As filed with the Securities and Exchange
Commission on October 31, 2002 Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
_______________
Falmouth Bancorp, Inc.
(Exact name of registrant as specified in its charter)
Delaware 04-3337685
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 Davis Straits
Falmouth MA 02540
(508) 548-3500
(Address, including Zip Code, of principal executive offices)
_______________
Stock Option Plan for Santo P. Pasqualucci
(Full title of the Plans)
_______________
Mr. Santo P. Pasqualucci
President and Chief Executive Officer
Falmouth Co-operative Bank
20 Davis Straits
Falmouth, MA 02540
(508) 548-3500
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W. Suite 800
Washington, D.C. 20006
(202) 347-8400
(Name and address, including Zip Code, telephone number
and area code, of agent for service)
_______________
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Offering Price Aggregate Amount of
to be Registered Amount to be Registered(1) Per Share (2) Offering Price (2) Registration Fee
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Common Stock, $0.01 23,778 shares (2) $383,116.00 $35.25
par value
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Based on 23,778 shares of common stock of Falmouth Bancorp, Inc. (the
"Company") reserved for issuance upon exercise of options granted
pursuant to the Stock Option Plan for Santo P. Pasqualucci ("Plan").
In addition to such shares, this registration statement also covers an
undetermined number of shares of common stock of the Company that, by
reason of certain events specified in the Plan, may become issuable
upon exercise of options through the use of certain anti-dilution
provisions.
Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which at total of 20,000 subject to outstanding options are deemed to
be offered at an exercise price of $15.00 per share and a total of
3,778 shares subject to outstanding options are deemed to be offered
at an exercise price of $22.00 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant
to Rule 424. These documents and the documents incorporated by reference in
this registration statement pursuant to Item 3 of Part II of this form,
taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933, as amended ("Securities Act").
PART II
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 01-13465) are incorporated by
reference in this registration statement:
(1) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement on
Form S-4, dated November 27, 1996 which was filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended ("Exchange Act");
(2) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended September 30, 2001, which was filed with the
Commission pursuant to the Exchange Act; and
(3) the Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended December 31, 2001, March 31, 2002 and June 30,
2002, which were filed with the Commission pursuant to the
Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to
the date of the termination of the offering of the Common Stock offered
hereby shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained herein 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 document which is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
Falmouth Bancorp, Inc. will provide without charge to each person to
whom this Registration Statement is delivered, upon request of any such
person, a copy of any or all of the foregoing documents incorporated herein
by reference (other than exhibits to such documents). Written requests
should be directed to Mr. Geroge E. Young, III, Falmouth Co-operative Bank,
20 Davis Straits, Falmouth, Massachusetts 02540. Telephone requests may be
directed to (508) 548-3500.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") inter
alia, 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 (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 another corporation 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 such person 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) such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the shareholders or disinterested
directors or by
independent legal counsel in a written opinion that indemnification is
proper because the indemnitee has met the applicable standard of conduct.
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, an
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 under Section 145.
Article X of the Company's Certificate of Incorporation provides that
a director shall not be personally liable to the Company or its stockholders
for damages for breach of his fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is expressly
prohibited by the DGCL.
Article XI of the Company's Certificate of Incorporation requires the
Company, among other things, to indemnify to the fullest extent permitted by
the DGCL, any person who is or was or has agreed to become a director or
officer of the Company, who was or is made a party to, or is threatened to
be made a party to, or has become a witness in, any threatened, pending or
completed action, suit or proceeding, including actions or suits by or in
the right of the Company, by reason of such agreement or service or the fact
that such person is, was or has agreed to serve as a director, officer,
employee or agent of another corporation or organization at the written
request of the Company.
Article XI, Section 11 also empowers the Company to purchase and
maintain insurance to protect itself and its directors and officers, and
those who were or have agreed to become directors or officers, against any
liability, regardless of whether or not the Company would have the power to
indemnify those persons against such liability under the law or the
provisions set forth in the Certificate of Incorporation. The Company is
also authorized by its Certificate of Incorporation to enter into individual
indemnification contracts with directors and officers. The Company currently
maintains directors' and officers' liability insurance consistent with the
provisions of the Certificate of Incorporation.
The Company has entered into Employment Agreements with each of Santo
P. Pasqualucci and George E. Young III pursuant to which it has undertaken
contractually to provide indemnification and insurance coverage in the
manner described above.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Certificate of Incorporation of Falmouth Bancorp, Inc.*
3.2 By-Laws of Falmouth Bancorp, Inc.*
4.1 Stock Option Plan for Santo P. Pasqualucci
23.1 Consent of Shatswell MacLeod & Co., P.C.
* Incorporated by reference to the Registrant's Registration Statement on
Form S-4, as amended (Registration No. 333-1693).
Item 9. Undertakings.
A. Rule 415 offering. 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;
(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.
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 end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b))
if, in the aggregate, the changes in volume and price represent
no more than 20% 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 plan of distribution 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) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a post-
effective amendment by those paragraphs 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 in the
registration statement.
(2) That, for the purpose of determining 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.
B. Filings incorporating subsequent Exchange Act documents by
reference. 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. Incorporated annual and quarterly reports. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
D. Filing of registration on Form S-8. 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 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 for 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.
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 Falmouth, Commonwealth of
Massachusetts, on this 25th day of October, 2002.
Falmouth Bancorp, Inc.
(Registrant)
By: /s/ Santo P. Pasqualucci
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Santo P. Pasqualucci
President and Chief Executive Officer
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.
Signature Title Date
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/s/ Santo P. Pasqualucci President and Chief Executive Officer October 25, 2002
------------------------ (Principal Executive Officer) and
Santo P. Pasqualucci Director
/s/ George E. Young, III Vice President and Chief Financial October 25, 2002
------------------------ Officer (Chief Financial and
George E. Young, III Accounting Officer)
/s/ Wayne C. Lamson Director October 25, 2002
------------------------
Wayne C. Lamson
/s/ Gardner L. Lewis Director October 25, 2002
------------------------
Gardner L. Lewis
/s/ John J. Lynch, Jr. Chairman of the Board of Directors October 25, 2002
------------------------
John J. Lynch, Jr.
/s/ Eileen C. Miskell Director October 25, 2002
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Eileen C. Miskell
/s/ William E. Newton Director October 25, 2002
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William E. Newton
/s/ Robert H. Moore Director October 25, 2002
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Robert H. Moore
/s/ James A. Keefe Director October 25, 2002
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James A. Keefe