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Registration No. 333-_____ As filed with the Commission on June 17, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
BROOKLINE BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
MASSACHUSETTS 04-302944
(State of Incorporation) (IRS Employer Identification No.)
160 WASHINGTON STREET
BROOKLINE, MASSACHUSETTS 02447
(Address of Principal Executive Offices and Zip Code)
---------------------------
BROOKLINE BANCORP, INC. 1999 STOCK OPTION PLAN
BROOKLINE BANCORP, INC. 1999 RECOGNITION AND RETENTION PLAN
(Full Title of the Plans)
Copies to:
Richard P. Chapman, Jr. Robert B. Pomerenk, Esquire
President and Chief Executive Officer Luse Lehman Gorman Pomerenk & Schick
Brookline Bancorp, Inc. A Professional Corporation
160 Washington Street 5335 Wisconsin Ave., NW, #400
Brookline, Massachusetts 02447 Washington, D.C. 20015
(617) 730-3500 (202) 274-2000
(NAME, ADDRESS AND TELEPHONE
NUMBER OF AGENT FOR SERVICE)
---------------------------
If any of the securities 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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED (1) MAXIMUM MAXIMUM REGISTRATION FEE
OFFERING PRICE AGGREGATE
PER SHARE OFFERING PRICE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 1,265,500 shares (2) $10.8125(3) $13,683,218 $3,804
per share
- ---------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 101,965 shares (4) $11.4688(6) $1,169,416 325
per share
- ---------------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 546,986 shares (5) $11.4688(6) $6,273,273 $1,744
per share
- ---------------------------------------------------------------------------------------------------------------------
Total 1,914,451 shares $21,125,907 $5,873
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
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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 Brookline Bancorp, Inc. 1999 Stock Option Plan (the "Stock
Option Plan"), and the Brookline Bancorp, Inc. 1999 Recognition and
Retention Plan (the "Recognition and Retention Plan") as the result of
a stock split, stock dividend or similar adjustment of the outstanding
Common Stock of Brookline Bancorp, Inc. pursuant to 17 C.F.R.
ss.230.416(a).
(2) Represents the number of shares currently reserved for issuance for
options granted pursuant to the Stock Option Plan.
(3) Determined by the exercise price of options pursuant to 17
C.F.R. ss.230.457(h)(1).
(4) Represents the number of shares reserved for issuance for options which
have not been granted pursuant to the Stock Option Plan.
(5) Represents the number of shares awarded or available for award pursuant
to the Recognition and Retention Plan.
(6) Determined by reference to the fair market value of the common stock on
June 11, 1999, pursuant to 17 C.F.R. ss.230.457(c).
------------------------------------
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R.
ss.230.462.
2
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PART I.
ITEMS 1 AND 2. PLAN INFORMATION AND REGISTRANT INFORMATION AND EMPLOYEE PLAN
ANNUAL INFORMATION
The documents containing the information specified in Part I of Form
S-8 have been or will be sent or given to participants in the Stock Option Plan
and the Recognition and Retention Plan (collectively the "Plans") as specified
by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously or concurrently filed by Brookline
Bancorp, Inc. (the "Company") with the Commission are hereby incorporated by
reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1998 (File No. 0-23695) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the year covered by the
Annual Report referred to above;
(c) the Company's definitive Proxy Statement for its Annual Meeting of
Stockholders held on April 15, 1999;
(d) the description of the common stock, par value $.01 per share, of the
Company contained in the Company's Registration Statement on Form S-1
(File No. 333-40471) originally filed with the Commission on November
18, 1997 and all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the prospectus.
The Company shall furnish without charge to each person to whom the
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Paul R.
Bechet, Senior Vice President and Chief Financial Officer, Brookline Bancorp,
Inc., 160 Washington Street, Brookline Massachusetts 02447, telephone number
(617) 730-3500.
All information appearing in this Registration Statement and the
prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
3
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None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Directors and officers of the Company are indemnified pursuant to
Section 6.6 of the Company's Articles or Organization, which reads as follows:
1.1.1 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 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 Massachusetts Business
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.
