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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 21, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BOSTON PRIVATE FINANCIAL HOLDINGS, 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)
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TEN POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 912-1900
(Address, including zip code and telephone number, including
area code, of Registrant's principal executive offices)
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TIMOTHY L. VAILL
President and Chief Executive Officer
Boston Private Financial Holdings, Inc.
Ten Post Office Square
Boston, Massachusetts 02109
(617) 912-1900
(Name, address, including zip code, and telephone number, including area code
of agent for service)
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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
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable 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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to Be to Offering Price Aggregate Registration
Registered Be Registered Per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock, $1.00 par value 3,094,589 Shares $8.625 $26,690,830 $7,050
===========================================================================================================================
</TABLE>
(1) Based upon the average of the high and low sale prices reported on the
Nasdaq National Market on January 19, 2000 and estimated solely for
purposes of calculating the registration fee in accordance with Rule 457(c)
under the Securities Act of 1933.
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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.
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The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer and sale is not
permitted.
PROSPECTUS
BOSTON PRIVATE FINANCIAL HOLDINGS, INC.
3,094,589 SHARES OF COMMON STOCK
Fifteen existing stockholders of Boston Private Financial Holdings, Inc.
are offering to sell 3,094,589 shares of common stock under this prospectus.
The selling stockholders may sell their shares in any manner described in
the "Plan of Distribution" section of this prospectus beginning on page 12.
Our common stock is traded under the symbol "BPFH" on the Nasdaq National
Market. On January 19, 2000, the closing price for our common stock was $8.5625.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DESCRIPTION OF THE RISK
FACTORS THAT YOU SHOULD CAREFULLY CONSIDER BEFORE YOU INVEST IN OUR COMMON
STOCK.
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NEITHER THE SECURITIES EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION, THE COMMISSIONER OF BANKS OF THE COMMONWEALTH OF MASSACHUSETTS, NOR
THE FEDERAL DEPOSIT INSURANCE CORPORATION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------------------------
THESE SECURITIES ARE NOT DEPOSIT ACCOUNTS OF ANY BANK AND ARE NOT INSURED
TO ANY EXTENT BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY.
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THE DATE OF THIS PROSPECTUS IS __________, 2000.
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You should rely only on the information incorporated by reference or
contained in this prospectus or any supplement. We have not authorized anyone
else to provide you with different or additional information. You should not
assume that the information in this prospectus or any supplement is accurate as
of any date other than the date on the front of those documents. The selling
stockholders are not making an offer of the common stock in any state where the
offer is not permitted.
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TABLE OF CONTENTS
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<TABLE>
<CAPTION>
Page
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<S> <C>
RISK FACTORS............................................................ 3
THE COMPANY............................................................. 8
USE OF PROCEEDS.........................................................10
REGISTRATION RIGHTS.....................................................11
SELLING STOCKHOLDERS....................................................12
PLAN OF DISTRIBUTION....................................................12
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE.............................................................13
LEGAL MATTERS...........................................................14
EXPERTS ...............................................................14
</TABLE>
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Our address is Boston Private Financial Holdings, Inc., Ten Post Office
Square, Boston, Massachusetts 02109 (telephone number (617) 912-1900).
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RISK FACTORS
An investment in our common stock involves various risks. This prospectus
contains forward-looking statements within the meaning of the federal securities
laws. You are cautioned that these forward-looking statements are not guarantees
of future performance and involve risks and uncertainties. Actual events or
results may differ materially from those discussed in the forward-looking
statements as a result of a number of factors, including the factors listed
below and those referenced in our documents which are filed with the SEC and
which are incorporated by reference in this prospectus. In deciding whether or
not to invest in our common stock, you should carefully consider the following
risk factors:
WE MAY NOT BE ABLE TO ATTRACT AND RETAIN BANKING CUSTOMERS AT CURRENT LEVELS
Competition in the local banking industry coupled with our relatively small
size may limit the ability of our banking subsidiary, Boston Private Bank &
Trust Company, to attract and retain banking customers. Boston Private Bank &
Trust Company faces competition from the following:
- other banking 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.
In particular, Boston Private Bank & Trust Company'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. Areas of competition
include interest rates for loans and deposits, efforts to obtain deposits and
range and quality of services provided.
Because Boston Private Bank & Trust Company maintains a smaller staff and
has fewer financial and other resources than larger institutions with which it
competes, it may be limited in its ability to attract customers. In addition,
some of Boston Private Bank & Trust Company's current commercial banking
customers may seek alternative banking sources as they develop needs for credit
facilities larger than Boston Private Bank & Trust Company can accommodate.
If Boston Private Bank & Trust Company is unable to attract and retain
banking customers, it may be unable to continue its loan growth and its results
of operations and financial condition may otherwise be negatively impacted. In
as much as Boston Private Bank & Trust Company is our sole banking subsidiary,
its financial performance is very significant to our overall results of
operations and financial condition.
WE MAY NOT BE ABLE TO ATTRACT AND RETAIN INVESTMENT MANAGEMENT CLIENTS AT
CURRENT LEVELS
Due to the intense local competition and our relatively short history and
limited record of performance in the investment management business, Boston
Private Bank & Trust Company and our investment management subsidiaries,
Westfield Capital Management Company, Inc. and RINET Company, Inc. may not be
able to attract and retain investment management clients at current levels.
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In the investment management industry, we compete primarily with the
following:
- commercial banks and trust companies;
- mutual fund companies;
- investment advisory firms;
- stock brokerage firms;
- law firms; and
- other financial services companies.
Competition is especially keen in our geographic market area, because there
are numerous well established and successful investment management firms in
Boston. Many of our competitors have greater resources than we have.
Our ability to successfully attract and retain investment management
clients is dependent upon the ability of each to compete with its competitors'
investment products, level of investment performance, client services and
marketing and distribution capabilities. If we are not successful, our results
from operations and financial position may be negatively impacted.
In addition, our ability to retain investment management clients may be
impaired by the fact that our investment management contracts are typically
short-term in nature. Approximately 47% of our revenues are derived from
investment management contracts which are typically terminable upon less than 30
days' notice. Most of our clients may withdraw funds from accounts under
management generally in their sole discretion.
Moreover, Westfield Capital receives performance-based fees resulting from
its status as general partner or investment manager of three limited partnership
investment funds. The amount of these fees are impacted directly by the
investment performance of Westfield Capital. As a result, the future revenues
from such fees may fluctuate and may be affected by conditions in the capital
markets and other general economic conditions.
Westfield Capital is our major investment management subsidiary, and its
financial performance is a significant factor in our overall results of
operations and financial condition.
DEFAULTS IN THE REPAYMENT OF LOANS MAY NEGATIVELY IMPACT OUR BUSINESS.
Defaults in the repayment of loans by Boston Private Bank & Trust Company's
customers may negatively impact its business. A borrower's default on its
obligations under one or more of Boston Private Bank & Trust Company's loans may
result in lost principal and interest income and increased operating expenses as
a result of the allocation of management time and resources to the collection
and work-out of the loan.
In certain situations, where collection efforts are unsuccessful or
acceptable work-out arrangements cannot be reached, Boston Private Bank & Trust
Company may have to write-off the loan in whole or in part. In such situations,
Boston Private Bank & Trust Company may acquire any real estate or other assets,
if any, which secure the loan through foreclosure or other similar available
remedies. In such cases, the amount owed under the defaulted loan often exceeds
the value of the assets acquired.
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Boston Private Bank & Trust Company's management periodically makes a
determination of an allowance for loan losses based on available information,
including the quality of its loan portfolio, certain economic conditions, the
value of the underlying collateral and the level of its non-accruing loans.
Provisions to this allowance result in an expense for the period. If, as a
result of general economic conditions or an increase in defaulted loans,
management determines that additional increases in the allowance for loan losses
are necessary, Boston Private Bank & Trust Company will incur additional
expenses.
In addition, bank regulatory agencies periodically review Boston Private
Bank & Trust Company's allowance for loan losses and the values it attributes to
real estate acquired through foreclosure or other similar remedies. Such
regulatory agencies may require Boston Private Bank & Trust Company to adjust
its determination of the value for these items. These adjustments could
negatively impact Boston Private Bank & Trust Company's results of operations or
financial position.
