As filed with the Securities and Exchange Commission on November 15, 1999
REGISTRATION NO. 333-
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United States
Securities and Exchange Commission
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WESTBOROUGH FINANCIAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
Massachusetts Application Pending
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 E. Main Street
Westborough, MA 01581
(508)366-4111
(Address of Principal Executive Offices)
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WESTBOROUGH BANK 401(K) PLAN
(Full title of the Plan)
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Mr. Joseph F. MacDonough
President and Chief Executive Officer
Westborough Savings Bank
100 E. Main Street
Westborough, MA 01581
(508) 366-4111
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W. Suite 800
Washington, D.C. 20006
(202) 347-8400
(Name and address, telephone number including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered(1) Price Per Share (2) Aggregate Offering Price (2) Registration Fee
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Common Stock, $0.01 par value 50,000 shares $10.00 $500,000 $139.00
Plan Participation Interests(3) -- -- -- --
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(1) Based on the estimated number of shares of common stock of Westborough
Financial Services, Inc. under the SBERA 401(k) Plan as adopted by
Westborough Bank ("Plan") that may be purchased with the current assets
of the Plan and the projected contributions to the Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) of the Securities Act of 1933, as amended
(the "Securities Act"), pursuant to which shares of common stock of
Westborough Financial Services, Inc. (the "Company") offered pursuant
to the Plan are deemed to be offered at $10 per share, the price at
which shares of Company common stock are being offered to the public
pursuant to the Registration Statement on Form SB-2 (Registration No.
333-80075).
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests
to be offered pursuant to the employee benefit plan described herein.
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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 ("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 Registrant's Registration Statement on Form SB-2 dated
September 23, 1999, Registration No. 333- 80075, as amended by
Amendment No. 1 to Form SB-2 dated October 1, 1999, and any
amendments thereto; and
(2) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement
on Form SB-2 dated September 23, 1999, Registration No.
333-80075, as amended by Amendment No. 1 to Form SB-2 dated
October 1, 1999, and any amendments thereto.
All documents filed by the Registrant pursuant to Sections 13,
14, or 15(d) of the Securities Exchange Act of 1934 (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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI, Section 6.7 of the Articles of Organization of Westborough
Financial Services, Inc. (the "Company") provides that any person involved in a
proceeding by reason of his or her position as a director, officer, employee or
agent of the Company or another corporation, partnership, joint venture, trust
or other enterprise, will be indemnified and held harmless to the fullest extent
allowed by the Massachusetts Business Corporation Law. Such persons are
indemnified against all expense, liability and loss caused by acts in good faith
and reasonably believed to be in the best interests of the Company. Proceedings
initiated by the indemnitee himself must be authorized by the Board of Directors
of the Company, except for suits brought to enforce a right to indemnification.
Section 6.7 further provides that the Company may maintain insurance to protect
itself and any director, officer, employee or agent against any expense, whether
or not the Company would have the power under the Massachusetts Business
Corporation Law to indemnify such person for the expense. Section 6.7
additionally grants the Company the right to execute independent indemnification
contracts on any terms not prohibited by law.
Article VI, Section 6.8 of the Company's Articles of Organization
relieves directors from personal liability for breaches of their fiduciary
duties. However, Section 6.8 does not eliminate or limit such liability (i) for
any breach of a director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Sections 61 or 62 of
Chapter 156B of the General Laws of the Commonwealth of Massachusetts, or (iv)
with respect to any transaction from which the director derived an improper
personal benefit.
Article XI of The Westborough Bank's (the "Bank") Bylaws provide that it
shall indemnify any person against whom an action is brought or threatened
because that person is or was a legal representative, director, officer,
employee or agent of the Bank, provided that such person acted in good faith in
the reasonable belief that such action was in, or not opposed to, the best
interest of the Bank.
Article VI of the Bylaws of Westborough, MHC (the "Mutual Company")
provides for indemnification of officers, corporators, trustees and employees
for actions taken in good faith and reasonably believed to be in the best
interests of the Mutual Company. Article VI also contains provisions on
insurance and independent indemnification contracts that are similar to the
provisions of Section 6.7 of the Company's Articles of Organization.
