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EXHIBIT 5
November 2, 1998
The Board of Directors
Westbank Corporation
000 Xxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000-0000
Gentlemen:
Westbank Corporation ("Westbank") has entered into an Affiliation and
Merger Agreement dated as of July 15, 1998 (the "Merger Agreement"), by and
among Westbank, Park West Bank and Trust Company ("Park West"), a wholly owned
bank subsidiary of Westbank, Xxxxxxx Bancorp, Inc. ("Cargill") and Xxxxxxx Bank
("Xxxxxxx Bank"), a wholly owned subsidiary of Cargill. Pursuant to the terms of
the Merger Agreement, Cargill will merge with and into Westbank, as a result of
which Xxxxxxx Bank will become a wholly owned direct subsidiary of Westbank. As
a result of the foregoing transactions, Westbank will be the bank holding
company for Park West and Xxxxxxx Bank, and each of Park West and Xxxxxxx Bank
will be wholly owned direct subsidiaries of Westbank.
At the Effective Time of the Merger, each outstanding share of Cargill
Common Stock will be converted into and become exchangeable for shares of
Westbank Common Stock plus cash in lieu of any fractional share of Westbank
Common Stock (the "Exchange Ratio"), as follows:
1. If the Westbank Market Value is greater than or equal to $13.07,
then 1.3008 fully paid and nonassessable shares of Westbank Common Stock will be
exchanged for one (1) share of Cargill Common Stock;
2. If the Westbank Market Value is less than $13.07 but greater than or
equal to $12.00, then the number of fully paid and nonassessable shares of
Westbank Common Stock (rounded to the nearest one ten-thousandth of a share) is
obtained by dividing (A) $17.00 per share by (B) the Westbank Market Value and
exchanging the resulting number with one (1) share of Cargill Common Stock; or
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Board of Directors
November 2, 1998
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3. If the Westbank Market Value is less than $12.00, then 1.4167 fully
paid and nonassessable shares of Westbank Common Stock will be exchanged for one
(1) share of Cargill Common Stock. However, if Westbank's Market Value is less
than $12.00, the Board of Directors of Cargill may elect to, but is not required
to, terminate the Merger Agreement unless Westbank increases the exchange ratio
to (A) $17.00 per share divided by (B) the Westbank Market Value.
The Westbank Market Value is defined in the Merger Agreement as the
average of the closing prices of Westbank Common Stock on the NASDAQ National
Market System for each of the twenty (20) consecutive trading days ending on the
fifth trading day before the last required approval of a governmental entity is
obtained with respect to the transactions contemplated in the Merger Agreement,
without regard to any requisite waiting period in respect thereof, except if the
closing does not occur on or before the sixteenth day following the last
regulatory approval solely because of the non-expiration of waiting periods,
then it shall mean the date five (5) business days before the closing. Cash will
be given in lieu of fractional shares.
This opinion is rendered with respect to the shares of Common Stock to
be issued to the shareholders of Cargill upon the effectiveness of the Merger
Agreement. The Merger Agreement is set forth as Appendix A, to the Proxy
Statement-Prospectus of Westbank (the "Proxy Statement-Prospectus") that forms a
part of Westbank's registration statement on Form S-4 (the "Registration
Statement") filed with the Securities and Exchange Commission on September 30,
1998, and amended by Amendment Number One filed thereto on or about November 2,
1998.
We have reviewed the Articles of Organization, as amended and Bylaws,
as amended of Westbank, the Proxy Statement-Prospectus, the Merger Agreement,
records of the proceedings of the Board of Directors of Westbank and such other
records as we deem relevant for the purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of documents submitted to us as
originals, the conformity to original documents of all documents to us as
certified or photostatic copies, the authenticity of the originals of such
latter documents, the validity of all applicable statutes and regulations, the
legal authority and the capacity of all persons executing documents and proper
indexing and accuracy of all public records and documents. As to any facts
material to this opinion which we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of Westbank and others. The opinions set forth herein are based
on the laws of the Commonwealth of Massachusetts and the corporate laws of the
Commonwealth of Massachusetts as the same exist on the date hereof, and no
opinion expressed as to the laws of any other jurisdiction.
Based upon the foregoing, we are of the opinion that when the Merger
has been approved by the requisite vote of the shareholders of Cargill as set
forth in the Proxy Statement-Prospectus and when the other conditions to the
Merger set forth in the Merger Agreement and in the Proxy
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Board of Directors
November 2, 1998
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Statement/Prospectus have been satisfied or, if permitted, waived, and the
Merger has become effective, the shares of Westbank Common stock to be issued to
the shareholders of Cargill pursuant to the Merger will be duly authorized,
validly issued, fully paid and non-assessable.
The opinions expressed herein are made as of the date hereof pursuant
to the requirements of Regulation S-K, Item 601, of the United States Securities
and Exchange Commission in regard to the shares being registered pursuant to the
Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Legal
Matters" in the Registration Statement and Proxy Statement-Prospectus.
Sincerely,
/s/ Cranmore, XxxxXxxxxx & Xxxxxx
CRANMORE, XXXXXXXXXX & XXXXXX