A DOWNTURN IN THE LOCAL ECONOMY OR REAL ESTATE MARKET COULD NEGATIVELY IMPACT
OUR BANKING BUSINESS
A downturn in the local economy or real estate market could negatively
impact our banking business. Because Boston Private Bank & Trust Company serves
primarily individuals and smaller businesses located in eastern Massachusetts
and adjoining areas, with a particular concentration in the Greater Boston
Metropolitan Area, the ability of Boston Private Bank & Trust Company's
customers to repay their loans is impacted by the economic conditions in these
areas. Boston Private Bank & Trust Company's commercial loans are generally
concentrated in the following customer groups:
- real estate developers and investors;
- financial service providers;
- technology companies;
- manufacturing and communications companies;
- professional service providers;
- general commercial and industrial companies; and
- individuals.
Boston Private Bank & Trust Company's commercial loans, with limited
exceptions, are secured by either real estate (usually, income producing
residential and commercial properties), marketable securities or corporate
assets (usually, accounts receivable, equipment or inventory). Substantially all
of Boston Private Bank & Trust Company's residential mortgage and home equity
loans are secured by residential property in eastern Massachusetts. As a result,
conditions in the real estate market specifically, and the Massachusetts economy
generally, can materially impact the ability of Boston Private Bank & Trust
Company's borrowers to repay their loans and affect the value of the collateral
securing these loans.
FLUCTUATIONS IN INTEREST RATES MAY NEGATIVELY IMPACT OUR BANKING BUSINESS
Fluctuations in interest rates may negatively impact the business of Boston
Private Bank & Trust Company. Boston Private Bank & Trust Company's main source
of income from operations is net interest income, which is equal to the
difference between the interest income received on interest-bearing assets
(usually, loans and investment securities) and the interest expense incurred in
connection with interest-bearing
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liabilities (usually, deposits and borrowings). Boston Private Bank & Trust
Company's net interest income can be affected significantly by changes in market
interest rates. In particular, changes in relative interest rates may reduce
Boston Private Bank & Trust Company's net interest income as the difference
between interest income and interest expense decreases. As a result, Boston
Private Bank & Trust Company has adopted asset and liability management policies
to minimize the potential adverse effects of changes in interest rates on net
interest income, primarily by altering the mix and maturity of loans,
investments and funding sources. However, we cannot assure you that a decrease
in interest rates will not negatively impact Boston Private Bank & Trust
Company's results from operations or financial position.
An increase in interest rates could also have a negative impact on Boston
Private Bank & Trust Company's results of operations by reducing the ability of
borrowers to repay their current loan obligations, which could not only result
in increased loan defaults, foreclosures and write-offs, but also necessitate
further increases to Boston Private Bank & Trust Company's allowance for
possible loan losses.
OUR COST OF FUNDS FOR BANKING OPERATIONS MAY INCREASE AS A RESULT OF GENERAL
ECONOMIC CONDITIONS, INTEREST RATES AND COMPETITIVE PRESSURES
Our cost of funds for banking operations may increase as a result of
general economic conditions, interest rates and competitive pressures. Boston
Private Bank & Trust Company has traditionally obtained funds principally
through deposits and through borrowings. As a general matter, deposits are a
cheaper source of funds than borrowings, because interest rates paid for
deposits are typically less than interest rates charged for borrowings.
Historically and in comparison to commercial banking averages, Boston Private
Bank & Trust Company has had a higher percentage of its time deposits in
denominations of $100,000 or more. Within the banking industry, the amounts of
such deposits are generally considered more likely to fluctuate than deposits of
smaller denominations. If as a result of general economic conditions, market
interest rates, competitive pressures or otherwise, the value of deposits at
Boston Private Bank & Trust Company decreases relative to its overall banking
operations, Boston Private Bank & Trust Company may have to rely more heavily on
borrowings as a source of funds in the future.
OUR INVESTMENT MANAGEMENT BUSINESS MAY BE NEGATIVELY IMPACTED BY CHANGES IN
ECONOMIC AND MARKET CONDITIONS
Our investment management business may be negatively impacted by changes in
general economic and market conditions because the performance of such business
is directly affected by conditions in the financial and securities markets.
The financial markets and the investment management industry in general
have experienced record performance and record growth in recent years. The
financial markets and businesses operating in the securities industry, however,
are highly volatile (meaning that performance results can vary greatly within
short periods of time) and are directly affected by, among other factors,
domestic and foreign economic conditions and general trends in business and
finance, all of which are beyond our control. We cannot assure you that broad
market performance will be favorable in the future. Any decline in the financial
markets or a lack of sustained growth may result in a corresponding decline in
our performance and may adversely affect the assets which we manage.
In addition, Westfield Capital's management contracts generally provide for
fees payable for investment management services based on the market value of
assets under management, although a portion also provide for the payment of fees
based on investment performance. Because most contracts provide for a fee based
on market values of securities, fluctuations in securities prices may have a
material adverse effect on our results of operations and financial condition.
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OUR INVESTMENT MANAGEMENT BUSINESS IS HIGHLY REGULATED
Our investment management business is highly regulated, primarily at the
federal level. The failure of any of our subsidiaries that provide investment
management services to comply with applicable laws or regulations could result
in fines, suspensions of individual employees or other sanctions, including
revocation of such subsidiary's registration as an investment adviser.
Specifically, three of our subsidiaries, including Westfield Capital and
RINET are registered investment advisers under the Investment Advisers Act of
1940. The Investment Advisers Act imposes numerous obligations on registered
investment advisers, including fiduciary, record keeping, operational and
disclosure obligations. These subsidiaries, as investment advisers, are also
subject to regulation under the federal and state securities laws and the
fiduciary laws of certain states. In addition, Westfield Capital acts as a
subadviser to a mutual fund which is registered under the Investment Company Act
of 1940 and is subject to that act's provisions and regulations.
We are also subject to the provisions and regulations of ERISA to the
extent we act as a "fiduciary" under ERISA with respect to certain of our
clients. ERISA and the applicable provisions of the federal tax laws, impose a
number of duties on persons who are fiduciaries under ERISA and prohibit certain
transactions involving the assets of each ERISA plan which is a client of ours,
as well as certain transactions by the fiduciaries (and certain other related
parties) to such plans.
In addition, applicable law provides that all investment contracts with
mutual fund clients may be terminated by the clients, without penalty, upon no
later than 60 days' notice. Investment contracts with institutional and other
clients are typically terminable by the client, also without penalty, upon 30
days' notice.
Boston Private Financial Holdings itself does not manage investments for
clients, does not provide any investment management services and, therefore, is
not a registered investment adviser. Boston Private Bank & Trust Company is
exempt from the regulatory requirements of the Investment Advisors Act of 1940,
but is subject to extensive regulation by the Federal Deposit Insurance
Corporation and the Commissioner of Banks of The Commonwealth of Massachusetts.
OUR BANKING BUSINESS IS HIGHLY REGULATED
Bank holding companies and state chartered banks operate in a highly
regulated environment and are subject to supervision and examination by federal
and state regulatory agencies. Boston Private Financial Holdings is subject to
the federal Bank Holding Company Act of 1956, and to regulation and supervision
by the Federal Reserve Board. Boston Private Bank & Trust Company, as a
Massachusetts chartered trust company the deposits of which are insured by the
Federal Deposit Insurance Corporation, is subject to regulation and supervision
by the Massachusetts Commissioner of Banks and the FDIC.
Federal and state laws and regulations govern numerous matters including
changes in the ownership or control of banks and bank holding companies,
maintenance of adequate capital and the financial condition of a financial
institution, permissible types, amounts and terms of extensions of credit and
investments, permissible non-banking activities, the level of reserves against
deposits and restrictions on dividend payments. The FDIC and the Massachusetts
Commissioner of Banks possess cease and desist powers to prevent or remedy
unsafe or unsound practices or violations of law by banks subject to their
regulation, and the Federal Reserve Board possesses similar powers with respect
to bank holding companies. These and other restrictions limit the manner in
which the Boston Private Financial Holdings and Boston Private Bank & Trust
Company may conduct business and obtain financing.
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Furthermore, our banking business is affected not only by general economic
conditions, but also by the monetary policies of the Federal Reserve Board.
Changes in monetary or legislative policies may affect the interest rates Boston
Private Bank & Trust Company must offer to attract deposits and the interest
rates it must charge on its loans, as well as the manner in which it offers
deposits and makes loans. These monetary policies have had, and are expected to
continue to have, significant effects on the operating results of depository
institutions generally including Boston Private Bank & Trust Company.
