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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 1998
REGISTRATION NO. 333-40471
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT
NO. 3 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BROOKLINE BANCORP, INC.
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 6712 (TO BE APPLIED FOR)
(State or other jurisdiction of (Primary standard (I.R.S. Employer
incorporation or organization) industrial classification) identification number)
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160 WASHINGTON STREET
BROOKLINE, MASSACHUSETTS 02147-7612
(617) 730-3500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
RICHARD P. CHAPMAN, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
160 WASHINGTON STREET
BROOKLINE, MASSACHUSETTS 02147-7612
(617) 730-3500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
ERIC LUSE, ESQ.
ROBERT B. POMERENK, ESQ.
LUSE LEHMAN GORMAN POMERENK & SCHICK
5335 WISCONSIN AVENUE, N.W.
SUITE 400
WASHINGTON, D.C. 20015
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933,
check the following box: [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. [_]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(2) PRICE PER SHARE OFFERING PRICE(1) REGISTRATION FEE(2)
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Common Stock, $.01 par value per share 15,539,050 shares $10.00 $155,390,500 46,939
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Includes registration fee of $41,439 paid on November 18, 1997 in
connection with the registration of 13,674,650 shares, filed in connection
with the Registrant's initial Registration Statement on Form S-1.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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FORM OF FEDERAL TAX OPINION
January 12, 1998
Board of Trustees
Brookline Savings Bank
Board of Directors
Brookline Bancorp, Inc.
Board of Trustees
Brookline Bancorp, M.H.C.
160 Washington Street
Brookline , Massachusetts 02147
RE: MUTUAL HOLDING COMPANY FORMATION
--------------------------------
Ladies and Gentlemen:
We have been requested as special counsel to Brookline Savings Bank (the
"Bank"), a Massachusetts chartered mutual savings bank, Brookline Bancorp,
M.H.C., a Massachusetts chartered mutual holding company (the "Holding
Company"), and Brookline Bancorp, Inc. a Massachusetts chartered stock company
(the "Stock Holding Company") to express our opinion concerning certain Federal
income tax matters relating to the Plan of Reorganization from Mutual Savings
Bank to Mutual Holding Company and Stock issuance Plan (the "Plan of
Reorganization") of the Bank, the Mutual Holding Company, a newly organized
Massachusetts chartered stock savings bank established by the Mutual Holding
Company as a subsidiary (the "Stock Bank"), and the Stock Holding Company. Upon
consummation of the merger, Stock Bank will assume the name "Brookline Savings
Bank."
In connection therewith, we have examined the Plan of Reorganization and
certain other documents of or relating to the Reorganization, some of which are
described or referred to in the Plan of Reorganization and which we deemed
necessary to examine in order to issue the opinions set forth below. Unless
otherwise defined, all terms used herein have the meanings given to such terms
in the Plan of Reorganization.
In our examination, we have assumed the authenticity of original documents,
the accuracy of copies and the genuineness of signatures. We have further
assumed the absence of adverse facts not apparent from the face of the
instruments and documents we examined.
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 2
In issuing our opinions, we have assumed that the Plan of Reorganization
has been duly and validly authorized and has been approved and adopted by the
Board of Trustees of the Bank at a meeting duly called and held and by the
corporators of the Bank at a Meeting of Corporators duly called and held
pursuant to Massachusetts law; that the Bank will comply with the terms and
conditions of the Plan of Reorganization; and that the various representations
and warranties which are provided to us are accurate, complete, true and
correct. Accordingly, we express no opinion concerning the effect, if any, of
variations from the foregoing. We specifically express no opinion concerning
tax matters relating to the Plan of Reorganization under state and local tax
laws and under Federal income tax laws except on the basis of the documents and
assumptions described above.
In issuing the opinions set forth below, we have referred solely to
existing provisions of the Internal Revenue Code of 1986, as amended (the
"Code"); existing and proposed treasury regulations thereunder; current
administrative rulings, notices and procedures; and court decisions. Such laws,
regulations, administrative rulings, notices and procedures and court decisions
are subject to change at any time. Any such change could affect the continuing
validity of the opinions set forth below. This opinion is as of the date
hereof, and we disclaim any obligation to advise you of any change in any matter
considered herein after the date hereof.
In rendering our opinions, we have assumed that the persons and entities
identified in the Plan of Reorganization will at all times comply with the
requirements of Code Sections 368(a)(1)(A) and 368(a)(2)(D), the other
applicable state and Federal laws and the representations of the Bank. In
addition, we have assumed that the activities of the persons and entities
identified in the Plan of Reorganization will be conducted strictly in
accordance with the Plan of Reorganization. Any variations may affect the
opinions we are rendering.