1.1.2 The right to indemnification conferred in
Section A of this Section 6.6 shall include, in the
case of a Director or officer at the level of Vice
President or above, and in the case of any other
Officer or any employee may include (in the
discretion of the Board of Directors), 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"). Notwithstanding the foregoing, expenses
incurred by an indemnitee in advance of the final
disposition of a proceeding may be paid only upon the
Corporation's receipt of an undertaking by the
indemnitee to repay such payment if he shall be
adjudicated or determined to be not entitled to
indemnification under applicable law. The Corporation
may accept such undertaking without reference to the
financial ability of the Indemnitee to make such
repayment. The rights to indemnification and to the
advancement of expenses conferred in Sections A and B
of this Section 6.6 shall be
4
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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.
1.1.3 If a claim under Section A or B of this
Section 6.6 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 also shall be entitled to be paid the
expense 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,
he shall not have acted in good faith in the
reasonable belief that his action was in the best
interests of the Corporation. 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 Massachusetts Business 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 Section 6.6 or otherwise, shall be on the
Corporation.
1.1.4 The rights to indemnification and to the
advancement of expenses conferred in this Section 6.6
shall not be exclusive of any other right which any
person may have or hereafter acquire under any
statute, the Corporation's Articles, Bylaws,
agreement, vote of stockholders or disinterested
Directors or otherwise.
1.1.5 The Corporation may maintain insurance, at
its expense, to protect itself and any Director,
Officer, employee or agent of the Corporation or
another corporation, partnership, joint venture,
trust or other enterprise
5
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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 Massachusetts Business Corporation Law.
1.1.6 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 Section 6.6 with respect to the
indemnification and advancement of expenses of
Directors and Officers of the Corporation. Without
limiting the generality of the foregoing, the
Corporation may enter into specific agreements,
commitments or arrangements for indemnification on
any terms not prohibited by law which it deems to be
appropriate.
1.1.7 If the Corporation is merged into or
consolidated with another corporation and the
Corporation is not the surviving corporation, the
surviving Corporation shall assume the obligations of
the Corporation under this Section 6.6 with respect
to any action, suit, proceeding or investigation
arising out of or relating to any actions,
transactions or facts occurring at or prior to the
date of such merger or consolidation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. LIST OF EXHIBITS
<TABLE>
<CAPTION>
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
- -------------- -------- ----------------------------
<S> <C> <C>
4 Specimen form of common stock certificate
of Brookline Bancorp, Inc. *
5 Opinion of Luse Lehman Gorman Pomerenk Attached as Exhibit 5
& Schick, P.C.
10.1 Brookline Bancorp, Inc.1999 Stock Option **
Plan
10.2 Brookline Bancorp, Inc. 1999 Recognition and Retention Plan **
23.1 Consent of Luse Lehman Gorman Pomerenk Contained in Exhibit 5
& Schick, P.C.
23.2 Consent of Grant Thornton LLP Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
</TABLE>
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* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 333-40471) filed with the Commission on December 18, 1997
pursuant to Section 5 of the Securities Act of 1933 and all amendments
thereto or reports filed for the purpose of updating such description. All
of such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
6
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** Filed as exhibits to the Registrant's Proxy Statement relating to the
Registrant's April 15, 1999 annual meeting of stockholders, filed with the
Commission on April 1, 1999, which is incorporated herein by reference.
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 to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this 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;
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 Stock Option Plan and the Recognition and Retention Plan;
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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; and
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
7
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EXHIBIT INDEX
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<CAPTION>
Exhibit Number Description
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<S> <C>
5 Opinion of Luse Lehman Gorman Pomerenk & Schick, A
Professional Corporation as to the legality of the
Common Stock registered hereby.
23.1 Consent of Luse Lehman Gorman Pomerenk & Schick,
A Professional Corporation (contained in the opinion
included as Exhibit 5)
23.2 Consent of Grant Thornton LLP
</TABLE>
8
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing 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 Brookline, State of Massachusetts, on this 19th
day of May, 1999.
BROOKLINE BANCORP, INC.
By: /s/Richard P. Chapman, Jr.
--------------------------------------
Richard P. Chapman, Jr.
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Brookline Bancorp, Inc.
(the "Company") hereby severally constitute and appoint Richard P. Chapman, Jr.
as our true and lawful attorney and agent, to do any and all things in our names
in the capacities indicated below which said Richard P. Chapman, Jr. may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the registration statement on Form S-8,
including specifically, but not limited to, power and authority to sign for us
in our names in the capacities indicated below the registration statement and
any and all amendments (including post-effective amendments) thereto; and we
hereby approve, ratify and confirm all that said Richard P. Chapman, Jr. shall
do or cause to be done by virtue thereof.