TO THE EXTENT THAT WE ACQUIRE OTHER COMPANIES IN THE FUTURE, OUR BUSINESS MAY BE
NEGATIVELY IMPACTED BY CERTAIN RISKS INHERENT WITH SUCH ACQUISITIONS
Although we do not have an aggressive acquisition strategy, we have in the
past considered, and will in the future continue to consider, the acquisition of
other banking and investment management companies. To the extent that we acquire
other companies in the future, our business may be negatively impacted by
certain risks inherent with such acquisitions. These risks include the
following:
- the risk that the acquired business will not perform in
accordance with management's expectations;
- the risk that difficulties will arise in connection with the
integration of the operations of the acquired business with the
operations of our banking or investment management businesses;
- the risk that management will divert its attention from other
aspects of our business;
- the risk that we may lose key employees of the acquired business;
and
- the risks associated with entering into geographic and product
markets in which we have limited or no direct prior experience.
THE REGISTRATION OF THE SHARES BEING OFFERED UNDER THIS PROSPECTUS MAY
NEGATIVELY AFFECT THE MARKET VALUE OF OUR COMMON STOCK AND COULD IMPACT OUR
ABILITY TO OBTAIN ADDITIONAL EQUITY FINANCING
The registration of the 3,094,589 shares of common stock being offered
under this prospectus may enable the holders to publicly sell shares which would
otherwise be ineligible for sale in the public market. The sale of a substantial
number of shares of common stock into the public market, or the availability of
these shares for future sale, could adversely affect the market price for our
common stock and could impair our ability to obtain additional capital in the
future through an offering of equity securities should we desire to do so.
THE COMPANY
Boston Private Financial Holdings is a Massachusetts corporation and a
registered bank holding company under the Bank Holding Company Act of 1956. We
are the parent holding company of Boston Private Bank & Trust Company, our
wholly-owned bank subsidiary. Boston Private Bank & Trust Company is a trust
company chartered in Massachusetts and insured by the Federal Deposit Insurance
Corporation.
On October 31, 1997, we acquired Boston-based Westfield Capital Management
Company, Inc. In this transaction, which was accounted for as a pooling of
interests, the former stockholders of Westfield Capital received 3,918,367
shares of our common stock. The purchase price was based on the average price of
our common stock from January 1, 1997 through August 12, 1997, which was
approximately $6 1/8. In addition,
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the former stockholders of Westfield Capital were granted registration rights in
connection with the issuance of the shares in this transaction. See
"Registration Rights."
On October 15, 1999, we acquired RINET Company, Inc., an integrated tax,
financial investment consulting firm also located in Boston, Massachusetts. Like
the Westfield Capital transaction, this transaction was accounted for as a
pooling of interests, and the former stockholders of RINET received 765,697
shares of our common stock valued at $6 million. The former stockholders of
RINET were granted registration rights in connection with the issuance of shares
in this transaction. See "Registration Rights."
We conduct substantially all of our business through our wholly-owned
subsidiaries, Boston Private Bank & Trust Company, Westfield Capital and RINET.
Westfield Capital is located at One Financial Center in Boston, Massachusetts,
RINET is located at 213 Union Wharf, Boston, Massachusetts, and our principal
offices are located at Ten Post Office Square, Boston, Massachusetts.
Through Boston Private Bank & Trust Company, we pursue a "private banking"
business strategy and are 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. Boston Private Bank & Trust Company offers a broad
range of basic deposit services, including checking and savings accounts, with
automated teller machine access, and cash management services through sweep
accounts and repurchase agreements. Boston Private Bank & Trust Company also
offers commercial, residential mortgage, home equity and consumer loans. In
addition, Boston Private Bank & Trust Company provides investment advisory and
asset management services, securities custody and safekeeping services, trust
and estate administration and IRA and Keogh accounts.
Through Westfield Capital, we serve the investment needs of individuals,
families, trusts, endowments, foundations, pension and profit-sharing plans and
401(k) plans. Westfield Capital invests primarily in equities of companies which
it expects to grow at above normal rates, and although Westfield Capital is not
limited to such investments, it has a particular focus on companies deemed to
have small to mid-sized capitalizations. In addition, Westfield Capital acts as
the managing general partner or investment manager of three limited
partnerships, one of which invests primarily in technology stocks and the other
two of which invest primarily in equities of growth companies.
Through RINET, we engage in financial planning and asset allocation for
very affluent individuals and families.
INVESTMENT MANAGEMENT
We provide a range of investment management services to individuals,
families, trusts, endowments, foundations, pension and profit-sharing plans and
401(k) plans. These services include the 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.
TRUST ADMINISTRATION
Acting as a fiduciary, we provide trust administration and estate
settlement services. The services we provide include the ongoing fiduciary
review of trust instruments, 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.
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CUSTODIAN SERVICES
We provide custodian services, including the safekeeping of securities, the
settlement of securities transactions, the execution of trades and the automatic
investment of cash balances.
LENDING ACTIVITIES
Through Boston Private Bank & Trust Company, we specialize in lending to
individuals and small businesses, including non-profit organizations,
partnerships and professional corporations and associations. Loans made by
Boston Private Bank & Trust Company 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 to businesses include commercial mortgage loans,
revolving lines of credit, working capital loans, equipment financing and
letters of credit. Generally, we lend only to borrowers located in eastern New
England or to borrowers who may be located farther away, but who have collateral
deposited with us in the form of cash or marketable securities or other
collateral within our market area.
ASSET AND LIABILITY MANAGEMENT
Generally, our objective with respect to asset and liability management is
to maximize profit potential while minimizing the vulnerability of our
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. Our actions in this regard are taken
under the guidance of an Asset and Liability Management Committee which is
comprised of members of senior management. This committee is involved in
formulating the economic assumptions that we use in our financial planning and
budgeting process and establishes policies which control and monitor the
sources, uses and pricing of funds. We have not engaged in any hedging
activities.
INVESTMENT ACTIVITIES
Our investment activities are an integral part of our overall
asset/liability management. Our banking 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 we may invest
are subject to regulation and limited to securities which are considered
"investment grade" securities.
SOURCES OF FUNDS
Deposits made at Boston Private Bank & Trust Company's office location and
through ATMs provide a major source of funds for use in lending and for other
general business purposes. In addition, Boston Private Bank & Trust Company also
relies on borrowings as a source of funds for its operations. As a result,
Boston Private Bank & Trust Company has established various borrowing
arrangements, including Federal Home Loan Bank of Boston 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
We will not receive any proceeds from the sale by the selling stockholders
of the shares being offered by this prospectus.
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REGISTRATION RIGHTS
The registration of the shares being sold in this offering will discharge
our remaining obligations under the terms of a registration rights agreement
with the former stockholders of Westfield Capital and all of our obligations
under the terms of a registration rights agreement with the former stockholders
of RINET.
Pursuant to the registration rights agreements with the former stockholders
of Westfield Capital and RINET, we agreed to pay all expenses of registering the
shares, including the legal fees of one legal counsel for the selling
stockholders as a group. However, we are not obligated to pay any other legal
expenses, brokerage and underwriting commissions, taxes of any kind and any
accounting and other similar expenses of the selling stockholders. We also
agreed 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 has severally agreed
to indemnify Boston Private Financial Holdings and its directors, officers and
any person who controls Boston Private Financial Holdings against all losses,
claims, damages and expenses arising under the securities laws insofar as such
losses, claims, damages or expenses relate to information furnished to Boston
Private Financial Holdings by such selling stockholder for use in the
registration statement or this prospectus or any amendment or supplement thereto
or the failure by such selling stockholder (through no fault of Boston Private
Financial Holdings) to deliver or cause to be delivered this prospectus or any
amendment or supplement thereto to any purchaser of shares covered by this
prospectus.
11
<PAGE> 13
SELLING STOCKHOLDERS
The shares of common stock being sold under this prospectus are being
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 15, 2000. The amounts set forth below
are based upon information provided by the selling stockholders and are accurate
to the best of our knowledge.
