AS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION ON MAY 11, 2006 REGISTRATION NO. [___________]
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
`
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WESTBANK CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2830731
(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
(Address, including Zip Code, of principal executive offices)
----------
WESTBANK CORPORATION
2006 EQUITY INCENTIVE PLAN
(Full title of the Plan)
----------
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
(Name and address, including Zip Code, telephone number and area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share Price(2) Registration Fee
- --------------------------- ------------- ------------------ ------------------ ----------------
Common Stock, $2.00 par
value 794,860 (2) $ 13,270,187.70 $ 1,419.91
(1) Based on the number of shares of common stock of Westbank Corporation (the
"Registrant") reserved for issuance upon the exercise of options and under
other equity awards granted under the 2006 Equity Incentive Plan (the
"Plan"). There are a maximum of 794,860 shares of common stock authorized
for awards under the Plan. In addition to such shares, this registration
statement also covers an undetermined number of shares of common stock of
the Registrant 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 794,860 shares that may be
acquired pursuant to options or pursuant to other equity awards granted in
future are deemed to be offered at $16.695 per share, the average of the
daily high and low sales prices of common stock of the Registrant on the
Nasdaq National Market at the close of trading on May 8, 2006.
================================================================================
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.
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 the Registrant's common stock contained in the
Registrant's Registration Statement on Form S-4 filed on September
30, 1998, and any amendments thereto;
(2) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2005; and
(3) all other reports filed after December 31, 2005 by the Registrant
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, or 15(d) of 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 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.
The Registrant 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 the Registrant's By-Laws
provides for indemnification of each director, officer, employee or agent of the
Registrant, any former director, officer, employee or agent of the Registrant,
and any person who is or shall be a director, officer, employee or agent of
another organization in which the Registrant 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 the Registrant 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 the Registrant 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 Chapter 156B, Certain Business Corporations, of the
General Laws of the Commonwealth of Massachusetts ("Section 67") 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 provides as follows:
"Indemnification of officers and directors"-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
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.
The Registrant 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. The Registrant and its
subsidiary, 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;
(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 a 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-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission 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, 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 Exchange Act; 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.
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 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.
SIGNATURES
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 3, 2006.
Westbank Corporation
(Registrant)
By: /s/ Donald R. Chase
-------------------------------------
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.
SIGNATURE TITLE DATE
- ----------------------------------- ----------------------------------------------- --------------
/s/ Donald R. Chase President, Chief Executive Officer and Director May 3, 2006
- -----------------------------------
Donald R. Chase
/s/ John M. Lilly Treasurer and Chief Financial Officer May 3, 2006
- -----------------------------------
John M. Lilly
/s/ Mark A. Beauregard Director May 3, 2006
- -----------------------------------
Mark A. Beauregard
/s/ David R. Chamberland Director May 9, 2006
- -----------------------------------
David R. Chamberland
/s/ Ernest N. Laflamme, Jr. Chairman of the Board May 9, 2006
- -----------------------------------
Ernest N. Laflamme, Jr.
/s/ G. Wayne McCary Director May 10, 2006
- -----------------------------------
G. Wayne McCary
/s/ Robert J. Perlak Director May 9, 2006
- -----------------------------------
Robert J. Perlak
/s/ George S. Sullivan Director May 3, 2006
- -----------------------------------
George S. Sullivan
/s/ James E. Tremble Director May 3, 2006
- -----------------------------------
James E. Tremble
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ---------- -------------------------------------------------------------------
4.1 Form of Restricted Stock Award Agreement under the Westbank
Corporation 2006 Equity Incentive Plan.
4.2 Form of Option Agreement under the Westbank Corporation 2006 Equity
Incentive Plan.
4.3 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.
4.4 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 Deloitte & Touche LLP.
99.1 Westbank Corporation 2006 Equity Incentive Plan filed on
March 14, 2006 as Appendix A to Registrant's Proxy Statement on
Schedule 14A, is incorporated herein by reference.
