s8-08.htm
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As
filed with the Securities and Exchange Commission on August 11,
2008
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Registration
Statement No. 333-______
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
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FORM
S-8
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REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIRST
FINANCIAL NORTHWEST, INC.
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(Exact
name of registrant as specified in its charter)
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Washington
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26-0610707
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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201
Wells Avenue South, Renton, Washington
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98057
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(Address
of principal executive offices)
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(Zip
code)
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First
Financial Northwest, Inc. 2008 Equity Incentive Plan
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(Full
title of the plan)
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Victor
Karpiak
Chairman
of the Board, President
and
Chief Executive Officer
First
Financial Northwest, Inc.
201
Wells Avenue South
Renton,
Washington 98057
(425)
255-4400
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John
F. Breyer, Jr., Esquire
Breyer
& Associates PC
8180
Greensboro Drive
Suite
785
McLean,
Virginia 22102
(703)
883-1100
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(Name,
address and telephone number of agent for service)
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Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of Alarge
accelerated filer,@ Aaccelerated
filer@
and Asmaller
reporting company@ in Rule
12b-2 of the Exchange Act.
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Large
accelerated filer
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9
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Accelerated
filer
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9
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Non-accelerated
filer
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:
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Smaller
reporting company
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9
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered
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Proposed
maximum
offering
price per share
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Proposed
maximum
aggregate
offering price
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Amount
of
registration
fee
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Common
stock,
$.01
par value per share
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3,199,392(1)
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$9.75(2)
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$31,194,072
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$1,226
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Together with an
indeterminate number of additional shares which may be necessary to adjust
the number of shares reserved
for issuance pursuant to the First Financial Northwest, Inc. 2008 Equity
Incentive Plan as a result of a stock split,
stock dividend or similar adjustment of the outstanding common stock of
the registrant. |
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Estimated in
accordance with Rule 457(h), calculated on the basis of $9.75 per share,
the average of the high and low share prices of First Financial Northwest,
Inc. common stock on the Nasdaq Global Select Market on August 8,
2008. |
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document containing the information specified in Part I of Form S-8 will be sent
or given to participants in the First Financial Northwest, Inc. 2008 Equity
Incentive Plan, as specified by Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the ACommission@) under the
Securities Act of 1933. This document is not being filed with the
Commission, but constitutes (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 of
1933.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by
Reference
The
following documents previously or concurrently filed by First Financial
Northwest, Inc. (the ARegistrant@) with the
Commission are hereby incorporated by reference in this Registration
Statement:
(a) the
Registrant=s Annual
Report on Form 10-K for the fiscal year ended December 31, 2007 (File No.
001-33652) filed pursuant to the Securities Exchange Act of 1934;
(b) all
other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in Item 3(a) above; and
(c) the
description of the Registrant=s common
stock, par value $.01 per share, set forth in the Registrant=s
Registration Statement on Form 8-A, registering the Registrant=s common
stock, pursuant to Section 12(b) of the Securities Exchange Act of 1934, filed
as of August 8, 2007 and all amendments thereto or reports filed for the purpose
of updating such descriptions.
All
documents subsequently filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, 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 to be a part hereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or
deemed to be incorporated, by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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 by reference.
Item
4. Description of Securities
Not
Applicable
Item
5. Interests of Named Experts and
Counsel
Not
Applicable
Item
6. Indemnification of Directors and
Officers
Article
XIII of the Registrant=s Articles
of Incorporation provides that, to the fullest extent permitted by the
Washington Business Corporation Act (AWBCA@), a
director of the Registrant will not be personally liable to the Registrant or
its shareholders for monetary damages for conduct as a director, except for
liability of the director for acts or omissions that involve: (i) intentional
misconduct by the director; (ii) a knowing violation of law by the director;
(iii) conduct violating Section 23B.08.310 of the WBCA; or (iv) any transaction
from which the director will personally receive a benefit in money, property or
services to which the director is not legally entitled. Article XIV
of the Registrant=s Articles
of Incorporation further provides that the Registrant shall indemnify and
advance expenses to its directors, officers and agents to the fullest extent
provided by the WBCA.