<TABLE>
<CAPTION> Shares of
Shares of Common Stock Owned
Common Stock Shares of After the Offering
Beneficially Owned Common Stock --------------------------
Selling Stockholder as of January 15 , 2000(1) Offered Hereby Number(1) Percent (2)
- ------------------- -------------------------- -------------- --------- -----------
<S> <C> <C> <C> <C>
Karen B. Agnew 35,514 35,514 0 *
Arthur J. Bauerfeind (3) 767,162 262,037 505,125 4.35%
David Boyce (4) 42,564 35,514 7,050 *
Michael Chapman 531,613 449,588 82,025 *
Stephen C. Demirjian (5) 122,530 108,380 14,150 *
Hazard Family Foundation 1,355,426 1,256,426 99,000 *
C. Michael Hazard (6) 108,275 25 108,250 *
Valerio Iannalfo 153,139 153,139 0 *
Patrick B. Maraghy 262,525 262,525 0 *
William A. Muggia (7) 82,266 72,866 9,400 *
Murray State University Foundation 35,650 28,000 7,650 *
Mary Ann Rodrigue 51,047 51,047 0 *
Jill A. Roeting (8) 20,314 15,514 4,800 *
Richard N. Thielen 298,986 298,986 0 *
B. Randall Watts (9) 78,222 65,028 13,194 *
------ ------ ------ -------
Total 3,945,233 3,094,589 850,644 7.28%
</TABLE>
- -----------------
* Less than 1%.
(1) Includes options to purchase shares of common stock that are
exercisable within 60 days of January 15, 2000.
(2) Based on 11,616,070 outstanding shares of common stock as of January
15, 2000. Options to purchase shares of common stock that are
exercisable within 60 days of January 15, 2000 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.
(3) Includes 5,750 shares subject to options exercisable within 60 days of
January 15, 2000.
(4) Includes 7,050 shares subject to options exercisable within 60 days of
January 15, 2000.
(5) Includes 14,150 shares subject to options exercisable within 60 days
of January 15, 2000.
(6) Includes 8,250 shares subject to options exercisable within 60 days of
January 15, 2000.
(7) Includes 14,400 shares subject to options exercisable within 60 days
of January 15, 2000.
(8) Includes 4,800 shares subject to options exercisable within 60 days of
January 15, 2000.
(9) Includes 7,194 shares subject to options exercisable within 60 days of
January 15, 2000.
PLAN OF DISTRIBUTION
The shares of common stock covered by this prospectus may be offered and
sold from time to time by the selling stockholders. The selling stockholders
will act independently of Boston Private Financial Holdings in making decisions
with respect to the timing, manner and size of each sale. Such sales may be made
in
12
<PAGE> 14
transactions on the Nasdaq National 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 selling stockholders may sell their shares of common stock by one
or more of the following methods:
- purchases by a broker-dealer as principal and resale by such broker or
dealer for its account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
- block trades in which a broker-dealer will attempt to sell the shares
as agent, but may position and resell a portion of the block as
principal to facilitate the transaction; and
- through one or more underwritten offerings on a firm commitment or
best efforts basis.
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 by this prospectus, 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 selling stockholders may also sell their shares in accordance with Rule
144 under the Securities Act of 1933, rather than pursuant to this prospectus,
regardless of whether the shares are covered by this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus is part of a registration statement that we filed with the
SEC to register the common stock offered in this offering. It does not repeat
important information that you can find in the registration statement or in the
reports and other documents that we file with the SEC. The SEC allows us to
"incorporate by reference" the information we file with them. This means that we
can disclose important information to you by referring to other documents that
are legally considered to be part of this prospectus, and later information that
we file with the SEC will automatically update and supersede the information in
this prospectus and the documents listed below. We incorporate by reference the
documents listed below, and any future filings made with the SEC under Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until the
selling stockholders sell all the shares of common stock offered under this
prospectus:
- our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
- our Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999;
- our Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1999;
- our Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1999;
13
<PAGE> 15
- our Current Report on Form 8-K dated January 20, 2000; and
- the description of our common stock contained in the registration
statement on Form SB-2 filed on August 30, 1993, including all
amendments and reports updating such description.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address: Boston Private Financial Holdings,
Inc., Ten Post Office Square, Boston, Massachusetts 02109, Attention: Corporate
Secretary (telephone number (617) 912-1900).
You should rely only on the information incorporated by reference or
contained in this prospectus or any supplement. We have not authorized anyone
else to provide you with different or additional information. You should not
assume that the information in this prospectus or any supplement is accurate as
of any date other than the date on the front of those documents. The selling
stockholders are not making an offer of these securities in any state where the
offer is not permitted.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information electronically with the SEC. You may read a copy of any reports,
statements or other information that we file with the SEC at the SEC's Public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. Please call the SEC
at 1-800-SEC-0330 for further information on the Public Reference Room. Our SEC
filings are also available from the Internet site maintained by the SEC at
http://www.sec.gov.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered hereby
will be passed upon for Boston Private Financial Holdings by its counsel,
Goodwin, Procter & Hoar LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Boston Private Financial Holdings
and its subsidiaries included in the Annual Report on Form 10-K for the year
ended December 31, 1998 have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, and upon the authority of said firm as experts in
accounting and auditing.
14
<PAGE> 16
================================================================================
3,094,589 SHARES
BOSTON PRIVATE
FINANCIAL HOLDINGS, INC.
COMMON STOCK
---------------------------
PROSPECTUS
---------------------------
_____________, 2000
================================================================================
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses of the distribution of the shares
of common stock being registered hereunder:
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee..................................... $ 7,050
Legal Fees and Expenses.................................. 20,000
Blue Sky Qualification Fees and Expenses 2,000
Miscellaneous............................................ 1,500
-------
Total........................................... $30,550
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant 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 Registrant 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 Registrant's
Articles of Organization provide for indemnification to the full extent
permitted under Section 67.
The Registrant and its directors and officers currently carry liability
insurance.
II-1
<PAGE> 18
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 - Registration Rights Agreement dated as of August 13, 1997 by and
between Boston Private Bancorp, Inc. and the individual
stockholders of Westfield Capital Management Company, Inc.
(Incorporated by reference to the corresponding exhibit to the
Current Report on Form 8-K of the Registrant, as filed with the
Securities and Exchange Commission on August 21, 1997)
4.2 - Registration Rights Agreement dated as of October 15, 1999 by and
between Boston Private Financial Holdings, Inc. and the
individual stockholders of RINET Company, Inc.
5.1 - Opinion of Goodwin, Procter & Hoar LLP
23.1 - Consent of KPMG LLP
23.2 - Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
24.1 - Power of Attorney (included on signature page)
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
Securities Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual
II-2
<PAGE> 19
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, 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> 20
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, The Commonwealth of Massachusetts on January
21, 2000.
BOSTON PRIVATE FINANCIAL HOLDINGS, INC.
By: /s/ Timothy L. Vaill
-------------------------------------
Timothy L. Vaill
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, each of the undersigned officers and
directors of Boston Private Financial Holdings, 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 Financial Holdings, 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.
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Timothy L. Vaill Chairman of the Board and January 21, 2000
- ----------------------------------------- Chief Executive Officer
Timothy L. Vaill (Principal Executive Officer)
/s/ Walter M. Pressey Executive Vice President and January 20, 2000
- ----------------------------------------- Chief Financial Officer
Walter M. Pressey (Principal Financial Officer and
Principal Accounting Officer)
/s/ Herbert S. Alexander Director January 20, 2000
- -----------------------------------------
Herbert S. Alexander
/s/ Arthur J. Bauernfeind Director January 20, 2000
- -----------------------------------------
Arthur J. Bauernfeind
/s/ Eugene S. Colangelo Director January 20, 2000
- -----------------------------------------
Eugene S. Colangelo
</TABLE>
II-4
<PAGE> 21
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ C. Michael Hazard Director January 21, 2000
- -----------------------------------------
C. Michael Hazard
- ----------------------------------------- Director January __, 2000
Lynn Thompson Hoffman
- ----------------------------------------- Director January __, 2000
Allen Sinai
/s/ Charles O. Wood, III Director January 21, 2000
- -----------------------------------------
Charles O. Wood, III
/s/ Peter C. Bennett Director January 21, 2000
- -----------------------------------------
Peter C. Bennett
/s/ Richard Thielen Director January 21, 2000
- -----------------------------------------
Richard Thielen
</TABLE>
II-5
<PAGE> 22
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 - Registration Rights Agreement dated as of August 13, 1997 by and
between Boston Private Bancorp, Inc. and the individual
stockholders of Westfield Capital Management Company, Inc.
(Incorporated by reference to the corresponding exhibit to the
Current Report on Form 8-K of the Registrant, as filed with the
Securities and Exchange Commission on August 21, 1997)
4.2 - Registration Rights Agreement dated as of October 15, 1999 by and
between Boston Private Financial Holdings, Inc. and the
individual stockholders of RINET Company, Inc.
