office Square
Boston, MA 02109
Ladies and Gentlemen:
This opinion is furnished in our capacity as special counsel to Boston
Private Bancorp, Inc., a Massachusetts corporation (the "Company"), in
connection with the registration, pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), of 730,000 shares (the "Shares") of common
stock, par value $1.00 per share, of the Company.
In connection with rendering this opinion, we have examined the Amended and
Restated Articles of Organization and the Bylaws of the Company, both as amended
to date; such records of the corporate proceedings of the Company as we have
deemed material; a registration statement on Form S-3 under the Securities Act
relating to the Shares and the prospectus contained therein; and such other
certificates, receipts, records and documents as we considered necessary for the
purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America and The Commonwealth of Massachusetts.
Based upon the foregoing, we are of the opinion that the Shares are duly
authorized, legally issued, fully paid and nonassessable by the Company under
the Massachusetts Business Corporation Law.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
<PAGE> 2
Boston Private Bancorp, Inc.
January 13, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
Boston Private Bancorp, Inc.:
We consent to the incorporation by reference in the Registration Statement to
be filed on Form S-3 of Boston Private Bancorp, Inc. of our report dated
January 17, 1996, relating to the consolidated balance sheets of Boston Private
Bancorp, Inc. and subsidiaries as of December 31, 1995 and 1994, and the
related consolidated statements of operations, changes in stockholders' equity
and cash flows for each of the years in the three year period ended December
31, 1995, which report appears in the December 31, 1995 annual report on Form
10-KSB of Boston Private Bancorp, Inc. Our report refers to a change in the
method of accounting for investment securities. We also consent to the
reference to our Firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Boston, Massachusetts
January 14, 1997
<PAGE> 1
EXHIBIT 99.1
FORM OF
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated ________, 1996, by and
between BOSTON PRIVATE BANCORP, INC., a Massachusetts corporation (the
"Company"), and the investor named on the signature page hereof (the
"Investor").
W I T N E S S E T H
WHEREAS, the Company is offering for sale up to 750,000 shares (the
"Shares") of its Common Stock (as defined below) at the price of $_______ per
share (the "Per Share Purchase Price"), pursuant to a Private Placement
Memorandum dated November 18, 1996 (the "Memorandum"), this transaction
generally being herein referred to as the "Private Placement"; and
WHEREAS, the Investor desires to purchase from the Company shares of Common
Stock on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for good and valuable consideration the receipt of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Unless specifically defined herein, capitalized terms used
herein have the meaning ascribed to such terms in the Memorandum except that,
unless the context requires otherwise, the following terms have the meanings
indicated:
"Business Day" means any day except Saturday, Sunday and any day which
shall be in Boston, Massachusetts or New York City a legal holiday or a day on
which banking institutions are authorized or required by law or other government
action to close.
"Common Stock" means the Common Stock, par value $1.00 per share, of the
Company.
"Investor Shares" shall mean the shares of Common Stock subscribed for
hereunder by the Investors, together with any shares of Common Stock issued in
respect of such shares pursuant to a dividend or distribution, stock split,
recapitalization, or similar transaction.
"Person" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Placement Agent" means Keefe, Bruyette & Woods, Inc.
"Placement Agent Agreement" means the Placement Agent Agreement dated as of
November 18, 1996 between the Company and Keefe, Bruyette & Woods, Inc., as
placement agent.
<PAGE> 2
2. Purchase of Common Stock; Subsequent Sale.
-----------------------------------------
(a) Purchase
(i) Subject and pursuant to the terms and conditions set forth in
this Agreement, the Company agrees that it will issue and sell to the Investor
and the Investor agrees that it will purchase from the Company, at the Per Share
Purchase Price, __________ Shares (the "Investor Shares") for an aggregate
purchase price of $_______ (the "Aggregate Purchase Price"). The Shares are
being offered pursuant to the Memorandum.
(ii) The Company proposes to enter into a similar form of Stock
Purchase Agreement with other investors (the "Other Investors"). The Investor
and the Other Investors are hereinafter referred to collectively as the
"Investors."
(iii) The Investor understands that the Company will notify it
whether this subscription has been accepted or rejected. The Investor further
understands and agrees that the Company reserves the right to accept or reject
subscriptions (in whole or in part), and that this subscription may be accepted
or rejected (in whole or in part) at any time for any reason whatsoever by the
Company, as it shall deem necessary or appropriate.
(b) Subsequent Sale
(i) During the period beginning on the date hereof and
continuing until the Closing, the Investor will not offer, sell, contract to
sell or otherwise dispose of, or bid for, purchase, contract to purchase or
otherwise acquire, any shares of Common Stock or interests therein without the
prior written consent of the Company.
