As filed with the Securities and Exchange
Commission on August 29, 2002 Registration No. 333-_____
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
_______________
Westfield Financial, Inc.
(Exact name of registrant as specified in its charter)
Massachusetts 73-1627673
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
c/o Westfield Bank
141 Elm Street
Westfield, MA 01086
(413) 568-1911
(Address, including Zip Code, of principal executive offices)
_______________
Westfield Financial, Inc. 2002 Stock Option Plan
and
Westfield Financial, Inc. 2002 Recognition and Retention Plan
(Full title of the Plan)
_______________
Donald A. Williams
President and Chief Executive Officer
Westfield Bank
141 Elm Street
Westfield, MA 01086
(413) 568-1911
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)
_______________
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Share Aggregate Offering Price (2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<s> <c> <c> <c> <c>
Common Stock, $.01 par value 696,164 (2) $10,404,935.80 $957.26
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<FN>
<F1> Based on the total number of shares of common stock of Westfield
Financial, Inc. (the "Westfield Financial") reserved for issuance upon
the exercise of options granted pursuant to the Westfield Financial,
Inc. 2002 Stock Option Plan ("Option Plan") and the total number of
shares of common stock authorized for awards under the Westfield
Financial, Inc. 2002 Recognition and Retention Plan (the "RRP").
There are 497,260 shares of common stock reserved for awards under the
Option Plan and 198,904 shares authorized for awards under the RRP
(collectively, the "Plans"). In addition to such shares, this
registration statement also covers an undetermined number of shares of
common stock of Westfield Financial that, by reason of certain events
specified in the Plans, may become issuable upon exercise of options
or grant of awards through the application of certain anti-dilution
provisions.
<F2> Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which a total of 448,000 shares subject to outstanding options are
deemed to be offered at $14.39 per share and a total of 248,164
restricted shares and shares that may be acquired upon exercise of
options granted in the future are deemed to be offered at $15.95
per share, the average of the daily high and low sales prices of
common stock of the Company on the American Stock Exchange at the
close of trading on August 26, 2002.
</FN>
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 (File No. 333-68550) are incorporated by
reference in this registration statement:
(1) the Prospectus for Common Stock of Westfield Financial, Inc.
dated November 9, 2001, filed with the Commission pursuant to
Rule 424(b) under the Securities Act (Registration No.
333-68550);
(2) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement on
Form 8-A, dated November 9, 2001, Registration No. 001-16767;
(3) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2001; and
(4) the Registrant's Quarterly Reports on Form 10-Q for the periods
ended March 31, 2002 and June 30, 2002.
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
-2-
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.
Westfield Financial, Inc. 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: Michael J. Janosco, Jr., Westfield Bank, 141 Elm Street,
Westfield, Massachusetts 01086. Telephone requests may be directed to
(413) 568-1911.
All information appearing in this registration statement and the
prospectuses is qualified in its entirety by the detailed information
appearing in the documents incorporated herein or therein by reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
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 proceeding in
advance of the final disposition of such action or proceeding, upon
receipt of an undertaking
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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 Company's Articles of Organization provide for the indemnification
of directors, officers, employees and other agents of the Company. Under
Article VI "Other Lawful Provisions," Section 6.7 entitled "Indemnification"
states the following policies and procedures of the Company on
indemnification:
A. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a Director or
an Officer of the Corporation or is or was serving at the request of the
Corporation as a Director, Officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a Director, Officer, employee or agent or in any other
capacity while serving as a Director, Officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Massachusetts Business Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as
provided in Section C hereof with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
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B. The right to indemnification conferred in Section A of this
Section 6.7 shall include, in the case of a Director or officer at the level
of Vice President or above, and in the case of any other Officer or any
employee may include (in the discretion of the Board of Directors), the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"). Notwithstanding the foregoing, expenses
incurred by an indemnitee in advance of the final disposition of a
proceeding may be paid only upon the Corporation's receipt of an undertaking
by the indemnitee to repay such payment if he or she shall be adjudicated or
determined to be not entitled to indemnification under applicable law. The
Corporation may accept such undertaking without reference to the financial
ability of the Indemnitee to make such repayment. The rights to
indemnification and to the advancement of expenses conferred in Sections A
and B of this Section 6.7 shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a Director, Officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
C. If a claim under Section A or B of this Section 6.7 is not paid
in full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such suit, or in a suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee also shall be entitled to be paid the expense of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the terms of
an undertaking the Corporation shall be entitled to recover such expenses
upon a final adjudication that, he or she shall not have acted in good faith
in the reasonable belief that his or her action was in the best interests of
the Corporation. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set forth in the
Massachusetts Business Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that
the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Section 6.7 or otherwise, shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Section 6.7 shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Articles, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation
-5-
would have the power to indemnify such person against such expense,
liability or loss under the Massachusetts Business Corporation Law.