We emphasize that the outcome of litigation cannot be predicted with
certainty and, although we have attempted in good faith to opine as to the
probable outcome of the merits of each tax issue with respect to which an
opinion was requested, there can be no assurance that our conclusions are
correct or that they would be adopted by the Internal Revenue Service (the
"Service") or a court.
For purposes of this opinion, we are relying on the representations
provided to us by the Bank as described in the Affidavit of Representations of
the President of the Bank, incorporated herein by reference.
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 3
STATEMENT OF FACTS
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The Bank is a Massachusetts chartered mutual savings bank headquartered in
Brookline, Massachusetts. The Bank is regulated by the Commissioner of Banks of
the Commonwealth of Massachusetts (the "Commissioner"), including the Division
of Banks and the Board of Bank Incorporation. The Bank is also regulated by the
Federal Deposit Insurance Corporation (the "FDIC"). The Bank's principal
executive office is located at 160 Washington Street, Brookline, Massachusetts
02147. The Bank has, and the Mutual Holding Company and Stock Holding Company
will have, a December 31 fiscal year end.
As a Massachusetts-chartered mutual savings bank, the Bank has no capital
stock. Instead, depositors of the Bank possess the right (i) to share in the
Bank's current earnings (which is in the nature of the right to receive interest
on deposits); and (ii) upon liquidation of the Bank, to share in any surplus
remaining after all of the Bank's liabilities have been satisfied. A
depositor's rights terminate when the depositor's account is closed.
PROPOSED TRANSACTION
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On October 8, 1997, the Board of Trustees of the Bank adopted the Plan of
Reorganization. In a separate meeting of the corporators of the Bank, held on
November 24, 1997 the corporators of the Bank approved the Plan of
Reorganization. For what are represented to be valid business purposes, the
Bank's Board of Trustees has decided to convert to the mutual holding company
structure pursuant to Chapter 167H of the Massachusetts General Laws Annotated.
The following steps are proposed:
(i) Corporators will organize a de novo mutual savings bank ("De Novo
Bank") and will capitalize De Novo Bank with $10,000;
(ii) De Novo Bank will reorganize as a Massachusetts chartered mutual
holding company to be named Brookline Bancorp, M.H.C. ("Mutual
Holding Company") pursuant to Massachusetts law;
(iii) The Mutual Holding Company will organize and transfer virtually all
of its assets (i.e., $10,000) to a new stock savings bank subsidiary
of Mutual Holding Company ("Stock Bank"), in exchange for 100% of
Stock Bank's common stock;
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 4
(iv) Bank will merge with and into the Stock Bank with the Stock Bank as
the surviving entity. Contemporaneously with the merger, Stock Bank
will change its name to Brookline Savings Bank.
(v) The Mutual Holding Company will organize a Delaware chartered stock
as a separate wholly-owned company subsidiary of the (the "Stock
Holding Company") Mutual Holding Company.
(vi) The Mutual Holding Company will contribute all of the shares of
common stock of the Stock Bank to the Stock Holding Company.
(vii) Contemporaneously, with the contribution set forth in "(vi)" the
Stock Holding Company will offer to sell up to 49.9% of its Common
Stock in the Subscription Offering and, if applicable, the Direct
Community Offering.
Upon the transfer of assets by the Bank to the Stock Bank and the Stock
Bank's assumption of the Bank liabilities, if any, those persons who, as of the
date of the exchange, hold depository rights with respect to the Bank will
thereafter have such rights solely with respect to the Stock Bank. Each deposit
account with the Bank at the time of the exchange will become a deposit account
in the Stock Bank in the same amount and upon the same terms and conditions,
except that the holders of each such deposit account will have liquidation
rights with respect to the Mutual Holding Company rather than the Stock Bank.
Similarly, borrowers of the Bank will become borrowers of the Stock Bank with
the same status they had with the Bank.
The principal purposes of the Reorganization are to reorganize the Bank
into a corporate structure that enables it to access capital sources not
available to mutual savings banks, and to facilitate acquisitions and the
diversification of the Holding Company's activities.
Following the Reorganization, the Stock Holding Company will have the power
to issue shares of capital stock (including common and preferred stock) to
persons other than the Mutual Holding Company. So long as the Mutual Holding
Company is in existence, however, it must own a majority of the voting stock of
the Stock Holding Company. The Stock Holding Company may issue any amount of
non-voting stock to persons other than the Mutual Holding Company.
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 5
SUMMARY OF OPINIONS
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Based on the facts, representations and assumptions set forth herein, we
are of the opinion that:
1. The conversion of the De Novo Bank into the Mutual Holding Company, a
Massachusetts mutual holding company, will qualify as a tax-free
reorganization under Code Section 368(a)(1)(F).