3. Representations, Warranties, Covenants and Agreements.
-----------------------------------------------------
(a) The Investor represents, warrants and agrees as follows:
(i) The Investor has received and reviewed a copy of the
Memorandum, and all appendices and supplements (if any) thereto, relating to the
Shares and understands that no Person has been authorized to give any
information or to make any representations that were not contained in the
Memorandum, and the Investor has not relied on any such other information or
representations in making a decision to purchase the Investor Shares. The
Investor has had access to such financial and other information and has had the
opportunity to ask questions and receive answers as deemed necessary in respect
of the decision to purchase the Shares, and has consulted with advisors
concerning the proposed investment in the Company. The Investor understands that
an investment in the Company involves a high degree of risk for the reasons,
among others, set forth under the caption "RISK FACTORS" in the Memorandum.
2
<PAGE> 3
(ii) The Investor has made an investigation as to whether or not
to invest in the Shares and, in making the decision to so invest, is not in any
way relying on the fact that any other Person has decided to invest in the
Shares.
(iii) The Investor represents that the Investor (or, if
applicable, each managed account on whose behalf the Investor Shares are being
purchased by such Investor) is a sophisticated investor or is an "accredited
investor" as defined in Rule 501 under the Securities Act of 1933, as amended
(the "Securities Act"), as certified by the Investor pursuant to the Investor
Questionnaire attached hereto as Annex I. The Investor further represents that
the Investor (or, if applicable, each managed account on whose behalf the
Investor Shares are being purchased) has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of an investment in the Shares and can bear the economic risk of loss of
the entire investment in the Shares being purchased.
(iv) The Investor understands and expressly acknowledges and
agrees that none of the Shares has been, or will be, registered or qualified
under the Securities Act, or under any applicable securities laws of any State
of the United States ("Applicable State Law") and therefore may not be offered,
sold, transferred, assigned, pledged, hypothecated or otherwise disposed of,
directly or indirectly, unless subsequently registered or qualified under the
Securities Act and under Applicable State Law or unless any exemptions from the
registration requirements of the Securities Act and Applicable State Law are
available, in each case to the extent permitted by the terms of this Agreement.
(v) The Investor understands and agrees that all certificates
representing the Investor Shares shall bear a legend which will be substantially
in the form of the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
AND SUCH SHARES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
(vi) The Investor (or, if applicable, each managed account on
whose behalf the Investor Shares are being purchased by the Investor) will
acquire the Investor
3
<PAGE> 4
Shares pursuant to this Agreement for its own account for investment and not
with a view to, or in connection with, the resale or distribution thereof or in
any arrangement or understanding with any other persons regarding the
distribution of such Shares in violation of the Securities Act.
(vii) The Investor hereby covenants and agrees with the Company
not to make any sale of the Investor Shares without causing the prospectus
delivery requirement under the Securities Act to be satisfied or otherwise
complying with the Securities Act, and the Investor acknowledges and agrees that
the Shares are not transferable on the books of the Company unless the
certificate submitted to the transfer agent evidencing the Investor Shares is
accompanied by (1) a separate certificate (i) in the form of Annex V hereto,
(ii) executed by an officer of, or other authorized person designated by, the
Investor, and (iii) to the effect that (A) the Investor Shares have been sold in
accordance with a registration statement pursuant to Section 8 and (B) the
requirement of delivering a current prospectus has been satisfied; or (2) an
opinion of counsel reasonably satisfactory to the Company stating that
registration is not required under the Securities Act. The Investor acknowledges
that there may occasionally be times when the Company must suspend the use of
the prospectus forming a part of a registration statement in the event and
during such period pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event that would require additional
disclosure of material information by the Company in the registration statement
or such filing, as to which the Company has a bona fide business purpose for
preserving confidentiality or which renders the Company unable to comply with
the Securities and Exchange Commission (the "Commission") requirements that
would make it impractical or unadvisable to cause the registration statement or
such filings to be made or to become effective or to amend or supplement the
registration statement until such time as an amendment to such registration
statement has been filed by the Company and declared effective by the
Commission, or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); PROVIDED, HOWEVER, that such suspension shall not be for a
period of more than 30 consecutive trading days during any one (1) period or
more than 60 trading days in any one (1) year period. The Investor hereby
covenants and agrees that it will not sell any Investor Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Investor written notice of the suspension of the use of said prospectus and
ending the earlier of 30 consecutive trading days after such notice or the date
on which the Company gives the Investor written notice that the Investor may
thereafter effect sales pursuant to said prospectus.
