As filed with the Securities and Exchange Commission on May 6, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENTERPRISE BANCORP, INC.
(Exact name of Registrant as Specified in Its Charter)
Massachusetts 04-3308902
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
222 Merrimack Street
Lowell, Massachusetts 01852
(Address of Principal Executive Offices)
Enterprise Bancorp, Inc. 1988 Stock Option Plan
Enterprise Bancorp, Inc. 1998 Stock Incentive Plan
(Full Title of the Plans)
JOHN P. CLANCY, JR.
Treasurer
Enterprise Bancorp, Inc.
222 Merrimack Street
Lowell, Massachusetts 01852
(Name and Address of Agent For Service)
(978) 459-9000
(Telephone number, including area code, of agent for service)
Copy to:
STEPHEN J. COUKOS, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 227,287 (1) $11.00 to $18.00 (2) $3,180,263.50 (2) $938.18
<FN>
(1) Consists of 148,477 shares that remain authorized for issuance under the 1988 Stock Option Plan and 78,810 shares authorized for
issuance under the 1998 Stock Incentive Plan. Also includes an indeterminate number of securities which may be issuable by reason of
a reorganization, recapitalization, exchange of shares, stock split, combination of shares or dividend payable in shares of Common
Stock or other securities, as provided under the plans.
(2) Pursuant to Rule 457(h) the offering price is calculated based upon the exercise price with respect to 148,375 shares subject
to options currently outstanding and, for the remainder of the shares, the book value of the Common Stock as of March 31, 1998.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two parts: the first part contains a
Prospectus prepared in accordance with the requirements of Part I of Form S-3
(in accordance with Section C of the General Instructions to Form S-8) which
covers re-offers and re-sales by the Selling Shareholders listed in the
Prospectus of shares of the Company's Common Stock that may be issued upon
exercise of options granted to certain executive officers under the Company's
1988 Stock Option Plan as well as shares of the Company's Common Stock that may
be issued either directly or upon exercise of options granted to certain
executive officers and directors under the Company's 1998 Stock Incentive Plan.
The second part contains information required in the Registration Statement
pursuant to Form S-8.
<PAGE>
Prospectus
83,850 Shares
-------------------------
ENTERPRISE BANCORP, INC.
-------------------------
COMMON STOCK
(Par Value $.01 Per Share)
-------------------------
This Prospectus is being used in connection with the offering, from time to
time, by certain shareholders (the "Selling Shareholders") of Enterprise
Bancorp, Inc. (the "Company"), of up to 83,850 shares (the "Shares") of common
stock, par value $.01 per share (the "Common Stock"), of the Company, which may
be acquired by certain executive officers pursuant to their exercise of options
granted by the Company under the Enterprise Bancorp, Inc. 1988 Stock Option Plan
(the "Plan"). The Company will not receive any of the proceeds from the sale of
the Shares by the Selling Shareholders.
The Shares may be sold from time to time by the Selling Shareholders or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made on the Nasdaq Stock Market, a stock exchange or other market system, if and
to the extent that the Common Stock is then listed or otherwise qualified for
trading thereon, at prices and on terms then prevailing or at prices related to
the then current market price, or in negotiated transactions. All discounts,
commissions or fees incurred in connection with the sale of the Shares offered
hereby will be paid by the Selling Shareholders or by the purchasers of the
Shares, except that the expenses of preparing and filing this Prospectus and the
related Registration Statement with the Securities and Exchange Commission (the
"Commission"), and of registering or qualifying the Shares will be paid by the
Company.
The Selling Shareholders and any broker executing selling orders on behalf
of the Selling Shareholders may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), in
which event any discounts, concessions, or commissions received by such broker
may be deemed to be underwriting commissions under the Securities Act.
The Common Stock is not presently listed or otherwise qualified for trading
on the Nasdaq Stock Market, any stock exchange or any other market system.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY STATE
SECURITIES COMMISSION, NOR HAS THE COMMISSION, CORPORATION, OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SHARES OF COMMON STOCK OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS ACCOUNTS
OR DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION,
THE BANK INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND OR
ANY OTHER GOVERNMENTAL AGENCY, AND INVOLVE INVESTMENT
RISK, INCLUDING THE POSSIBLE LOSS OF PRINCIPAL.
The date of this Prospectus is May 6, 1998.
<PAGE>
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than the Common Stock
offered by this Prospectus or an offer to sell or a solicitation of an offer to
buy such Common Stock in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company or that the information herein is correct as of any time subsequent to
the date hereof.
TABLE OF CONTENTS
Section Page
Available Information ............................................ 3
Incorporation of Certain Documents by Reference .................. 3
The Company ...................................................... 4
Risk Factors ..................................................... 4
Selling Shareholders ............................................. 5
Plan of Distribution ............................................. 6
Indemnification .................................................. 6
Experts .......................................................... 7
Legal Matters .................................................... 7
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Commission. Such reports, proxy statements, and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices: the Northeast Regional Office, Seven World Trade
Center, Suite 1300, New York, New York 10048, and the Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained by written request from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Company files electronically with the Commission.
The Commisssion maintains a World Wide Web site (located at http://www.sec.gov)
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission.
A registration statement on Form S-8, together with all amendments,
exhibits and documents incorporated therein by reference (the "Registration
Statement"), has been filed with the Commission, Washington, D.C., under the
Securities Act, with respect to the Shares offered by this Prospectus. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Statements in this Prospectus as to the contents
of exhibits are not necessarily complete, and each statement is qualified in all
respects by reference to the copies of documents filed or incorporated by
reference as exhibits to the Registration Statement or otherwise filed with the
Commission. See also "Incorporation of Certain Documents by Reference."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents (or parts thereof) filed with the Commission by the
Company are incorporated by reference in this Prospectus:
(a) The Company's Registration Statement on Form 8-A, dated July 16, 1996,
relating to the Common Stock.