5.1 - Opinion of Goodwin, Procter & Hoar LLP
23.1 - Consent of KPMG LLP
23.2 - Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
24.1 - Power of Attorney (included on signature page)
<PAGE> 1
EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of October 15, 1999 (this
"Agreement") by and between Boston Private Financial Holdings, Inc., a
Massachusetts corporation ("BPFH") and the several persons signatory hereto
(each a "Stockholder" and collectively the "Stockholders").
BPFH, Boston Private Financial Planning, Inc., a Massachusetts corporation
and wholly-owned subsidiary of BPFH, RINET Company, Inc., a Massachusetts
corporation, and the Stockholders are parties to an Agreement and Plan of Merger
dated as of July 22, 1999 (the "Plan of Merger"), pursuant to which, among other
things, the Stockholders will have the right to receive shares (the "Shares") of
common stock, $1.00 par value per share ("Common Stock"), of BPFH, in exchange
for all the shares of Class A Common Stock (as defined in the Plan of Merger)
and Class B Common Stock (as defined in the Plan of Merger) of RINET Company,
Inc., a Massachusetts corporation, all as more fully set forth in the Plan of
Merger.
This Agreement is being entered into to set forth certain rights and
obligations of BPFH and the Stockholders with respect to the registration under
the Securities Act of 1933, as amended, or any successor federal statute and the
rules and regulations of the Securities and Exchange Commission (the "SEC")
thereunder, and in the case of any reference to any such statute, rule or
regulation, any successor section (the "Securities Act"), of the offer and sale
of the Shares by the Stockholders, all as more fully set forth in this
Agreement.
In consideration of the foregoing and the respective covenants and
agreements set forth herein, and for other good and valuable consideration, the
parties hereto agree as follows:
Section 1. EFFECTIVENESS OF REGISTRATION RIGHTS. The registration
rights granted pursuant to Sections 2 and 3 hereof shall be effective as of the
closing of the transactions contemplated by the Plan of Merger.
Section 2. DEMAND REGISTRATION.
2.1 NOTICE AND REGISTRATION. At any time after January 1, 2000
and from time to time thereafter, subject to the terms and conditions set forth
herein, upon written notice by two or more Stockholders (as to any such notice
and the related registration of Covered Shares, "Requesting Stockholders")
requesting that BPFH effect the registration under the Securities Act of not
less than 100,000 Covered Shares in the aggregate held by them, which notice
shall specify the intended method or methods of disposition of such Covered
Shares, BPFH will promptly give written notice (the "BPFH Notice") of such
requested registration to all other Stockholders then holding Covered Shares.
Any such Stockholder who wishes to have Covered Shares included in such
registration shall give written notice delivered to BPFH within 20 days after
the date of the BPFH Notice indicating such intent, upon which such Stockholder
will become a Requesting Stockholder with respect to the related notice and
registration. BPFH will use its reasonable best efforts to promptly effect the
registration under the Securities Act of the Covered Shares requested to be
registered by the Requesting Stockholders on Form
Page 1
<PAGE> 2
S-3 (or any successor form substantially equivalent thereto) or, if such forms
are not then available to BPFH, such other appropriate form as BPFH may elect,
for disposition in accordance with the intended method or methods of disposition
stated in such request, PROVIDED that:
(a) BPFH shall not be required to effect more than one (1)
registration of Covered Shares pursuant to this Section 2 during any consecutive
twelve month period. No registration of Covered Shares under Section 2 which
shall not become effective shall be deemed to be a registration for the purposes
of this sentence;
(b) in the event that as to any request for registration
pursuant to this Section 2, Requesting Stockholders request the registration of
more than an amount of Covered Shares equal to twenty percent (20%) of the total
aggregate number of shares of BPFH Common Stock received by the Stockholders
pursuant to the Plan of Merger (the "Initial Shares"), BPFH may in its sole
discretion by written notice to each Requesting Stockholder reduce the number of
Covered Shares of each Requesting Stockholder to be registered in response to
such request, pro rata based on the number of Covered Shares requested to be
registered, to the extent necessary to reduce the aggregate number of Covered
Shares to be registered in response to such request to not less than an amount
of Covered Shares equal to twenty percent (20%) of the Initial Shares;
(c) if BPFH shall have previously effected a registration,
other than registrations incidental to any securities issued in connection with
mergers, acquisitions, exchange offers, dividend reinvestment plans or stock
option or other benefit plans, under the Securities Act with respect to Common
Stock (including without limitation, any registration of Common Stock pursuant
to the Westfield Merger Agreement (as defined in Section 7.3 hereof)), BPFH
shall not be required to effect a registration pursuant to this Section 2 until
a period of 120 days shall have elapsed from the effective date of the most
recent such previous registration;
(d) if upon receipt of a registration request pursuant to
this Section 2 BPFH is engaged or has firm plans to engage within 90 days of the
time of the request in a registered public offering of securities (a "BPFH
Offering"), then BPFH may at its option direct that such request be delayed for
a period not in excess of 90 days from the commencement of such public offering,
PROVIDED, however, that in any twelve month period BPFH may only one time in the
aggregate exercise its right to either so delay a request or impose a
Transaction Blackout;
(e) if, at the time of any request to register Covered
Shares pursuant to this Section 2 or after such request but prior to the filing
of the related registration statement, BPFH's Chief Executive Officer determines
in good faith that the filing of a registration statement would require the
disclosure of material information which BPFH has a bona fide business purpose
for preserving as confidential, BPFH may at its option direct that such request
be delayed until the earlier of (A) the date upon which such material
information is disclosed to the public or ceases to be material or (B) 90 days
after the date of the decision to so delay; PROVIDED, however, that BPFH may not
so delay a registration pursuant to this Section 2.1(e) or suspend sales
pursuant to a Transaction Blackout for more than 90 days in the aggregate during
any twelve consecutive month period without the approval of the Board of
Directors of BPFH; and
Page 2
<PAGE> 3
(f) the Stockholders' right to request registration
pursuant to this Section 2 shall terminate in the event that at anytime after
the seventh anniversary hereof BPFH offers to register all Covered Shares held
by Stockholders for sale in an underwritten public offering and either (i) no
Stockholder requests to have Covered Shares included in such offering or (ii)
such underwritten public offering is consummated and results in the opportunity
to sell all Covered Shares requested by Stockholders to be included in such
offering.
2.2 REGISTRATION EXPENSES. BPFH (as between BPFH and the
Requesting Stockholders) shall bear all Registration Expenses in connection with
any registration pursuant to this Section 2, other than underwriting discounts
and commissions, stock transfer taxes or fees and expenses of legal, tax and
other counsel or advisors to the Requesting Stockholders, except that the
expenses of one counsel for the Requesting Stockholders are included in the
definition of Registration Expenses unless such registration is effected in
connection with registration of shares issued in the Westfield Merger, in which
case the Requesting Stockholders shall be represented jointly by a single
counsel representing the holders of shares issued in connection with the
Westfield Merger.
2.3 THIRD PERSON AND COMPANY SHARES. BPFH shall have the right
to cause the registration of securities for sale for the account of any person
in any registration of Covered Shares requested pursuant to this Section 2;
PROVIDED, however, that in no event shall such inclusion result in the number of
Covered Shares to be included in such registration being reduced below an amount
of Covered Shares equal to twenty percent (20%) of the Initial Shares or such
lesser number of Covered Shares sought to be included therein by Requesting
Stockholders.
2.4 FINANCIAL INFORMATION. Notwithstanding anything to the
contrary herein, in connection with any registration provided for in this
Section 2, BPFH will not be obligated to furnish any financial statements other
than the audited financial statements customarily prepared at the end of its
fiscal year and unaudited financial information customarily required by the SEC
under the Securities Act and the Securities Exchange Act of 1934, as amended or
that may be required by any successor federal statutes. In the event that
additional financial statements or other financial information or schedules is
so required and is not readily available to BPFH, then BPFH shall be entitled to
defer the performance of its obligations under this Section 2 until such time as
such additional financial statements will not be so required or will be readily
available, or, at its option, BPFH shall at the request of Requesting
Stockholders prepare such additional financial statements or other information,
and the costs and expenses of BPFH in connection therewith, including salary and
related overhead expenses of employees of BPFH and any subsidiary or affiliate
of BPFH for time expended by such employees in the preparation of such financial
or other information, will be reimbursed to BPFH by the Requesting Stockholders
so requesting such preparation.
