[Letterhead of Hogan & Hartson L.L.P.] Exhibit 5.1
February 6, 2004
Board of Directors
Webster Financial Corporation
Webster Plaza
Waterbury, CT 06702
Ladies and Gentlemen:
We are acting as counsel to Webster Financial Corporation, a Delaware
corporation (the "Company") and the sponsor of Webster Capital Trust IV, Webster
Capital Trust V and Webster Capital Trust VI, each a Delaware business trust
(each a "Trust" and collectively, the "Trusts"), in connection with the joint
registration statement on Form S-3 (the "Registration Statement"), filed with
the Securities and Exchange Commission relating to the proposed public offering,
at an aggregate public offering price of up to $750,000,000, of trust preferred
securities of one or more of the Trusts ("Trust Preferred Securities") and one
or more series of the following securities of the Company: (i) senior debt
securities, senior subordinated debt securities or junior subordinated debt
securities (collectively, "Debt Securities"), (ii) shares of common stock, par
value $0.01 per share ("Common Stock"), including any shares that may be issued
upon conversion or exercise of, or in exchange for, Debt Securities, Warrants,
Preferred Stock, Purchase Contracts or Units (as defined below), (iii) shares of
preferred stock, par value $0.01 per share ("Preferred Stock"), including any
shares that may be issued upon conversion or exercise of, or in exchange for,
Debt Securities, Warrants, Purchase Contracts or Units, (iv) fractional shares
of Preferred Stock represented by depositary receipts ("Depositary Shares")
including any Depositary Shares that may be issued upon exercise of Warrants,
Purchase Contracts or Units, (v) warrants to purchase Debt Securities, Common
Stock, Preferred Stock, Depositary Shares or Units ("Warrants"), (vi) purchase
contracts to purchase Debt Securities, Common Stock, Preferred Stock, Depositary
Shares, Warrants or Trust Preferred Securities ("Purchase Contracts"), (vii)
units ("Units") consisting of one or more of Debt Securities, Common Stock,
Preferred Stock, Depositary Shares, Warrants, Purchase Contracts, Trust
Preferred Securities or debt obligations of third parties ("Third-Party Debt
Securities"), and (viii) guarantees by the Company of Trust Preferred Securities
issued by the Trusts for the benefit of the holders of the Trust Preferred
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 2
Securities ("Guarantees" and, together with the Debt Securities, Common Stock,
Preferred Stock, Depositary Shares, Warrants, Purchase Contracts and Units
covered by the Registration Statement, the "Securities"), all of which may be
offered and sold from time to time and on a delayed or continuous basis, as set
forth in the prospectus that forms a part of the Registration Statement and any
supplement to such prospectus (each a "Prospectus Supplement"). This opinion
letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5),
in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Second Restated Certificate of Incorporation of the Company, as
amended, as certified by the Secretary of State of the State of
Delaware, and as certified by the Secretary of the Company on
the date hereof as being complete, accurate and in effect (the
"Certificate of Incorporation").
3. The Bylaws of the Company, as amended, as certified by the Secretary
of the Company on the date hereof as being complete, accurate and in
effect (the "Bylaws").
4. Resolutions of the Board of Directors of the Company adopted at a
meeting held on January 26, 2004, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in effect,
relating to the filing of the Registration Statement and related
matters.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). This opinion
letter is given, and all statements herein are made, in the context of the
foregoing.