(viii) The execution and delivery of this Agreement by the
Investor and the performance of this Agreement and the consummation by the
Investor or the Investor's advisory clients, as the case may be, of the
transactions contemplated hereby have been duly authorized by all necessary
(corporate, in the case of a corporation) action of the Investor and, if
applicable, the Investor's advisory clients; and this Agreement, when duly
executed and delivered by the Investor, will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against the
Investor or any of the Investor's advisory clients, as the case may be, except
as such enforceability may be limited by bankruptcy, insolvency,
4
<PAGE> 5
reorganization or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of whether the issue
of enforceability is considered in a proceeding in equity or at law) and except
as the indemnification and contribution agreements of the Investor in Section
8(d) hereof may be legally unenforceable.
(ix) The Investor represents that:
(1) If the Investor is a corporation, it is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (corporate and
other) to perform its obligations under this Agreement. The person executing
this Agreement on behalf of the Investor is authorized to act for the Investor
in subscribing for the Shares.
(2) If the Investor is a corporation acting in an advisory
capacity, it is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with full
power and authority (corporate and other) to act on behalf of its advisory
clients under this Agreement.
(3) If the Investor is a trust, the trustee thereunder has
been duly appointed as trustee of such Investor with full power and authority to
act on behalf of such Investor and to perform the obligations of such Investor
under this Agreement. Furthermore, the trustee under such trust has
independently determined that the purchase of the Investor Shares is a suitable
investment for such trust as authorized by the terms thereof and applicable laws
and regulations.
(4) If the Investor is a limited partnership, it is a
limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, with full power and authority
to perform its obligations under this Agreement.
(5) If the Investor is a limited partnership acting in an
advisory capacity, it is a limited partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
with full power and authority to act on behalf of its advisory clients under
this Agreement.
(6) If the Investor is a corporation, partnership, trust or
other form of business entity, the execution and delivery of this Agreement will
not contravene or result in a default under any provision of existing law or
regulations to which the Investor is subject, the provisions of its trust
instrument, charter, by-laws or other governing documents or any indenture,
mortgage or other agreement or instrument to which it is a party or by which it
is bound and does not require on its part any approval, authorization, license
or filing from or with any foreign, federal, state or municipal board or agency
which has not been obtained or duly made.
5
<PAGE> 6
(7) If the Investor is an individual, the Investor has full
power and authority to perform its obligations under this Agreement.
(x) The Investor agrees to complete and execute and return to the
Company (a) the Investor Questionnaire attached as Annex I to this Agreement if
the Investor is investing in Shares as an "accredited investor;" (b) if the
Investor is acting on behalf of a managed account in the purchase of any
Investor Shares, the Managed Accounts Representation Letter attached as Annex II
to this Agreement; and (c) the Registration Statement Questionnaire attached as
Annex IV, in each case together with an executed signature page to this
Agreement. The Investor represents and warrants that the answers thereto are
true and correct as of the date hereof and will be true and correct as of the
effective date of the Registration Statement (as defined in Section 8). The
Investor further represents and warrants that it is not purchasing the Investor
Shares on behalf of any managed account other than as listed in the Managed
Account Representation Letter.
(xi) The Investor has not entered into any contracts,
arrangements, understandings or relationships (written or otherwise) with any
other Person or Persons (other than the Company) with respect to any securities
of the Company (including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies) or the operations, management or control of the Company;
the Investor is not bound together, under common control with, in a common
enterprise with, or otherwise acting in concert with, any other Person or
Persons in connection with the transactions contemplated by this Agreement; and
the Investor does not own any securities of the Company which are pledged or
otherwise subject to a contingency the occurrence of which would give another
Person voting power or investment power over such securities.
(xii) Except as otherwise set forth in Annex III: (i) as of
____________, 1996, the Investor did not beneficially own any shares of Common
Stock; and (ii) as of the date of this Agreement, the Investor does not
beneficially own any shares of Common Stock.
(xiii) No state, federal or foreign regulatory approvals,
permits, licenses or consents or other contractual or legal obligations are
required for the Investor to enter into this Agreement or otherwise purchase the
Investor Shares.
(b) The Company hereby represents, warrants and agrees as follows:
(i) The Company and each of its subsidiaries has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, with full power and authority (corporate and
other) to perform its obligations under this Agreement.
(ii) The execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions contemplated
hereby
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<PAGE> 7
have been duly authorized by all necessary action of the Company; and this
Agreement, when duly executed and delivered by the Investor, will constitute a
valid and legally binding instrument of the Company enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law) and except as the indemnification and contribution agreements of the
Company in Section 8(d) hereof may be legally unenforceable.
(iii) The Investor Shares have been duly authorized by the
Company, and when issued and delivered by the Company against payment therefor
as contemplated hereby and in accordance with the terms of the Memorandum, the
Investor Shares will be validly issued, fully paid and nonassessable.
