Registration No. 333-______
As filed with the Securities and Exchange Commission on April 19, 2004
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)
Delaware 04-3402944
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
160 Washington Street
Brookline, Massachusetts 02447-0469
(Address of Principal Executive Offices)
_______________________
Brookline Bancorp, Inc. 2003 Stock Option Plan
Brookline Bancorp, Inc. 2003 Recognition and Retention Plan
(Full Title of the Plans)
Copies to:
Richard P. Chapman, Jr.
President and Chief Executive Officer Robert B. Pomerenk, Esquire
Brookline Bancorp, Inc. Luse Gorman Pomerenk & Schick, P.C.
160 Washington Street 5335 Wisconsin Ave., N.W., Suite 400
Brookline, Massachusetts 02447-0469 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. :
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered (1) Per Share Offering Price Fee
--------------------------------------------------------------------------------------------------------------------
Common stock, par value
$0.01 per share 1,250,000 (4) $14.335 (3) $17,918,750 $2,270
--------------------------------------------------------------------------------------------------------------------
Common stock, par value 1,365,000 (5) $14.95 (2) $20,406,750 $2,586
$0.01 per share 1,135,000 (6) $14.335(3) $16,270,225 $2,062
--------------------------------------------------------------------------------------------------------------------
Totals 3,750,000 $54,595,725 $6,918
====================================================================================================================
-----------------------------
(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
the Brookline Bancorp, Inc. 2003 Stock Option Plan (the "Stock Option
Plan") and the Brookline Bancorp, Inc. 2003 Recognition and Retention Plan
(the "Recognition and Retention Plan") as a result of a stock split, stock
dividend or similar adjustment of the outstanding common stock of Brookline
Bancorp, Inc. pursuant to Rule 416(a) under the Securities Act of 1933.
(2) Determined by reference to the exercise price of options pursuant to Rule
457(h)(1) under the Securities Act of 1933.
(3) Determined by reference to the fair market value of the common stock on
April 15, 2004, pursuant to Rule 457(c) under the Securities Act of 1933.
(4) Represents the number of shares of common stock awarded (1,158,000 shares)
and available for award (92,000 shares) under the Recognition and Retention
Plan.
(5) Represents the number of shares of common stock that may be issued pursuant
to the exercise of granted options under the Stock Option Plan.
(6) Represents the number of shares of common stock that may be issued pursuant
to the exercise of options that are available for grant under the Stock
Option Plan.
This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and Rule 462
thereunder.
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,
2003 (Commission File No. 0-23695), filed with the Commission pursuant to
Section 13(a) 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 in (a) above; and
c) The description of the common stock of the Company contained in the
Registration Statement on Form 8-A (Commission File No. 000-23695) filed by the
Company with the Commission under the Securities Act on July 3, 2002, 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 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.
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 02447-0469, telephone
number (617) 730-3500.
All information appearing in this Registration Statement 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
None.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law ("DGCL"), among other
things, empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
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venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Similar indemnity is authorized for such person against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of any such threatened, pending or completed action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) he shall not have
been adjudged liable to the corporation. Any such indemnification (unless
ordered by a court) may be made by the corporation only as authorized in each
specific case by the corporation upon a determination that indemnification of
the present or former director, officer, employee or agent is proper because
such person has met the applicable standard of conduct, which indemnification
shall be made in the case of a director or officer at the time of the
determination by the shareholders, a majority vote of disinterested directors, a
committee of disinterested directors or by independent legal counsel in a
written opinion, if no such directors.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent 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 enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him against such liability under
Section 145.
Article TENTH and ELEVENTH of the Certificate of Incorporation of Brookline
Bancorp, Inc. (referred to below in this Item 6 as the "Corporation") set forth
circumstances under which directors, officers, employees and agents of the
Corporation may be indemnified against liability or absolved from liability that
they incur in their capacities as such:
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 an "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 indemnitee,
including, without limitation, service 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
3
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 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, 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
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.
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.