EXHIBIT 4.1
-----------
Form of Restricted Stock Award Agreement under the Westbank Corporation
2006 Equity Incentive Plan
WESTBANK CORPORATION
2006 RECOGNITION AND RETENTION PLAN
RESTRICTED STOCK AWARD NOTICE
================================================================================
- --------------------------------------------- -------------------------
Name of Award Recipient Social Security Number
- --------------------------------------------------------------------------------
Street Address
- ------------------------------- ------------------------- -----------------
City State Zip Code
This Restricted Stock Award Notice is intended to set forth the terms and
conditions on which an Award has been granted under the Westbank Corporation
2004 Recognition and Retention Plan. Set forth below are the specific terms and
conditions applicable to this Award. Attached as Exhibit A are its general terms
and conditions.
RESTRICTED STOCK AWARD (A) (B) (C) (D) (E) (F) (G) (H)
- -------------------------- ------ ------ ------ ------ ------ ------ ------ ------
Effective Date
Class of Shares * Common Common Common Common Common Common Common Common
Number of Awarded Shares *
Type of Award
(Escrow or Legended
Certificate)
Vesting Date *
* Subject to adjustment as provided in the Plan and the General Terms and
Conditions.
By signing where indicated below, Westbank Corporation (the "Company") grants
this Award upon the specified terms and conditions, and the Award Recipient
acknowledges receipt of this Restricted Stock Award Notice, including Exhibit A,
and agrees to observe and be bound by the terms and conditions set forth herein.
WESTBANK CORPORATION AWARD RECIPIENT
By
--------------------------------- --------------------------------
Name: Ernest N. Laflamme, Jr.
Title: Chairman, Compensation Committee
- --------------------------------------------------------------------------------
INSTRUCTIONS: This page should be completed by or on behalf of the Compensation
Committee. Any blank space intentionally left blank should be crossed out. An
Award consists of shares granted with uniform terms and conditions. Where shares
granted under an Award are awarded on the same date with varying terms and
conditions (for example, varying vesting dates), the awards should be recorded
as a series of grants each with its own uniform terms and conditions.
EXHIBIT A
WESTBANK CORPORATION
2006 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD
----------------------
GENERAL TERMS AND CONDITIONS
Section 1. Size and Type of Award. The shares of Common Stock, par
----------------------
value $2.00 per share, of Westbank Corporation ("Shares") covered by this Award
("Awarded Shares") are listed on this Restricted Stock Award Notice. Your
Restricted Stock Award Notice designates the Awarded Shares as either "Escrow"
or "Legended Certificate".
(a) Legended Certificate. If your Awarded Shares are
--------------------
designated "Legended Certificate," a stock certificate evidencing the
Awarded Shares will be issued in your name and held in a brokerage
account at Merrill Merchants Bank, the Plan Trustee. The stock
certificate will bear a legend indicating that it is subject to all of
the terms and conditions of this Award Notice and the Plan. You will be
required to elect to be taxed on the Fair Market Value of the Awarded
Shares as of the date they are placed in the brokerage account in your
name, pursuant to section 83(b) of the Internal Revenue Code of 1986, as
amended. You must make this election in writing, in the manner required
by applicable Internal Revenue Service Regulations, and file it with the
Internal Revenue Service and the Company within 30 days after the date
on which the Awarded Shares are placed in your brokerage account.
(b) Escrow. If your Awarded Shares are designated "Escrow,"
------
the Awarded Shares will either be held in the name of the Plan Trustee
or Compensation Committee on a pooled basis with other Awarded Shares
that have been designated "Escrow," or they will be evidenced by a
legended stock certificate in your name that will be placed in a
brokerage account for you at Merrill Merchants Bank. You will not be
permitted to elect to be taxed currently on the Fair Market Value of the
Awarded Shares and instead will be subject to income tax on the Awarded
Shares as and when they become vested.
Section 2. Vesting.
-------
(a) Vesting Dates. The Vesting Dates for your Awarded Shares
-------------
are specified on this Award Notice. On each Vesting Date, you will
obtain unrestricted ownership of the Awarded Shares that vest on that
Vesting Date. A stock certificate (or a book entry listing) evidencing
your unrestricted ownership of the vested Awarded Shares will be
deposited in your brokerage account at Merrill Merchants Bank. If a
legended stock certificate evidencing these Awarded Shares was
previously placed in your brokerage account, it will be exchanged for an
unrestricted certificate or book entry listing.
