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As filed with the Securities and Exchange Commission on March 7, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FIRSTFED AMERICA BANCORP, INC.
(exact name of registrant as specified in its certificate of incorporation)
DELAWARE 04-3331237
(state or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
ONE FIRSTFED PARK
SWANSEA, MASSACHUSETTS 02777
(508) 679-8181
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
PEOPLE'S BANCSHARES, INC. AMENDED AND RESTATED DIRECTORS'
STOCK OPTION PLAN
PEOPLE'S BANCSHARES, INC. 1996 STOCK OPTION AND INCENTIVE PLAN (1)
(Full Title of the Plan)
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COPIES TO:
ROBERT F. STOICO LAWRENCE M.F. SPACCASI, ESQUIRE
CHAIRMAN OF THE BOARD, THOMAS P. HUTTON, ESQUIRE
PRESIDENT AND CHIEF EXECUTIVE OFFICER MULDOON MURPHY & FAUCETTE LLP
FIRSTFED AMERICA BANCORP, INC. 5101 WISCONSIN AVENUE, N.W.
ONE FIRSTFED PARK WASHINGTON, DC 20016
SWANSEA, MASSACHUSETTS 02777 (202) 362-0840
(508) 679-8181
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. / X /
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Title of each Class of Amount to be Proposed Estimated Aggregate Registration
Securities to be Registered Registered(2) Purchase Price Offering Price Fee
Per Share
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Common Stock 8,344 $ 3.90(4) $32,542 $5
$.01 par Value Shares (3)
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Common Stock 199,417 $12.12(6) $2,416,934 $223
$.01 par Value Shares (5)
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(1) FIRSTFED AMERICA BANCORP, INC. (the "Company" or "FAB"), is offering shares of its common stock pursuant to these
plans in connection with the merger of People's Bancshares, Inc. ("People's") into FAB. Pursuant to the terms of the merger
agreement, FAB has assumed People's obligations under these plans.
(2) Together with an indeterminate number of additional shares which may be necessary to adjust the number of shares reserved for
issuance pursuant to the People's Bancshares, Inc. Amended and Restated Directors' Stock Option Plan and the People's
Bancshares, Inc. 1996 Stock Option and Incentive Plan.
(3) Represents the total number of shares of FAB common stock currently available for issuance upon the exercise of stock
options granted under the People's Bancshares, Inc. Amended and Restated Directors' Stock Option Plan,
adjusted to reflect the exchange ratio of 1.2644 shares of FAB common stock for each share of People's common stock.
(4) Represents the adjusted average exercise price of $3.90 per share for the outstanding stock options granted under the
People's Bancshares, Inc. Amended and Restated Directors' Stock Option Plan, as assumed by FAB.
(5) Represents the total number of shares currently available for issuance upon the exercise of stock options granted
under the People's Bancshares Inc. 1996 Stock Option and Incentive Plan, as adjusted to reflect the exchange
ratio of 1.2644 shares of FAB common stock for each share of People's common stock.
(6) Represents the adjusted average exercise price of $12.12 per share for the outstanding options granted under the
People's Bancshares Inc. 1996 Stock Option and Incentive Plan, as assumed by FAB.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SS.230.462.
Number of Pages: 49
Exhibit Index begins on Page 11
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FIRSTFED AMERICA BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. In connection with the merger of People's Bancshares, Inc.
("People's") into FIRSTFED AMERICA BANCORP, INC. (the "Company" or "FAB")
effective February 28, 2002, FAB assumed People's obligations under the People's
Bancshares, Inc. Amended and Restated Directors' Stock Option Plan and the
People's Bancshares, Inc. 1996 Stock Option and Incentive Plan (collectively,
the "Plans"). In connection with its assumption of the Plans, FAB is offering
shares of its common stock pursuant to the Plans. The documents containing the
information for the Plans required by Part I of the Registration Statement will
be sent or given to the participants in the Plans as specified by Rule
428(b)(1). Such documents are not filed with the Securities and Exchange
Commission (the "SEC") either as a part of this Registration Statement or as a
prospectus or prospectus supplement pursuant to Rule 424, in reliance on Rule
428.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are
incorporated by reference in this Registration Statement:
(a) The Form 10-K Annual Report filed by the Company for the fiscal year
ended March 31, 2001 (File No. 001-12305), which includes the consolidated
balance sheets of FIRSTFED AMERICA BANCORP, INC. and Subsidiaries as of March
31, 2001 and 2000, and the related consolidated statements of income,
stockholders' equity and cash flows for each of the years in the three-year
period ended March 31, 2001, filed with the SEC on June 22, 2001.
(b) The Form 10-Q reports filed by the Company for the fiscal quarters
ended June 30, 2001 (File No. 001-12305), September 30, 2001 (File No.
001-12305) and December 31, 2001 (File No. 001-12305), filed with the SEC on
August 13, 2001, November 14, 2001 and February 14, 2002, respectively.
(c) The description of the Company's Common Stock contained in the
Company's Form 8-A (File No. 001-12305), as filed with the SEC pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act"), and
rule 12b-15 promulgated thereunder, on October 10, 1996, as incorporated by
reference from the Company's Form S-1 (File No. 333-12855), as amended,
initially filed on September 27, 1996 and declared effective November 12, 1996.