(iv) The execution and delivery of this Agreement, the
consummation by the Company of the transactions herein contemplated and the
compliance by the Company with the terms hereof do not and will not violate the
Articles of Incorporation of the Company, or the By-Laws of the Company, or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of their properties or assets are subject, or any
applicable statute or any order, judgment, decree, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the valid
authorization, execution, delivery and performance by the Company of this
Agreement, the issue of the Investor Shares or the consummation by the Company
of the other transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, registrations or qualifications as may be
required under Federal or state securities or "blue sky" laws or, with respect
to requirements applicable to the Investor.
4. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein and in the certificates for the Investor Shares delivered pursuant hereto
shall survive the execution of this Agreement, the delivery to the Investor of
the Investor Shares being purchased and the payment therefor.
5. CLOSING CONDITIONS. The respective obligations of the Investor and the
Company, as the case may be, to consummate the purchase and sale of the Investor
Shares shall be subject, in the discretion of the Company or the Investor, as
the case may be, to the condition that all representations and warranties and
other statements of the other party contained herein are, at and as of the
Closing (as defined below), true and correct in all
7
<PAGE> 8
material respects and the condition that the other party shall have performed
all of its obligations theretofore to be performed in all material respects.
6. Subscription and Method of Payment.
----------------------------------
(a) Upon satisfaction of the conditions set forth in Section
5, a closing will be held at a time and place to be designated in writing (the
"Notice") by the Company (the "Closing") to the Placement Agent at least five
Business Days prior to the date on which the Closing is scheduled. The Notice
shall include notification of the date of the Closing and the number of Investor
Shares to be purchased by the Investor pursuant to Section 2. The delivery of
the Investor Shares, against payment therefor in the manner contemplated by
clauses (b) and (c) hereof, shall take place at the time, date and place
specified in the Notice.
(b) Prior to Closing, the Investor Shares to be purchased by
the Investor hereunder, registered in the name of the Investor or its nominees,
as the Investor may specify at least three Business Days prior to the Closing,
shall be delivered by or on behalf of the Company to the Investor, for the
Investor's account, against delivery by the Investor of the Aggregate Purchase
Price therefor in immediately available funds in the form of one or more federal
funds checks or a wire transfer to an account designated by the Company in the
Notice.
7. Termination.
-----------
(a) The respective obligations of the Investor and the Company to
consummate the purchase and sale of the Shares shall terminate on the earlier of
(i) the date on which the Company notifies the Investor in writing that the
Company has made a good faith determination that the conditions cannot be
satisfied by the Termination Date (as defined below) as it may have been
extended or (ii) December 15, 1996 (the "Termination Date"), subject to the
Company's right to extend in its sole discretion the Termination Date to a date
not later than December 31, 1996.
(b) The Company and Investor hereby agree that any termination of this
Agreement pursuant to clause (a) hereof (other than termination in the event of
a breach of this Agreement or misrepresentation of any of the statements made
herein by the Investor) shall be without liability of the Company or the
Investor.
8. Registration of the Shares; Compliance with the Securities Act.
--------------------------------------------------------------
(a) Registration Rights; Registration Procedures and Expenses.
---------------------------------------------------------
(i) If at any time or times after the date hereof, the Company
shall determine or be required to register any shares of its Common Stock for
sale under the Securities Act (whether in connection with a public offering of
securities by the Company (a "primary offering"), a public offering of
securities by stockholders of the Company (a "secondary offering") or both), but
not in connection with a registration effected solely to
8
<PAGE> 9
implement an employee benefit plan or a transaction to which Rule 145 or any
other similar rule of the Commission under the Securities Act is applicable, the
Company shall:
(1) Promptly give written notice thereof to each of the
Investors.
(2) Use its best efforts to effect the registration under
the Securities Act of all Investor Shares (but not any other shares) which such
Investors request to be registered in a writing delivered to the Company within
20 days after such Investors' receipt of the notice referred to above.
(3) In the case of the registration of shares of Common
Stock by the Company in connection with an underwritten public offering, (i) the
Company shall not be required to include any Investor Shares in such
underwriting unless the Investors thereof accept the terms of the underwriting
as agreed upon between the Company and the underwriter or underwriters selected
by it, and (ii) if the underwriter(s) determines that marketing factors require
a limitation on the number of Investor Shares to be offered, the Company shall
not be required to register Investor Shares of the Investors in excess of the
amount, if any, of shares of the capital stock which the principal underwriter
of such underwritten offering shall reasonably and in good faith agree to
include in such offering in excess of any amount to be registered for the
Company, and in the event of any such limitation the number of Investor Shares
of any Investor requesting inclusion in such registration shall be based upon
the relative holdings of Common Stock of all Investors requesting such
registration (and if any Investor would thus be entitled to include more
Investor Shares than such Investor requested to be registered, the excess shall
be allocated among other requesting Investors pro rata based upon their relative
holdings of Common Stock). All expenses relating to the registration and
offering of Investor Shares pursuant to this Section 8(a)(i) shall be borne by
the Company, except that the Investors shall bear underwriting and selling
commissions attributable to their Investor Shares being registered and any
transfer taxes on shares being sold by such Investors.
