As filed with the Securities and Exchange Commission on September 4, 2007
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 6035 73-1627673
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Identification No.)
Code Number)
141 Elm Street
Westfield, Massachusetts 01085
(413) 568-1911
(Address, including Zip Code, of principal executive offices)
----------------------------------
Westfield Financial, Inc. 2007 Stock Option Plan
Westfield Financial, Inc. 2007 Recognition and Retention Plan
(Full title of the Plan)
----------------------------------
Donald A. Williams
Chairman and Chief Executive Officer
Westfield Financial, Inc.
141 Elm Street
Westfield, Massachusetts 01085
(413) 568-1911
Copy to:
Richard A. Schaberg, Esq.
Matthew Dyckman, Esq.
Thacher Proffitt & Wood LLP
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
=============================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 2,184,142 (1) (2) $22,051,570.58 (2) $676.98
=============================================================================================================================
(1) Based on the total number of shares of common stock of Westfield Financial, Inc. (the "Company") reserved for issuance
upon the exercise of options granted pursuant to the Westfield Financial, Inc. 2007 Stock Option Plan ("Option Plan") and
the total number of shares of common stock authorized for awards under the Westfield Financial, Inc. 2007 Recognition and
Retention Plan (the "RRP"). There are 1,351,702 shares of common stock subject to options currently granted and 208,399
shares of common stock reserved for awards under the Option Plan and 559,000 shares of common stock currently granted and
65,041 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 the Company that, by reason of
certain events specified in the Plans, may become issuable upon exercise of option or grant of awards through the
application of certain anti-dilution provisions.
(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 1,351,702 shares of the Company were deemed offered pursuant
to the Plans at $10.0400 and 832,440 shares that may be acquired pursuant to options or pursuant to other equity awards
granted in future are deemed to be offered at $10.1875 per share, the average of the daily high and low sales prices of
common stock of the Company on the Nasdaq Global Select Market at the close of trading on August 28, 2007.
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.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by Westfield Financial, Inc. (the "Registrant") (File No.
333-137024) are incorporated by reference in this registration statement:
(1) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated November 8, 2006
(Registration No. 001-16767);
(2) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2006 filed pursuant to Rule 13a-1 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(3) the Registrant's Quarterly Reports on Form 10-Q for the periods ended
March 31, 2007 and June 30, 2007 filed pursuant to Rule 13a-13 of the
Exchange Act;
(4) the Registrant's Current Report on Form 8-K filed pursuant to Rule 13a-11
of the Exchange Act, dated January 2, 2007;
(5) the Registrant's Current Report on Form 8-K filed pursuant to Rule 13a-11
of the Exchange Act, dated January 3, 2007;
(6) the Registrant's Current Report on Form 8-K filed pursuant to Rule 13a-11
of the Exchange Act, dated January 8, 2007; and
(7) the Registrant's Current Report on Form 8-K filed pursuant to Rule 13a-11
of the Exchange Act, dated August 13, 2007.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act after the end of the fiscal year ended December 31,
2006 and prior to the filing of the termination of the offering of the common
stock hereby shall be deemed incorporated by reference into this registration
statement and 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 registration statement.
The Company will provide without charge to each person to whom the
prospectuses are 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., Treasurer and Chief Financial Officer, Westfield Financial, Inc.,
141 Elm Street, Westfield, Massachusetts 01085. 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.
12 C.F.R. Section 545.121 sets forth the ability of a federal savings
association to indemnify its officers and directors. This section provides that
a savings association shall indemnify any person against whom an action is
brought or threatened because that person is or was a director, officer or
employee of the association for: (1) any amount for which that person become
liable under a judgment if such action; and (2) reasonable costs and expenses,
including reasonable attorney's fees paid or incurred by that person in
defending or settling such action, or in enforcing his or her rights under such
section if he or she attains a favorable judgment in such enforcement action.
Indemnification shall be made to such individuals if (1) final
judgments on the merits is in the individual's favor; or (2) in case of (i)
settlement; (ii) final judgment against the individual, or (iii) final judgment
in the individual's favor, other than on the merits, if a majority of the
disinterested directors determine that the individual was acting in good faith
within the
scope of his or her employment or authority as he or she could have reasonable
perceived it under the circumstances and for a purpose he or she could
reasonably have believed under the circumstances was in the best interests of
the savings association or its members.
The section also provides that no indemnification may be made unless
the association gives the OTS 60 days notice of its intention to make such
indemnification.
In addition to providing indemnification, under OTS Regulations, a
savings association may obtain insurance to protect it and its officers,
directors and employees from potential losses arising from claims against any
of them for alleged wrongful acts, or wrongful acts, committed in their
capacity as directors, officers or employees. However, the savings association
may not obtain insurance which provides for payment of losses of any person
incurred as a consequence of his or her willful or criminal misconduct.