For purposes of this opinion letter, we have assumed that (i) the issuance,
sale, amount and terms of any of the Securities to be offered from time to time
will have been duly authorized and established by proper action of the board of
directors of the Company or a duly authorized committee of such board consistent
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 3
with the procedures and terms described in the Registration Statement and/or the
applicable Prospectus Supplement and in accordance with the Certificate of
Incorporation and Bylaws and applicable Delaware law ("Board Action"), in a
manner and with terms that do not violate any law, governmental, regulatory or
court-imposed order, requirement or restriction or any agreement or instrument
then binding on the Company or otherwise impair the legal or binding nature of
the obligations represented by the applicable Securities; (ii) the Registration
Statement will have been declared effective under the Securities Act of 1933, as
amended, and at the time of offer, issuance and sale of any Securities, no stop
order suspending the effectiveness of the Registration Statement will have been
issued and remain in effect; (iii) any Debt Securities will be issued pursuant
to one or more indentures between the Company and a financial institution
identified therein as trustee, in a form that will have been approved by the
Board of Directors of the Company, for which the governing law shall be the laws
of the State of New York (each, an "Indenture"); (iv) any Indenture under which
any Debt Securities are issued will be qualified under the Trust Indenture Act
of 1939, as amended; (v) prior to any issuance of shares of Preferred Stock or
Depositary Shares, an appropriate Certificate of Designation relating to a class
or series of the Preferred Stock to be sold under the Registration Statement
will have been duly authorized and adopted and filed with the Secretary of State
of the State of Delaware (the "Certificate of Designation"); (vi) any Depositary
Shares will be issued by the Depositary (as defined below) under one or more
deposit agreements (each, a "Deposit Agreement"), each to be between the Company
and a financial institution identified therein as the depositary (each, a
"Depositary"), for which the governing law shall be the laws of the State of New
York; (vii) any Warrants will be issued under one or more warrant agreements
(each, a "Warrant Agreement"), each to be between the Company and a financial
institution or other party identified therein as a warrant agent (each, a
"Warrant Agent"), for which the governing law shall be the laws of the State of
New York; (viii) any Purchase Contracts will be issued under one or more
purchase contract agreements (each, a "Purchase Contract Agreement"), each to be
between the Company and a financial institution or other party identified
therein as a purchase contract agent (each, a "Purchase Contract Agent"), for
which the governing law shall be the laws of the State of New York; (ix) any
Units will be issued under one or more unit agreements (each, a "Unit
Agreement"), each to be between the Company and a financial institution or other
party identified therein as a unit agent (each, a "Unit Agent"), for which the
governing law shall be the laws of the State of New York; (x) any Guarantees
will be issued under one or more guarantee agreements (each, a "Guarantee
Agreement"), each to be between the Company and a financial institution or other
party identified therein as a trustee (each, a "Guarantee Trustee"), for which
the governing law shall be the laws of the State of New York; (xi) the
Securities will be delivered against payment of valid
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 4
consideration therefor and in accordance with the terms of the applicable Board
Action authorizing such sale and any applicable underwriting agreement or
purchase agreement and as contemplated by the Registration Statement and/or the
applicable Prospectus Supplement; and (xii) the Company will remain a Delaware
corporation.
To the extent that the obligations of the Company with respect to the
Securities may be dependent upon such matters, we assume for purposes of this
opinion letter that each other party under (i) the Indenture for any Debt
Securities, (ii) the Deposit Agreement for any Depositary Shares, (iii) the
Warrant Agreement for any Warrants, (iv) the Purchase Contract Agreement for any
Purchase Contracts, (v) the Unit Agreement for any Units and (vi) the Guarantee
Agreement (and the amended and restated trust agreement (each, a "Trust
Agreement") of the Trust that issues the related Trust Preferred Securities) for
any Guarantees, including, without limitation, the Trustee, the Depositary, the
Warrant Agent, the Purchase Contract Agent, the Unit Agent and the Guarantee
Trustee (and the applicable Trust and the institutional trustees of such Trust),
respectively, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that such other party is duly
qualified to engage in the activities contemplated by such Indenture, Depositary
Agreement, Warrant Agreement, Purchase Contract Agreement, Unit Agreement or
Guarantee Agreement (or Trust Agreement), as applicable; that such Indenture,
Depositary Agreement, Warrant Agreement, Purchase Contract Agreement, Unit
Agreement or Guarantee Agreement (or Trust Agreement), as applicable, has been
duly authorized, executed and delivered by each such other party and constitutes
a valid and binding obligation of such other party enforceable against such
other party in accordance with its terms; that each such other party is in
compliance with respect to performance of its obligations under such Indenture,
Depositary Agreement, Warrant Agreement, Purchase Contract Agreement, Unit
Agreement or Guarantee Agreement (or Trust Agreement), as applicable, with all
applicable laws and regulations; and that such other party has the requisite
organizational and legal power and authority to perform its obligations under
such Indenture, Depositary Agreement, Warrant Agreement, Purchase Contract
Agreement, Unit Agreement, or Guarantee Agreement (or Trust Agreement), as
applicable.
