February 9, 2005
Fax (508) 528-7000
Thomas R. Venables
President and Chief Executive Officer
Benjamin Frankin Bancorp
58 Main Street
Franklin, Massachusetts 02038-0309
RE: Benjamin Franklin Bancorp, Inc.
Form S-1, Amendment No. 1 filed January 24, 2005
File No. 333-121154
Form S-4, Amendment No. 1 filed January 31, 2005
File No. 333-121608
Dear Mr. Venables:
We have reviewed your filings and have the following
comments.
Where indicated, we think you should revise your documents in
response to these comments. If you disagree, we will consider
your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is to
assist
you in your compliance with the applicable disclosure requirements
and to enhance the overall disclosure in your filing. We look
forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Form S-1
Cover Page
1. We note your response to comment 3 regarding the legality of
structuring the transaction so that 48% of the minimum IPO
offering
requirement may be met by nonIPO participants. Your reliance on
bank
regulator approval- whose statutory mission is safety and
soundness
of banks, not investor protection- is unclear. As previously
requested, please provide us with your legal analysis supporting
the
minimum offering structure. In particular, please explain how
this
structure satisfies Rule 10b-9.
Summary
Benefits to Officers and Directors- page 7
2. Please move the final paragraph of this section (currently on
page
10) to the forepart of the section. In addition, quantify the new
benefits. Finally, move the tables toward the beginning of the
section.
Relatively High Pro Forma Pricing Multiples May Negatively Affect
After Market Stock Performance Compared with Other Recently
Converted
Institutions- page 24
3. We note that both comparable transactions are trading at more
than
50% above their IPO price. Given the impressive aftermarket stock
performance by the comps, it would appear that such information
should be included in the risk factor to put this risk in context.
Please revise or advise.
4. Please add the price to book multiples as requested by comment
13.
Summary Compensation Table, page 122
5. Since you filed in 2004, you have to include 2003 numbers as
well
as 2004 numbers. Please revise.
Background and Reasons for the Acquisition- page 159
6. Please disclose the dates that Ryan Beck and BNK Advisory Group
met with the board as referenced in the second paragraph of this
section.
7. Please revise to clarify the disclosure regarding the
possibility
that Ryan Beck will earn addition compensation from Benjamin
Franklin
Bancorp by participating in their "intention to fund our stock-
based
incentive plan with shares purchased on the open market***."
Tax Aspects of the Conversion and the Chart Bank Acquisition- page
193
8. The last clause of the second tax issue is an unacceptable
assumption. Please revise both the disclosure and opinion
consistent
with this comment.
9. Please delete or advise what significance we should attribute
to
the phrase "to the effect" found in the first sentence of the
subsection "The Chart Bank Merger."
Exhibits
10. Please revise the Tax Opinion, exhibit 8.1, consistent with
the
prospectus disclosure to specifically include the subscription
rights
issue.
11. Please provide us with a complete copy of the Appraisal,
exhibit
99.2.
Form S-4
General
12. Please include the information required by Item 3(f) of
Regulation S-K.
Summary
13. Please quantify the amount of consideration Ryan Beck will
receive for its services to: (1) Chart Bank and (2) Benjamin
Franklin.
Directors and Executive Officers Own 77.5% of the Total Votes
Entitled to be Cast - page 4
14. We note your response 61 which details the parties to the
Voting
Agreement and the beneficial ownership of Messrs. Bolton Sr.,
Bolton
Jr., and Haynes totaling 38.1% of the outstanding shares. Noting
your expectation that Officers and Directors controlling 77.5% of
the
outstanding shares will vote in favor of the merger, please
provide
us with your legal analysis why this we should not consider this a
private placement.
Opinion of Financial Advisor- page 76
15. Please advise regarding the underlying pass through value
analysis found in the Ryan Beck blue books but not in the
registration statement. For example, see beginning at Tab 3, page
17
of Ryan Beck`s August 3, 2004 book and Tab 6 of the August 30,
2004
book.
Material Federal Income Tax Consequences of the Merger- page 106
16. Revise the first sentence of the fourth paragraph on page 107
to
clarify that the merger will qualify as a reorganization under
Section 368(a) according to tax counsel.
17. Either delete or advise what significance should be attributed
to
the phrase "to the effect" found in the second sentence of the
fourth
paragraph on page 107.
18. Please clarify that the tax opinion(s) cover the tax-free
stock
exchange for Chart shareholders. Revise both the disclosure
throughout the prospectus (page 3) as well as the tax opinion(s)
to
clarify that Chart shareholders are covered.
19. We note your reference to Goodwin Procter, tax counsel, on
page
107 but no tax opinion or consent. Please file a tax opinion and
consent in the next amendment.
Closing Comments
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review. Please
understand that we may have additional comments after reviewing
your
amendment and responses to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the company and its management are in
possession of all facts relating to a company`s disclosure, they
are
responsible for the accuracy and adequacy of the disclosures they
have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert this action as defense in any
proceeding
initiated by the Commission or any person under the federal
securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as a confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
acceleration of a registration statement. Please allow adequate
time
after the filing of any amendment for further review before
submitting a request for acceleration. Please provide this
request
at least two business days in advance of the requested effective
date.
You may contact Sharon Johnson at (202) 942-2961 or Donald
Walker, Senior Assistant Chief Accountant at (202) 942-1799 if you
have questions regarding comments on the financial statements and
related matters. Please contact Barry McCarty at (202) 942-1779
or
me at (202) 942-1760 with any other questions.
Sincerely,
Mark Webb
Legal Branch Chief
Office of Financial Institutions