<PAGE> 1
As filed with the Securities and Exchange Commission on May 2, 1997
File No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
ANDOVER BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 04-2952665
(State or other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
</TABLE>
61 MAIN STREET, ANDOVER, MASSACHUSETTS 01810
(Address of Principal Executive Offices) (Zip Code)
DEFERRED COMPENSATION PLAN FOR DIRECTORS OF ANDOVER BANCORP, INC.
AND ITS SUBSIDIARIES
(Full Title of the Plan)
-------------------
GERALD T. MULLIGAN
President and Chief Executive Officer
Andover Bancorp, Inc.
61 Main Street
Andover, Massachusetts 01810
(Name and Address of Agent for Service)
(508) 749-2000
(Telephone Number, including Area Code, of Agent for Service)
-------------------
with a copy to:
REGINA M. PISA, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
(617) 570-1000
-------------------
================================================================================
Registration Statement consists of 16 pages.
Exhibit Index appears on page 8.
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<TABLE>
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registra-
be Registered Registered(1) Per Share(2) Price tion Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 50,000 $26.875 $1,343,750 $407.20
- --------------------------------------------------------------------------------
</TABLE>
(1) This registration statement also relates to such additional number of
shares of the Company's common stock as may be required pursuant to the
Deferred Compensation Plan for Directors of Andover Bancorp, Inc. and
its Subsidiaries in the event of a stock dividend, stock split,
split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1993, as amended, solely for purposes of determining
the registration fee and is equal to the average of the high and low
sale prices of the Company's common stock reported on the NASDAQ
National Market System on April 30, 1997.
================================================================================
2
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating directors as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Andover Bancorp, Inc. (the "Company") hereby incorporates by reference
the documents listed in (a) through (c) below, which have previously been filed
with the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(b) All other reports filed since December 31, 1996 pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(c) The description of the Company's Common Stock contained in its
Registration Statement filed with the Securities and Exchange
Commission under the Exchange Act and any amendments or
reports filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a) and 13(c), Section
14 and Section 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which 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.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Under Section 145 of the Delaware General Corporation Law, as amended,
the Company has the power to indemnify directors, officers, employees or agents,
under certain prescribed circumstances, and subject to certain limitations,
against certain costs and expenses, including attorneys' fees, actually and
reasonably
3
<PAGE> 4
incurred in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which any of them is a
party by reason of his or her being a director, officer, employee or agent of
the Company if it is determined that he or she acted in accordance with the
applicable standard of conduct set forth in such statutory provisions.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (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.
Article 6 of the Company's Restated Certificate of Incorporation
provides that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for breaches of their
fiduciary duty as directors, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the 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.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit
- -------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
the securities being registered.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP, Independent Accountants.
24.1 Powers of Attorney (included in Part II of this registration
statement).
99.1 Deferred Compensation Plan for Directors of Andover Bancorp,
Inc. and its Subsidiaries.
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 of 1933, as amended (the
"Securities Act");
(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
4
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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 and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act if, in the aggregate, the changes
in volume and price represent no more than 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 Deferred Compensation Plan for Directors
Andover Bancorp, Inc. and its Subsidiaries 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 with or furnished to the Securities and Exchange
Commission by the registrant pursuant to Section 13 or 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.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Town of Andover, Commonwealth of Massachusetts, on this
30th day of April, 1997.
ANDOVER BANCORP, INC.