2.5 ADDITIONAL DEMAND RIGHT. In the event that in any two
consecutive twelve month periods BPFH delays a registration pursuant to Section
2.1(e) or suspends sales pursuant to Transaction Blackouts for 90 or more days
in the aggregate during each of such consecutive twelve month periods, upon a
written request by Requesting Stockholders pursuant to Section 2.1 hereof BPFH
will use its reasonable best efforts to effect within six months of such request
a registration for an underwritten public offering pursuant and subject to the
terms and conditions of Section 2 and this Agreement, provided that as applied
to any registration pursuant to this Section 2.5 (i) the references to "an
amount
Page 3
<PAGE> 4
of Covered Shares equal to twenty percent (20%) of the Initial Shares" contained
in Section 2.1(b) and in Section 2.3 shall be deemed to be references to "an
amount of Covered Shares equal to forty percent (40%) of the Initial Shares,"
(ii) no registration pursuant to this Section 2.5 shall be counted toward the
limitation on registrations provided in Section 2.1(a) and (iii) Section 2.1(d)
and Section 4.3(a) as it applies to Transaction Blackouts shall be inapplicable.
Section 3. PIGGYBACK REGISTRATION.
3.1 NOTICE AND REGISTRATION. If at any time or from time to time
after the effectiveness of this Agreement BPFH proposes to register any Common
Stock ("Other Securities") for public sale under the Securities Act (whether
proposed to be offered for sale by BPFH or any other person) in an underwritten
public offering and on a form and in a manner which would permit registration of
Covered Shares for sale to the public under the Securities Act, it will give
written notice to the each Stockholder of its intention to do so, and upon the
written request of Stockholders (as to any such notice and the related
registration of Covered Shares, "Requesting Stockholders") delivered to BPFH
within 10 business days after the giving of any such notice (which request shall
specify the Covered Shares intended to be disposed of by the Requesting
Stockholder) requesting that BPFH include in such registered underwritten public
offering any number of Covered Shares owned by such Requesting Stockholders,
BPFH will use its reasonable best efforts to effect, in connection with the
registration of the Other Securities, the registration under the Securities Act
of all Covered Shares which BPFH has been so requested to register by such
Requesting Stockholders, to the extent required to permit the disposition of
Covered Shares so to be registered; PROVIDED that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration, BPFH
shall determine for any reason not to register the Other Securities, BPFH shall
give written notice of such determination to the Requesting Stockholders and
BPFH may, at its election, be relieved of its obligation to register such
Covered Shares in connection with the registration of such Other Securities (but
not from its obligation to pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 3.2), without prejudice, however, to
the rights (if any) of the Requesting Stockholders immediately to request that
such registration be effected as a registration under Section 2 to the extent
that such request would comply with all of the terms and conditions of Section
2;
(b) if BPFH shall have been advised in writing (with a copy
to each Requesting Stockholder) by a nationally recognized independent
investment banking firm selected by BPFH (who is then acting as the managing
underwriter for any such offering) that, in such firm's opinion, the inclusion
of all or any portion of the Covered Shares then intended to be disposed of by
Requesting Stockholders in the proposed registration at that time would
adversely affect in a significant manner the registration and offering of the
Other Securities, the number of Covered Shares requested to be included in the
proposed registration shall be reduced on a pro rata basis among all Requesting
Stockholders based on the number of such Covered Shares requested to be included
by each such Requesting Stockholder or, as the case may be, shall all be
excluded from such registration in their entirety, to the extent necessary as
determined by such investment banking firm to prevent the proposed registration
of Other Securities from being so effected; PROVIDED, however, that if as a
result of the provisions of this Section 3.1(b), BPFH is unable to include in
such registration all of the Covered Shares requested by the Requesting
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Stockholders for inclusion in such registration, BPFH shall so notify each
Requesting Stockholder and give each Requesting Stockholder the right to
withdraw all Covered Shares requested by the Requesting Stockholder for
inclusion in such registration from such registration by notice to BPFH within 5
days after receipt of BPFH's notice;
(c) BPFH shall not be required to effect any registration
of Covered Shares under this Section 3 incidental to the registration of any of
its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
employee benefit or similar plans; and
(d) the Stockholders have requested that at least 100,000
Covered Shares, in the aggregate, be included in such registration of Other
Securities; provided, however, that Requesting Shareholders may request
registration of less than 100,000 Covered Shares in connection with registration
rights granted pursuant to the Westfield Merger Agreement provided that the
number of shares of BPFH Common Stock to be so requested total 100,000 or more.
3.2 REGISTRATION EXPENSES. BPFH (as between BPFH and the
Requesting Stockholders) shall bear all Registration Expenses in connection with
any registration pursuant to this Section 3, other than underwriting discounts
and commissions, stock transfer taxes or fees and expenses of legal, tax and
other counsel or advisors to the Requesting Stockholders, except that the
expenses of one counsel for the Requesting Stockholders are included in the
definition of Registration Expenses. In no event, however, shall the Company be
required to pay for the expenses of more than one counsel in connection with any
registration pursuant to this Section 3.
Section 4. REGISTRATION PROCEDURES.
4.1 REGISTRATION AND QUALIFICATION. If and whenever BPFH is
required to use its reasonable best efforts to effect the registration of any
Covered Shares under the Securities Act as provided in Section 2 or Section 3,
BPFH will as promptly as is practicable:
(a) in the case of a request pursuant to Section 2,
prepare, file and use its reasonable best efforts to cause to become effective a
registration statement under the Securities Act regarding the Covered Shares to
be offered on such appropriate registration form of the SEC as shall be selected
by BPFH;
(b) in the case of a request pursuant to Section 2, prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Covered Shares until
the later of (i) such time as all of such Covered Shares have been disposed of
in accordance with the intended methods of disposition by the Requesting
Stockholders set forth in such registration statement (but in no event beyond
the date that a subsequent registration statement filed pursuant to a request
under Section 2 becomes effective) or (ii) the expiration of the time when a
prospectus relating to any sale made within the period contemplated by phrase
(i) of this paragraph is required to be delivered under the Securities Act;
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(c) furnish to each Requesting Stockholder and to any
underwriter of such Covered Shares such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus or
prospectus supplement included in such registration statement (including each
preliminary prospectus and any summary prospectus) and, in conformity with the
requirements of the Securities Act, such documents incorporated by reference in
such registration statement or prospectus as the Requesting Stockholder or such
underwriter may reasonably request in order to facilitate the public sale or
other disposition of the Covered Shares;
(d) use its reasonable best efforts to register or qualify
all Covered Shares covered by such registration statement under such other
securities or blue sky laws of such United States jurisdictions as the
Requesting Stockholders or any underwriter of such Covered Shares shall
reasonably request, except that BPFH shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
where it is not so qualified, or to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) immediately notify each Requesting Stockholder (i) of
the time any registration statement filed hereunder becomes effective or when
any amendment or supplement or prospectus forming a part of such registration
statement has been filed, (ii) of any request by the SEC for an amendment or
supplement to such registration statement or prospectus or for additional
information, (iii) after BPFH shall have received notice or otherwise obtained
knowledge thereof, of the issuance of any order by the SEC suspending the
effectiveness of such registration statement or any amendment thereto or of the
initiation or threatening of any proceeding for that purpose (and BPFH will use
its reasonable best efforts to prevent the issuance of any such stop order or to
obtain its withdrawal promptly if such stop order should be issued) and (iv) at
any time when a prospectus relating to a registration pursuant to Section 2 or
Section 3 is required to be delivered under the Securities Act, of the happening
of an event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and, subject to Section 4.3, at the request of any
Requesting Stockholder prepare and furnish to such Requesting Stockholder a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Covered Shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading; PROVIDED that the time
period set forth in Section 4.1(b)(ii) hereof shall be extended for a number of
days equal to the number of days in the period from and including the date BPFH
gave the notice required by this Section 4.1(e) through the date when BPFH
delivers such supplement or amendment.
BPFH may require each Requesting Stockholder to furnish BPFH with such
information regarding such Requesting Stockholder and the distribution of such
securities as BPFH may from time to time reasonably request in writing or as
shall be required by law or by the SEC or the National Association of Securities
Dealers, Inc. ("NASD") or any underwriter in connection with any registration.
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Each Stockholder hereby agrees to promptly notify BPFH of any changes in the
information provided to BPFH; and
(f) BPFH agrees in the case of an underwritten offering
under Section 2 or Section 3 hereof to refrain, without the consent of the
managing underwriter, for a period from 15 days before the effective date of the
registration statement until 90 days after such effective date, from publicly
selling, offering to sell, publicly selling any option for the sale of any
common equity or securities convertible into common equity other than pursuant
to BPFH employee equity plans.