F. The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation to the
fullest extent of the provisions of this Section 6.7 with respect to the
indemnification and advancement of expenses of Directors and Officers of the
Corporation. Without limiting the generality of the foregoing, the
Corporation may enter into specific agreements, commitments or arrangements
for indemnification on any terms not prohibited by law which it deems to be
appropriate.
G. If the Corporation is merged into or consolidated with another
corporation and the Corporation is not the surviving corporation, the
surviving Corporation shall assume the obligations of the Corporation under
this Section 6.7 with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or
facts occurring at or prior to the date of such merger or consolidation.
Westfield Bank and Westfield Financial, Inc. have jointly entered into
employment agreements with each of Donald A. Williams, Michael J. Janosco,
Jr. and Victor J. Carra. The agreements each provide for indemnification to
the fullest extent permitted under the law. Westfield Bank and Westfield
Financial, Inc. 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 the Exhibits Index.
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
-6-
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.
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
-7-
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
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 City of Westfield, Commonwealth of Massachusetts on
August 27, 2002.
Westfield Financial, Inc.
(Registrant)
By: /s/ Donald A. Williams
--------------------------------
Donald A. Williams
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
--------- ----- ----
<c> <c>
/s/ Donald A. Williams President, Chief Executive Officer August 27, 2002
- --------------------------- and Director
Donald A. Williams
/s/ Victor J. Carra Executive Vice President and August 27, 2002
- --------------------------- Director
Victor J. Carra
/s/ Michael J. Janosco, Jr. Chief Financial Officer August 27, 2002
- ---------------------------
Michael J. Janosco, Jr.
/s/ David C. Cotton, Jr. Director August 27, 2002
- ---------------------------
David C. Cotton, Jr.
/s/ Robert T. Crowley, Jr. Director August 27, 2002
- ---------------------------
Robert T. Crowley, Jr.
/s/ Thomas J. Howard Director August 27, 2002
- ---------------------------
Thomas J. Howard
/s/ Harry C. Lane Director August 27, 2002
- ---------------------------
Harry C. Lane
/s/ William H. McClure Director August 27, 2002
- ---------------------------
William H. McClure
/s/ Mary C. O'Neil Director August 27, 2002
- ---------------------------
Mary C. O'Neil
/s/ Richard C. Placek Director August 27, 2002
- ---------------------------
Richard C. Placek
/s/ Paul R. Pohl Director August 27, 2002
- ---------------------------
Paul R. Pohl
/s/ Charles E. Sullivan Director August 27, 2002
- ---------------------------
Charles E. Sullivan
/s/ Thomas C. Sullivan Director August 27, 2002
- ---------------------------
Thomas C. Sullivan
Pursuant to the requirements of the Securities Act of 1933, the
directors (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Westfield,
Commonwealth of Massachusetts, on August 27, 2002.
Westfield Financial, Inc. 2002 Recognition and Retention Plan
Westfield Financial, Inc. 2002 Stock Option Plan
By: /s/ Donald A. Williams
--------------------------------
Donald A. Williams
President, Chief Executive Officer
and Director
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Articles of Organization of Westfield Financial, Inc., incorporated
by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-1, dated August 28, 2001, as amended,
Registration No. 333-68550, and any amendments thereto.
4.2 By-Laws of Westfield Financial, Inc., incorporated by reference to
the Registrant's Registration Statement on Form S-1, dated August 28,
2001, as amended, Registration No. 333-68550, and any amendments
thereto.
4.3 Form of Stock Certificate of Westfield Financial, Inc., incorporated
by reference to the Registrant's Registration Statement on Form S-1,
dated August 28, 2001, as amended, Registration No. 333-68550, and
any amendments thereto.
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
99.1 Westfield Financial, Inc. 2002 Stock Option Plan filed on May 24,
2002 as Appendix B to Registrant's Proxy Statement on Schedule 14A,
is incorporated herein by reference.
99.2 Westfield Financial, Inc. 2002 Recognition and Retention Plan filed
on May 24, 2002 as Appendix C to Registrant's Proxy Statement on
Schedule 14A, is incorporated herein by reference.