By: /s/ Gerald T. Mulligan
-------------------------------------
Gerald T. Mulligan,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Gerald T. Mulligan and Joseph F. Casey, and each of them, as his or her true and
lawful attorney-in-fact and agent, with full power of substitution, for him or
her and in his or her name, place and stead, in any and all capacities to sign
any or all amendments or post-effective amendments to this registration
statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto 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 he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his or her substitute, may lawfully do or cause to be done by virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gerald T. Mulligan President, Chief April 30, 1997
- ---------------------------- Executive Officer
Gerald T. Mulligan and Director
(Principal Executive
Officer)
/s/ Joseph F. Casey Treasurer and Chief April 30, 1997
- ---------------------------- Financial Officer (Principal
Joseph F. Casey Financial and Accounting Officer)
/s/ Thomas F. Caffrey Director April 30, 1997
- ----------------------------
Thomas F. Caffrey
/s/ Cornelius J. McCarthy Director April 30, 1997
- ----------------------------
Cornelius J. McCarthy
</TABLE>
6
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Clifford E. Elias Director April 30, 1997
- ---------------------------
Clifford E. Elias
/s/ Naomi A. Gardner Director April 30, 1997
- ---------------------------
Naomi A. Gardner
/s/ Robert J. Scribner Director April 30, 1997
- ---------------------------
Robert J. Scribner
/s/ Fred P. Shaheen Director April 30, 1997
- ---------------------------
Fred P. Shaheen
</TABLE>
7
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EXHIBIT INDEX
Exhibit No. Description Page+
- ----------- ----------- -----
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality 9
of the securities being registered.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto) --
23.2 Consent of KPMG Peat Marwick LLP, Independent Accountants 10
24.1 Powers of Attorney (included in Part II of this --
registration statement).
99.1 Deferred Compensation Plan for Directors of 11
Andover Bancorp, Inc. and its Subsidiaries
- ------------------
+ Refers to sequentially numbered copy.
8
<PAGE> 1
EXHIBIT 5.1
[GOODWIN, PROCTER & HOAR LLP LETTERHEAD]
May 1, 1997
Andover Bancorp, Inc.
61 Main Street
Andover, MA 01810
Re: Deferred Compensation Plan for Directors of
Andover Bancorp, Inc. and its Subsidiaries
------------------------------------------
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 50,000 shares (the
"Shares") of Common Stock, par value $.10 per share (the "Common Stock"), of
Andover Bancorp, Inc. (the "Company") which may be issued pursuant to awards
granted under the Deferred Compensation Plan for Directors of Andover Bancorp,
Inc. and its Subsidiaries (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Restated
Certificate of Incorporation and the By-laws of the Company; such records of the
corporate proceedings of the Company as we deemed necessary; a Registration
Statement on Form S-8 under the Act relating to the Shares (the "Registration
Statement"); and such other certificates, receipts, records and documents as we
considered necessary for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, The Commonwealth of
Massachusetts and the corporate laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the deferred compensation agreements under
the Plan, the Shares will be legally issued, fully paid and non-assessable
shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities. The foregoing further assumes that
the purchase price paid for the Shares is in excess of the par value thereof.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
ANDOVER BANCORP, INC.
We consent to incorporation by reference in Registration Statement on Form S-8
of Andover Bancorp, Inc. of our report dated January 23, 1997, relating to the
consolidated balance sheets of Andover Bancorp, Inc. and subsidiaries as of
December 31, 1996 and 1995, 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 December 31, 1996, which report appears in the
December 31, 1996 Annual Report on Form 10-K of Andover Bancorp, Inc. Our report
refers to a change in the method of accounting for mortgage servicing rights.
/s/ KPMG PEAT MARWICK LLP
Boston, Massachusetts
April 25, 1997
<PAGE> 1
EXHIBIT 99.1
DEFERRED COMPENSATION PLAN FOR DIRECTORS
OF ANDOVER BANCORP, INC. AND ITS SUBSIDIARIES
The Deferred Compensation Plan for Directors of Andover Bancorp, Inc.
and Its Subsidiaries, originally effective July 1, 1993, is hereby amended and
restated as follows effective February 22, 1996:
1. Eligibility. Each member of the Board of Directors of Andover Bancorp,
Inc. (the "Company") and its subsidiaries (the "Corporation") who is not an
employee of the Company or its subsidiaries may elect to defer, in accordance
with this Plan, payment of all or a portion of the compensation payable to him
for service as such Director.
