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As filed with the Securities and Exchange Commission on June 18, 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
BAY STATE BANCORP, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 6036 04-3398630
(state or other (Primary Standard (IRS Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
1299 BEACON STREET
BROOKLINE, MASSACHUSETTS
(617) 739-9500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
BAY STATE FEDERAL SAVINGS BANK
EMPLOYEES' SAVINGS AND PROFIT-SHARING PLAN AND TRUST
(Full Title of the Plan)
JOHN F. MURPHY COPIES TO:
PRESIDENT, CHAIRMAN OF THE BOARD OF DIRECTORS LAWRENCE M.F. SPACCASI, ESQUIRE
CHIEF EXECUTIVE OFFICER AND TREASURER KENT M. KRUDYS, ESQUIRE
BAY STATE FEDERAL SAVINGS BANK MULDOON, MURPHY & FAUCETTE
1299 BEACON STREET 5101 WISCONSIN AVENUE, N.W.
BROOKLINE, MASSACHUSETTS 02146 WASHINGTON, D.C. 20016
(617)739-9500 (202) 362-0840
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the sdecurities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / X /
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<TABLE>
<CAPTION>
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Title of each Class of Amount to be Proposed Purchase Estimated Aggregate Registration
Securities to be Registered Registered Price Per Share(1) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock
$.01 par Value 34,492 $28.00 $965,776 $284.91
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- ---------------------------------------------------------------------------------------------------------------
Participation
Interests (3) $965,778 (4)
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(1) The average of the high and low prices of the common stock of Bay State Bancorp, Inc. ("Common Stock")
on the American Stock Exchange on June 11, 1998 in accordance with Rule 457(c) under the Securities Act
of 1933, as amended (the "Securities Act").
(2) Estimated solely for the purpose of calculating the registration fee.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan
described herein.
(4) The securities of Bay State Bancorp, Inc. (the "Company" or the "Registrant") to be purchased by the Bay
State Federal Savings Bank Employees' Savings and Profit-Sharing Plan and Trust are included in the
amount shown for Common Stock. Accordingly, pursuant to Rule 457(h)(2), no separate fee is required for
the participation interests. In accordance with Rule 457(h) under the Securities Act, the registration
fee has been calculated on the basis of the number of shares of Common Stock that may be purchased
with the current assets of such Plan.
</TABLE>
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT AND 17 C.F.R. SS.230.462.
Number of Pages 12
Exhibit Index begins on Page 9
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BAY STATE BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for Bay State Federal
Savings Bank Employees' Savings and Profit-Sharing Plan and Trust ("Savings
Plan") required by Part I of the Registration Statement will be sent or given to
the participants in the Savings 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 a prospectus or prospectus
supplement 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) The Prospectus filed with the SEC by the Registrant (File No.
333-40115) and declared effective on February 12, 1998, which includes the
consolidated balance sheets of Bay State Federal Savings Bank and Subsidiary
(the "Bank") as of March 31, 1997 and 1996 and the related consolidated income
statements, as restated, changes in equity, as restated, and cash flows, as
restated for each of the three years in the period ended March 31, 1997,
together with the related notes and the report of Shatswell, MacLeod & Company,
P.C., independent certified public accountants.
(b) The Form 10-Q report filed by the Company for the quarter ended
December 31, 1997, (File No. 1-13691) filed with the SEC on March 23, 1998.
(c) The description of Registrant's Common Stock contained in Registrant's
Form 8-A (File No. 1-13691), as filed with the SEC pursuant to Section 12(g) of
the Securities Exchange Act of 1934 (the "Exchange Act"), and rule 12b-15
promulgated thereunder, on December 9, 1997 and declared effective February 11,
1998 as incorporated by reference from the Company's Form SB-2 declared
effective on February 11, 1998.
(d) All documents filed by the Company and the Savings Plan, where
applicable, 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
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
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ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Savings 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
None.
The consolidated balance sheets, as restated, of the Bank and Subsidiary
as of March 31, 1997 and 1996, and the related consolidated income statements,
as restated, changes in equity, as restated, and cash flows, as restated, for
each of the years in the three-year period ended March 31, 1997, together with
the related notes and the report of Shatswell, MacLeod & Company, P.C.,
independent certified public accountants, dated April 25, 1997 (except for note
17 as to which the date is September 9, 1997), 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 AND PLAN ADMINISTRATOR.
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.
This indemnification applies to the Plan Administrator(s) who administer the
401(k) Plan.
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 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 and "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
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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 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.
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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.
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.