4
In addition, the Company has entered into Employment Agreements with
Richard P. Chapman, Jr. and Charles H. Peck pursuant to which the Company has
undertaken contractually to provide indemnification in the manner described
above.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
-------------- -------- ---------------------------
4 Form of Common Stock Certificate (Incorporated by reference to
Exhibit 4 to the Registration Statement on Form S-1
(Commission File No. 333-85980), originally filed by the
Company under the Securities Act of 1933 with the Commission
on April 10, 2002, and all amendments or reports filed for the
purpose of updating such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10.1 Brookline Bancorp, Inc. 2003 Stock Option Plan *
10.2 Brookline Bancorp, Inc. 2003 Recognition and *
Retention Plan.
23.1 Consent of Luse Gorman Pomerenk &
Schick, P.C. Contained in Exhibit 5
23.2 Consent of KPMG LLP Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
_____________________
* Filed as exhibits to the Company's Proxy Statement relating to the
Company's August 27, 2003 special meeting of stockholders, filed with the
Commission on July 23, 2003, 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 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; and
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
5
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.
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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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in Brookline, Massachusetts, on this
15th day of April, 2004.
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 of common stock
underlying the Brookline Bancorp, Inc. 2003 Recognition and Retention Plan and
the Brookline Bancorp, Inc. 2003 Stock Option Plan, 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 on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
/s/ Richard P. Chapman, Jr. Director, President and April 15, 2004
----------------------------- Chief Executive Officer
Richard P. Chapman, Jr. (Principal Executive Officer)
/s/ Paul R. Bechet Senior Vice President, April 15, 2004
----------------------------- Treasurer and Chief Financial
Paul R. Bechet Officer (Principal Financial
and Accounting Officer)
/s/ Charles H. Peck Director, April 15, 2004
----------------------------- Executive Vice President
Charles H. Peck
/s/ George C. Caner, Jr. Director, Secretary April 15, 2004
-----------------------------
George C. Caner, Jr.
/s/ William V. Tripp, III Director April 15, 2004
-----------------------------
William V. Tripp, III
/s/ Peter O. Wilde Director April 15, 2004
-----------------------------
Peter O. Wilde
/s/ Oliver F. Ames Director April 15, 2004
-----------------------------
Oliver F. Ames
/s/ Dennis S. Aronowitz Director April 15, 2004
-----------------------------
Dennis S. Aronowitz
/s/ William G. Coughlin Director April 15, 2004
-----------------------------
William G. Coughlin
/s/ Joseph J. Slotnik Director April 15, 2004
-----------------------------
Joseph J. Slotnik
/s/ Hollis W. Plimpton Director April 15, 2004
-----------------------------
Hollis W. Plimpton
/s/ David C. Chapin Director April 15, 2004
-----------------------------
David C. Chapin
/s/ Rosamond B. Vaule Director April 15, 2004
-----------------------------
Rosamond B. Vaule
/s/ John L. Hall, II Director April 15, 2004
-----------------------------
John L. Hall, II
/s/ Franklin Wyman, Jr. Director April 15, 2004
-----------------------------
Franklin Wyman, Jr.
EXHIBIT INDEX
Exhibit Number Description
4 Form of Common Stock Certificate (Incorporated by reference
to Exhibit 4 to the Registration Statement on Form S-1
(Commission File No. 333-85980), originally filed by the
Company under the Securities Act of 1933 with the Commission
on April 10, 2002, and all amendments or reports filed for
the purpose of updating such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10.1 Brookline Bancorp, Inc. 2003 Stock Option Plan*
10.2 Brookline Bancorp, Inc. 2003 Recognition and Retention Plan*
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (contained in
the opinion included as Exhibit 5).
23.2 Consent of KPMG LLP
23.1 Power of Attorney (contained in the signature page to this
Registration Statement).
------------------
* Incorporated by reference to the Company's Proxy Statement relating to the
Company's August 27, 2003 special meeting of stockholders, originally filed
by the Company with the Commission on July 23, 2003.