(ii) The Company shall:
(1) Prepare and file with the Commission within thirty (30)
days of the Closing a registration statement (the "Registration Statement") to
enable the sale of the Investor Shares by the Investor from time to time through
the automated quotation system of the Nasdaq SmallCap Market or in
privately-negotiated transactions or otherwise.
(2) Use its best efforts, subject to receipt of necessary
information from the Investor, to cause the Registration Statement to become
effective as soon as possible after filing thereof.
(3) Promptly prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective for a
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<PAGE> 10
period not exceeding the third anniversary of the Closing, or such shorter
period which will terminate on the earlier of the date when (i) the Shares held
by the Investor may be sold without registration under the Securities Act or
(ii) all of the Shares covered by such Registration Statement have been sold
pursuant to such Registration Statement or withdrawn.
(4) Promptly furnish to the Investor with respect to the
Investor Shares registered under the Registration Statement (and to each
underwriter, if any, of such Investor Shares) such number of copies of the
Registration Statement and any amendment thereof and of prospectuses and
preliminary prospectuses in conformity with the requirements of the Securities
Act and such other documents as the Investor may reasonably request, in order to
keep the Investor apprised of the progress of the registration process and to
facilitate the public sale or other disposition of all or any of the Investor
Shares by the Investor.
(5) Promptly file documents required of the Company for
normal blue sky clearance in states specified in writing by the Investor and
reasonably required by the Investor in order to resell its Investor Shares,
PROVIDED, HOWEVER, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented.
(6) Promptly inform the Investor when any stop order by the
Commission has been issued with respect to the Investor Shares and use its best
efforts to promptly cause such stop order to be withdrawn.
(7) Bear all expenses in connection with the procedures in
subparagraphs (1) through (6) of this Section 8(a)(ii) and the registration of
the Investor Shares pursuant to the Registration Statement, other than fees and
expenses, if any, of counsel or other advisors to the Investor, PROVIDED that
the Company shall pay the reasonable fees and expenses of one counsel to the
Investors purchasing Shares in the Private Placement.
(8) Take such other actions as may reasonably be necessary
to effect the registration of the Investor Shares in accordance with the terms
of this Agreement and to allow such Investor Shares to trade in the same market
system or exchange where the Company's Common Stock then trades.
(9) File the reports required to be filed by it under the
Securities Act and the Exchange Act (or, if the Company is not required to file
such reports, it will, upon the request of any holder of Investor Shares, make
publicly available other information so long as necessary to permit sales under
Rule 144 under the 1933 Act), all to the extent required from time to time to
enable the Investor to sell Investor Shares without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission; PROVIDED,
HOWEVER, that nothing in this Agreement shall require the Company to file
reports under the Securities Act or the Exchange Act, to register any of its
securities under the Exchange Act, or to make publicly
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<PAGE> 11
available any information concerning the Company at any time when it is not
required by law or by any agreement by which it is bound to do any of the
foregoing.
A questionnaire related to the Registration Statement to be completed by the
Investor is attached hereto as Annex IV.
(b) EXCHANGE OF LEGENDED CERTIFICATES. Following the effective date of
the Registration Statement or any registration statement filed in connection
with Section 8(a)(i), unless at such time a stop order is imposed by the
Commission or the effectiveness of such registration statement is for any other
reason suspended, all requirements with respect to legends on the certificates
evidencing the Investor Shares will cease to apply on the sale thereof, and
certificated Investor Shares without legends will be available to the Investor
within five trading days after the Company's receipt of a request for such
unlegended certificates and the Investor's surrender of the legended
certificates to the Company's transfer agent accompanied by a separate
certificate in the form of Annex V hereto.
(c) TRANSFER OF SHARES. The Investor agrees not to effect any
disposition of the Shares or the right to purchase the Shares that would
constitute a sale within the meaning of the Securities Act except as
contemplated in Sections 8(a)(i) and (ii) or pursuant to an exemption from
registration under the Securities Act. The Investor agrees to promptly notify
the Company of any changes in the information set forth in any registration
statement regarding the Investor Shares or in the Memorandum.
