AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 2004
REGISTRATION NO.__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WESTBANK CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-2830731
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Westbank Corporation
225 Park Avenue
West Springfield, MA 01090
(413) 747-1400
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(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
WESTBANK CORPORATION
2004 RECOGNITION AND RETENTION PLAN
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(FULL TITLE OF THE PLAN)
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John M. Lilly, Chief Financial Officer
Westbank Corporation
225 Park Avenue
West Springfield, MA 01090
(413) 747-1400
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20006
(202) 347-8400
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(NAME AND ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER AND
AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share Price(2) Registration Fee
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Common Stock,
$2.00 par value 92,505 (2) $ 1,888,489.58 $239.27
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(1) Based on the number of shares of common stock of Westbank Corporation
("Westbank") reserved for issuance under restricted stock awards granted
under the 2004 Recognition and Retention Plan (the "Plan"). There are
92,505 shares of common stock authorized for awards under the 2004
Recognition and Retention Plan. In addition to such shares, this
registration statement also covers an undetermined number of shares of
common stock of Westbank that, by reason of certain events specified in the
Plan, may become issuable upon grant of awards through the application of
certain anti-dilution provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to which a total of 92,505 restricted shares
are deemed to be offered at $20.415 per share, the average of the daily
high and low sales prices of common stock of Westbank on the Nasdaq
National Market at the close of trading on May 19, 2004.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such document
need not be filed with the Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended (the "Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated by reference in this registration
statement:
(1) the description of Westbank Corporation's common stock contained in
Westbank Corporation's Registration Statement on Form S-4 filed on
September 30, 1998, and any amendments thereto;
(2) Westbank Corporation's Annual Report on Form 10-K for the year ended
December 31, 2003; and
(3) Westbank Corporation's Quarterly Report on Form 10-Q for the period
ending March 31, 2004.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date hereof and 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 are incorporated
herein by reference, and such documents shall be deemed to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies
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or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Westbank Corporation will provide without charge to each person to
whom this Prospectus is delivered, upon request of any such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents). Written requests should be directed to: John
M. Lilly, Westbank Corporation, 225 Park Avenue, West Springfield, MA 01090.
Telephone requests may be directed to (413) 747-1400.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In general, Article V, Section 9 of Westbank's By-Laws provides for
indemnification of each director, officer, employee or agent of Westbank, any
former director, officer, employee or agent of Westbank, and any person who is
or shall be a director, officer, employee or agent of another organization in
which Westbank owns shares or of which it is a creditor, against all liabilities
and expenses reasonably incurred by such person in connection with, or arising
out of, any action, suit or proceeding in which such person may be a party
defendant or with which he may be threatened or otherwise involved, directly or
indirectly, by reason of his being or having been a director or officer of
Westbank or such other organization, except in relation to matters as to which
such person shall be finally adjudged (other than by consent) in such action,
suit or proceeding not to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of Westbank or such other
organization, and, with respect to any criminal action or proceeding, only to
the extent that he had no reasonable cause to believe his conduct was unlawful.
Section 67 of the Massachusetts Business Corporation Law ("MBCL") sets
forth certain circumstances under which directors, officers, employees and
agents may be indemnified against liability which they may incur in their
capacity as such. Section 67 of the MBCL provides as follows:
"Indemnification of Directors, Officers, Employees,
etc."-Indemnification of directors, officers, employees and other
agents of a corporation 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, may be provided by it to whatever extent shall
be specified in or authorized by (i) the articles of organization or
(ii) a by law adopted by the stockholders or (iii) a vote adopted by
the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or
by laws otherwise require, indemnification of any persons referred to
in the preceding sentence who are not directors of the corporation may
be provided by it to the extent authorized by the directors. Such
indemnification may include payment by the corporation of expenses
incurred in defending a civil or criminal action or
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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 this section 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 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 an employee
benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
The absence of any express provision for indemnification shall not
limit any right of indemnification existing independently of this
section. A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or other agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
other agent of another organization or with respect to any employee
benefit plan against any liability incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability.
Westbank Corporation has entered into an employment agreement with
Donald R. Chase. The agreement provides for indemnification to be provided to
Mr. Chase to the fullest extent permitted under applicable law. Westbank
Corporation and Westbank are also parties to change of control agreements with
certain officers which provide for indemnification for attorneys' fees in some
instances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See exhibits list.
ITEM 9. UNDERTAKINGS.
A. Rule 415 offering. 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;
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(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. 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 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic report filed by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining liability under the
Securities Act of 1933, 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.
B. Filings incorporating subsequent Exchange Act documents by
reference. 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 Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
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. Incorporated annual and quarterly reports. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be delivered to
each person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide such
interim financial information.
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D. Filing of registration on Form S-8. Insofar as indemnification for
liabilities arising under the Securities Act 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 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 for 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.
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SIGNATURES
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Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of West Springfield, Commonwealth of Massachusetts on
May 19, 2004.
Westbank Corporation
(Registrant)
By: /s/ Donald R. Chase
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Donald R. Chase
President and Chief Executive Officer
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.
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SIGNATURE TITLE DATE
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/s/ Donald R. Chase President, Chief Executive May 19, 2004
- --------------------------- Officer and Director
Donald R. Chase
/s/ John M. Lilly Treasurer and Chief May 19, 2004
- --------------------------- Financial Officer
John M. Lilly
/s/ Roland O. Archambault Director May 19, 2004
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Roland O. Archambault
/s/ Mark A. Beauregard Director May 19, 2004
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Mark A. Beauregard
/s/ David R. Chamberland Director May 19, 2004
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David R. Chamberland
/s/ Ernest N. Laflamme, Jr. Chairman of the Board May 19, 2004
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Ernest N. Laflamme, Jr.
/s/ G. Wayne McCary Director May 19, 2004
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G. Wayne McCary
Director May 19, 2004
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Robert J. Perlak
/s/ George S. Sullivan Director May 19, 2004
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George S. Sullivan
/s/ James E. Tremble Director May 19, 2004
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James E. Tremble
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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4.1 Form of Award Agreement under the Westbank Corporation 2004
Recognition and Retention Plan.
4.2 Articles of Organization for Westbank Corporation, incorporated by
reference to Exhibit 3(a), the Registrant's Annual Report on Form
10-K, for the year ended December 31, 1988, and any amendments
thereto.
4.3 By-Laws of Westbank Corporation, incorporated by reference to Exhibit
3(b), the Registrant's Annual Report on Form 10-K, for the year ended
December 31, 1988, and any amendments thereto.
5 Opinion of Thacher Proffitt & Wood LLP, counsel for Registrant, as to
the legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood LLP (included in Exhibit 5 hereof).
23.2 Consent of Grant Thornton LLP.
99.1 Westbank Corporation 2004 Recognition and Retention Plan filed on
March 9, 2004 as Appendix A to Registrant's Proxy Statement on
Schedule 14A, is incorporated herein by reference.