(d) All documents filed by the Company pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
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 INCORPORATED OR DEEMED TO BE INCORPORATED BY
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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.
ITEM 4. DESCRIPTION OF SECURITIES
The common stock to be offered pursuant to the Plans has been registered
pursuant to Section 12 of the Exchange Act. Accordingly, a description of the
common stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the common stock offered hereby has been passed upon for
the Registrant by the firm of Muldoon Murphy & Faucette LLP, Washington, D.C.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Directors and officers of the Registrant are indemnified and held
harmless against liability to the fullest extent permissible under the general
corporation law of Delaware as it currently exists or as it may be amended,
provided any such amendment provides broader indemnification provisions than
currently exist. This indemnification applies to the Board of Directors with
respect to its administration of the Plans.
TENTH:
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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.
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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,
services 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 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 expenses 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
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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 subsidiary or Affiliate 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
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. LIST OF EXHIBITS
The following exhibits are filed herewith (numbering corresponds
generally to Exhibit Table in Item 601 of Regulation S-K):
5 Opinion of Muldoon Murphy & Faucette LLP as to the legality of
the Common Stock to be issued.
10.1 People's Bancshares, Inc. Amended and Restated Directors'
Stock Option Plan (as assumed by FIRSTFED AMERICA BANCORP,
INC., effective February 28, 2002).
10.2 People's Bancshares, Inc. 1996 Stock Option and Incentive Plan
(as assumed by FIRSTFED AMERICA BANCORP, INC., effective
February 28, 2002).
10.3 Form of FIRSTFED AMERICA BANCORP, INC. Assumption Agreement
for People's Bancshares, Inc. Amended and Restated Directors'
Stock Option Plan.
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10.4 Form of FIRSTFED AMERICA BANCORP, INC. Assumption Agreement
for People's Bancshares, Inc. 1996 Stock Option and Incentive
Plan.
23.1 Consent of Muldoon Murphy & Faucette LLP (contained in the
opinion included in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney is located on the signature page.
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:
(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
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
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 to such
information in the Registration Statement unless the
information required by (i) and (ii) is contained in
periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into 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 offering.
The undersigned Registrant hereby undertakes 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 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.
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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 directors, 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
Pursuant to the requirements of the Securities Act of 1933, FIRSTFED
AMERICA BANCORP, INC. 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 Swansea, Massachusetts on March 7, 2002.
FIRSTFED AMERICA BANCORP, INC.
By: /s/ Robert F. Stoico
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Robert F. Stoico
Chairman, President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Robert F. Stoico and Edward A. Hjerpe, III, as
his true and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments to this Form S-8
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the U.S. Securities and Exchange
Commission, respectively, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and things requisite
and necessary to be done as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
Name Title Date
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/s/ Robert F. Stoico Chairman of the Board, March 7, 2002
---------------------------- President and Chief
Robert F. Stoico Executive Officer
/s/ Edward A. Hjerpe, III Executive Vice President, March 7, 2002
---------------------------- Chief Operating Officer and
Edward A. Hjerpe, III Chief Financial Officer
(principal accounting and
financial officer)
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/s/ Richard W. Cederberg Director March 7, 2002
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Richard W. Cederberg
/s/ John S. Holden, Jr. Director March 7, 2002
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John S. Holden, Jr.
/s/ Gilbert C. Oliveira Director March 7, 2002
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Gilbert C. Oliveira
/s/ Paul A. Raymond, DDS Director March 7, 2002
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Paul A. Raymond, DDS
/s/ Thomas A. Rodgers, Jr. Director March 7, 2002
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Thomas A. Rodgers, Jr.
/s/ Anthony L. Sylvia Director March 7, 2002
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Anthony L. Sylvia
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EXHIBIT INDEX
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Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
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5 Opinion of Muldoon Murphy & Filed herewith. 13
Faucette LLP as to the legality of
the Common Stock to be issued
10.1 People's Bancshares, Inc. Filed herewith. 16
Amended and Restated Directors'
Stock Option Plan (as assumed by
FIRSTFED AMERICA
BANCORP, Inc., effective
February 28, 2002)
10.2 People's Bancshares, Inc. 1996 Filed herewith. 24
Stock Option and Incentive Plan
(as assumed by FIRSTFED
AMERICA BANCORP, INC.
effective February 28, 2002)
10.3 Form of FIRSTFED AMERICA Filed herewith. 39
BANCORP, INC. Assumption
Agreement for People's
Bancshares, Inc. Amended and
Restated Directors' Stock Option
Plan
10.4 Form of FIRSTFED AMERICA Filed herewith. 44
BANCORP, INC. Assumption
Agreement for People's
Bancshares, Inc. 1996 Stock
Option and Incentive Plan
23.1 Consent of Muldoon Murphy & Contained in Exhibit 5. --
Faucette LLP
23.2 Consent of KPMG LLP Filed herewith. 49
24 Power of Attorney Located on the signature page. --
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