UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported): April 23, 2013
Boston Private Financial Holdings, Inc.
(Exact name of registrant as specified in charter)
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Massachusetts
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1-35070
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04-2976299
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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Ten Post Office Square, Boston, Massachusetts 02109
(Address of Principal Executive Offices) (Zip Code)
(617) 912-1900
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (
see
General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 3.03
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Material Modification to Rights of Security Holders.
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Upon the scheduled issuance of the 6.95% Non-Cumulative Perpetual Preferred Stock, Series D, par value $1.00 per share and liquidation preference of $1,000 per share (the “Series D Preferred
Stock”), of Boston Private Financial Holdings, Inc. (the “Company”) on April 24, 2013, the ability of the Company to declare and pay dividends on, or purchase, redeem or otherwise acquire, shares of its preferred stock or any
securities of the Company that rank junior to the Series D Preferred Stock will be subject to certain restrictions in the event that the Company does not declare and pay (or set aside) dividends on the Series D Preferred Stock for the last preceding
dividend period. The terms of the Series D Preferred Stock, including such restrictions, are more fully described in the Certificate of Designations included in the Articles of Amendment filed by the Company on April 23, 2013, a copy of which
is filed as Exhibit 3.5 to the Company’s Form 8-A filed on April 24, 2013 and is incorporated herein by reference.
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Item 5.03
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Amendments to Certificate of Incorporation or By-Laws; Change in Fiscal Year.
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On April 23, 2013, the Company filed Articles of Amendment with the Secretary of the Commonwealth of Massachusetts for the purpose of
amending the Company’s Restated Articles of Organization to establish the preferences, limitations, voting powers and relative rights of the Series D Preferred Stock. The Articles of Amendment became effective upon filing, and a copy of which
is filed as Exhibit 3.5 to the Company’s Form 8-A filed on April 24, 2013 and is incorporated herein by reference.
On April 24, 2013, the Company closed the public offering of 2,000,000 depositary shares (the “Depositary Shares”) pursuant to an Underwriting Agreement, dated April 17, 2013,
previously disclosed by the Company. Each Depositary Share represents a 1/40
th
interest in a share of the Series D Preferred Stock. The offering and sale of the Depositary Shares was made pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-185896) filed
with the Securities and Exchange Commission (the “Registration Statement”).
The opinion and consent of Goodwin
Procter LLP as to the validity of the Series D Preferred Stock and the Depositary Shares of the Company offered pursuant to the prospectus supplement dated April 17, 2013, and the opinion and consent of Goodwin Procter LLP as to certain tax
matters are filed herewith and are each incorporated by reference into the Registration Statement as exhibits thereto.
The
Master Deposit Agreement, dated as of April 24, 2013 (the “Master Deposit Agreement”), by and among the Company, Computershare Trust Company, N.A., and Computershare Inc., collectively, as depositary, and the holders from time to time
of the depositary receipts described therein, relating to the Depositary Shares, is filed as Exhibit 4.1 to the Company’s Form 8-A filed on April 24, 2013 and is incorporated herein by reference. The form of depositary receipt representing
the Depositary Shares and the form of certificate representing the Series D Preferred Stock are filed as Exhibit 4.2 and 4.3, respectively, to the Company’s Form 8-A filed on April 24, 2013 and are each incorporated herein by reference.
On April 24, 2013, the Company repurchased all 400.81221 shares of the Company’s Series B Non-Cumulative Perpetual
Contingent Convertible Preferred Stock, par value $1.00 per share, held by BP Holdco, L.P. pursuant to a Stock Repurchase Agreement, dated as of April 16, 2013, previously disclosed by the Company.
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Item 9.01
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Financial Statements and Exhibits.
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Exhibit 3.1
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Articles of Amendment of the Company (incorporated herein by reference to Exhibit 3.5 of the Company’s Registration Statement on Form 8-A filed on April 24,
2013).
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Exhibit 4.1
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Master Deposit Agreement, dated April 24, 2013, by and among the Company, Computershare Trust Company, N.A., and Computershare Inc., collectively, as depositary, and the holders
from time to time of the depositary receipts described therein (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed on April 24, 2013).
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Exhibit 4.2
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Form of Certificate Representing Series D Preferred Stock (incorporated herein by reference to Exhibit 4.2 to the Company’s Registration Statement on Form 8-A filed on April
24, 2013).
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Exhibit 4.3
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Form of Depositary Receipt (incorporated herein by reference to Exhibit 4.3 to the Company’s Registration Statement on Form 8-A filed on April 24,
2013).