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 date indicated.
<TABLE>
<S> <C>
By: /s/Richard P. Chapman, Jr. By: /s/Paul R. Bechet
---------------------------------------- ------------------------------------------------
Richard P. Chapman, Jr. Paul R. Bechet
President, Chief Executive Officer and Senior Vice President and
Director (Principal Executive Officer) Chief Financial Officer
(Principal Financial and Accounting Officer)
Date: May 19, 1999 Date: May 19, 1999
By: /s/Oliver F. Ames By:
---------------------------------------- ------------------------------------------------
Oliver F. Ames, Director Dennis S. Aronowitz, Director
Date: May 19, 1999 Date: May 19, 1999
By: /s/David C. Chapin By: /s/William G. Coughlin
---------------------------------------- ------------------------------------------------
David C. Chapin, Director William G. Coughlin, Director
Date: May 19, 1999 Date: May 19, 1999
By: By: /s/Charles H. Peck
---------------------------------------- ------------------------------------------------
John L. Hall, II, Director Charles H. Peck, Director
Date: May 19, 1999 Date: May 19, 1999
</TABLE>
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<TABLE>
<S> <C>
By: By: /s/Joseph J. Slotnik
---------------------------------------- ------------------------------------------------
Hollis W. Plimpton, Jr., Director Joseph J. Slotnik, Director
Date: May 19, 1999 Date: May 19, 1999
By: By: /s/Franklin Wyman, Jr.
---------------------------------------- ------------------------------------------------
Rosamond B. Vaule, Director Franklin Wyman, Jr., Director
Date: May 19, 1999 Date: May 19, 1999
By: By:
---------------------------------------- ------------------------------------------------
George C. Caner, Jr., Director Edward D. Rowley, Director
Date: May 19, 1999 Date: May 19, 1999
By: /s/William V. Tripp, III By: /s/Peter O. Wilde
---------------------------------------- ------------------------------------------------
William V. Tripp, III, Director Peter O. Wilde, Director
Date: May 19, 1999 Date: May 19, 1999
By: /s/Richard P. Chapman
----------------------------------------
Richard P. Chapman, Jr., Director
</TABLE>
Date: May 19, 1999
<PAGE>
Exhibit 5
[LETTERHEAD OF LUSE LEHMAN GORMAN POMERENK & SCHICK, P.C.]
June 17, 1999 (202) 274-2000
Board of Directors
Brookline Bancorp, Inc.
160 Washington Street
Brookline, Massachusetts 02447
RE: BROOKLINE BANCORP, INC.
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
You have requested the opinion of this firm as to certain matters in
connection with the offer and sale of Brookline Bancorp, Inc. (the "Company")
common stock, par value $.01 per share (the "Common Stock"), pursuant to the
Brookline Bancorp, Inc. 1999 Stock Option Plan and the Brookline Bancorp, Inc.
1999 Recognition and Retention Plan (the "Plans"). We have reviewed the
Company's Articles of Organization, Registration Statement on Form S-8 (the
"Form S-8"), as well as applicable statutes and regulations governing the
Company and the offer and sale of the Common Stock.
Based on the foregoing, we are of the following opinion:
Upon the effectiveness of the Form S-8, the Common Stock, when sold in
connection with the exercise of options granted pursuant to the Plans,
will be legally issued, fully paid and non-assessable.
This opinion has been prepared solely for the use of the Company in
connection with the preparation and filing of the Form S-8, and should not be
used for any other purpose or relied upon by any other person without the prior
written consent of this firm. We hereby consent to the use of this opinion in
the Form S-8.
Very truly yours,
/s/ Luse Lehman Gorman Pomerenk & Schick
-----------------------------------------
LUSE LEHMAN GORMAN POMERENK & SCHICK
A Professional Corporation
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We have issued our report dated January 19, 1999 accompanying the consolidated
financial statements of Brookline Bancorp, Inc. and subsidiaries included in the
Annual Report on Form 10-K for the year ended December 31, 1998 which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/Grant Thornton LLP
Boston, Massachusetts
June 14, 1999