The WBCA
provides for indemnification of directors, officers, employees and agents in
certain circumstances. WBCA Section 23B.08.510 provides that a
corporation may indemnify an individual made a party to a proceeding because the
individual is or was a director against liability incurred in the proceeding
if (a) the director acted in good faith, (b) the director reasonably
believed that the director=s conduct
was in the best interests of the corporation, or in certain instances, at least
not opposed to its best interests and (c) in the case of any criminal
proceeding, the director had no reasonable cause to believe the director=s conduct
was unlawful. However, a corporation may not indemnify a director
under this section (a) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation or (b)
in connection with any other proceeding charging improper personal benefit to
the director in which the director was adjudged liable on the basis that
personal benefit was improperly received by the director. WBCA
Section 23B.08.520 provides that unless limited by the articles of
incorporation, a corporation must indemnify a director who was wholly successful
in the defense of any proceeding to which the director was a party because of
being a director of the corporation against reasonable expenses incurred by the
director in connection with the proceeding. WBCA Section 23B.08.540
provides a mechanism for court-ordered indemnification.
WBCA
Section 23B.08.570 provides that unless a corporation=s articles
of incorporation provide otherwise, (1) an officer of the corporation who is not
a director is entitled to mandatory indemnification under WBCA Section
23B.08.520, and is entitled to apply for court-ordered indemnification under
WBCA Section 23B.08.540, (2) the corporation may indemnify and advance expenses
under WBCA Section 23B.08.510 through 23B.08.560 to an officer, employe or agent
of the corporation who is not a director to the same extent as to a director and
(3) a corporation may also indemnify and advance expenses to an officer,
employee or agent who is not a director to the extent, consistent with law, that
may be provided by its articles of incorporation, bylaws, general or specific
action of its board of directors or contract. WBCA Section 23B.08.580
provides that a corporation may purchase insurance on behalf of an individual
who is or was a director, officer, employee or agent of the corporation against
liability asserted against or incurred by the individual in that capacity,
whether or not the corporation would have power to indemnify the individual
against the same liability under WBCA Section 23B.08.510 or
23B.08.520.
Item
7. Exemption From Registration
Claimed
Not
Applicable
Item
8. Exhibits
The
following exhibits are filed with or incorporated by reference into this
Registration Statement on Form S-8:
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Exhibit
Number
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Description
of Document
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4.1
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Articles
of Incorporation of the Registrant(1)
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4.2
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Bylaws
of the Registrant(1)
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4.3
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Form
of Certificate of Common Stock of the Registrant(1)
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5
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Opinion
of Breyer & Associates PC
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23.1
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Consent
of KPMG, LLP
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23.2
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Consent
of Breyer & Associates PC (contained in its opinion filed as Exhibit
5)
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24
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Power
of attorney (contained in the signature page of the Registration
Statement)
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99
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First
Financial Northwest, Inc. 2008 Equity Incentive Plan(2)
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________________
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(1)
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Incorporated
by reference to the Registrant=s
Registration Statement on Form S-1filed with the Commission on
June 6, 2007.
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(2)
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Incorporated
by reference to the Registrant=s
Definitive Annual Meeting Proxy Statement, filed with the Commission on
April 15, 2008.
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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; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change in such
information in the Registration Statement; provided, however, that clauses (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
2. That,
for the purposes 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 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
offering.
(b) The
undersigned Registrant hereby undertakes that, for the 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 Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan=s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to 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 of 1933 may
be permitted to directors, officer and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
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
Renton, State of Washington, on August 11, 2008.
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FIRST
FINANCIAL NORTHWEST, INC.
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By:
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/s/Victor
Karpiak
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Victor
Karpiak
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Chairman,
President and Chief Executive Officer
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(Duly
Authorized Representative)
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POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby makes,
constitutes and appoints Victor Karpiak his true and lawful attorney, with full
power to sign for such person and in such person=s name and
capacity indicated below, and with full power of substitution any and all
amendments to this Registration Statement, hereby ratifying and confirming such
person=s signature
as it may be signed by said attorney to any and all amendments.
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Signature
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Title
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Date
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/s/Victor
Karpiak
Victor
Karpiak
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Chairman
of the Board, President and Chief Executive
Officer
(Principal Executive Officer)
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August
11, 2008
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/s/Kari
Stenslie
Kari
Stenslie
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Chief
Financial Officer (Principal Financial and
Accounting
Officer)
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/s/Harry
A.
Blencoe
Harry
A. Blencoe
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Director
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/s/Joann
E.
Lee
Joann
E. Lee
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Director
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/s/Gary
F.
Kohlwes
Gary
F. Kohlwes
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Director
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/s/Robert
L.
Anderson
Robert
L. Anderson
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Director
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/s/Gerald
Edlund
Gerald
Edlund
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Director
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/s/Robert
W.
McLendon
Robert
W. McLendon
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Director
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/s/Gary
F.