2. Election to Defer. A Director's election to defer payments shall be
made in writing and shall be effective upon receipt and acceptance by the
Corporation. Except in the case of a newly elected Director who may file an
election to defer within thirty (30) days of his election as Director, an
election to defer shall be made no later than ten (10) days preceding
commencement of a calendar year with respect to deferral of compensation to be
earned in such year. Any election may be revoked in writing and shall be
effective upon receipt by the Corporation, but only as to compensation to be
earned at and after commencement of the next succeeding calendar month. Any
election may be changed in writing and shall be effective upon receipt by the
Corporation, but only as to compensation to be earned at and after commencement
of the next succeeding calendar year.
3. Crediting of Interest. The Corporation shall maintain a book account to
which the deferred compensation of each Director participating in this Plan
shall be credited as of the end of each calendar month after such compensation
is earned. As of the end of each calendar month, the Corporation shall also
credit each deferred compensation account with interest on the amount then
standing in the account, exclusive of any deferred compensation credited to the
account as of such date. The rate to be used for this purpose shall be the
maximum interest yield paid by Andover Bank (the "Bank") with respect to its
36-month term deposit account, of if there shall be no 36-month term deposit
accounts, at the maximum interest yield paid on the term deposit account of
such duration as most closely approximately 36 months.
4. Stock Units.
(a) In lieu of receiving interest credit each month, a Director may
elect to convert the amounts in his deferred compensation account (and any
future deferrals) into stock units equivalent in value to shares of common
stock of the Company ("Stock"). Such an election must be made on an irrevocable
basis at least six months in advance. A Director may revoke his election and
elect to receive interest credits pursuant to Paragraph 3 above, but any such
revocation must be made in writing on an irrevocable basis at least six months
in advance.
(b) The conversion of deferred compensation into stock units will be
made on the basis of the fair market value of the Stock on the date of
conversion, or the date the compensation would otherwise be paid, whichever is
applicable. For this purpose, fair market value of the Stock on any given date
shall mean the closing price reported for the Stock on the NASDAQ National
Market on such date or, if no sales were reported on such date, for the last
date preceding date for which a sale was reported.
(c) During the term of the deferral, each Director's account of stock
units will be credited with additional units to reflect any payment of
dividends (other than dividends payable only in share of Stock). Each account
will be credited with a number of whole and fractional shares of stock units
determined by multiplying the dividend value per share of Stock by the number
of units in the account on the record date and dividing the result by the fair
market value of the Stock (as defined in Paragraph 4(b) above) on the record
date.
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(d) In the event of a stock dividend, stock split or similar change in
capitalization affecting the Stock, the Company shall make appropriate
adjustments in the number of stock units credited to each Director's account.
5. Time and Method of Payment
(a) Amounts credited to a Director's deferred compensation account
shall be paid, or commenced to be paid, on the January 15 coincident with or
next following date on which the Director ceases to be a member of the Board of
Directors of the Corporation for any reason whatsoever. In the case of
semi-annual installments, payments shall be made on each July 15.
(b) Payments of deferred compensation may be made either in a single
lump sum or in annual, or semi-annual, installments over a period of ten (10)
years, as the Director may have irrevocably specified before the compensation
is earned. In the absence of an effective election, payment shall be made in a
single lump sum. In the case of installment payments, interest or dividend
equivalent shall continue to be credited in accordance with Paragraph 3 or 4
during the payment period. The amount of each installment payment shall be
equal to the amount credited to the deferred compensation account as of the
preceding June 30 or December 31, as the case may be, divided by the number of
payments remaining to be made, including current payment. On and after the date
which is the later of six months from the effective date of this amendment or
the date this amendment is approved by shareholders, payments from each
Director's deferred compensation account of stock units shall be payable only
in the form of whole share of Stock, with any fractional share payable in cash.
(c) Elections by a Director of a method of payment under sub-paragraph
(b) shall be made in writing, effective upon receipt and acceptance by the
Corporation, and applicable only to compensation to be earned after the
effective date of the election. Such elections may also be changed by a
Director, subject to the same restrictions.