This opinion letter is based as to matters of law solely on applicable
provisions of the following, as currently in effect: (i) the Delaware General
Corporation Law, as amended, and (ii) as to the opinions given in paragraphs
(a), (d), (e), (f), (g) and (h), the laws of the State of New York. We express
no opinion herein as to any other laws, statutes, ordinances, rules, or
regulations. As used herein, the term "Delaware General Corporation Law, as
amended" includes the
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 5
statutory provisions contained therein, all applicable provisions of the
Delaware Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of the opinion
that:
(a) With respect to the Debt Securities, following (i) final Board Action
authorizing execution and delivery of an Indenture, (ii) due execution and
delivery of the Indenture by the Company and the Trustee named therein, (iii)
final Board Action authorizing the issuance of a series of Debt Securities, the
terms of which have been duly established in accordance with the provisions of
the Indenture, (iv) due authentication by the Trustee, and (v) due execution,
issuance, and delivery of such Debt Securities against payment of the
consideration therefor specified in any applicable underwriting agreement or
purchase agreement approved by the Board of Directors and otherwise in
accordance with the Indenture and any applicable supplemental indenture and such
underwriting or purchase agreement, or upon the exercise of any Warrants or
Purchase Contracts providing for the issuance of Debt Securities in accordance
with the terms thereof, the Debt Securities will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
(b) With respect to the Common Stock, following (i) final Board Action
authorizing an issuance of Common Stock, and (ii) issuance and delivery of
certificates for such Common Stock against payment therefor in accordance with
the terms of the applicable Board Action and any applicable underwriting
agreement or purchase agreement and otherwise in accordance with such Board
Action and underwriting or purchase agreement, or upon the exercise of any
Warrants or Purchase Contracts providing for the issuance of Common Stock in
accordance with the terms thereof or the conversion or exchange of Preferred
Stock or Debt Securities that, by their terms, are convertible into or
exercisable or exchangeable for Common Stock, such Common Stock will be validly
issued, fully paid, and nonassessable.
(c) With respect to the Preferred Stock, following (i) final Board Action
authorizing and establishing a series of the Preferred Stock, in accordance with
the terms of the Certificate of Incorporation, the Bylaws and applicable law,
(ii) filing of an appropriate Certificate of Designation with respect to such
Preferred Stock, (iii) final Board Action authorizing issuance of such shares of
Preferred Stock, and (iv) receipt by the Company of the consideration therefor
specified in any applicable underwriting agreement or purchase agreement
approved by the Board of Directors, or upon the exercise of any Warrants or
Purchase Contracts providing
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 6
for the issuance of such Preferred Stock in accordance with the terms thereof,
or the conversion or exchange of Debt Securities that, by their terms, are
convertible into or exercisable or exchangeable for such Preferred Stock, such
Preferred Stock will be validly issued, fully paid, and nonassessable.
(d) With respect to the Depositary Shares, following (i) final Board Action
authorizing and establishing a series of the Preferred Stock represented by such
Depositary Shares, in accordance with the terms of the Certificate of
Incorporation, the Bylaws and applicable law, (ii) filing of an appropriate
Certificate of Designation with respect to such Preferred Stock, (iii) final
Board Action authorizing issuance of such shares of Preferred Stock, (iv) final
Board Action authorizing execution and delivery of a Deposit Agreement, (v) due
execution and delivery of the Depositary Agreement by the Company and the
Depositary named therein, (vi) due issuance and delivery to the Depositary of
such shares of Preferred Stock represented by the Depositary Shares, (vii) due
execution, issuance, and delivery of depositary receipts evidencing the
Depositary Shares against deposit of the Preferred Stock in accordance with the
Depositary Agreement, and (viii) receipt by the Company of the consideration
therefor specified in any applicable underwriting agreement or purchase
agreement approved by the Board of Directors, or upon the exercise of any
Purchase Contracts providing for the issuance of such Depositary Shares in
accordance with the terms thereof, the depositary receipts evidencing the
Depositary Shares established in such Depositary Agreement will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms and will entitle the holders thereof to the rights
specified in the Depositary Shares and the Deposit Agreement.