The Company is party to an Employment Agreement with each of Messrs.
Joseph F. MacDonough and John L. Casagrande (the "Senior Executives"). These
Employment Agreements provide for the Company to indemnify and insure the Senior
Executives against personal liability for acts or omissions in connection with
service to the Company or the Bank. The insurance coverage provided to the
Senior Executives is required to be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other current or former officers
or directors of the Company and the Bank. The Company must also indemnify the
Senior Executives to the fullest extent and on the most favorable terms and
conditions that similar indemnification is offered to any current or former
director or officer of the Company, the Bank, or any subsidiary or affiliate
thereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Articles of Organization of Westborough Financial Services, Inc., incorporated by reference to the
Registrant's Registration Statement on Form SB-2, dated October 1, 1999, Registration No. 333-80075,
and any amendments thereto.
4.2 Bylaws of Westborough Financial Services, Inc., incorporated by reference to the Registrant's Registration
Statement on Form SB-2, dated October 1, 1999, Registration No. 333-80075, and any amendments
thereto.
4.3 Form of Stock Certificate of Westborough Financial Services, Inc., incorporated by reference to the
Registrant's Registration Statement on Form SB-2, dated October 1, 1999, Registration No. 333-80075,
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 hereof).
23.2 Consent of Wolf & Company, P.C.
99.3 SBERA 401(k) Plan as adopted by Westborough Bank.
ITEM 9. UNDERTAKINGS.
A. QUALIFICATION OF PLAN. The undersigned Registrant hereby undertakes
to submit the Plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the Plan under section 401(a) of the Internal Revenue
Code of 1986, as amended.
B. 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; 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 reports 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.
C. 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.
D. 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.
E. 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 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.
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 Westborough, Commonwealth of Massachusetts on the
15th day of November, 1999.
WESTBOROUGH FINANCIAL SERVICES, INC.
(Registrant)
By:/s/Joseph F. MacDonough
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Joseph F. MacDonough
President, Chief Executive Officer
and Director
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
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/s/ Joseph F. MacDonough President, Chief Executive Officer November 15, 1999
- ------------------------------------ (Principal Executive Officer) and
Joseph F. MacDonough Director
/s/ John L. Casagrande Vice President and Treasurer November 15, 1999
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John L. Casagrande Officer)
/s/ Nelson P. Ball Director November 12, 1999
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Nelson P. Ball
/s/ Edward S. Bilzerian Director November 15, 1999
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Edward S. Bilzerian
/s/ David E. Carlstrom Director November 15, 1999
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David E. Carlstrom
/s/ William W. Cotting, Jr. Director November 13, 1999
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William W. Cotting, Jr.
/s/ Robert G. Daniel Director November 15, 1999
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Robert G. Daniel
/s/ Earl H. Hutt Director November 12, 1999
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Earl H. Hutt
/s/ Walter A. Kinell, Jr. Director November 12, 1999
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Walter A. Kinell, Jr.
/s/ Robert A. Klugman Director November 15, 1999
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Robert A. Klugman
/s/ Roger B. Leland Director November 15, 1999
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Roger B. Leland
/s/ Paul F. McGrath Director November 18, 1999
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Paul F. McGrath
/s/ Charlotte C. Spinney Director November 15, 1999
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Charlotte C. Spinney
/s/ Phyllis A. Stone Director November 12, 1999
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Phyllis A. Stone
/s/ James E. Tashjian Director November 15, 1999
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James E. Tashjian
/s/ Daniel G. Tear Director November 10, 1999
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Daniel G. Tear
Pursuant to the requirements of the Securities Exchange 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 Westborough, Commonwealth
of Massachusetts, on November 15, 1999.
Westborough Bank 401(k) Plan
/s/ Joseph F. MacDonough
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By: Joseph F. MacDonough
President, Chief Executive Officer and
Director of Westborough Bank