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Exhibit 5.1
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Opinion of Goodwin Procter LLP as to the legality of the securities being registered.
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Exhibit 8.1
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Opinion of Goodwin Procter LLP as to certain tax matters.
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Exhibit 23.1
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Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto).
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Exhibit 23.2
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Consent of Goodwin Procter LLP (included in Exhibit 8.1 hereto).
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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BOSTON PRIVATE FINANCIAL HOLDINGS, INC.
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Dated: April 24, 2013
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By:
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/s/ David J. Kaye
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Name:
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David J. Kaye
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Title:
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Executive Vice President, Treasurer and Chief Financial Officer
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EXHIBIT INDEX
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Exhibit No.
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Description
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Exhibit 3.1
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Articles of Amendment of the Company (incorporated herein by reference to Exhibit 3.5 of the Company’s Registration Statement on Form 8-A filed on April 24,
2013).
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Exhibit 4.1
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Master Deposit Agreement, dated April 24, 2013, by and among the Company, Computershare Trust Company, N.A., and Computershare Inc., collectively, as depositary, and the holders
from time to time of the depositary receipts described therein (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed on April 24, 2013).
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Exhibit 4.2
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Form of Certificate Representing Series D Preferred Stock (incorporated herein by reference to Exhibit 4.2 to the Company’s Registration Statement on Form 8-A filed on April
24, 2013).
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Exhibit 4.3
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Form of Depositary Receipt (incorporated herein by reference to Exhibit 4.3 to the Company’s Registration Statement on Form 8-A filed on April 24, 2013).
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Exhibit 5.1
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Opinion of Goodwin Procter LLP as to the legality of the securities being registered.
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Exhibit 8.1
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Opinion of Goodwin Procter LLP as to certain tax matters.
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Exhibit 23.1
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Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto).
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Exhibit 23.2
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Consent of Goodwin Procter LLP (included in Exhibit 8.1 hereto).
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Exhibit 5.1
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Goodwin Procter
LLP
Counsellors at Law
Exchange Place
Boston, MA 02109
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T: 617.570.1000
F:
617.523.1231
goodwinprocter.com
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April 24, 2013
Boston Private Financial Holdings, Inc.
Ten Post Office Square
Boston, Massachusetts 02109
Ladies and
Gentlemen:
Reference is made to our opinion letter dated January 4, 2013 and included as Exhibit
5.1 to the Registration Statement on Form S-3 (the “Registration Statement”) (File No. 333-185896) filed on January 4, 2013 by Boston Private Financial Holdings, Inc., a Massachusetts corporation (the “Company”), with
the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement became effective on January 17, 2013. We are delivering this
supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on April 19, 2013 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement
relates to the offering and sale of 2,000,000 depositary shares (the “Depositary Shares”), each representing
1/40
th
of a share of the Company’s 6.95%
Non-Cumulative Perpetual Preferred Stock, Series D, par value $1.00 per share (the “Series D Preferred Stock”) pursuant to the terms of the Underwriting Agreement dated April 17, 2013 among the Company, Goldman, Sachs & Co.
and Keefe, Bruyette & Woods, Inc. (the “Underwriting Agreement”), covered by the Registration Statement. We understand that the Depositary Shares are to be offered and sold in the manner described in the Prospectus Supplement.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth
below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, on certificates of officers of the Company.
We refer to the Master Deposit Agreement, dated April 24, 2013, among the Company, Computershare Inc. and Computershare Trust
Company, N.A., as depositary (the “Depositary”), and the holders from time to time of depositary shares described therein that establishes the terms of the Depositary Shares and under which the Depositary Shares will be issued, as the
“Master Deposit Agreement.” We refer to the 50,000 shares of Series D Preferred Stock to be deposited with the Depositary in connection with the issuance of the Depositary Shares as the “Preferred Shares.”
Boston Financial Holdings, Inc.
April 24, 2013
Page 2
The opinions set forth below are limited to the laws of The Commonwealth of
Massachusetts and, with respect to the Master Deposit Agreement, the laws of the State of New York. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations.
Based on the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
(a) the Preferred Shares have been duly authorized and, when (i) the Preferred Shares have been deposited with the Depositary
pursuant to the Master Deposit Agreement against issuance of Depositary Shares as provided therein and (ii) the Depositary Shares are delivered pursuant to the Underwriting Agreement against payment of the consideration therefor as provided in
the Underwriting Agreement, the Preferred Shares will be validly issued, fully paid and non-assessable; and
(b) the
Depositary Shares, when (i) the Preferred Shares have been deposited with the Depositary pursuant to the Master Deposit Agreement against issuance of Depositary Shares as provided therein and (ii) the Depositary Shares are delivered
pursuant to the Underwriting Agreement against payment of the consideration therefor as provided in the Underwriting Agreement, will be validly issued and will entitle the holders thereof to the rights specified therein and in the Master Deposit
Agreement.