(b) Forfeitures. If you terminate service with the Company
-----------
prior to a Vesting Date, you will forfeit any Awarded Shares that are
scheduled to vest on that date. When you forfeit Awarded Shares, all of
your interest in the Awarded Shares will be canceled and any stock
certificate or other evidence of ownership that was placed in a
brokerage account for you will be returned to the Plan Trustee to be
used for future awards to others. You agree to take any action and
execute and deliver any document that the Company requests to effect the
return of your unvested Awarded Shares. In the event you do not
cooperate with the Company in this regard, you hereby appoint and
designate the Company as your attorney-in-fact for the purpose of taking
any action and signing any document, in your name, which the Company
determines is necessary to enforce the forfeiture.
(c) Accelerated Vesting. All of your Awarded Shares that
-------------------
have not previously vested will become fully vested immediately, and
without any further action on your part, in the event of your death,
Disability (as defined in the Plan), Retirement (as defined in the Plan)
or in the event a Change of Control (as defined in the Plan). You may
designate a Beneficiary to receive any Awarded Shares that vest upon
your death using the Beneficiary Designation attached as Appendix A.
(d) Definition of Service. For purposes of determining the
---------------------
vesting of your Awarded Shares, you will be deemed to be in the service
of the Company for so long as you serve in any capacity as an employee,
officer, non-employee director or consultant of the Company or its
affiliates.
Section 3. Dividends. If your Awarded Shares are in the form of
---------
Legended Certificates, any dividends declared by the Company with a record date
that is after the Effective Date specified in this Award Notice will be credited
to your brokerage account at Merrill Merchants Bank for your benefit on an
unrestricted basis. If your Awarded Shares are designated "Escrow", you will
receive the dividends on an unrestricted basis, but they will be paid to you by,
and will be taxable in the same manner as other compensation paid to you by, the
Company; by signing this Award Notice and accepting its terms, you direct
Merrill Merchants Bank to remit to the Company for payment to you any dividends
that either of them may receive as the record holder of your unvested Awarded
Shares.
Section 4. Voting Rights. You shall have the right to control all
-------------
voting rights relating to all unvested Awarded Shares. If your Awarded Shares
are placed in your brokerage account at Merrill Merchants Bank, you will receive
proxy materials for voting in the same manner as other shareholders with Shares
in brokerage accounts. If your unvested Awarded Shares are held by the Plan
Trustee, the Plan Trustee will ask you for voting directions and will follow
your directions in voting your unvested Awarded Shares.
Section 5. Amendment. This Award Notice may be amended, in whole or
---------
in part and in any manner not inconsistent with the provisions of the Plan, at
any time and from time to time, by written agreement between you and the
Company.
Section 6. Plan Provisions Control. This Award Notice, and the
-----------------------
rights and obligations created hereunder, shall be subject to all of the terms
and conditions of the Plan. In the event of any conflict between the provisions
of the Plan and the provisions of this Award Notice, the terms of the Plan,
which are incorporated herein by reference, shall control.
APPENDIX A TO RESTRICTED STOCK AWARD NOTICE
WESTBANK CORPORATION
2006 EQUITY INCENTIVE PLAN
BENEFICIARY DESIGNATION FORM
GENERAL
INFORMATION Use this form to designate the Beneficiary(ies) who will
receive Shares available for distribution at the time of your
death.
Name of
Award Social Security Number
Recipient - -
---------------------------------- ------ -------- ---------
BENEFICIARY Complete sections A and B. If no percentage shares are
DESIGNATION specified, each Beneficiary in the same class (primary or
contingent) shall have an equal share. If any designated
Beneficiary predeceases you, the shares of each remaining
Beneficiary in the same class (primary or contingent) shall be
increased proportionately.
