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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
POST EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 (Reg. No. 333-68237)
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_________________________
BANKNORTH GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 03-0321189
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
300 Financial Plaza, P.O. Box 5420, Burlington, VT 05401-5420
(Address of Principal Executive Offices)
Amended and Restated 1995 Employee Incentive Plan of Evergreen Bancorp, Inc.*
1995 Directors' Stock Option Plan of Evergreen Bancorp, Inc.* as amended
(*predecessor by merger to the Registrant)
(Full title of the plans)
Mr. William H. Chadwick With copy to:
President and Chief Executive Officer Denise J. Deschenes, Esq.
Banknorth Group, Inc. Primmer & Piper, P.C.
300 Financial Plaza, P.O. Box 5420 52 Summer Street, P.O. Box 159
Burlington, VT 05401-5420 St. Johnsbury, VT 05819
(Name and address of agent for service)
(802) 658-9959
(Telephone number, including area code, of agent for service)
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
[Omitted from this filing in accordance with the Note to Part I of Form S-8]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Banknorth Group, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference into this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30, and September 30, 1998;
(3) The Company's Current Reports on Form 8-K filed on February 27,
July 20 and August 10, 1998 and January 15, 1999; and
(4) The description of the Company's Common Stock, $1.00 par value,
and associated Common Stock Purchase Rights, contained in the Company's Current
Report on Form 8-K dated November 30, 1989, as amended, and in its Registration
Statement on Form 8-A/A dated September 4, 1998.
In addition, all documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in the Registration
Statement and to be part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the DCL permits a corporation's certificate of
incorporation to eliminate or limit the personal liability of a director to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, provided that the relevant provision does not eliminate or
limit the liability of a director for (i) any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) unlawful payment of a dividend or approval of an unlawful stock
purchase or redemption or (iv) any transaction from which the director derived
an improper personal benefit. Article Twelfth of the Banknorth Certificate of
Incorporation provides that no director shall be personally liable to Banknorth
or the Banknorth Shareholders for monetary damages for
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breach of fiduciary duty as a director, subject to the foregoing limitations of
DCL Section 102(b)(7).
Section 145(a) of the DCL permits a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in such a capacity with another business entity, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DCL permits a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation by reason of
the fact that such person acted in any of the capacities set forth above,
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action if such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the corporation, except that no
indemnification may be provided in respect of any claim or issue as to which
such person shall have been adjudged liable to the corporation, unless and only
to the extent that, the Delaware Court of Chancery (or other court in which such
action was brought) shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnify for such expenses as the
court deems proper.
Section 145 (c) of the DCL provides that a corporation must indemnify a
director or officer of a corporation who has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, against expenses (including attorney's fees) actually and
reasonably incurred by such person in connection therewith.
Section 145 (e) of the DCL permits a corporation to pay expenses (including
attorney's fees) incurred by an officer or director in defending any proceeding
in advance of the final disposition of such matter upon receipt of an
undertaking by or on behalf of such person to repay such amount if it is
ultimately determined that such person is not entitled to indemnity. The
indemnification provided for by Section 145 is not exclusive of any other rights
to which the indemnified party may be entitled under any by-law, agreement, vote
of stockholders or disinterested directors or otherwise.
Article Eleventh of Banknorth's Certificate of Incorporation and Section
6.6 of its By-laws provide that the registrant shall indemnify its officers and
directors to the fullest extent permitted by law and further provide that
Banknorth may indemnify its employees and agents to the fullest extent permitted
by law. The By-laws of Banknorth contain provisions
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which (i) set forth procedures for submitting a claim for indemnification, (ii)
establish indemnification as a contractual right, (iii) require Banknorth to
advance expenses incurred by a director or officer in defending a proceeding,
(iv) require a director or officer seeking advancement of expenses to deliver an
undertaking to Banknorth to repay all amounts so advanced if such person is not
entitled to be indemnified, and (v) allow a person seeking indemnification to
sue Banknorth to recover any amount which remains unpaid by Banknorth within 30
days after making an indemnification claim.
Section 145 (g) of the DCL provides that a corporation may purchase and
maintain insurance on behalf of any person who was or is a director, officer,
employee or agent of the corporation or was or is serving in such a capacity at
the request of the corporation with another business entity against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under Section 145. Banknorth has purchased directors' and officers' liability
insurance covering certain liabilities which may be incurred by its directors
and officers in connection with the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following documents are filed herewith, or are incorporated herein
by reference, as Exhibits to this Registration Statement:
Exhibit 4 - (i) Amended and Restated 1995 Stock Incentive Plan of Evergreen
Bancorp, Inc. (incorporated by reference to Exhibit 10(e) to
the Evergreen Bancorp, Inc. Annual Report on Form 10-K for
the year ended December 31, 1997).