The Registrant is also permitted to maintain directors' and officers'
liability insurance covering its directors and officers and has obtained a
directors' and officers' liability and corporation reimbursement policy which
(subject to certain limits and deductibles) (i) insures officers and directors
of the Registrant against loss arising from certain claims made against them by
reason of their being such directors or officers, and (ii) insures the
Registrant against loss which it may be required or permitted to pay as
indemnification due its directors or officers for certain claims.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant, the Registrant has been informed that in the opinion of the
Commission that such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. LIST OF EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to
Exhibit Table in Item 601 of Regulation S-K):
4 Stock Certificate of Bay State Bancorp, Inc.1
8 Tax Opinion not required. The Registrant has submitted or hereby
undertakes to submit the Savings Plan and any amendment thereto
to the Internal Revenue Service ("IRS") in a timely manner and
has made or will make all changes required by the IRS in order to
qualify the plan.
23.1 Consent of Shatswell, MacLeod & Company, P.C.
24 Power of Attorney is located on the signature pages.
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1 Incorporated herein by reference from the Exhibit of the same number contained
in the Registration Statement on Form SB-2 (SEC No. 333-40115), as amended,
and declared effective on February 12, 1998.
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ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any Prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the Prospectus any facts or events which,
individually or together, represent a fundamental change in
the information 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 SEC 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) Include any additional or changed material information on the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the 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;
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new Registration Statement of the
securities offered, and the offering of the securities at that time
to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the Offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the Plan'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 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 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 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 the Act will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Bay State Bancorp,
Inc. certifies that is 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 Brookline, Massachusetts on June 16, 1998.
BAY STATE BANCORP, INC.
By: /s/ John F. Murphy
-------------------------------------
John F. Murphy
Chairman of the Board of Directors,
President, Chief Executive Officer
and Treasurer
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.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Murphy) constitutes and appoints John F. Murphy and Mr.
Murphy appoints Denise M. Renaghan, 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.
Name Title Date
---- ----- ----
/s/ John F. Murphy Chairman of the Board of June 16, 1998
- -------------------------- Directors, President, Chief
John F. Murphy Executive Officer and Treasurer
(principal executive officer)
/s/ Denise M. Renaghan Executive Vice President, Chief June 16, 1998
- -------------------------- Operating Officer and Director
Denise M. Renaghan (principal accounting
and financial officer)
/s/ Robert B. Cleary Director June 16, 1998
- --------------------------
Robert B. Cleary
/s/ Jerome R. Dangel Director June 16, 1998
- --------------------------
Jerome R. Dangel
/s/ Leo F. Grace Director June 16, 1998
- --------------------------
Leo F. Grace
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/s/ Richard F. Hughes Director June 16, 1998
- --------------------------
Richard F. Hughes
Director , 1998
- -------------------------- ---- --
Richard F. McBride
/s/ Kent T. Spellman Director June 16, 1998
- --------------------------
Kent T. Spellman
/s/ H. Chester Webster Director June 16, 1998
- --------------------------
H. Chester Webster
BAY STATE FEDERAL SAVINGS BANK EMPLOYEES' SAVINGS AND PROFIT-SHARING PLAN AND
TRUST.
Pursuant to the requirements of the Securities Act of 1933, the trustees (or
other persons who administer the Bay State Federal Savings Bank Employees'
Savings and Profit-Sharing Plan and Trust) have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Brookline, Massachusetts, on June 16, 1998.
BAY STATE FEDERAL SAVINGS BANK EMPLOYEES'
SAVINGS AND PROFIT-SHARING PLAN AND TRUST
By: /s/ John F. Murphy
---------------------------------------------------
John F. Murphy, Chairman of the Board of Directors,
President, Chief Executive Officer and Treasurer
For: Bay State Federal Savings Bank Employees'
Savings and Profit-Sharing Plan and Trust
Plan Administrator
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
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<S> <C> <C>
4 Stock Certificate of Incorporated herein by reference from the Exhibits
Bay State Bancorp, of the Registrant's Registration Statement on Form
Inc. SB-2 filed with the SEC and declared effective on
February 12, 1998.
23.1 Consent of Filed herewith.
Shatswell, MacLeod
& Company, P.C.
24 Power of Attorney Located on the signature page.
</TABLE>
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EXHIBIT 23.1 CONSENT OF SHATSWELL, MACLEOD & COMPANY, P.C.
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INDEPENDENT ACCOUNTANTS' CONSENT
--------------------------------
The Board of Directors
Bay State Bancorp, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Bay State Bancorp, Inc. of our report dated April 25, 1997 (except for
note 17 as to which the date is September 9, 1997) relating to the consolidated
balance sheets, as restated, of Bay State Federal Savings Bank and Subsidiary as
of March 31, 1997 and March 31, 1996, and the related consolidated income
statements, as restated, changes in equity, as restated, and cash flows, as
restated, for each of the years in the three-year period ended March 31, 1997.
Further, we consent to incorporation by reference in the registration on Form
S-8 of the Form 10-Q report filed on March 23, 1998, for the quarter ended
December 31, 1997.
Shatswell, MacLeod & Company, P.C.
/s/ Shatswell, MacLeod & Company, P.C.
June 18, 1998
West Peabody, Massachusetts
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