A. PRIMARY BENEFICIARY(IES). I hereby designate the following person as my
primary Beneficiary under the Plan, reserving the right to change or revoke this
designation at any time prior to my death:
Name Address Relationship Birthdate Share
- ------------------ ------------------------------ -------------- ------------ --------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
Total =100%
B. CONTINGENT BENEFICIARY(IES). I hereby designate the following person(s) as my
contingent Beneficiary(ies) under the Plan to receive benefits only if all of my
primary Beneficiaries should predecease me, reserving the right to change or
revoke this designation at any time prior to my death with respect to all
outstanding Awarded Shares:
Name Address Relationship Birthdate Share
- ------------------ ------------------------------ -------------- ------------ --------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
Total =100%
SIGN I understand that this Beneficiary Designation shall be effective only
HERE if properly completed and received by the Corporate Secretary of
Westbank Corporation prior to my death, and that it is subject to all of
the terms and conditions of the Plan. I also understand that an
effective Beneficiary designation revokes my prior designation(s) with
respect to all outstanding Awarded Shares.
------------------------------------------- ---------------------
Your Signature Date
INTERNAL USE ONLY
- --------------------------------------------------------------------------------
This Beneficiary Designation was received by the Comments
Corporate Secretary of Westbank Corporation on
the date indicated.
By
----------------------------- ---------------
Authorized Signature Date
EXHIBIT 4.2
-----------
Form of Option Agreement under the Westbank Corporation
2006 Equity Incentive Plan
WESTBANK CORPORATION
2006 EQUITY INCENTIVE PLAN
STOCK OPTION CERTIFICATE
------------------------
- --------------------------------------------------------------------------------
Name of Optionee Social Security Number
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State ZIP Code
This Stock Option Agreement is intended to set forth the terms and conditions on
which a Stock Option has been granted under the Westbank Corporation 2006 Equity
Incentive Plan. Set forth below are the specific terms and conditions applicable
to this Stock Option. Attached as Exhibit A are its general terms and
conditions.
Option Grant (A) (B) (C) (D) (E)
- ------------------------- ------ ------ ------ ------ ------
Grant Date:
Class of Optioned Shares* Common Common Common Common Common
No. of Optioned Shares*
Exercise Price Per Share*
Option Type (ISO or NQSO)
VESTING
Earliest Exercise Date*
Option Expiration Date*
- ----------
* Subject to adjustment as provided in the Plan and the General Terms and
Conditions.
By signing where indicated below, Westbank Corporation (the "Company") grants
this Stock Option upon the specified terms and conditions, and the Optionee
acknowledges receipt of this Stock Option Agreement, including Exhibit A, and
agrees to observe and be bound by the terms and conditions set forth herein and
acknowledges receipt of a Prospectus dated May 11, 2006 for the Westbank
Corporation 2006 Equity Incentive Plan.
WESTBANK CORPORATION OPTIONEE
By
-------------------------------- ---------------------------
Name:
Title:
- --------------------------------------------------------------------------------
INSTRUCTIONS: This page should be completed by or on behalf of the Compensation
Committee. Any blank space intentionally left blank should be crossed out. An
option grant consists of a number of optioned shares with uniform terms and
conditions. Where options are granted on the same date with varying terms and
conditions (for example, varying exercise prices or earliest exercise dates),
the options should be recorded as a series of grants each with its own uniform
terms and conditions.
EXHIBIT A
WESTBANK CORPORATION 2006 EQUITY INCENTIVE PLAN
STOCK OPTION CERTIFICATE
------------------------
GENERAL TERMS AND CONDITIONS
Section 1. Option Size and Type. The number of shares of Common Stock,
--------------------
par value $2.00 per share ("Shares"), that have been optioned to you under the
Westbank Corporation 2006 Equity Incentive Plan (the "Plan") is specified in
this Stock Option Certificate. If the "Option Type" shown for your stock option
is "ISO", then your stock option has been designed with the intent that it
qualify to the maximum permissible extent for the special tax benefits
applicable to incentive stock options under the Internal Revenue Code of 1986.
If the "Option Type" shown for your stock options is "NQSO", then incentive
stock option tax treatment is not applicable.
Section 2. Exercise Price. The Exercise Price for your stock options is
--------------
the price per Share at which you may acquire the Shares that have been optioned
to you and is specified in this Stock Option Certificate. As a general rule, the
Exercise Price for your stock options will not change unless there is a stock
split, stock dividend, merger or other major corporate event that justifies an
adjustment.