(ii) 1995 Directors Stock Option plan of Evergreen Bancorp, Inc.
(incorporated by reference to Exhibit 4.1 to Evergreen
Bancorp, Inc.'s Registration Statement on Form S-8, Reg. No.
333-50115).
(iii) Amendment No. 1 to Directors Stock Option Plan of Evergreen
Bancorp, Inc. (incorporated by reference to Exhibit 10(g)
to the Evergreen Bancorp, Inc. Annual Report on Form 10-K
for the year ended December 31, 1997).
Exhibit 5 - Opinion and consent of Primmer & Piper, P.C. re validity of
the Common Stock .
Exhibit 15 - Letter of KPMG LLP re unaudited interim financial
information (with respect to Banknorth Group, Inc.).
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Exhibit 23 - (i) Consent of KPMG LLP (with respect to Banknorth Group,
Inc.).
(ii) Consent of KPMG LLP (with respect to Evergreen Bancorp,
Inc.).
(iii) Consent of Primmer & Piper, P.C. (contained in
Exhibit 5).
(b) Not applicable.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; not withstanding 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) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that the undertakings set forth in paragraph 1(i)
and 1(ii) above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed by Banknorth pursuant to Section 13 or Section 15(d) of the
Exchange Act, that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of Banknorth's annual report pursuant to
Section 13(a) or 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitting to directors, officers and controlling
persons of Banknorth pursuant to the foregoing provisions, or otherwise,
Banknorth has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
Banknorth of expenses incurred or paid by a director, officer or
controlling person of Banknorth 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, Banknorth 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 1 to its Registration Statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Burlington,
State of Vermont, on January 26, 1999.
BANKNORTH GROUP, INC.
/s/ William H. Chadwick
By: _________________________________
William H. Chadwick, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Thomas J. Pruitt, Owen Becker and
Neal E. Robinson, and each of them acting individually, as his attorney-in-fact,
each with full power of substitution, for him in any and all capacities, to sign
any and all amendments and post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, and is hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments and post-effective amendments to said
Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 1 to the registrant's Registration Statement on Form S-4 has been
signed by the following persons in the capacities indicated on this 26th day of
January, 1999.
Signature Title
- --------- -----
/s/ William H. Chadwick
_______________________ President, Chief
William H. Chadwick Executive Officer,
and Director
/s/ Thomas J. Pruitt
_______________________ Executive Vice
Thomas J. Pruitt President and Chief
Financial Officer
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Signature Title
- --------- -----
/s/ Neal E. Robinson
________________________ Treasurer and
Neal E. Robinson Principal Accounting
Officer
/s/ Thomas J. Amidon
________________________ Director
Thomas J. Amidon
/s/ Jacqueline D. Arthur
________________________ Director
Jacqueline D. Arthur
/s/ Robert A. Carrara
________________________ Director
Robert A. Carrara
/s/ Susan C. Crampton
________________________ Director
Susan C. Crampton
/s/ George W. Dougan
________________________ Director
George W. Dougan
/s/ Robert F. Flacke
________________________ Director
Robert F. Flacke
/s/ Luther F. Hackett
________________________ Director
Luther F. Hackett
/s/ Kathleen Hoisington
________________________ Director
Kathleen Hoisington
/s/ Douglas G. Hyde
________________________ Director
Douglas G. Hyde
/s/ Anthony J. Mashuta
________________________ Director
Anthony J. Mashuta
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Signature Title
- --------- -----
/s/ Richard M. Narkewicz
________________________ Director
Richard M. Narkewicz
/s/ John B. Packard
________________________ Director
John B. Packard
/s/ R. Allan Paul
________________________ Director
R. Allan Paul
/s/ Angelo P. Pizzagalli
________________________ Director
Angelo P. Pizzagalli
/s/ Thomas P. Salmon
________________________ Director
Thomas P. Salmon
/s/ Patrick E. Welch
________________________ Director
Patrick E. Welch
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EXHIBIT LISTING
---------------
Exhibit 4 - (i) Amended and Restated 1995 Stock Incentive Plan of Evergreen
Bancorp, Inc. (incorporated by reference to Exhibit 10(e)
to the Evergreen Bancorp, Inc. Annual Report on Form 10-K
for the year ended December 31, 1997).
(ii) 1995 Directors Stock Option plan of Evergreen Bancorp, Inc.
(incorporated by reference to Exhibit 4.1 to Evergreen
Bancorp, Inc.'s Registration Statement on Form S-8, Reg.
No. 333-50115).