4.2 UNDERWRITING.
(a) If a registration pursuant to Section 3 involves an
underwritten offering, BPFH shall have the right to select the managing
underwriter. If a registration pursuant to Section 2 involves an underwritten
offering, BPFH shall consult with the Requesting Stockholders as to the
selection of the managing underwriter(s) for such underwritten offering. BPFH
shall have the right after such consultation to select the managing
underwriter(s) for any such underwritten public offering subject to the approval
of Requesting Stockholders holding a majority of the Covered Shares requested to
be registered in such underwritten offering, which approval may not be
unreasonably withheld. Stockholders agree not to discuss the possible engagement
of any managing underwriter with such underwriter without the prior written
consent of BPFH.
(b) If requested by the underwriters for any underwritten
offering of Covered Shares pursuant to a registration requested hereunder, BPFH
will enter into an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by BPFH
and such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Section 6 and the provision to such underwriters and the Requesting
Stockholders of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 4.2(c). The representations and warranties by,
and the other agreements on the part of, BPFH to and for the benefit of such
underwriters shall also be made to and for the benefit of Requesting
Stockholders. As a condition to each Requesting Stockholder's rights under
Section 2 and Section 3, such Requesting Stockholder shall become a party to any
such underwriting agreement, such agreement to contain such representations and
warranties by such Requesting Stockholders and such other terms and provisions
as the underwriters may reasonably request, including without limitation,
indemnities and contributions to the effect and to the extent provided in
Section 6.
(c) In the case of an underwritten offering of Covered
Shares, BPFH shall use its reasonable best efforts to obtain and furnish copies
to each Requesting Stockholder of (i) an opinion of counsel for BPFH which is
also addressed or confirmed to the Requesting Stockholders, dated the date of
the closing under the underwriting agreement, and (ii) a "cold comfort" letter
signed by the independent public accountants who have certified BPFH's financial
statements included in such registration statement, each covering substantially
the same matters with respect to such registration statement (and the prospectus
included therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters in
underwritten public offerings of securities.
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(d) In the event of any registration pursuant to Section 3
hereof, BPFH may require Requesting Stockholders requesting that Covered Shares
be registered pursuant to Section 3 to participate in such underwriting on the
same terms and conditions, and pursuant to the same Underwriting Agreement as
shall be applicable to persons seeking the Other Securities to be sold through
underwriters under such registration.
4.3 BLACKOUT PERIODS.
(a) At any time when a registration statement effected
pursuant to Section 2 or 3 hereunder relating to Covered Shares is effective,
upon written notice from BPFH to the Requesting Stockholders that either:
(i) BPFH has firm plans to engage within 90 days in a
BPFH Offering and has been advised in writing (with a copy to the
Requesting Stockholders) by a nationally recognized independent investment
banking firm selected by BPFH that, in such firm's opinion, the Requesting
Stockholders' sale of Covered Shares pursuant to the registration statement
would adversely affect in a significant manner such immediately planned
BPFH Offering (a "Transaction Blackout"); or
(ii) BPFH determines, based on the good faith advice of
outside corporate counsel to BPFH, that the Requesting Stockholders' sale
of Covered Shares pursuant to the registration statement would require
disclosure of material information which, in the good faith judgment of the
Chief Executive Officer of BPFH, BPFH has a bona fide business purpose for
preserving as confidential (an "Information Blackout"),
the Requesting Stockholders shall suspend sales of Covered Shares pursuant to
such registration statement until the earlier of:
(X) (i) in the case of a Transaction Blackout, the earliest of (A)
90 days after the effectiveness of the registration statement relating to
such BPFH Offering, (B) the termination of any "blackout" period required
by the underwriters to be applicable to BPFH or the Stockholders, if any,
in connection with such BPFH Offering or (C) promptly after abandonment of
such BPFH Offering, or (ii) in the case of an Information Blackout, the
earlier of (A) the date upon which such material information is disclosed
to the public or ceases to be material or (B) 90 days after the date of
suspension of sales; or
(Y) such time as BPFH notifies the Requesting Stockholders that sales
pursuant to such registration statement may be resumed (the number of days
from such suspension of sales of the Requesting Stockholders until the day
when such sales may be resumed hereunder is hereinafter called a "Sales
Blackout Period");
PROVIDED that BPFH may not impose a Transaction Blackout during any underwritten
public offering.
(b) If there is a Transaction Blackout or an Information
Blackout, the time period set forth in Section 4.1(b)(ii) shall be extended for
a number of days equal to the number of days in the Sales Blackout Period.
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4.4 LISTING. In connection with the registration of any offering
of Covered Shares pursuant to this Agreement, BPFH agrees to use its reasonable
best efforts, at BPFH's expense, to effect the listing of such shares on any
securities exchange on which any shares of the Common Stock are then listed.
Section 5. PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement registering Covered
Shares under the Securities Act, BPFH will give each Requesting Stockholder and
the underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of BPFH with its officers and other appropriate
personnel and the independent public accountants who have certified its
financial statements as shall be reasonably necessary to conduct a reasonable
investigation within the meaning of the Securities Act.
Section 6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any Covered Shares
hereunder, BPFH will enter into customary indemnification arrangements to
indemnify and hold harmless the Requesting Stockholders, each person who
participates as an underwriter in the offering or sale of such securities, each
officer and director of each underwriter, and each person, if any, who controls
any such underwriter within the meaning of the Securities Act against any
losses, claims, damages, liabilities or expenses to which such person may be
subject under the Securities Act or otherwise insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect thereof)
arise out of are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus
or final prospectus included therein, any amendment or supplement thereto or any
document incorporated by reference therein or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and BPFH will reimburse
each such person for any legal or other expenses reasonably incurred by such
person in connection with investigating or defending any such loss, claim,
damage or liability (or action or proceeding in respect thereof); PROVIDED that
BPFH shall not be liable in any such case to the extent that any such loss,
claim, damage or liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus or final prospectus, amendment or supplement (A)
in reliance upon and in conformity with written information furnished to BPFH by
any Requesting Stockholder or such underwriter specifically for use in the
preparation thereof or (B) and corrected in any prospectus or amendment or
supplement thereto that was delivered to the Requesting Stockholder or
underwriter prior to the sale or sales of Covered Shares in question. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Requesting Stockholders or any such person and shall
survive the transfer of such securities by the Requesting Stockholder. BPFH also
shall agree to provide for contribution as shall reasonably be requested by the
Requesting Stockholders or any underwriters in circumstances where such
indemnity is held unenforceable.
(b) Each Requesting Stockholder, by virtue of exercising
its registration rights hereunder, agrees and undertakes to enter into customary
indemnification arrangements to indemnify and
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hold harmless (in the same manner and to the same extent as set forth in Section
6(a)) BPFH, each director of BPFH, each officer of BPFH who shall sign such
registration statement, each person who participates as an underwriter or a
selling stockholder in the offering or sale of such securities, each officer and
director of each underwriter and selling stockholder, and each person, if any,
who controls BPFH or any such underwriter or selling stockholder within the
meaning of the Securities Act, with respect to any statement in or omission from
such registration statement, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished by the Requesting Stockholder to BPFH specifically for inclusion in
such registration statement or prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of BPFH or
any such director, officer or controlling person and shall survive the transfer
of the registered securities by the Requesting Stockholder. Each Requesting
Stockholder also shall agree to provide for contribution as shall reasonably be
requested by BPFH or any underwriters or selling stockholder in circumstances
where such indemnity is held unenforceable.
(c) Indemnification and contribution similar to that
specified in the preceding subdivisions of this Section 6 (with appropriate
modifications) shall be given by BPFH and each Requesting Stockholder with
respect to any required registration or other qualification of such Covered
Shares under any federal or state law or regulation of governmental authority
other than the Securities Act.
Section 7. BENEFITS AND TERMINATION OF REGISTRATION RIGHTS.
7.1 EXERCISE. Registration rights granted hereunder may only be
exercised by the Stockholders or their permitted assigns.
7.2 TERMINATION. The registration rights of any Stockholder
hereunder shall cease to apply to Covered Shares held by such Stockholder when
(a) a registration statement with respect to the sale of such Covered Shares
shall have become effective under the Securities Act and such shares shall have
been disposed of in accordance with such registration statement or (b) all such
Covered Shares are eligible to be sold pursuant to Rule 144 under the Securities
Act (or any successor provision) during any two (2) successive three (3) month
periods.