(d) INDEMNIFICATION AND CONTRIBUTION. For the purpose of this Section
8(d):
(i) The term "Selling Shareholder" shall include the Investor,
officers, directors, trustees, or any affiliate of such Investor and each
person, if any, who controls the Selling Shareholder within the meaning of the
Securities Act;
(ii) The term "Registration Statement" shall include (i) the
Registration Statement and any final prospectus, exhibit, supplement or
amendment included in or relating to the Registration Statement and (ii) any
registration statement filed in connection with Section 8(a)(i) and any final
prospectus, exhibit, supplement or amendment included in or relating to such
registration statement; and
(iii) The term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Shareholder
from and against any losses, claims, damages or liabilities to which such
Selling Shareholder may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any
11
<PAGE> 12
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arise out of any failure by the Company to fulfill any
undertaking included in the Registration Statement and the Company will
reimburse such Selling Shareholder for any reasonable legal or other expenses
reasonably incurred in investigating, defending or preparing to defend any such
action, proceeding or claim, PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, any such untrue statement or omission made in
such Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling Shareholder
specifically for use in preparation of the Registration Statement, or the
failure of such Selling Shareholder to comply with the covenants and agreements
contained in Sections 3(a) and 8(c) hereof respecting sale of the Shares or any
statement or omission in any prospectus that is corrected in any subsequent
prospectus that was delivered to the Investor prior to the pertinent sale or
sales by the Investor.
The Investor agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 3(a) and 8(c)
hereof respecting sale of the Shares, or any untrue statement of a material fact
contained in the Registration Statement on the effective date thereof if such
untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Investor specifically for use in
preparation of the Registration Statement, PROVIDED, HOWEVER, that such Investor
shall not be liable in any such case to the extent that the Investor has
furnished in writing to the Company information expressly for use in such
Registration Statement or any amendment thereof or supplement thereto which
corrected or made not misleading information previously furnished to the Company
prior to the filing of the Registration Statement, and if thereafter, has
notified the Company of such information immediately upon its occurrence or the
Investor's knowledge of its occurrence. The Investor will reimburse the Company
(or such officer, director or controlling person), as the case may be, for any
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim. In no event shall the
liability of the Investor hereunder be greater in amount than the dollar amount
of the proceeds received by such Investor upon the sale of the Shares giving
rise to such indemnification obligation.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8(d), such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the
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<PAGE> 13
provisions hereinafter stated, in case any such action shall be brought against
an indemnified person and such indemnifying person shall be entitled to
participate therein, and, to the extent it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person of its election
to assume the defense thereof, such indemnifying person shall not be liable to
such indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, PROVIDED, HOWEVER,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; PROVIDED,
HOWEVER, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
If the indemnification provided for in this Section 8(d) from the
indemnifying person is unavailable to an indemnified person hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying person, in lieu of indemnifying such indemnified person, shall
contribute to the amount paid or payable by such indemnified person as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying person and
indemnified persons in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying person and
indemnified persons shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying person or indemnified persons, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in this Section 8(d), any
reasonable legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), no Investor shall be
required to contribute any amount in excess of the dollar amount of the proceeds
received by such Investor upon the sale of the Shares giving rise to such
contribution obligation. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions
precedent imposed by Section 4 or this Section 8 upon the transferability of the
Investor Shares shall
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cease and terminate as to any particular number of the Investor Shares when such
Investor Shares shall have been effectively registered under the Securities Act
and sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the registration statement covering such Investor
Shares or at such time as an opinion of counsel satisfactory to the Company
shall have been rendered to the effect that such conditions are not reasonably
necessary in order to comply with the Securities Act.
(f) INFORMATION AVAILABLE. So long as a registration statement is
effective covering the resale of the Investor Shares, the Company will furnish
to the Investor:
(i) As soon as practicable after available (but in the case of
the Company's Annual Report to Shareholders, within one hundred twenty (120)
days after the end of each fiscal year of the Company), one copy of (i) its
Annual Report to Shareholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting principles
by a national firm of certified public accountants), (ii) if not included in
substance in the Annual Report to Shareholders, its Annual Report on Form 10-K
or equivalent form, (iii) its Quarterly Reports to Shareholders, (iv) if not
included in substance in its Quarterly Reports to Shareholders, its quarterly
reports on Form 10-Q or equivalent form, and (v) a full copy of the particular
registration statement covering the Shares (the foregoing, in each case,
excluding exhibits);
(ii) Upon the reasonable request of the Investor, all exhibits
excluded by the parenthetical to subparagraph (i) of this Section 8(f) and all
other information that is made available to shareholders; and
(iii) Upon the reasonable request of the Investor, an adequate
number of copies of the prospectuses to supply to any other party requiring such
prospectuses;
and the Company, upon the reasonable request of the Investor, will meet with the
Investor or a representative thereof at the Company's headquarters to discuss
all information relevant for disclosure in the registration statement covering
the Investor Shares and will otherwise cooperate with any Investor conducting an
investigation for the purpose of reducing or eliminating such Investor's
exposure to liability under the Securities Act, including the reasonable
production of information at the Company's headquarters.