(iii) Amendment No. 1 to Directors Stock Option Plan of Evergreen
Bancorp, Inc. (incorporated by reference to Exhibit 10(g)
to the Evergreen Bancorp, Inc. Annual Report on Form 10-K
for the year ended December 31, 1997).
Exhibit 5 - Opinion and consent of Primmer & Piper, P.C. re validity of
the Common Stock .
Exhibit 15 - Letter of KPMG LLP re unaudited interim financial
information (with respect to Banknorth Group, Inc.).
Exhibit 23 - (i) Consent of KPMG LLP (with respect to Banknorth Group,
Inc.).
(ii) Consent of KPMG LLP (with respect to Evergreen Bancorp,
Inc.).
(iii) Consent of Primmer & Piper, P.C. (contained in
Exhibit 5).
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EXHIBIT 5
February 2, 1999
Banknorth Group, Inc.
300 Financial Plaza
Burlington, VT 05401
Re: Post-Effective Amendment on Form S-8 to S-4 Registration Statement
Gentlemen:
Reference is made to Post-Effective Amendment No. 1 on Form S-8 to the
Registration Statement of Banknorth Group, Inc. (the "Company") on Form S-4
(Reg. No. 333-68237) (the "Amendment") to be filed by the Company on or about
February 2, 1999 with the Securities and Exchange Commission, with respect to
the issuance of up to 432,955 shares of the Company's Common Stock, $1.00 par
value per share ("Common Stock"),upon the exercise of stock options previously
issued under the Amended and Restated 1995 Stock Incentive Plan and the 1995
Directors' Stock Option Plan, as amended, of Evergreen Bancorp, Inc. (together,
the "Evergreen Plans"). The options were assumed by the Company (the "Assumed
Options") in connection with the merger of Evergreen Bancorp, Inc. with and into
the Company, pursuant to an Affiliation Agreement and Plan of Reorganization and
a related Agreement and Plan of Merger, as of July 31, 1998 (together, the "Plan
of Merger").
We have reviewed applicable provisions of law and have examined such documents
and records and have made inquiries of the officers and directors of the Company
as we considered necessary or appropriate for purposes of this opinion. Based
on the foregoing, we are of the opinion that the shares of Common Stock to be
issued by the Company upon exercise of the Assumed Options have been duly
authorized for issuance and when issued and delivered in accordance with the
terms of the Evergreen Plans as modified pursuant to the terms the Plan of
Merger, such Common Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Post-
Effective Amendment. In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
PRIMMER & PIPER, P.C.
/s/ Primmer & Piper, P.C.
__________________________
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EXHIBIT 15
The Board of Directors
Banknorth Group, Inc.:
Re: Post Effective Amendment No. 1 on Form S-8 to Form S-4 (Reg. No. 333-68237)
Registration Statement
With respect to the subject Post Effective Amendment No. 1 on Form S-8 to Form
S-4 (Reg. No. 333-68237) Registration Statement filed by Banknorth Group, Inc.
under the Securities Act of 1933, we acknowledge our awareness of the use
therein of our reports dated April 17, 1998, July 17, 1998, and October 14, 1998
related to our reviews of consolidated interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of section 7 and 11 of the Act.
/s/ KPMG LLP
Albany, New York
February 2, 1999
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EXHIBIT 23(i)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Banknorth Group, Inc.:
We consent to incorporation by reference in the Post Effective Amendment No. 1
on Form S-8 to Form S-4 (Registration No. 333-68237) Registration Statement
filed by Banknorth Group, Inc. under the Securities Act of 1933 of our audit
report dated January 23, 1998, except for note 15 which is as of February 24,
1998, relating to the consolidated balance sheets of Banknorth Group, Inc. and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of income, changes in shareholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1997, which report
appears in the December 31, 1997 Annual Report on Form 10-K of Banknorth Group,
Inc. Our audit report refers to the adoption of the provisions of Statement of
Financial Accounting Standards (SFAS) No. 122, "Accounting for Mortgage
Servicing Rights," and SFAS No. 125, "Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities," which supercedes SFAS No.
122.
/s/ KPMG LLP
Albany, New York
February 2, 1999
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EXHIBIT 23(ii)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Banknorth Group, Inc.:
We consent to incorporation by reference in the Post Effective Amendment No. 1
on Form S-8 to Form S-4 (Registration No. 333-68237) Registration Statement
filed by Banknorth Group, Inc. under the Securities Act of 1933 of our audit
report dated January 23, 1998, relating to the consolidated statements of
condition of Evergreen Bancorp, Inc. and subsidiaries as of December 31, 1997
and 1996, and the related consolidated statements of income, changes in
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1997, which report appears in the December 31, 1997
Annual Report on Form 10-K of Evergreen Bancorp, Inc.
/s/ KPMG LLP
Albany, New York
February 2, 1999
