As filed with the Securities and Exchange Commission on November 9, 2001
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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Westfield Financial, 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.)
c/o Westfield Bank
141 Elm Street
Westfield, MA 01086
(413) 568-1911
(Address, including Zip Code, of principal executive offices)
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SBERA 401(k) Plan
as adopted by Westfield Bank
(Full title of the Plan)
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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)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share (2) Price (2) Registration Fee
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Common Stock, $.01 par value 233,591 $10.00 $2,335,910.00 $583.98
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Plan Participation
Interests(3) -- -- -- --
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(1) Based on the estimated number of shares of common stock of Westfield
Financial, Inc. ("Westfield Financial") that could be purchased under
the SBERA 401(k) Plan as adopted by Westfield Bank (the "Plan") with
the current assets of the Plan.
(2) Estimated solely for 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
Westfield Financial offered pursuant to the Plan are deemed to be
offered at $10 per share, the price at which shares of Westfield
Financial common stock are being offered to the public pursuant to the
Registration Statement on Form S-1, as amended (Registration No.
333-68550).
(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 (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); and
(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.
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 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.
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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.
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 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
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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.
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
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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 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.
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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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 The SBERA 401(k) Plan as adopted by Westfield Bank.
4.2 Investment Election Form of Westfield Bank.
4.3 Articles of Organization of Westfield Financial Inc.,
incorporated by reference to Exhibit 3.1, the Registrant's
Registration Statement on Form S-1, dated August 28, 2001, as
amended, Registration No. 333-68550, and any amendments thereto.
4.4 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.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to
the legality of the securities being registered, incorporated by
reference to Exhibit 5.1 to the Registrant's Registration
Statement on Form S-1, dated August 28, 2001, as amended,
Registration No. 333-68550, and any amendments thereto.
23.1 Consent of Thacher Proffitt & Wood, incorporated by reference to
Exhibit 23.1 to the Registrant's Registration Statement on
Form S-1, dated August 28, 2001, as amended, Registration
No. 333-68550, and any amendments thereto.
23.2 Consent of Deloitte & Touche LLP.
Item 9. Undertakings.
A. Qualification of Plan. The undersigned Registrant hereby
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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.
B. Rule 415 offering. The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
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(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. 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.
C. Filings incorporating subsequent Exchange Act documents by
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reference. The undersigned Registrant hereby undertakes that, for purposes of
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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
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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
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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
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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.
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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
November 7, 2001.
Westfield Financial, Inc.
(Registrant)
By: /s/ Donald A. Williams
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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
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/s/ Donald A. Williams President, Chief Executive November 7, 2001
- --------------------------- Officer and
Donald A. Williams Director
/s/ Victor J. Carra Executive Vice President November 7, 2001
- --------------------------- and Director
Victor J. Carra
/s/ Michael J. Janosco, Jr. Chief Financial Officer November 7, 2001
- --------------------------- and Director
Michael J. Janosco, Jr.
/s/ David C. Cotton, Jr. Director November 7, 2001
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David C. Cotton, Jr.
Director November , 2001
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Robert T. Crowley, Jr.
/s/ Thomas J. Howard Director November 7, 2001
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Thomas J. Howard
/s/ Harry C. Lane Director November 7, 2001
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Harry C. Lane
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SIGNATURE TITLE DATE
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/s/ William H. McClure Director November 7, 2001
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William H. McClure
/s/ Mary C. O'Neil Director November 7, 2001
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Mary C. O'Neil
/s/ Richard C. Placek Director November 7, 2001
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Richard C. Placek
Director November , 2001
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Paul R. Pohl
/s/ Charles E. Sullivan Director November 7, 2001
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Charles E. Sullivan
Director November , 2001
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Thomas C. Sullivan
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (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 Woburn, Commonwealth
of Massachusetts, on November 8, 2001.
SBERA 401(k) Plan
as adopted by Westfield Bank
By: /s/ Thomas Forese, Jr.
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Name: Thomas Forese, Jr.
Title: Plan Administrator
EXHIBIT INDEX
Exhibit
Number Description
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4.1 The SBERA 401(k) Plan as adopted by Westfield Bank.
4.2 Investment Election Form of Westfield Bank.
4.3 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.
4.4 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.
5 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to the
legality of the securities being registered incorporated by reference
to Exhibit 5.1 to the Registrant's Registration Statement on Form S-1,
dated August 28, 2001, as amended, Registration No. 333-68550, and any
amendments thereto.
23.1 Consent of Thacher Proffitt & Wood, incorporated by reference to
Exhibit 23.1 to the Registrant's Registration Statement on Form S-1,
dated August 28, 2001, as amended, Registration No. 333-68550, and any
amendments thereto.
23.2 Consent of Deloitte & Touche LLP.