7.3 OTHER AGREEMENTS. BPFH is party to that certain Agreement
and Plan of Merger dated August 13, 1997 by and among BPFH, Boston Private
Investment Management, Inc., Westfield Capital Management Company, Inc.
("Westfield"), and certain stockholders of Westfield named therein (the
"Westfield Merger Agreement"), that certain Stock Purchase Agreement, dated
December 2, 1996, by and between BPFH and the investors named therein and that
certain Asset Purchase Agreement, dated as of June 16, 1995, by and among BPFH,
Boston Private Bank & Trust Company, Cunningham, Henderson and Papin
Incorporated and the stockholders of Cunningham, Henderson and Papin
Incorporated, each of which agreements provide certain registration rights with
respect to shares of Common Stock held by certain parties thereto (the "Other
Registration Rights"). The rights of the Stockholders hereunder and the
obligations of BPFH hereunder are expressly subject to and, to the extent
inconsistent therewith, limited by such Other Registration Rights.
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Section 8. CERTAIN DEFINITIONS.
8.1 REGISTRATION EXPENSES. As used in this Agreement, the term
"Registration Expenses" means all expenses incident to BPFH's performance of or
compliance with the registration requirements set forth in this Agreement,
including, without limitation, the following: (i) the fees, disbursements and
expenses of BPFH's counsel and accountants in connection with the registration
of Covered Shares to be disposed of under the Securities Act; (ii) all expenses
in connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus, any other offering
document and amendments and supplements thereto and the mailing and delivering
of copies thereof to the underwriters and dealers; (iii) the cost of printing
and producing any agreements among underwriters, underwriting agreements, and
blue sky or legal investment memoranda, any selling agreements and any
amendments thereto or other documents in connection with the offering, sale or
delivery of Covered Shares to be disposed of; (iv) all expenses in connection
with the qualification of Covered Shares to be disposed of for offering and sale
under state securities laws, including the fees and disbursements of counsel for
the underwriters in connection with such qualification and in connection with
any blue sky and legal investment surveys; (v) the filing fees incident to
securing any required review by the NASD of the terms of the sale of Covered
Shares to be disposed of; (vi) the costs of preparing stock certificates; (vii)
the costs and charges of BPFH's transfer agent and registrar; and (viii) the
reasonable fees and disbursements of one counsel for the Requesting
Stockholders.
8.2 COVERED SHARES. "Covered Shares" means the Shares and any
stock dividends or distributions made on the Shares from BPFH (including,
without limitation, as a result of a stock split) or any securities which become
convertible into or exchanged for BPFH shares in the event there is a sale of
all or substantially all of the assets of BPFH, or a merger or a reorganization
of BPFH.
Section 9. LEGEND. Each certificate representing the Covered Shares
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be transferred or otherwise disposed of unless they have been
registered under said Act or an exemption from registration is
available."
The foregoing legend shall be removed at such time as the restrictions referred
to therein cease to be applicable.
Section 10. TERMINATION. This Agreement shall terminate on the earlier
of the date that no Stockholder owns any Covered Shares or the date that all
Covered Shares held by all Stockholders are freely saleable without restriction
under the Securities Act.
Section 11. MISCELLANEOUS.
11.1 ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and (a) with respect
to BPFH, its successors and assigns and (b) with respect to the Stockholders,
its successors and permitted assigns. No Stockholder may assign any of its
rights and obligations hereunder without the prior written consent of BPFH,
PROVIDED that a
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Stockholder may assign its rights and obligations hereunder to any trust,
limited partnership or other estate planning vehicle the sole beneficiaries or
equity holders of which shall be such Stockholder and/or one or more of a
spouse, parent, sibling, child or grandchild of such Stockholder or any
charitable trust or foundation or, without compensation, to any charitable trust
or foundation.
11.2 GOVERNING LAW; JURISDICTION. This Agreement shall be
construed, performed and enforced in accordance with, and governed by, the laws
of the Commonwealth of Massachusetts (without giving effect to the principles of
conflicts of laws thereof).
11.3 SEVERABILITY. In the event that any part of this Agreement
is declared by any court or other judicial or administrative body to be null,
void or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in full
force and effect.
11.4 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be sent by hand delivery,
receipt acknowledged, or by telegram, telex or facsimile transmission, to the
respective parties at the following addresses:
If to BPFH:
Ten Post Office Square
Boston, Massachusetts 02109
Attention: Timothy L. Vaill
Facsimile: (617) 912-4557
with a copy to
Goodwin, Procter & Hoar, LLP
Exchange Place
52 State Street
Boston, Massachusetts 02109
Attention: Richard E. Floor, P.C. or William P. Mayer, Esq.
Facsimile: (617) 523-1231
If to the Stockholder, at the address of record reflected upon the books of
BPFH,
with a copy to
Nutter, McClennan & Fish, LLP
One International Place
Boston, MA 02109
Attention: Michael Mooney, Esq. or Gene A. Blumenreich, Esq.
Facsimile: (617) 973-9748
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Any party may change its address or facsimile number for receiving notice
by written notice given to the other party. All notices, requests, demands and
other communications hereunder shall be deemed to have been duly given as of the
earlier of (a) the date received or (b) the date receipt is acknowledged.
11.5 RULE 144 INFORMATION. With a view to making available to the
Stockholders the benefits of Rule 144 promulgated under the Securities Act
("Rule 144") and any other rule or regulation of the SEC that may at any time
permit a Stockholder to sell Covered Shares to the public without registration,
BPFH agrees to:
(a) use its reasonable best efforts to file with the SEC
all reports and other documents required of BPFH to be filed pursuant to the
Securities Act or the Securities Exchange Act of 1934; and
(b) furnish to any Stockholder forthwith upon request (1) a
written statement by BPFH as to its compliance with the reporting requirements
of paragraph (c)(1) Rule 144, (2) a copy of the most recent annual or quarterly
report of BPFH and (3) at the Stockholder's expense, such other public,
non-confidential information as may be reasonably requested in availing any
Stockholder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
11.6 CONFIDENTIALITY. Stockholder agrees to treat as confidential
and not to disclose to any other person any information provided to Stockholder
by BPFH pursuant to this Agreement that BPFH notifies Stockholder is
confidential.
11.7 AMENDMENTS; WAIVERS. This Agreement may be amended or
modified, and any of the terms, covenants or conditions hereof may be waived,
only by a written instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. Any waiver by any party of any
condition, or of the breach of any provision, term or covenant contained in this
Agreement, in any one or more instances, shall not be deemed to be nor construed
as a furthering or continuing waiver of any such condition, or of the breach of
any other provision, term or covenant of this Agreement.
11.8 SECTION AND PARAGRAPH HEADINGS. The section and paragraph
headings in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
11.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
BOSTON PRIVATE FINANCIAL
HOLDINGS, INC.
By: /s/ Timothy L. Vaill
-------------------------------
Name: Timothy L. Vaill
Title: Chairman, President and CEO
STOCKHOLDERS:
By: /s/ Richard N. Thielen
-----------------------------------
Name: Richard N. Thielen
By: /s/ Patrick B. Maraghy
-----------------------------------
Name: Patrick B. Maraghy
By: /s/ Valerio Iannolfo
-----------------------------------
Name: Valerio Iannolfo
By: /s/ Mary Ann Rodrigue
-----------------------------------
Name: Mary Ann Rodrigue
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EXHIBIT 5.1
[Letterhead of Goodwin, Procter & Hoar LLP]
January 21, 2000
Boston Private Financial Holdings, Inc.
Ten Post Office Square
Boston, MA 02109
Ladies and Gentlemen:
This opinion is furnished in our capacity as special counsel to Boston
Private Financial Holdings, Inc., a Massachusetts corporation (the "Company"),
in connection with the registration, pursuant to the Securities Act of 1933 (the
"Securities Act"), of 3,094,589 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 Financial Holdings, Inc.
January 21, 2000
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 of
Boston Private Financial Holdings, Inc.
We consent to use of our report dated January 19, 1999 incorporated by
reference in the registration statement on Form S-3 of Boston Private Financial
Holdings, Inc. relating to the consolidated balance sheets of Boston Private
Financial Holdings, Inc. and subsidiaries as of December 31, 1998 and 1997, 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, 1998, which report appears in the December 31, 1998 annual report
on Form 10-K of Boston Private Financial Holdings, Inc. We also consent to the
reference to our Firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
January 21, 2000