Section 3. Vesting.
-------
(a) Earliest Exercise Date. You may not exercise your stock
options until they are vested. The date on which your stock options
become vested is specified in this Stock Option Certificate as the
Earliest Exercise Date. As a general rule, you must be in the service
of the Company on an Earliest Exercise Date in order to be vested in
the stock options that vest on that date. You may acquire the Shares
that have been optioned to you by exercising your stock options at any
time during the period beginning on the Earliest Exercise Date and
continuing until the applicable Option Expiration Date, by completing
and filing the Notice of Exercise of Stock Option that is attached to
this Stock Option Certificate as Appendix A and by following the
procedures outlined therein.
(b) Forfeitures. If you terminate service with the Company
prior to an Earliest Exercise Date, you will forfeit any stock options
that are scheduled to vest on that date. When you forfeit stock
options, you relinquish any and all rights that you have to acquire the
Shares that were optioned to you.
(c) Accelerated Vesting. Your outstanding stock options that
have not previously vested will become fully and immediately vested,
without any further action on your part, in the event of your death or
Disability before your termination of service with the Company.
Similarly, all of your outstanding stock options that have not
previously vested will become fully and immediately vested if a Change
of Control occurs before your termination of service with the Company;
provided, that these unvested stock options shall accelerate vesting
only if no substitute grant is made pursuant to section 8.3(b) of the
Plan. If vesting accelerates, the accelerated vesting date will be the
applicable Earliest Exercise Date. You may designate a beneficiary to
inherit your rights to any vested, unexercised stock options that are
outstanding to you at your death using the Beneficiary Designation
attached as Appendix B.
Section 4. Option Expiration Date. To derive any benefit from your
----------------------
stock options, you must exercise them during the period that begins on the
applicable Earliest Exercise Date and ends on the Option Expiration Date. The
Option Expiration Date for your stock options is specified in this Stock Option
Certificate. Your Option Expiration Date may be accelerated in the event of your
termination of service with the Company. Your stock options will expire on the
earliest of (i) the Option Expiration Date, (ii) three months after your
termination of service with the Company for any reason other than death,
Disability (as defined in the Plan), or Termination for Cause (as defined in the
Plan); (iii) one year after your termination of service due to death or
Disability; and (iv) the date and time of your Termination for Cause.
NOTE: To qualify for the favorable tax treatment accorded to incentive
stock options, you (or, in the event of your death, your estate or designated
beneficiaries) must exercise any stock options that are designated as ISOs
within three months after you terminate service as a common-law employee of the
Company and its affiliates for any reason other than death or disability and
within one year after you terminate service as common-law employee due to your
death or disability. If they are exercised later, they will be subject to tax as
if they were designated as NQSOs.
Section 5. Amendment. This Certificate may be amended, in whole or in
---------
part and in any manner not inconsistent with the provisions of the Plan, at any
time and from time to time, by written Certificate between the Company and you.
Section 6. Plan Provisions Control. This Certificate and the rights and
-----------------------
obligations created hereunder shall be subject to all of the terms and
conditions of the Plan. In the event of any conflict between the provisions of
the Plan and the provisions of this Certificate, the terms of the Plan, which
are incorporated herein by reference, shall control. Capitalized terms in this
Certificate have the meaning defined in the Plan, as amended from time to time,
unless stated otherwise. By signing this Certificate, you acknowledge receipt of
a copy of the Plan and a copy of the related Prospectus dated May 11, 2006.
