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As filed with the Securities and Exchange Commission on August 26, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRSTFED AMERICA BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 6035 11-3333218
(State of (Primary Standard (IRS Employer
Incorporation Classification Identification No.)
Code Number)
ONE FIRSTFED PARK
SWANSEA MALL DRIVE
SWANSEA, MASSACHUSETTS 02777
(508) 235-1500
(Address, including zip code, and telephone number including area code, of
registrant's principal executive offices)
FIRSTFED AMERICA BANCORP, INC. 1998 STOCK OPTION PLAN
(Full Title of the Plan)
COPIES TO:
ROBERT F. STOICO LESLIE MURPHY, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER LAWRENCE M.F. SPACCASI, ESQ.
FIRST FEDERAL SAVINGS BANK OF AMERICA MULDOON, MURPHY & FAUCETTE
ONE FIRSTFED PARK 5101 WISCONSIN AVENUE, N.W.
SWANSEA MALL DRIVE WASHINGTON, D.C. 20016
SWANSEA, MASSACHUSETTS 02777 (202) 362-0840
(508) 235-1500
(Name, Address and Telephone Number of Agent for Service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Class of Proposed Amount Proposed Purchase Estimated Aggregate Amount of
Securities to be Registered to be Registered 1 Amount Per Share Offering Price 2 Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 413,589 shares 3 $16.4375 4 $6,798,369 $2,006
value
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1 Together with an indeterminate number of additional shares which may be necessary to adjust the number of
shares reserved for issuance pursuant to the FIRSTFED AMERICA BANCORP, INC. 1998 Stock Option Plan (the
"1998 Plan") as the result of a stock split, stock dividend or similar adjustment of the outstanding common
stock of FIRSTFED AMERICA BANCORP, INC. pursuant to 17 C.F.R. Section 230.416(a).
2 Estimated solely for purposes of calculating the registration fee.
3 Pursuant to 17 C.F.R. Section 230.4457(h)(1), represents the total number of shares subject to options under the 1998
Plan prior to any adjustment as permitted under the 1998 Plan.
4 None of the options under the 1998 Plan have been granted, therefore the proposed purchase price per share
has been determined by the average of the high and low prices ($16.4375) reported on the American Stock
Exchange on August 24, 1998 in accordance with 17 C.F.R. Section 230.457(h) and (c).
</TABLE>
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SECTION 230.462.
Number of Pages 14
Exhibit Index begins on Page 6
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PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the 1998 Plan required
by Part I of the registration statement will be sent or given to the
participants in the 1998 Plan as specified by Rule 428(b)(1). Such documents are
not filed with the Securities and Exchange Commission (the "SEC") either as a
part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 in reliance on Rule 428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this registration statement:
(a) FIRSTFED AMERICA BANCORP, INC.'s (the "Company" or the
"Registrant") Annual Report on Form 10-K for the fiscal year ended March 31,
1998, which includes the consolidated statements of financial condition of the
Company and subsidiaries as of March 31, 1998 and 1997, and the related
consolidated statements of operations, changes in stockholders' equity and cash
flows for each of the years in the three-year period ended March 31, 1998,
together with the related notes and the report of KPMG Peat Marwick LLP,
independent auditors dated April 30, 1998 filed with the SEC on June 26, 1998
(File No. 0-12305).
(b) The Company's Form 10-Q for the quarter ended June 30, 1998, filed
with the SEC on August 13, 1998 (File No. 0-12305)
(c) The description of Registrant's common stock contained in
Registrant's Form 8-A (File No. 0-12305), as filed with the SEC, pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and
Rule 12b-15 promulgated thereunder, on October 10, 1996 and declared effective
on November 12, 1996, as incorporated by reference from the Registrant's
Registration Statement on Form S-1 (SEC No. 333-12855) as amended and declared
effective on November 12, 1996.
(d) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR 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 DEEMED TO BE INCORPORATED BY
REFERENCE HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO
MODIFIED OR
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SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plan has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock offered hereby has been passed upon by
the firm of Muldoon, Murphy & Faucette, Washington, D.C. for the Registrant.
The consolidated balance sheets of the Company and subsidiaries as of
March 31, 1998 and 1997, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows for each of the years in the
three-year period ended March 31, 1997, together with the related notes and the
report of KPMG Peat Marwick LLP, independent certified public accountants, dated
April 30, 1998, is incorporated by reference in this registration statement,
have been incorporated herein in reliance upon the authority of said firm as
experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held
harmless against liability to the fullest extent permissible by the General
Corporation Law of Delaware as it currently exists or as it may be amended
provided any such amendment provides broader indemnification provisions than
currently exists.
In accordance with the General Corporation Law of the State of Delaware
(being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of the
Registrant's Certificate of Incorporation provide as follows:
TENTH:
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
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indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General 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 Article TENTH
shall include 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"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a Director or Officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, services to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article TENTH shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
Director, Officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH 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 shall be entitled to be paid also the
expenses 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, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. 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 Delaware General Corporation Law, nor an actual determination by the
Corporation (including its
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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 Article TENTH or
otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in
this Article TENTH shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation, 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 subsidiary or
Affiliate 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 Delaware General 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 Article TENTH with respect to the indemnification and
advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH:
A Director of this Corporation shall not be personally liable to the Corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (i) for any breach of the Director's duty of
loyalty to the Corporation 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 Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize
corporate action further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
(a) List of Exhibits (filed herewith unless otherwise noted)
3.1 Certificate of Incorporation of the Registrant.1
3.2 Bylaws of the Registrant.1
4 FIRSTFED AMERICA BANCORP, INC. 1998 Stock Option Plan 2
5 Opinion of Muldoon, Murphy & Faucette as to the legality of the Common
Stock registered hereby.
