<PAGE>
As filed with the Securities and Exchange Commission on July 23, 1999
Registration Statement No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORTHWAY FINANCIAL, INC.
(Exact name of Registrant as Specified in Its Charter)
New Hampshire 04-3368379
(State of Incorporation) (I.R.S. Employer Identification No.)
9 Main Street
Berlin, NH 03570
(603) 752-1171
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1999 STOCK OPTION AND GRANT PLAN
(Full Title of the Plan)
William J. Woodward
Chairman, Chief Executive Officer and President
Northway Financial Inc.
9 Main Street
Berlin, NH 03570
(603) 752-1171
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
William P. Mayer, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amounts to be Offering Price Aggregate Amount of
Being Registered Registered(1) Per Share(2) Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per share 175,000 $29.25 $5,118,750 $1,423.01
- --------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement also relates to such indeterminate number of additional shares of Northway
Financial, Inc. Common Stock as may be required pursuant to the 1999 Stock Option and Grant Plan, as amended, in
the event of a stock dividend, reverse stock split, split-up, recapitalization, forfeiture of stock under these
plans or other similar event.
(2) This estimate is made pursuant to Rule 457(c) under the Securities Act of 1933, as amended (the "Securities
Act") solely for the purposes of determining the amount of the registration fee. The registration fee is based
upon the average of the high and low prices for the Registrant's Common Stock, par value $1.00 per share, as
reported on The NASDAQ National Market on July 20, 1999.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Northway Financial, Inc. (the "Registrant") hereby incorporates by
reference the following documents which have previously been filed with the
Securities and Exchange Commission:
(a) the Registrant's most recent annual report on Form 10-K filed with
the Securities and Exchange Commission for its fiscal year ended
December 31, 1998 on March 29, 1999;
(b) the Registrant's quarterly report on Form 10-Q for its fiscal
quarter ended March 31, 1999;
(c) the Registrant's Proxy Statement as filed with the Securities and
Exchange Commission on April 23, 1999;
(d) the description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A as filed with the Securities and
Exchange Commission on September 27, 1997 pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
hereto that indicates that all securities offered hereunder 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 a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is 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.
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 Registrant is a New Hampshire corporation. In accordance with
Chapter 293-A, Section 8.51 of the New Hampshire Business Corporation Act (the
"NHBCA"), Article VII of the Registrant's Amended and Restated Articles of
Incorporation (the "Articles") provides that no director of the Registrant shall
be personally liable to the Registrant or its stockholders for monetary damages
for any action taken, or any failure to take any action, as a director or an
officer, except liability for: (a) the amount of a financial benefit received by
such director or officer to which he is not entitled; (b) an intentional
infliction of harm on the Corporation or its shareholders; (c) a violation of
Section 293-A.8.33 of the NHBCA; or (d) an intentional violation of criminal
law. In addition, the Articles provide that if the NHBCA is amended to authorize
the corporate action further eliminating or limiting the personal liability of
directors or officers, then the liability of a director or officer of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the NHBCA. The Articles further provide that any repeal of Article VII by the
stockholders or an amendment to the NHBCA shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a director or
officer of the Corporation for acts or omissions occurring prior to the
effective date of such repeal or modification.
Article V of the Registrant's Amended and Restated By-laws (the
"By-laws") provides for indemnification by the Registrant of its directors,
officers and certain non-officer employees (including officers and certain
non-officer employees of subsidiaries) under certain circumstances against
expenses (including attorneys fees, judgments, fines and amounts paid in
settlement) reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceeding in which any such person
is involved by reason of the fact that such person is or was a director, an
officer or an employee of the Registrant, if such person acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and with respect to criminal actions or
proceedings, that such person had no reasonable cause to believe his or her
conduct was unlawful. The by-laws provide that these provisions of Article V are
deemed to be a contract between the Corporation and each Officer and Non-Officer
Employee.
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as part of this
Registration Statement.
*4.1 1999 Stock Option and Grant Plan
5.1 Opinion of Goodwin, Procter & Hoar llp as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar llp (included in Exhibit 5.1)
23.2 Consent of Shatswell, MacLeod & Company, P.C.
24.1 Powers of Attorney (included on signature pages to this
Registration Statement)
* Included as Exhibit A to Northway Financial Inc.'s Proxy Statement as filed on
April 23, 1999.