APPENDIX A TO STOCK OPTION CERTIFICATE
WESTBANK CORPORATION 2006 EQUITY INCENTIVE PLAN
NOTICE OF EXERCISE OF STOCK OPTION
Use this Notice to inform Westbank Corporation that you are exercising your
right to purchase shares of common stock ("Shares") of Westbank Corporation
pursuant to an option ("Option") granted under the Westbank Corporation 2006
Equity Incentive Plan ("Plan"). If you are not the person to whom the Option was
granted ("Option Recipient"), you must attach to this Notice proof of your right
to exercise the Option granted under the Stock Option Certificate entered into
between Westbank Corporation and the Option Recipient ("Certificate"). This
Notice should be personally delivered or mailed by certified mail, return
receipt requested to: Westbank Corporation, 225 Park Avenue, West Springfield,
MA 01089, Attention: Compensation Committee. The effective date of the exercise
of the Option shall be the earliest date practicable following the date this
Notice is received by Westbank Corporation ("Effective Date"). Except as
specifically provided to the contrary herein, capitalized terms shall have the
meanings assigned to them under the Plan.
OPTION Identify below the Option that you are exercising by providing
INFORMATION the following information from the Stock Option Certificate.
Name of Option Recipient:
------------------------------------------------
Option Grant Date:
---------------, --------
(Month and Day) (Year)
Exercise Price per share: $
-------------.--------
EXERCISE PRICE Compute the Exercise Price below and select a method of
payment.
Total Exercise Price x $ = $
--------------- ---------.------ ---------------
(No. of Shares) (Exercise Price) Total
Exercise Price
Method of Payment
[ ] I enclose a certified check, money order, or
bank draft payable to the order of Westbank
Corporation in the amount of $
--------------
[ ] I enclose Shares I have owned for at least
six months duly endorsed for transfer to
Westbank Corporation with all stamps attached
and having a fair market value of* $
--------------
Total Exercise Price $
--------------
*Subject to Committee approval as an acceptable method of payment.
ISSUANCE OF CERTIFICATES
I hereby direct that the stock certificates representing the Shares
purchased pursuant to section 2 above be issued to the following person(s)
in the amount specified below:
Name and Address Social Security No. No. of Shares
- -------------------------------- ------------------------------ -------------
- --------------------------------
- -
------ ------- ------------ ---------------
- --------------------------------
- --------------------------------
- -
------ ------- ------------ ---------------
- --------------------------------
WITHHOLDING For Employee Option Recipients with Non-Qualified Stock
ELECTIONS Options only. Beneficiaries should not complete.
I understand that I am responsible for the amount of federal, state and
local taxes required to be withheld with respect to the Shares to be issued
to me pursuant to this Notice, but that I may request Westbank Corporation
to retain or sell a sufficient number of such Shares to cover the amount to
be withheld. I hereby request that any taxes required to be withheld be
paid in the following manner [check one]:
[ ] With a certified or bank check that I will deliver to Westbank
Corporation on the day after the Effective Date of my Option
exercise.
[ ] With the proceeds from a sale of Shares that would otherwise be
distributed to me.
[ ] Retain shares that would otherwise be distributed to me and that
have a value equal to the minimum amount required to be withheld
by law.
I understand that the withholding elections I have made on this form are
not binding on the Committee, and that the Committee will decide the amount
to be withheld and the method of withholding and advise me of its decision
prior to the Effective Date. I further understand that the Committee may
request additional information or assurances regarding the manner and time
at which I will report the income attributable to the distribution to be
made to me. I further understand that if I have elected to have Shares sold
to satisfy tax withholding, I may be asked to pay a minimal amount of such
taxes in cash in order to avoid the sale of more Shares than are necessary.
COMPLIANCE WITH TAX AND SECURITIES LAWS
SIGN I understand that I must rely on, and consult with, my own tax and legal
HERE counsel (and not Westbank Corporation) regarding the application of all
laws -- particularly tax and securities laws -- to the transactions to
be effected pursuant to my Option and this Notice. I understand that I
will be responsible for paying any federal, state and local taxes that
may become due upon the sale (including a sale pursuant to a "cashless
exercise") or other disposition of Shares issued pursuant to this Notice
and that I must consult with my own tax advisor regarding how and when
such income will be reportable.
--------------------------------- ------------------------------------
Signature Date
Internal Use Only
- --------------------------------------------------------------------------------
Received [check one]: [ ] By Hand [ ] By Mail Post Marked
------------------
Date of Post Mark
By
------------------------------------------------------ ------------------
Authorized Signature Date of Receipt
APPENDIX B TO STOCK OPTION CERTIFICATE
WESTBANK CORPORATION
2006 EQUITY INCENTIVE PLAN
BENEFICIARY DESIGNATION FORM
GENERAL Use this form to designate the Beneficiary(ies) who will
INFORMATION receive vested stock options outstanding to you at the time of
your death.