Faull
Gary
F. Faull
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Director
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FIRST
FINANCIAL NORTHWEST, INC.
EXHIBIT
INDEX
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Exhibit
Number
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Description
of Document
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5
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Opinion
of Breyer & Associates PC
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23.1
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Consent
of KPMG, LLP
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Exhibit
5
Opinion
of Breyer & Associates PC
[Letterhead
of Breyer & Associates PC]
August
11, 2008
Board of
Directors
First
Financial Northwest, Inc.
201 Wells
Avenue South
Renton,
Washington 98057
Ladies
and Gentlemen:
We have
acted as special counsel to First Financial Northwest, Inc., a Washington
corporation (the ACorporation@), in
connection with the preparation of the Registration Statement on Form S-8 filed
with the Securities and Exchange Commission (ARegistration
Statement@) under the
Securities Act of 1933, as amended, relating to shares of common stock, par
value $.01 per share (the ACommon
Stock@)
of the Corporation which may be issued pursuant to the terms of the terms of the
First Financial Northwest, Inc. 2008 Equity Incentive Plan (the APlan@), as well
as Common Stock which may be issued pursuant to the grant or exercise of stock
options (AOptions@) or stock
appreciation rights (ARights@) under the
Plan, all as more fully described in the Registration Statement. The
Registration Statement also registers an indeterminate number of additional
shares which may be necessary to adjust the number of shares registered thereby
for issuance as the result of a stock split, stock dividend or similar
adjustment of the number of issued and outstanding shares of Common
Stock. You have requested the opinion of this firm with respect to
certain legal aspects of the proposed offering.
We have
reviewed the Registration Statement, the Articles of Incorporation and Bylaws of
the Corporation, the Plan, a specimen stock certificate evidencing the Common
Stock and such other documents and records as we have deemed necessary for
purposes of this opinion. We are relying upon the originals, or
copies certified or otherwise identified to our satisfaction, of the corporate
records of the Corporation and such other instruments, certificates and
representations of public officials, officers and representatives of the
Corporation as we have deemed applicable or relevant as a basis for the opinions
set forth below. In addition, we have assumed, without independent
verification, the genuineness of all signatures and the authenticity of all
documents furnished to us and the conformance in all respects of copies to
originals. Furthermore, we have made such factual inquiries and
reviewed such laws as we determined to be relevant for the purposes of this
opinion.
For
purposes of this opinion, we have also assumed that (i) the shares of Common
Stock issuable pursuant to the Plan will continue to be validly authorized on
the dates that any restrictions on the Common Stock lapse; (ii) the shares of
Common Stock issuable pursuant to the exercise of Options or Rights will
continue to be validly authorized on the dates the Common Stock is issued
pursuant to the exercise of such Options or Rights, (iii) on the dates the
Options or Rights are exercised, such Options or Rights will constitute valid,
legal and binding obligations of the Corporation and will be enforceable as to
the Corporation in accordance with their terms (subject to applicable
bankruptcy, moratorium, insolvency, reorganization and other laws and legal
principles affecting the enforceability of creditors= rights
generally), (iv) no change occurs in applicable law or the pertinent facts, (v)
the Options or Rights are exercised in accordance with the terms of the Plan and
any separate agreement evidencing the grant of such Options or Rights pursuant
to the Plan and the exercise price due therefor, if any, is paid in accordance
with the terms thereof and (vi) the provisions of Ablue
sky@
and other securities laws as may be applicable have been complied with to the
extent required.
Based on
the foregoing, and subject to the assumptions set forth herein, we are of the
opinion as of the date hereof that the shares of Common Stock to be issued
pursuant to the Plan, upon receipt by the Corporation of any consideration
required thereby, as applicable, will be legally issued, fully paid and
non-assessable shares of Common Stock.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-8.
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Sincerely, |
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/s/Breyer &
Associates PC |
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BREYER &
ASSOCIATES PC |
Exhibit
23.1
Consent
of KPMG, LLP
Consent of Independent Registered
Public Accounting Firm
The Board
of Directors
First
Financial Northwest, Inc.:
We
consent to the incorporation by reference in the registration statement on Form
S-8 of First Financial Northwest, Inc. of our report dated March 27, 2008, with
respect to the consolidated balance sheets of First Financial Northwest, Inc. as
of December 31, 2007 and 2006, and the related consolidated statements of
operations, stockholders= equity and
comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 2007, which report appears in the December 31, 2007
annual report on Form 10-K of the Company.
/s/ KPMG LLP
Seattle,
Washington
August 6,
2008