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As filed with the Securities and Exchange Commission on June 30, 1997
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BOSTON PRIVATE BANCORP, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2976299
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
TEN POST OFFICE SQUARE, BOSTON, MASSACHUSETTS 02109
(Address of Principal Executive Offices)
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BOSTON PRIVATE BANK & TRUST COMPANY
401(k) PLAN
(Full title of the Plan)
----------------------
TIMOTHY L. VAILL,
BOSTON PRIVATE BANCORP, INC.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
TEN POST OFFICE SQUARE, BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 912-1900
(Telephone number, including area code, of agent for service)
Copies to:
WILLIAM P. MAYER, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
(617) 570-1000
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<TABLE>
Calculation of Registration Fee
<CAPTION>
=================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share(2) Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 150,000 $6.875 $1,031,250 $312.50
$1.00 par value
=================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Boston Private Bank & Trust Company, a wholly-owned subsidiary of Boston
Private Bancorp, Inc., 401(k) Plan.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act solely for the purpose of determining the amount of the registration
fee and is based upon the market value of outstanding shares of Boston
Private Bancorp, Inc. Common Stock on June 26, 1997, utilizing the
average of the high and low sale prices reported on the NASDAQ SmallCap
Market on that date.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement are the following
documents previously filed by the Boston Private Bancorp, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1997.
(b) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996.
(c) The Company's Current Report on Form 8-K filed with the Commission on
January 14, 1997.
(d) The description of the Company's common stock contained in the
Company's Registration Statement on Form SB-2, filed on August 30,
1993, and any amendment or reports filed for the purpose of updating
such description.
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. 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
shareholders) or (iv) for any transaction from which a director derived an
improper personal benefit.
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
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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 Articles of Organization of the Company provide for indemnification of
the officers and directors of the Company to the full extent permitted by
applicable law.
The Company and its directors and officers currently carry liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The exhibits listed in the accompanying Exhibit Index are filed as part of
this Registration Statement.
The undersigned registrant hereby undertakes that it will submit or has
submitted the Boston Private Bank & Trust Company 401(k) Plan (the "Plan") to
the Internal Revenue Service (the "IRS") in a timely manner and has made or will
make any changes required by the IRS in order to qualify the Plan.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(2) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 and 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
aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(3) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1) and (a)(2) of this Item 9 do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is
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contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on June 30,
1997.
BOSTON PRIVATE BANCORP, INC.
By: /s/ Timothy L. Vaill
---------------------------------
Timothy L. Vaill, President
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POWER OF ATTORNEY
We, the undersigned officers and Directors of Boston Private Bancorp, Inc.,
hereby severally constitute Charles O. Wood III, Eugene S. Colangelo, and
Timothy L. Vaill, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below and in such other capacities as the undersigned
may from time to time serve in the future, the registration statement filed
herewith and any and all amendments to said registration statement, and
generally to do all such things in our names in our capacities as officers and
Directors 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 our signatures as they may
be signed by our said attorneys, or any of them, to said registration statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Timothy L. Vaill President, Chief Executive June 30, 1997
- ---------------------------- Officer and Director
Timothy L. Vaill (principal executive officer)
/s/ Walter M. Pressey Senior Vice President and June 30, 1997
- ---------------------------- Chief Financial Officer
Walter M. Pressey (principal financial and
accounting officer)
/s/ Herbert S. Alexander Director June 30, 1997
- ----------------------------
Herbert S. Alexander
/s/ John M. Barry Director June 30, 1997
- ----------------------------
John M. Barry
/s/ Peter C. Bennett Director June 30, 1997
- ----------------------------
Peter C. Bennett
/s/ Eugene S. Colangelo Director June 30, 1997
- ----------------------------
Eugene S. Colangelo
/s/ Michael M. Davis, Esq. Director June 30, 1997
- ----------------------------
Michael M. Davis, Esq.
/s/ Kate S. Flather Director June 30, 1997
- ----------------------------
Kate S. Flather
/s/ Kathleen M. Graveline Director June 30, 1997
- ----------------------------
Kathleen M. Graveline
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/s/ Lynn Thompson Hoffman Director June 30, 1997
- ----------------------------
Lynn Thompson Hoffman
/s/ Axel J. Leblois Director June 30, 1997
- ----------------------------
Axel J. Leblois
/s/ E. Christopher Palmer Director June 30, 1997
- ----------------------------
E. Christopher Palmer
/s/ Robert A. Radloff Director June 30, 1997
- ----------------------------
Robert A. Radloff
/s/ Eugene F. Rivers, 3rd Director June 30, 1997
- ----------------------------
Eugene F. Rivers, 3rd
/s/ Allen Sinai Director June 30, 1997
- ----------------------------
Allen Sinai
/s/ Charles O. Wood, III Director June 30, 1997
- ----------------------------
Charles O. Wood, III
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Pursuant to the requirements of the Securities Act of 1933, the Trustees of
the Boston Private Bank & Trust Company 401(k) Plan have 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 June
30, 1997.
THE BOSTON PRIVATE BANK & TRUST COMPANY
401(k) PLAN
by: /s/ Amy E. Hunter
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Amy E. Hunter, Trustee
by: /s/ Ana E. Steele
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Ana E. Steele, Trustee
by: /s/ Mark D. Thompson
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Mark D. Thompson, Trustee
by: /s/ Dudley Cunningham
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Dudley Cunningham, Trustee
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EXHIBIT 5
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP]
July 2, 1997
Boston Private Bancorp, Inc.
Ten Post Office Square
Boston, MA 02109
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
This opinion is delivered in our capacity as special counsel to Boston
Private Bancorp, Inc. (the "Company") in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, of a Registration Statement on Form S-8 (the "Registration
Statement") relating to 150,000 shares of common stock, par value $1.00 per
share (the "Registered Shares"). The Registered Shares are to be sold by the
Company pursuant to the Boston Private Bank & Trust Company 401(k) Plan (the
"Plan").
As special counsel for the Company, we have examined a copy of the Plan,
as amended, the Company's Amended and Restated Articles of Organization and
By-laws, each as presently in effect, and such records, certificates and other
documents of the Company as we have deemed necessary or appropriate for the
purposes of this opinion.
Based on the foregoing, we are of the opinion that the Registered Shares
are duly authorized, legally issued, fully paid and non-assessable by the
Company under the Massachusetts General Corporation Law.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.2
Accountants' Consent
The Board of Directors
Boston Private Bancorp, Inc:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated January 15, 1997, relating to the consolidated
balance sheets of Boston Private Bancorp, Inc. and subsidiaries as of December
31, 1996 and 1995, 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, 1996, which report appears in the
December 31, 1996 annual report on Form 10-KSB of Boston Private Bancorp, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Boston, Massachusetts
June 30, 1997
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