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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON DECEMBER 30, 1997
REGISTRATION NO. 33-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
1ST BERGEN BANCORP
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(Exact name of registrant as specified in its charter)
NEW JERSEY 22-3409485
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
250 VALLEY BOULEVARD, WOOD-RIDGE, NEW JERSEY 07075
- -------------------------------------------- ----------
(Address of principal executive offices) (Zip code)
SOUTH BERGEN SAVINGS BANK
401(k) PROFIT SHARING PLAN & TRUST
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(Full title of the plan)
WILLIAM M. BRICKMAN
PRESIDENT
1ST BERGEN BANCORP
250 VALLEY BOULEVARD
WOOD-RIDGE, NEW JERSEY 07075
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(Name and address of agent for service)
201 939-3400
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of
Securities to Proposed Maximum Proposed Maximum Amount of
be Amount to be Offering Price Aggregate Offering Registration
Registered(1) Registered Per Share(2) Price(2) Fee
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Common Stock,
no par value
per share 50,000 $19.00 $950,000 $280
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interest to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act,
based on the average of the high and low prices reported by the National
Association of Securities Dealers, Inc. Automated Quotation system on
December 19, 1997, and estimated solely for the purpose of calculating the
registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the SEC are hereby incorporated by
reference into this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996;
(b) the Registrant's Transitional Report on Form 10-Q for the quarter ended
December 31, 1996;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997;
(d) the Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997;
(e) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(f) the Registrant's Current Reports on Form 8-K as filed with the Securities
and Exchange Commission on February 12, 1997, April 9, 1997, April 30,
1997, May 5, 1997, August 4, 1997 and November 19, 1997; and
(g) The Annual Report or Form 11 of the Plan for the Fiscal Year ended December
30, 1996; and
(h) the description of the Registrant's Common Stock, no par value per share,
contained in the Registrant's Registration Statement on Form 8-A, as filed
with the Securities and Exchange Commission on February 2, 1996, to
register the Common Stock under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
In addition, all documents subsequently filed by the Registrant with the
SEC pursuant to Sections 12, 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the effective date of this Registration Statement, but prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the
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respective 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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or is deemed to be incorporated by reference herein modified or
superseded such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The objective of the following indemnification provision is to assure that
indemnification can be invoked by the Registrant for its directors, officers,
employees and agents and former officers, directors, employees and agents who
incur expenses in proving their honesty and integrity, provided they meet
minimum qualifications touching upon the concept of wrongdoing.
In accordance with the New Jersey Business Corporation Act (being Title 14A
of the New Jersey Statutes), Article XI of the Registrant's Certificate of
Incorporation provides as follows:
ARTICLE XI
INDEMNIFICATION
The Corporation shall indemnify its officers, directors, employees and
agents and former officers, directors, employees and agents, and any other
persons serving at the request of the Corporation as an officer, director,
employee or agent of another corporation, association, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees, judgments, fines and amounts paid in settlement) incurred in connection
with any pending or threatened action, suit, or proceeding, whether civil,
criminal, administrative or investigative, with respect to which such officer,
director, employee,
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agent or other person is a party, or is threatened to be made a party, to the
full extent permitted by the New Jersey Business Corporation Act. The
indemnification provided herein (i) shall not be deemed exclusive of any other
right to which any person seeking indemnification may be entitled under any
by-law, agreement, or vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
any other capacity, and (ii) shall inure to the benefit of the heirs, executors,
and the administrators of any such person. The Corporation shall have the power,
but shall not be obligated, to purchase and maintain insurance on behalf of any
person or persons enumerated above against any liability asserted against or
incurred by them or any of them arising out of their status as corporate
directors, officers, employees, or agents whether or not the Corporation would
have the power to indemnify them against such liability under the provisions of
this article.
The Corporation shall, from time to time, reimburse or advance to any
person referred to in this article the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in this article, upon receipt of a written undertaking by
or on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that the director's
or officer's acts or omissions (i) constitute a breach of the director's or
officer's duty of loyalty to the corporation or its shareholders, (ii) were not
in good faith, (iii) involved a knowing violation of law, (iv) resulted in the
director or officer receiving an improper personal benefit, or (v) were
otherwise of such a character that New Jersey law would require that such
amount(s) be repaid.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
- -------------- ----------------------
5(a) Opinion of McCarter & English
5(b) IRS Determination Letter re: qualification of the Plan
under Section 401 of the Internal Revenue Code of 1986,
as amended
23(a) Consent of KPMG Peat Marwick LLP
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<PAGE>
23(b) Consent of McCarter & English (included in the opinion
filed as Exhibit 5(a) hereto)
ITEM 9. UNDERTAKINGS.
(a) 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 of 1933;
(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
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(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;
(2) That, for the purpose of determining any 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; and
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
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of determining any liability under the Securities Act of 1933, each filing of
the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and each filing of the 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 the time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of 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 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 of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing of Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Borough of Wood-Ridge, State of New Jersey on December 15,
1997.