9. Miscellaneous.
-------------
(a) This Agreement shall be binding upon, and shall inure solely to
the benefit of, each of the parties hereto, and each of their respective heirs,
executors, administrators, successors and permitted assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The
Investor may not assign any of its rights or obligations hereunder to any other
person or entity without the prior written consent of the Company.
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<PAGE> 15
(b) The Investor agrees that it may not terminate or revoke this
Agreement or any agreement, offer or commitment made hereunder.
(c) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and may be amended only by
written execution by both parties.
(d) THIS AGREEMENT SHALL BE ENFORCED, GOVERNED AND CONSTRUED IN ALL
RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. FURTHERMORE, EACH
INVESTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(e) Time is of the essence with respect to all provisions of this
Agreement.
(f) By executing this Agreement below, the Investor agrees to be bound
by all of the terms, provisions, warranties, covenants and conditions contained
herein. Upon acceptance by the Company, this Agreement shall be binding on both
parties hereto.
(g) All notices, requests, consents and other communication hereunder
shall be in writing, shall be mailed by first class registered or certified
mail, or nationally recognized overnight express courier postage prepaid, and
shall be deemed given when so mailed and shall be delivered as addressed as
follows:
(h) if to the Company, to:
Boston Private Bancorp, Inc.
Ten Post Office Square
Boston, Massachusetts 02109
Attn: Corporate Secretary
with a copy mailed to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attn: William P. Mayer, Esq.
or to such other person at such other place as the Company shall designate to
the Investor in writing; and
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<PAGE> 16
if to the Investor, at its address as set forth at the end of this Agreement, or
at such other address or addresses as may have been furnished to the Company in
writing.
(i) The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
(j) This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one in the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BOSTON PRIVATE BANCORP, INC.
By:
------------------------------------
Name:
Title:
Accepted and Agreed as of the date
first above written:
- ------------------------------------
Name of Investor (Print)
By:
---------------------------------
Name:
Title
Address:
----------------------------
----------------------------
----------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
Nominee (name in which Investor Shares are to
be registered, if different than name of
Investor)
---------------------------
Address of Nominee:
- ------------------------------------
- ------------------------------------
- ------------------------------------
Taxpayer I.D. Number:
---------------
(if acquired in the name of a nominee, the
taxpayer I.D. number of such nominee)
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Designated Bank
----------------------
Address
------------------------------
ABA No.
------------------------------
Account No.
--------------------------
Attention
----------------------------
EACH INVESTOR EXECUTING THESE PURCHASE
AGREEMENT SIGNATURE PAGES ON BEHALF OF ONE
OR MORE MANAGED ACCOUNTS SHOULD PROVIDE
THE NAME OF, AND FOREGOING INFORMATION WITH
RESPECT TO, EACH SUCH MANAGED ACCOUNT.
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ANNEX I
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INVESTOR QUESTIONNAIRE
The Shares are being offered for sale to "accredited investors" as that
term is defined in Rule 501 under the Securities Act of 1933, as amended (the
"Act").
The undersigned entity certifies that it (and each managed account on whose
behalf Investor Shares are being purchased by it) is an "accredited investor"
because it is (check one or more items below):
(a) a bank as defined in section 3(a)(2) of the Act whether acting in
- ----- its individual or fiduciary capacity;
(b) a savings and loan association or other institution as defined in
- ----- section 3(a)(5)(A) of the Act whether acting in its individual or
fiduciary capacity;
(c) a broker dealer registered pursuant to section 15 of the
- ----- Securities Exchange Act of 1934, as amended;
(d) an insurance company as defined in section 2(13) of the Act;
- -----
(e) an investment company registered under the Investment Company Act
- ----- of 1940, as amended (the "1940 Act");
(f) a business development company as defined in section 2(a)(48) of
- ----- the 1940 Act;
(g) a Small Business Investment Company licensed by the U.S. Small
- ----- Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958;
(h) a plan established and maintained by a state or its political
- ----- subdivision for the benefit of its employees, provided that such
plan has total assets in excess of $5,000,000;
(i) an employee benefit plan within the meaning of Title I of the
- ----- Employee Retirement Income Security Act of 1974 ("ERISA"),
provided that the investment decision is made by a plan
fiduciary, as defined in section 3(21) of ERISA, and the plan
fiduciary is either a bank, savings and loan association,
insurance company or registered investment adviser or provided
that the employee benefit plan has total assets in excess of
$5,000,000; or if a self-directed plan, with investment decisions
made solely by persons that are accredited investors;
<PAGE> 20
ANNEX I
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PAGE 2
(j) a private business development company as defined in section
- ----- 202(a)(22) of the Investment Advisers Act of 1940;
(k) an organization described in section 501(c)(3) of the Internal
- ----- Revenue Code, not formed for the specific purpose of acquiring
the Investor Shares, with total assets in excess of $5,000,000;
(l) a director or executive officer, or general partner of the
- ----- Company;
(m) a corporation, Massachusetts or similar business trust, or
- ----- partnership, not formed for the specific purpose of acquiring the
Investor Shares, with total assets in excess of $5,000,000;
(n) a trust, with total assets in excess of $5,000,000, not formed
- ----- for the specific purpose of acquiring the Investor Shares, and
the purchase of the Investor Shares is directed by a
sophisticated person as described in Rule 506(b)(2)(ii) under the
Act;
(o) a natural person whose individual net worth, or joint net worth
- ----- with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(p) a natural person who had an individual income in excess of
- ----- $200,000 in each of 1994 and 1995 or joint income with that
person's spouse in excess of $300,000 in each of those years and
has a reasonable expectation of reaching the same income level in
1996;
(q) an entity in which all of the equity owners are accredited
- ----- investors (described in any of (a) - (p) above).