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;
(ii) To reflect in the prospectus any acts 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 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 percent 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) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement;
(2) That, for the purpose of determining any 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; 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.
(b) 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) 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 Securities and Exchange 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 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 Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Northway Financial,
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 Berlin, New Hampshire on this 21st day of July, 1999.
Northway Financial, Inc.
By:/s/ William J. Woodward
William J. Woodward
Chairman, Chief Executive
Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of William J. Woodward and George L.
Fredette such person's true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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.
Signature Title Date
--------- ----- ----
/s/ William J. Woodward Chairman of the Board,
- -------------------------- Chief Executive Officer,
William J. Woodward President and Director
(Principal Executive
Officer) July 21, 1999
/s/ George L. Fredette Senior Vice President
- -------------------------- and Chief Financial
George L. Fredette Officer, (Principal
Financial Officer and
Principal Accounting
Officer) July 21, 1999
/s/ Barry J. Kelley Director July 21, 1999
- --------------------------
Barry J. Kelley
/s/ Randall G. Labnon Director July 21, 1999
- --------------------------
Randall G. Labnon
Director July 21, 1999
- --------------------------
Stephen G. Boucher
/s/ Peter H. Bornstein Director July 21, 1999
- --------------------------
Peter H. Bornstein
/s/ Charles H. Clifford, Jr. Director July 21, 1999
- --------------------------
Charles H. Clifford, Jr.
/s/ John D. Morris Director July 21, 1999
- --------------------------
John D. Morris
Director July 21, 1999
- --------------------------
Bruce W. Keough
Vice-Chairman of the
- -------------------------- Board, Director July 21, 1999
Fletcher W. Adams
/s/ John H. Noyes Director July 21, 1999
- --------------------------
John H. Noyes
/s/ Arnold P. Hanson, Jr. Director July 21, 1999
- --------------------------
Arnold P. Hanson, Jr.
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
*4.1 1999 Stock Option and Grant Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Shatswell, MacLeod & Company, P. C.
24.1 Powers of Attorney (included on signature pages of this Registration
Statement)
* Included as Exhibit A to Northway Financial Inc.'s Proxy Statement as filed on
April 23, 1999.
<PAGE>
EXHIBIT 5.1
July 21, 1999
Northway Financial, Inc.
9 Main Street
Berlin, New Hampshire 03570
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
We are familiar with the proceedings taken by Northway Financial, Inc.,
a New Hampshire corporation (the "Company"), with respect to 175,000 shares of
Common Stock, par value $1.00 per share, of the Company (the "Shares") to be
offered and sold from time to time pursuant to the Northway Financial, Inc. 1999
Stock Option and Grant Plan, as amended, (the "Plan"). As counsel for the
Company, we have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission (the "Commission") to effect the registration
of the Shares under the Securities Act of 1933, as amended (the "Securities
Act").
In connection with rendering this opinion, we have examined the Amended
and Restated Articles of Incorporation of the Company, the Amended and Restated
By-laws of the Company, such records of the corporate proceedings of the Company
as we deemed material, the Registration Statement, the Plan, and other such
certificates, receipts, records and documents as we considered necessary for the
purposes of this opinion.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plan and the
Registration Statement, the Shares will be legally issued, fully paid and
non-assessable.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion as to any laws other than the laws of the
United States of America and the Commonwealth of Massachusetts, and we have
rendered this opinion as though Massachusetts law governed the matters covered
herein to the extent that such matters are governed by the laws of New
Hampshire.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced or relied upon by any other person for any
other purpose without the express written consent of the undersigned.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
SHATSWELL, MacLEOD & COMPANY, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
53 PINE STREET
WEST PEABODY, MASSACHUSETTS 01960-3636
TELEPHONE (978) 535-0206
FACSIMILE (978) 535-9909
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement on Form S-8 of Northway Financial Inc. of our report dated January 20,
1999, relating to the consolidated balance sheets of Northway Financial Inc. and
Subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of income, changes in stockholders' equity, statements of
comprehensive income and cash flows for each of the years in the three-year
period ended December 31, 1998, which report is included in the December 31,
1998 Form 10-K of Northway Financial Inc.
/s/ Shatswell, MacLeod & Company, P.C.
SHATSWELL, MacLEOD & COMPANY, P.C.
West Peabody, Massachusetts
July 22, 1999