The opinions expressed above are subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity.
This opinion letter and the opinion it contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the American Bar Association’s
Business Law Section as published in 53 Business Lawyer 831 (May 1998).
We hereby consent to the inclusion of this opinion as
Exhibit 5.1 to the Company’s Current Report on Form 8-K dated April 24, 2013, which is incorporated by reference into the Registration Statement and to the references to our firm under the caption “Legal Matters” in the
Registration Statement and Prospectus Supplement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Goodwin Procter
LLP
GOODWIN PROCTER LLP
Exhibit 8.1
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Goodwin Procter LLP
Counsellors at Law
Exchange Place
Boston, MA 02109
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T: 617.570.1000
F:
617.523.1231
goodwinprocter.com
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April 24, 2013
Boston Private Financial Holdings, Inc.
Ten Post Office Square
Boston, MA 02109
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Re:
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Material U.S. Federal Income Tax Considerations
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Ladies and Gentlemen:
We have acted as counsel for Boston
Private Financial Holdings, Inc., a Massachusetts corporation (the “Company”), in connection with the offering and sale by the Company of 2,000,000 depositary shares (the “Depositary Shares”), each representing 1/40
th
of a share of 6.95% Non-Cumulative Perpetual Preferred Stock, Series
D, $1.00 par value per share, pursuant to a registration statement on Form S-3 (No. 333-185896) (the “Registration Statement”), as filed prior to the date hereof with the Securities and Exchange Commission under the Securities Act of 1933,
as amended. The prospectus that was included in the Registration Statement has been supplemented by the prospectus supplement (the “Prospectus Supplement”) dated April 17, 2013, relating to the offering and sale of the Depositary
Shares.
This opinion letter addresses the accuracy of certain matters discussed in the Prospectus Supplement under the
heading “Material U.S. Federal Income Tax Considerations.”
In rendering the following opinion, we have reviewed and
relied upon the information set forth in the Registration Statement, the Prospectus Supplement, and such other documents, records and instruments as we have deemed necessary or appropriate as a basis for our opinion. Unless facts material to the
opinion expressed herein are specifically stated to have been independently established or verified by us, we have relied as to such facts solely upon the Registration Statement, the Prospectus Supplement, and other information provided by the
Company. For purposes of this opinion letter, we have assumed (i) the genuineness of all signatures on documents we have examined, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to the
original documents of all documents submitted to us as copies, (iv) the conformity, to the extent relevant to our opinions, of final documents to all documents submitted to us as drafts, (v) the authority and capacity of the individual or
individuals who executed any such documents on behalf of any person, and (vi) the accuracy and completeness of all records made available to us.
Boston Private Financial Holdings, Inc.
April 24, 2013
Page 2
Based upon the foregoing and subject to the limitations set forth herein, we are of the
opinion that the statements set forth under the heading “Material U.S. Federal Income Tax Considerations” in the Prospectus Supplement, insofar as such statements constitute matters of law or legal conclusions, are correct in all material
respects.
We express no opinion other than the opinion expressly set forth herein. Our opinion is not binding on the Internal
Revenue Service. The Internal Revenue Service may disagree with and challenge our conclusions, and a court could sustain such a challenge. Our opinion is based upon the Internal Revenue Code of 1986, as amended, the Income Tax Regulations and
Procedure and Administration Regulations promulgated thereunder, and existing administrative and judicial interpretations thereof, all as in effect as of the date of this opinion letter. Changes in applicable law could cause the federal income tax
treatment of the Depositary Shares to differ materially and adversely from the treatment described above and render the tax discussion in the Prospectus Supplement incorrect or incomplete.
We are rendering this opinion letter to you in connection with the offering and sale of the Depositary Shares pursuant to the
Registration Statement and Prospectus Supplement, and this opinion letter may not be relied upon by any other person or for any other purpose without our prior written consent. This opinion letter speaks only as of the date hereof, and we undertake
no obligation to update this opinion letter or to notify any person of any changes in facts, circumstances or applicable law.
We hereby consent to the inclusion of this opinion as Exhibit 8.1 to the Registration Statement and to the references to our firm under
the captions “Legal Matters” in the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
thereunder.
Very truly yours,
/s/ Goodwin Procter
LLP
Goodwin Procter LLP