(d) Payments of deferred compensation shall be made as they become due
to the Director if then living, otherwise to a beneficiary or beneficiaries
designated by the Director in writing to the Bank prior to the Director's
death, or failing such designation, the Director's estate.
(e) Notwithstanding any provision hereof to the contrary, if a
Director, or after a Director's death the Director's beneficiary, believes he
is suffering from financial hardship, an application may be made to the Board
of Directors of the Bank for an acceleration of payments from the deferred
compensation account of the Director. A "financial hardship" shall mean a need
for financial assistance due to the occurrence of an unanticipated emergency
caused by an event beyond the Director's control. The need for financial
assistance must be such that the Director, any member of the Director's
immediate family or, after the Director's death, a designated beneficiary will
be subject to substantial hardship if the acceleration is not permitted. If the
Board of Directors of the Bank determines, in its sole discretion, that a
hardship exists, the Corporation may accelerate payment to the Director or the
designated beneficiary of only so much of the deferred compensation account as
the Board of Directors of the Bank may determine is required to alleviate such
hardship, and the deferred compensation account shall be charged with said
amount upon payment.
6. Limitation on Rights of Directors. No action taken pursuant to this
Plan shall create or be deemed to create a trust or fiduciary relationship of
any kind between the Corporation and the Directors. Although the Corporation
shall have no obligation to establish any separate fund, reserve or to invest
in any specific asset to provide security with respect to any deferred amounts
during the deferral period, the Corporation may elect to do so and, in such
event, the Directors shall not have any interest in such assets and all such
assets shall continue for all purposes to be a part of the general assets of
the Corporation, with the title to the beneficial ownership of such assets
remaining at all times in the Corporation. Each Director, his legal
representative or any of his beneficiaries shall not have any right, other than
the right of an unsecured general creditor of the Corporation, in respect to
the deferred compensation account established hereunder, and such persons shall
have no property interest in any specific assets of the Bank.
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<PAGE> 3
7. Nonforfeitable. the right of each Director to the payment of deferred
compensation under this Plan shall be nonforfeitable and no action or failure
to act by the Director, the Corporation or any other person shall deprive the
Director of, or excuse the Corporation from its obligations to pay, the amounts
due hereunder.
8. Withholding Tax. The Corporation shall have the right to deduct from
all deferred amounts or payments hereunder any federal or state taxes required
by law to be withheld with respect to such deferred amounts or payments.
9. Non-Assignable. The deferred compensation payable under this Plan shall
not be subject to alienation, assignment, garnishment, execution or levy of any
kind, and any attempt to cause any compensation to be so subjected shall not be
recognized.
10. Termination and Amendment. This Plan may be amended at any time or may
be terminated, in whole or in part, at any time, and from time to time, by the
Company. The foregoing provisions of this Paragraph notwithstanding, no
amendment or termination of this Plan shall, without the consent of a Director,
adversely affect the amounts payable hereunder on account of compensation
deferred prior to the effective date of such amendment or termination.
11. Notices. All notices, elections or designations by a Director to the
Corporation shall be delivered in person or by registered mail, postage
prepaid, and noted to be brought to the attention of the Treasurer of the Bank.
12. Governing Law. This Plan, and all actions taken hereunder, shall be
governed by and construed in accordance with the law of the State of
Massachusetts, except as such laws may be superseded by any applicable federal
law.
13. Shares Issuable. The aggregate maximum number of shares of Stock
reserved and available for issuance under the Plan shall be 50,000, subject to
appropriate adjustments in the event of a stock dividend, stock split, or
similar change in capitalization affecting the Stock. Shares subject to the
Plan are authorized but unissued shares or Treasury shares. Notwithstanding the
foregoing, no shares of Stock may be issued under the Plan until the amendment
and restatement of this Plan has been approved by the affirmative votes of the
holders of a majority of the shares of Stock of the Company present, or
represented, and entitled to vote at a meeting of shareholders.
3
