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EXHIBIT 5 OPINION OF MULDOON, MURPHY & FAUCETTE
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June 26, 1996
Board of Directors
Monterey Bay Bancorp, Inc.
36 Brennan Street
Watsonville, California 95076
Re: Monterey Bay Bancorp, Inc. 1995 Incentive Stock Option Plan -
Monterey Bay Bancorp, Inc. 1995 Stock Option Plan for
Outside Directors
Registration Statement on Form S-8 for 359,750 Shares of
Common Stock
Gentlemen:
We have acted as counsel for Monterey Bay Bancorp, Inc. (the "Company") in
connection with the registration under the Securities Act of 1933, as amended,
on Form S-8 of 359,750 of the Company's Common Stock, $.01 par value (the
"Shares"), to be issued under the Monterey Bay Bancorp, Inc. 1995 Incentive
Stock Option Plan and the Monterey Bay Bancorp, Inc. 1995 Stock Option Plan for
Outside Directors (the "Plans").
As such counsel, we have made such legal and factual examinations and
inquiries as we deemed advisable for the purpose of rendering this opinion. In
our examination, we have assumed and have not verified (i) the genuineness of
all signatures, (ii) the authenticity of all documents submitted to us as
originals, (iii) the conformity with the originals of all documents supplied to
us as copies, and (iv) the accuracy and completeness of all corporate records
and documents and of all certificates and statements of fact, in each case given
or made available to us by the Company or its subsidiary.
Based on the foregoing and limited in all respects to Delaware law and the
facts as they exist on the date hereof, it is our opinion that the Shares
reserved under the Plans have been duly authorized and upon the issuance of the
Shares in the manner described in the Plans, will be legally issued, fully paid
and nonassessable. The following provisions of the Company's Certificate of
Incorporation may not be given effect by a court applying Delaware law, but in
our opinion the failure to give effect to such provisions will not affect the
duly authorized, validly issued, fully paid and nonassessable status of the
Shares:
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(1) (a) Subsections C.3 and C.6 of Article FOURTH and Section D of
Article EIGHTH, which grant the Board of Directors of the Company
("Board") the authority to construe and apply the provisions of
those Articles, Subsection C.4 of Article FOURTH, which grants
authority to the Board to determine whether a stockholder owns
shares in excess of the Limit, and the provision of Subsection
C.7 of Article EIGHTH empowering the Board to determine the Fair
Market Value of property offered or paid for the Company's stock
by an Interested Stockholder, to the extent, if any, that a court
applying Delaware law were to impose equitable limitations upon
the authority of the directors of the Company under such
provisions; and
(b) Article NINTH of the Certificate of Incorporation, which
authorizes the Board to consider the effect of any offer to
acquire the Company on constituencies other than stockholders in
evaluating any such offer.
This opinion is based upon the facts and law as they exist on the date
hereof. We assume no obligation to update this opinion or advise you of any
events that occur subsequent to the date of this opinion. This opinion is being
furnished to you solely in response to the requirement contained in Item 601 of
Regulation S-K for your benefit and may not be relied upon by any other person
or for any other purpose, and it should not be quoted in whole or in part or
otherwise referred to or furnished to any other person or entity without the
prior written consent of this firm. We hereby consent to the filing of this
opinion as an exhibit to the Company's Registration Statement on Form S-8. We
note that, although certain portions of the Registration Statement (the
financial statements and schedules) have been included therein on the authority
of "experts" within the meaning of the Securities Act, we are not such experts
with respect to any portion of the Registration Statement, including without
limitation the financial statements or schedules or the other financial
information or data included therein.
Very truly yours,
/s/ MULDOON, MURPHY & FAUCETTE