INVESTOR:
By:
--------------------------
Name:
Title:
<PAGE> 21
ANNEX II
--------
[Form of Managed Accounts Representation Letter]
Boston Private Bancorp, Inc.
Ten Post Office Square
Boston, MA 02109
Ladies and Gentlemen:
The undersigned has executed or is executing as Investor a Stock Purchase
Agreement (the "Agreement") by and between you and the undersigned relating to
the purchase of Common Stock of Boston Private Bancorp, Inc., as indicated in
such executed Agreement. Capitalized terms used herein that are not defined
herein have the meaning set forth in the Agreement.
This Managed Accounts Representation Letter will serve to advise you that
in executing the Agreement, the undersigned has acted for or on behalf of one or
more persons ("Accounts") pursuant to authority granted to the undersigned by
each such Account.
The undersigned hereby represents and warrants to, and covenants and agrees
with, you that:
(a) the Investor Shares being purchased under the Agreement by or for
an Account are being purchased for the benefit of the Account;
(b) the representations and warranties of the Investor set forth in
Section 3(a)(iii) of the Agreement are true and correct as to each Account and
the Investor Shares being purchased by or for such Account;
(c) each such Account will be fully bound by and subject to the
Agreement in all respects as an Investor; and
(d) the undersigned is fully authorized by each such Account to enter
into the Agreement and to execute this Managed Accounts Representation Letter
for or on behalf of such Account.
<PAGE> 22
ANNEX II
--------
PAGE 2
Executed as of the date as of which the Agreement is executed by the
undersigned.
ACCOUNT MANAGER:
--------------------------------------
By:
----------------------------------
Name:
Title:
On behalf of the following accounts:
<PAGE> 23
ANNEX III
---------
NUMBER OF SHARES BENEFICIALLY OWNED
<PAGE> 24
ANNEX IV
--------
REGISTRATION STATEMENT QUESTIONNAIRE
In connection with the preparation of the Registration Statement, please
provide us with the following information:
1. Pursuant to the "Selling Shareholder" section of the Registration
Statement, please state your or your organization's name exactly as it should
appear in the Registration Statement:
2. Please provide the following information, as of the Closing Date:
(1) (2)
Number of shares,
Number of Shares if any, which will
which are being be owned after
included in the completion of sale
Registration of Shares included
Statement (if all in the Registration
PURCHASED, PUT ALL) STATEMENT
3. Have you or your organization had any position, office or other material
relationship within the past three (3) years with the Company or its affiliates
other than as disclosed in the Memorandum?
Yes No
--- ---
If yes, please indicate the nature of any such relationship below:
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<PAGE> 25
ANNEX V
-------
Attention:
INVESTOR'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, [an officer of, or other person duly authorized by]
______________ [fill in official name of individual or institution] hereby
certifies that he/she [said institution] is the Investor in the shares evidenced
by the attached certificate, and as such, sold such shares on [date] in
accordance with registration statement number [fill in the number of or
otherwise identify registration statement] and the requirement of delivering a
current prospectus and current annual and quarterly reports by the Company has
been complied with in connection with such sale.
Print or Type:
Name of Investor
(Individual or
Institution)
--------------------------------
Name of Individual
representing
Investor (if an
Institution):
--------------------------------
Title of Individual
representing
Investor (if an
Institution):
--------------------------------
Signature by:
Individual Investor or
Individual representing
Investor:
--------------------------------
<PAGE> 26
EXHIBIT 1
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WIRE INSTRUCTIONS
[BANK]
ABA:
------------
Account #:
------------
Account name:
------------
For further credit:
------------
Sub account #:
------------