Name of
Award Recipient Social Security Number -- --
--------------------- ----- ---- -----
BENEFICIARY Complete sections A and B. If no percentage shares are
DESIGNATION specified, each Beneficiary in the same class (primary or
contingent) shall have an equal share. If any designated
Beneficiary predeceases you, the shares of each remaining
Beneficiary in the same class (primary or contingent) shall be
increased proportionately.
A. PRIMARY BENEFICIARY(IES). I hereby designate the following person as my
primary Beneficiary under the Plan, reserving the right to change or revoke this
designation at any time prior to my death:
Name Address Relationship Birthdate Share
- ------------------ ------------------------------ -------------- ------------ --------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
Total =100%
B. CONTINGENT BENEFICIARY(IES). I hereby designate the following person(s) as my
contingent Beneficiary(ies) under the Plan to receive benefits only if all of my
primary Beneficiaries should predecease me, reserving the right to change or
revoke this designation at any time prior to my death:
Name Address Relationship Birthdate Share
- ------------------ ------------------------------ -------------- ------------ --------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
%
- ------------------ ------------------------------ -------------- ------------ ----------
------------------------------
Total =100%
SIGN I understand that this Beneficiary Designation shall be effective only
HERE if properly completed and received by the Compensation Committee of
Westbank Corporation prior to my death, and that it is subject to all of
the terms and conditions of the Plan. I also understand that an
effective Beneficiary designation revokes my prior designation(s) with
respect to all outstanding Stock Options.
------------------------------- ------------------------------------
Your Signature Date
INTERNAL USE ONLY
- --------------------------------------------------------------------------------
This Beneficiary Designation was received by the Comments
Corporate Secretary of Westbank Corporation on
the date indicated.
By
----------------------------- ---------------
Authorized Signature Date
Exhibit 23.1
[LETTERHEAD OF THACHER PROFFITT & WOOD LLP]
May 10, 2006
Board of Directors
Westbank Corporation
225 Park Avenue
West Springfield, MA 01089
Re: Registration Statement on Form S-8
----------------------------------
Members of the Board:
We have acted as counsel for Westbank Corporation, a Massachusetts
corporation (the "Company"), in connection with the filing of a registration
statement on Form S-8 under the Securities Act of 1933, as amended (the
"Registration Statement") with respect to 794,860 shares of the Company's common
stock, par value $2.00 per share (the "Common Stock"), to be offered pursuant to
the Westbank Corporation 2006 Equity Incentive Plan (the "Plan").
In rendering the opinion set forth below, we do not express any opinion
concerning law other than the laws of the Commonwealth of Massachusetts.
We have examined originals or copies, certified or otherwise
identified, of such documents, corporate records and other instruments as we
have deemed necessary or advisable for purposes of this opinion. As to matters
of fact, we have examined and relied upon the Plan described above and, where we
have deemed appropriate, representations or certificates of officers of the
Company or public officials. We have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all documents
submitted to us as copies.
Based on the foregoing, we are of the opinion that the shares of Common
Stock that are being registered pursuant to the Registration Statement have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plan, such shares will be validly issued, fully paid and non-assessable.
Board of Directors
Westbank Corporation
May 10, 2006 Page 2
This opinion is given solely for the benefit of the Company and
purchasers of shares under the Plan, and may not be relied upon by any person or
entity, nor quoted in whole or in part, or otherwise referred to in any document
without our express written consent.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to our firm's name therein.
Very truly yours,
THACHER PROFFITT & WOOD LLP
By:
------------------------
Richard A. Schaberg
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated March 1, 2006, relating to the consolidated
financial statements of Westbank Corporation and management's report on the
effectiveness of internal control over financial reporting appearing in the
Annual Report on Form 10-K of Westbank Corporation for the year ended December
31, 2005.
/s/ DELOITTE & TOUCHE LLP
Hartford, Connecticut
May 9, 2006