(e) With respect to the Warrants, following (i) final Board Action
authorizing execution and delivery of a Warrant Agreement with respect to
Warrants, (ii) due execution and delivery of the Warrant Agreement by the
Company and the Warrant Agent named therein, (iii) due execution,
countersignature, issuance, and delivery of such Warrants against payment of the
consideration therefor specified in any applicable underwriting agreement or
purchase agreement approved by the Board of Directors and otherwise in
accordance with the Warrant Agreement and such underwriting or purchase
agreement, or upon the exercise of any Purchase Contracts providing for the
issuance of such Warrants in accordance with the terms thereof, or the
conversion or exchange of Debt Securities that, by their terms, are convertible
into or exercisable or exchangeable for such Warrants, such Warrants will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and will entitle the holders thereof to
the rights specified in the Warrants and the Warrant Agreement.
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 7
(f) With respect to the Purchase Contracts, following (i) final Board
Action authorizing execution and delivery of a Purchase Contract Agreement
relating to Purchase Contracts, (ii) due execution and delivery of the Purchase
Contract Agreement by the Company and the Purchase Contract Agent named therein,
(iii) due execution, countersignature, issuance, authentication and delivery of
such Purchase Contracts against payment of the consideration therefor specified
in any applicable underwriting agreement or purchase agreement approved by the
Board of Directors and otherwise in accordance with the Purchase Contract
Agreement and such underwriting or purchase agreement, or upon the conversion or
exchange of Debt Securities that, by their terms, are convertible into or
exercisable or exchangeable for such Purchase Contracts, the Purchase Contracts
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
(g) With respect to the Units, following (i) final Board Action authorizing
execution and delivery of any Units and the related Unit Agreement, (ii) due
execution and delivery of the Unit Agreement by the Company and the Unit Agent
named therein , (iii) due execution, countersignature, issuance, authentication
and delivery of such Units and the underlying securities that are components of
such Units against payment of the consideration therefor as specified in any
applicable underwriting agreement or purchase agreement approved by the Board of
Directors, and otherwise in accordance with the applicable Unit Agreement,
underwriting or purchase agreement and the applicable Purchase Contract
Agreement (in the case of underlying Purchase Contracts), Indenture (in the case
of underlying Debt Securities), Trust Agreement of the applicable Trust (in the
case of underlying Trust Preferred Securities), Certificate of Designations (in
the case of underlying Preferred Stock), Depositary Agreement (in the case of
underlying Depositary Shares), Warrant Agreement (in the case of underlying
Warrants) or indenture or other debt instrument or agreement (in the case of
underlying Third Party Debt Securities), and assuming that the underlying
securities that are components of such Units (A) have been duly and properly
authorized for issuance and (B) in the case of Third-Party Debt Securities,
constitute valid and binding obligations enforceable against the issuer thereof
in accordance with their terms, such Units will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
(h) With respect to the Guarantees, following (i) final Board Action
authorizing execution and delivery of a Guarantee Agreement with respect to
Guarantees, (ii) due execution and delivery of the Guarantee Agreement by the
Company and the Guarantee Trustee named therein, (iii) due execution,
countersignature, authentication, issuance, and delivery of such Guarantees,
(iv)
Board of Directors
Webster Financial Corporation
February 6, 2004
Page 8
the due authorization, execution, issuance and delivery of the related Trust
Preferred Securities by the applicable Trust as contemplated in the Trust
Agreement of such Trust, against payment of the consideration therefor specified
in any applicable underwriting agreement or purchase agreement approved by the
Board of Directors with respect to such Trust Preferred Securities and otherwise
in accordance with the applicable Trust Agreement and such underwriting or
purchase agreement, such Guarantees will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
In addition to the qualifications, exceptions and limitations elsewhere set
forth in this opinion letter, our opinions expressed above are also subject to
the effect of (i) bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting creditors' rights (including, without
limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and (ii) the
exercise of judicial discretion and the application of principles of equity,
good faith, fair dealing, reasonableness, conscionability and materiality
(regardless of whether the Securities and the applicable agreements are
considered in a proceeding in equity or at law).
This opinion letter has been prepared for your use in connection with the
Registration Statement and speaks as of the date hereof. We assume no obligation
to advise you of any changes in the foregoing subsequent to the delivery of this
opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement, pursuant to incorporation by reference therein of
the Current Report on Form 8-K to which this opinion letter is an exhibit, and
to the reference to this firm under the caption "Legal Matters" in the
Registration Statement and any Prospectus Supplement. In giving this consent, we
do not thereby admit that we are an "expert" within the meaning of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.