1ST BERGEN BANCORP
By: /s/ WILLIAM M. BRICKMAN
---------------------------------
William M. Brickman,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to its Registration Statement to be signed by the
following persons in the capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ WILLIAM M. BRICKMAN President and Chief December 15, 1997
- ------------------------ Executive Officer
William M. Brickman
/s/ ALBERT E. GOSSWEILER Executive Vice President and December 15, 1997
- ------------------------ Chief Financial Officer
Albert E. Gossweiler
/s/ JAMES W. MASON Chairman and Director December 15, 1997
- ------------------------
James W. Mason
/s/ BERNARD LEUNG, M.D. Director December 15, 1997
- ------------------------
Bernard Leung, M.D.
/s/ ROBERT C. MILLER Director December 15, 1997
- ------------------------
Robert C. Miller
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<PAGE>
/s/ KATHLEEN FISHER Director December 15, 1997
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Kathleen Fisher
/s/ ROBERT O'NEILL Director December 15, 1997
- ------------------------
Robert O'Neill
/s/ RICHARD MASCH Director December 15, 1997
- ------------------------
Richard Masch
Pursuant to the requirements of the Securities Act of 1933, the Trustees
(or other persons who administer the Plan) have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Borough of Wood-Ridge, State of New Jersey on December 15,
1997.
/s/ WILLIAM M. BRICKMAN
-------------------------
William M. Brickman
Trustee
/s/ ALBERT E. GOSSWEILER
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Albert E. Gossweiler
Trustee
/s/ ROBERT C. MILLER
-------------------------
Robert C. Miller
Trustee
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EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8
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OF
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1ST BERGEN BANCORP
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Exhibit No. Name of Document Page
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5(a) Opinion of McCarter & English
5(b) IRS Determination Letter or qualification of the Plan under
Section 401 of the Internal Revenue Code of 1986, as amended
23(a) Consent of KPMG Peat Marwick LLP
23(c) Consent of McCarter & English (included in
the opinion filed as Exhibit 5(a) hereto)
December 24, 1997
RE: 1st Bergen Bancorp
Registration Statement on Form S-8
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1st Bergen Bancorp
250 Valley Boulevard
Wood-Ridge, New Jersey 07075
Dear Sirs:
We have acted as counsel for 1st Bergen Bancorp, a New Jersey corporation
(the "Company"), in connection with the Registration Statement on Form S-8 being
filed by the Company with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, relating to an aggregate of 50,000 shares of
Common Stock, no par value per share, of the Company (the "Shares"), issuable
pursuant to the South Bergen Savings Bank 401(k) Profit Sharing Plan & Trust
(the "Plan").
In so acting, we have examined, and relied as to matters of fact upon, the
originals, or copies certified or otherwise identified to our satisfaction, of
the Certificate of Incorporation and By-laws of the Company, the Plan, and such
other certificates, records, instruments and documents, and have made such other
and further investigations, as we have deemed necessary or appropriate to enable
us to express the opinion set forth below. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the
<PAGE>
authenticity of the originals of such latter documents.
Based upon the foregoing, we are of the opinion that:
1. Upon issuance and delivery by the Company of the Shares pursuant to the
provisions of the Plan and payment of the purchase price therefor in accordance
with the terms set forth in the Plan, in cash or other consideration permitted
under Section 14A:7-5 of the New Jersey Business Corporation Act (the "Act"),
the Shares issued thereunder will be legally issued, fully paid and
non-assessable.
The issuance of the Shares is subject to the continuing effectiveness of
the Registration Statement and the qualification, or exemption from
registration, of such Shares under certain state securities laws.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
McCarter & English, LLP
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
31 HOPKINS PLAZA
BALTIMORE, MD 21201-0000
Employer Identification Number:
22-13336555
Dated: March 28, 1995 File Folder Number:
521038799
SOUTH BERGEN SAVINGS & LOAN Person to Contact:
ASSOCIATION EP/EO CUSTOMER SERVICE
UNIT
250 VALLEY BLVD., BOX 56 Contact Telephone Number:
(410) 962-6058
Plan Name:
SOUTH BERGEN SAVINGS & LOAN ASSOC.
401(K) PROFIT SHARING PLAN & TRUST
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the plan adopted on October 7,
1993.
This plan has been mandatorily disaggregated, permissively
<PAGE>
aggregated, or restructured to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights, and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefiting for purposes of demonstrating that the
plan satisfies the minimum coverage requirements of section 410(b) of the Code.
This plan qualifies for Extended Reliance described in the last paragraph
of Publication 794 under the caption "Limitations of a Favorable Determination
Letter."
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amendment by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have not sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person whose
name and telephone number are shown above.
Sincerely yours,
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
For Employee Benefit Plans
INDEPENDENT AUDITORS' CONSENT
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The Board of Directors
1st Bergen Bancorp and Subsidiaries:
We consent to the incorporation by reference in the Registration Statement on
Form S-8, pertaining to the 401(k) Profit Sharing Plan & Trust for South Bergen
Savings Bank of our report dated October 28, 1996 relating to the consolidated
statements of financial condition of 1st Bergen Bancorp and Subsidiaries as of
September 30, 1996 and 1995, and the related consolidated statements of income,
stockholders' equity and cash flows for each of the years in the three-year
period ended September 30, 1996, which report appears in the September 30, 1996
Annual Report on Form 10-K of 1st Bergen Bancorp and Subsidiaries. Our report
refers to the adoption of Statement of Financial Accounting Standards No. 115,
"Accounting for Certain Investments in Debt and Equity Securities," in fiscal
1995.
KPMG Peat Marwick LLP
Short Hills, New Jersey
December 19, 1997