Section 545.121 of OTS regulations is subject to and qualified by 12
U.S.C [SECTION] 1821(k) which provides in general that a director or officer of
an insured depository institution may be held personally liable for monetary
damages by, on behalf of, or at the request or direction of the Federal Deposit
Insurance Corporation in certain circumstances.
The Company's Articles of Organization provide for the indemnification
of directors, officers, employees and other agents of the Company. Article XII
"Indemnification" states the following policies and procedures of the Company
on indemnification:
Section 1. Right to Indemnification. 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 Company or is or was serving at the request of the Company 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
"indemnity"), 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 Company to
the fullest extent authorized by the Massachusetts General Laws, 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
Company to provide broader indemnification rights than such law
permitted the Company 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 indemnity in
connection therewith; provided, however, that, except as provided in
Section C hereof with respect to proceedings to enforce rights to
indemnification, the Company shall indemnify any such indemnity in
connection with a proceeding (or part thereof) initiated by such
indemnity
only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Company.
Section 2. Advance Payment. The right to indemnification
conferred in Section 1 of this Article XII 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
Company 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
indemnity in advance of the final disposition of a proceeding may be
paid only upon the Company's receipt of an undertaking by the
indemnity to repay such payment if he or she shall be adjudicated or
determined to be not entitled to indemnification under applicable
law. The Company may accept such undertaking without reference to the
financial ability of the indemnity to make such repayment.
Section 3. Indemnification of former Director, Officer, Employee
or Agent. The rights to indemnification and to the advancement of
expenses conferred in Sections 1 and 2 of this Article XII shall be
contract rights and such rights shall continue as to an indemnity who
has ceased to be a Director, Officer, employee or agent and shall
inure to the benefit of the indemnities heirs, executors and
administrators.
Section 4. Enforcement of Right to Indemnification. If a claim
under Sections 1, 2 or 3 of this Article XII is not paid in full by
the Company within sixty days after a written claim has been received
by the Company, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be twenty days,
the indemnity may at any time thereafter bring suit against the
Company 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
Company to recover an advancement of expenses pursuant to the terms
of an undertaking, the indemnity also shall be entitled to be paid
the expense of prosecuting or defending such suit. In (a) any suit
brought by the indemnity to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnity to enforce a
right to an advancement of expenses) it shall be a defense that, and
(b) in any suit by the Company to recover an advancement of expenses
pursuant to the terms of an undertaking the Company 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 Company. Neither the
failure of the Company (including its Board of Directors, independent
legal counsel, or its shareholders) to have made a determination
prior to the commencement of such suit that indemnification of the
indemnity is proper in the circumstances because the indemnity has
met the applicable standard of conduct set forth in the Massachusetts
General Laws, nor an actual determination by the Company
(including its Board of Directors, independent legal counsel, or its
shareholders) that the indemnity has not met such applicable standard
of conduct, shall create a presumption that the indemnity has not met
the applicable standard of conduct or, in the case of such a suit
brought by the indemnity, be a defense to such suit. In any suit
brought by the indemnity to enforce a right to indemnification or to
an advancement of expenses hereunder, or by the Company to recover an
advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the indemnity is not entitled to be
indemnified, or to such advancement of expenses, under this Article
XII or otherwise, shall be on the Company.
Section 4. Rights not Exclusive. The rights to indemnification
and to the advancement of expenses conferred in this Article XII
shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, the Company's Articles,
Bylaws, agreement, vote of shareholders or Disinterested Directors or
otherwise.
Section 5. Insurance. The Company may maintain insurance, at its
expense, to protect itself and any Director, Officer, employee or
agent of the Company or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or
loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under the
Massachusetts General Laws.
Section 6. Grants and Agreements. The Company 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 Company to the fullest extent of the provisions of
this Article XII with respect to the indemnification and advancement
of expenses of Directors and Officers of the Company. Without
limiting the generality of the foregoing, the Company may enter into
specific agreements, commitments or arrangements for indemnification
on any terms not prohibited by law which it deems to be appropriate.
Section 7. Merger or Consolidation. If the Company is merged into
or consolidated with another corporation and the Company is not the
surviving corporation, the surviving Company shall assume the
obligations of the Company under this Article XII 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.
If the regulations of the OTS are amended after the date hereof to
authorize action further eliminating or limiting the personal liability of
directors or officers, then the liability of a director or officer of the
Company shall be eliminated or limited to the fullest extent permitted by OTS
regulations, as so amended. Any repeal or modification of Section XII by the
directors
of the Company will be prospective only and shall not adversely affect any
right or protection of a director or officer existing at the time of such
repeal or modification.