23.1 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on the signature pages).
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1 Incorporated herein by reference from Exhibits 3.1 and 3.2,
respectively, contained in the Registration Statement on Form S-1 (SEC
No. 333-12855), as amended and declared effective by the SEC on
November 12, 1996.
2 Incorporated herein by reference from appendix B of the Company's
proxy statement for the July 21, 1998 annual meeting of stockholders
filed with SEC on June 15, 1998.
ITEM 9. UNDERTAKINGS
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 unless the
information required by (i) and (ii) 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 into 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; and
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(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 a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) 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 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to trustees, 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 SEC such indemnification is against
public policy as expressed in such 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 trustee, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such trustee, 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 such Act
will be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT.
Pursuant to the requirements of the Securities Act of 1933, as amended,
FIRSTFED AMERICA BANCORP, INC. 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 Swansea, State of
Massachusetts, on August 24, 1998.
FIRSTFED AMERICA BANCORP, INC.
By: /s/ Robert F. Stoico
-----------------------------------
Robert F. Stoico
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Stoico) constitutes and appoints Robert F. Stoico and Mr.
Stoico hereby constitutes and appoints Edward A. Hjerpe, III, as the true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
Name Title Date
/s/ Robert F. Stoico President and Chief August 24, 1998
- -------------------------- Executive Officer
Robert F. Stoico (principal executive officer)
/s/ Edward A. Hjerpe, III Executive Vice President, August 24, 1998
- -------------------------- Chief Operating Officer and
Edward A. Hjerpe, III Chief Financial Officer
(Principal Accounting and
Financial Officer)
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/s/ Gilbert C. Oliveira Director August 24, 1998
- --------------------------
Gilbert C. Oliveira
/s/ Thomas A. Rodgers, Jr. Director August 24, 1998
- --------------------------
Thomas A. Rodgers, Jr.
/s/ Richard W. Cederberg Director August 24, 1998
- --------------------------
Richard W. Cederberg
/s/ John S. Holden, Jr. Director August 24, 1998
- --------------------------
John S. Holden, Jr.
/s/ Paul A. Raymond, D.D.S. Director August 24, 1998
- ---------------------------
Paul A. Raymond, D.D.S.
/s/ Anthony L. Sylvia Director August 24, 1998
- ------------------------
Anthony L. Sylvia
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EXHIBIT 5
OPINION OF MULDOON, MURPHY & FAUCETTE
AS TO THE LEGALITY OF THE COMMON STOCK REGISTERED HEREBY
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August 26, 1998
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
ONE FIRSTFED PARK
Swansea, MA 02777
Re: FIRSTFED AMERICA BANCORP, INC. 1998 Stock Option Plan
Registration Statement on Form S-8 for Offer and Sale of
413,589 Additional Shares of Common Stock
Gentlemen:
We have been requested by FIRSTFED AMERICA BANCORP, INC. (the "Company")
to issue a legal opinion in connection with the registration under the
Securities Act of 1933 on Form S-8 of 413,589 shares of the Company's Common
Stock, par value $.01 per share (the "Shares"), that may be issued under the
FIRSTFED AMERICA BANCORP, INC. 1998 Stock Option Plan.
We have made such legal and factual examinations and inquiries as we
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity of the originals of all documents supplied to us as copies, and (iv)
the accuracy and completeness of all corporate records and documents and of all
certificates and statements of fact, in each case given or made available to us
by the Company or its subsidiary, First Federal Savings Bank of America.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the Shares reserved under the Plan have been duly authorized
and upon payment for and issuance of the Shares in the manner described in the
Plan, will be legally issued, fully paid and nonassessable.
<PAGE> 2
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
August 26, 1998
Page 2 of 2
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
(a) Subsections C.3 and C.6 of Article FOURTH and Section D of Article
EIGHTH which grant the Board the authority to construe and apply the
provisions of those Articles, subsection C.4 of Article FOURTH, to
the ext obligatesubsection any person to provide the Board the
information such subsection authorizes the Board to demand, and the
provision of Subsection C.7 of Article EIGHTH empowering the Board
to determine the Fair Market Value of property offered or paid for
the Company's stock by an Interested Stockholder, in each case to
the extent, if any, that a court applying Delaware law were to
impose equitable limitations upon such authority; and
(b) Article NINTH which authorizes the Board to consider the effect of
any offer to acquire the Company on constituencies other than
stockholders in evaluating any such offer.
This opinion is rendered to you solely for your benefit in connection with
the issuance of the Shares as described above. This opinion may not be relied
upon by any other person or for any other purpose, and it should not be quoted
in whole or in part or otherwise referred to or be furnished to any governmental
agency (other than the Securities and Exchange Commission in connection with the
aforementioned registration statement on Form S-8 in which this opinion is
contained) or any other person or entity without the prior written consent of
this firm.
We hereby consent to the filing of this opinion as an exhibit to, and the
reference to this firm in, the Company's registration statement on Form S-8.
Very truly yours,
/s/ MULDOON, MURPHY & FAUCETTE
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EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
<PAGE> 2
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
Board of Directors
FIRSTFED AMERICA BANCORP, INC.
We consent to incorporation by reference in the registration statement on Form
S-8 of FIRSTFED AMERICA BANCORP, INC. relating to FIRSTFED AMERICA BANCORP, INC.
1998 Stock Option Plan of our report dated April 30, 1998, relating to the
consolidated balance sheets of FIRSTFED AMERICA BANCORP, INC. and subsidiaries
as of March 31, 1998 and 1997, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for each of the years
in the three-year period ended March 31, 1998, which report is included in the
March 31, 1998 annual report on Form 10-K of FIRSTFED AMERICA BANCORP, INC.
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the registration statement.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
August 20, 1998