2. Based on the opinion of Massachusetts legal counsel that the merger of
the Bank into Stock Bank qualifies as a merger under Massachusetts
law, the merger of the Bank into the Stock Bank with the Stock Bank as
the survivor and the transfer of the depositors' equity interest in
the Bank to the Mutual Holding Company in exchange for equity
interests in the Mutual Holding Company qualifies as a tax-free
reorganization described in Code Sections 368(a)(1)(A) and
368(a)(2)(D). Bank, Stock Bank and Mutual Holding Company are each "a
party to the reorganization," as defined in Code Section 368(b).
3. Bank will recognize no gain or loss upon the transfer of substantially
all its assets to Stock Bank solely in exchange for equity interests
(voting and liquidation rights) in Mutual Holding Company and Stock
Bank's assumption of its liabilities, if any. (Rev. Rul. 57-278, 1957-
1 C.B. 124).
4. Neither Stock Bank nor Mutual Holding Company will recognize gain or
loss upon the receipt by Stock Bank of substantially all of the assets
of Bank in exchange for equity interests in Mutual Holding Company and
Stock Bank's assumption of Bank's liabilities.
5. The Mutual Holding Company's basis in the stock of Stock Bank will
increase by an amount equal to Bank's net basis in the property
transferred to the Stock Bank.
6. Stock Bank's basis in the property received from Bank will be the same
as the basis of such property in the hands of Bank immediately prior
to the Reorganization. Code Section 362(b).
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 6
7. Stock Bank's holding period for the property received from Bank will
include the period during which such property was held by Bank. Code
Section 1223(2).
8. Subject to the conditions and limitations set forth in Code Sections
381, 382, 383, and 384 and the Treasury regulations promulgated
thereunder, Stock Bank will succeed to and take into account the items
of Bank described in Code Section 381(c). (Section 381(a) and Section
1.381(a)-1 of the Income Tax Regulations).
9. No gain or loss will be recognized by the depositors of Bank on the
receipt of equity interests with respect to Mutual Holding Company in
exchange for their equity interests surrendered therefor. Section
354(a)(1).
10. Each depositor's aggregate basis, if any, in the Mutual Holding
Company equity interest received in the exchange will equal the
aggregate basis, if any, of each depositor's equity interest in the
Bank. Code Section 358(a)(1).
11. The holding period of Mutual Holding Company equity interests received
by the depositors of Bank will include the period during which the
Bank equity interests surrendered in exchange therefor were held. Code
Section 1223(1).
12. The Mutual Holding Company and the minority stockholders of the Stock
Holding Company ("Minority Stockholders") will recognize no gain or
loss upon the transfer of Stock Bank stock and cash, respectively, to
the Stock Holding Company in exchange for stock of the Stock Holding
Company. Code Sections 351(a) and 357(a):
13. The Stock Holding Company will recognize no gain or loss upon its
receipt of property from the Mutual Holding Company and Minority
Stockholders in exchange for Common Stock of Stock Holding Company.
Code Section 1032(a).
14. The Mutual Holding Company will increase its basis in its shares of
Stock Holding Company Common Stock by the Mutual Holding Company's
basis in its Stock Bank stock.
* * *
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Brookline Savings Bank
Brookline Bancorp, Inc.
Brookline Bancorp, M.H.C.
January 12, 1998
Page 7
The opinions set forth above represent our conclusions as to the
application of existing Federal income tax law to the facts of the instant
transaction, and we can give no assurance that changes in such law, or in the
interpretation thereof, will not affect the opinions expressed by us.
There can be no assurance that contrary positions to the ones set forth in
our opinions may not be taken by the Service, or that a court considering the
issues would not hold contrary to such opinions.
It is expressly understood that the opinions set forth above represent our
conclusions based upon the documents reviewed by us and the facts presented to
us. Any material amendments to such documents or changes in any significant
fact would affect the opinions expressed herein.
We have not been asked to, and we do not, render any opinion with respect
to any matters other than those expressly set forth above. This opinion is
rendered solely for the benefit of the Mutual Holding Company, the Stock Holding
Company, the Bank, and prospective investors in connection with the proposed
transactions described herein, and may not be delivered to or relied upon by any
other person or entity without our express written consent, provided, however,
you are authorized to furnish a copy of this letter to Foley, Hoag, & Eliot LLP,
who may rely on this letter for the sole purpose of rendering their opinion to
Brookline Savings Bank, Brookline Bancorp, Inc. and Brookline Bancorp, M.H.C.
with respect to the state tax consequences of the transactions set forth herein.
In addition we consent to the filing of this opinion letter as an exhibit to the
registration statement and to the reference to use under the caption "Legal and
Tax Matters" in the Prospectus.
Very truly yours,
LUSE LEHMAN GORMAN POMERENK
& SCHICK, A Professional Corporation