The Company and Westfield Bank have jointly entered into employment
agreements with each of Donald A. Williams, Michael J. Janosco, Jr. and James
C. Hagan. The agreements each provide for indemnification to the fullest extent
permitted under the law. The Company and Westfield Bank 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.
4.1 Articles of Organization of Westfield Financial, Inc., filed on
August 31, 2006 as Exhibit 3.1 to Registrant's Registration
Statement on Form S-1 (File No. 333-137024), is incorporated
herein by reference.
4.2 Bylaws of Westfield Financial, Inc., filed on August 31, 2006
as Exhibit 3.2 to Registrant's Registration Statement on Form
S-1 (File No. 333-137024), is incorporated herein by reference.
4.3 Form of Restricted Stock Award Agreement under the Westfield
Financial, Inc. 2007 Recognition and Retention Plan.
4.4 Form of Option Agreement under the Westfield Financial, Inc.
2007 Stock Option Plan.
5.1 Opinion of Thacher Proffitt & Wood LLP.
23.1 Consent of Wolf & Company, P.C.
23.2 Consent of Thacher Proffitt & Wood LLP (included in Exhibit
5.1).
99.1 Westfield Financial, Inc. 2007 Stock Option Plan filed on June
18, 2007 as Appendix A to Registrant's Definitive Proxy
Statement (File No. 001-16767), is incorporated herein by
reference.
99.2 Westfield Financial, Inc. 2007 Recognition and Retention Plan
filed on June 18, 2007 as Appendix B to Registrant's Definitive
Proxy Statement (File No. 001-16767), is incorporated herein by
reference.
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
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 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, 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 Exchange Act; 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 Statement 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 Westfield, State of Massachusetts on August 28,
2007.
Westfield Financial, Inc.
(Registrant)
By: /s/ Donald A. Williams
--------------------------------
Donald A. Williams
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act and any rules and
regulations promulgated thereunder, this Registration Statement, has been
signed by the following persons in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Donald A. Williams Chairman and Chief August 28, 2007
- --------------------------- Executive Officer
Donald A. Williams
/s/ Michael J. Janosco, Jr. Chief Financial Officer August 28, 2007
- --------------------------- and Treasurer
Michael J. Janosco, Jr.
/s/ Leo R. Sagan, Jr. Vice President and Controller August 28, 2007
- ---------------------------
Leo R. Sagan, Jr.
Name Title Date
---- ----- ----
/s/ Victor J. Carra Director August 28, 2007
- ---------------------------
Victor J. Carra
/s/ David C. Colton, Jr. Director August 28, 2007
- ---------------------------
David C. Colton, Jr.
/s/ Robert T. Crowley, Jr. Director August 28, 2007
- ---------------------------
Robert T. Crowley, Jr.
/s/ Harry C. Lane Director August 28, 2007
- ---------------------------
Harry C. Lane
/s/ William H. McClure Director August 28, 2007
- ---------------------------
William H. McClure
/s/ Mary C. O'Neil Director August 28, 2007
- ---------------------------
Mary C. O'Neil
/s/ Richard C. Placek Director August 28, 2007
- ---------------------------
Richard C. Placek
/s/ Paul R. Pohl Director August 28, 2007
- ---------------------------
Paul R. Pohl
/s/ Charles E. Sullivan Director August 28, 2007
- ---------------------------
Charles E. Sullivan
EXHIBIT INDEX
Exhibit
Number Description
- ------- -------------------------------------------------------------------
4.1 Articles of Organization of Westfield Financial, Inc., filed on
August 31, 2006 as Exhibit 3.1 to Registrant's Registration
Statement on Form S-1 (File No. 333-137024), is incorporated herein
by reference.
4.2 Bylaws of Westfield Financial, Inc., filed on August 31, 2006 as
Exhibit 3.2 to Registrant's Registration Statement on Form S-1
(File No. 333-137024), is incorporated herein by reference.
4.3 Form of Restricted Stock Award Agreement under the Westfield
Financial, Inc. 2007 Recognition and Retention Plan.
4.4 Form of Option Agreement under the Westfield Financial, Inc. 2007
Stock Option Plan.
5.1 Opinion of Thacher Proffitt & Wood LLP, counsel for Registrant, as
to the legality of the securities being registered.
23.1 Consent of Wolf & Company, P.C.
23.2 Consent of Thacher Proffitt & Wood LLP (included in Exhibit 5.1).
99.1 Westfield Financial, Inc. 2007 Stock Option Plan filed on June 18,
2007 as Appendix A to Registrant's Definitive Proxy Statement (File
No. 001-16767), is incorporated herein by reference.
99.2 Westfield Financial, Inc. 2007 Recognition and Retention Plan filed
on June 18, 2007 as Appendix B to Registrant's Definitive Proxy
Statement (File No. 001-16767), is incorporated herein by
reference.