(b) The Company's Annual Report on Form 10-KSB, for the year ended December
31, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
filing of a post-effective amendment indicating that all of the Shares offered
hereby have been sold, or deregistering all of the Shares that, at the time of
such post-effective amendment, remain unsold, shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in any document
incorporated by reference herein which is deemed to be modified or superseded,
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company shall furnish without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, copies of any or all of the documents
which are incorporated by reference herein (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
such documents). Written or telephone requests for such documents should be
directed to John P. Clancy, Jr., Treasurer, Enterprise Bancorp, Inc., 222
Merrimack Street, Lowell, Massachusetts 01852, telephone (978) 459-9000.
3
<PAGE>
THE COMPANY
General
The Company is a business corporation organized under the laws of the
Commonwealth of Massachusetts on February 29, 1996. The only office of the
Company, and its principal place of business, is located at the main office of
Enterprise Bank and Trust Company (the "Bank") at 222 Merrimack Street, Lowell,
Massachusetts 01852 and its telephone number is (978) 459-9000.
The Company was organized for the sole purpose of becoming the holding
company of the Bank. Upon completion of the holding company formation on July
26, 1996, the Bank became a wholly-owned subsidiary of the Company, which
thereby became a bank holding company under federal law.
The Bank is a Massachusetts-chartered trust company, which commenced
business on January 3, 1989, and is headquartered in Lowell, Massachusetts. The
Bank offers a range of commercial, consumer and trust services with a goal of
satisfying the needs of consumers, small and medium-sized businesses and
professionals. The Bank conducts its business from its main office in Lowell and
from a network of 5 additional branches in the Massachusetts communities of
Chelmsford, Billerica, Leominster, Tewksbury and Dracut.
Prior to completion of the bank holding company formation, the Company had
no business activities and there are no operating business activities currently
proposed for the Company. In the future, the Company may become an operating
company or acquire commercial banks or thrift institutions or companies engaged
in bank-related or otherwise permissible nonbanking activities. There are no
current agreements or understandings with respect to any such acquisition and no
assurance can be given that any such future acquisitions will occur.
Property
The Company neither owns nor leases any real or personal property. The
Company utilizes the premises, equipment and furniture of the Bank on a de
minimis basis without the direct payment of any rental fees to the Bank.
Competition
It is expected that for the near future the primary business of the Company
will be the ongoing business of the Bank. Therefore, the competitive conditions
to be faced by the Company will be the same as those faced by the Bank. The Bank
faces strong competition to attract deposits and to generate loans. Several
major commercial banks are headquartered in neighboring Boston, and numerous
other commercial banks, savings banks, cooperative banks, credit unions and
savings and loan associations have one or more offices in Greater Lowell and in
the Leominster/Fitchburg, Massachusetts area. The major commercial banks have
several competitive advantages over the Bank, including the ability to make
larger loans to a single borrower than is possible for the Bank. The greater
financial resources of these banks also allows them to offer a broad range of
automated banking services, to maintain numerous branch offices and to mount
extensive advertising and promotional campaigns. Competition for loans and
deposits also comes from other businesses which provide financial services,
including consumer finance companies, factors, mortgage brokers, insurance
companies, securities brokerage firms, money market mutual funds and private
lenders. Notwithstanding the substantial competition facing the Bank, however,
management believes that the Bank has established a market niche in Greater
Lowell and the Leominster/Fitchburg area which has been enhanced in recent years
by the acquisition of other independent banks by major bank holding companies,
and the resultant consolidation of competitors' banking operations and services
within the Bank's market area.
Employees
At the present time, the Company does not employ any persons other than
through the Bank. The Company utilizes the support staff of the Bank from time
to time without the payment of any fees, except as may be otherwise required by
law. If the Company acquires other financial institutions or pursues other lines
of business, it may at such time hire additional employees.
RISK FACTORS
No Assurance of Public Trading Market. The Common Stock is not listed or
otherwise qualified for trading on the Nasdaq Stock Market, any stock exchange
or any other market system. No assurance can be given that a public trading
market for the
4
<PAGE>
Common Stock will develop in the future. Consequently, any purchase of the
Shares may constitute a long-term, illiquid investment.
SELLING SHAREHOLDERS
The following table sets forth: (i) the name of each Selling Shareholder,
(ii) his or her position(s) with the Company and its predecessors or affiliates
over the last three years, (iii) the number of shares of Common Stock owned (or
subject to option) by each Selling Shareholder as of the date of this
Prospectus, (iv) the number of shares of Common Stock which, as of the date of
this Prospectus, may be offered for the account of each Selling Shareholder by
this Prospectus and (v) the amount of the class to be owned by each Selling
Shareholder if such Selling Shareholder were to sell all of the shares of Common
Stock covered by this Prospectus. There can be no assurance that any of the
Selling Shareholders will offer for sale or sell any or all of the Shares
offered by them pursuant to this Prospectus.
<TABLE>
<CAPTION>
Number Shares Owned
of Shares Following
Shares Owned Prior to be Completion of
Name Position with Company to This Offering* Offered Offering *
- ------------------------ --------------------------------------------- ------------------------- ------------- -------------------
<S> <C> <C> <C> <C>
Walter L. Armstrong Executive Vice President, Business 17,000** / *** 13,900 3,100** / ***
Development, of the Bank; Director of the
Company and of the Bank
John P. Clancy, Jr. Treasurer of the Company; Senior Vice 8,700** 7,500 1,200**
President, Chief Financial Officer, Treasurer
and Chief Investment Officer of the Bank
since December 1996, and prior thereto,
Senior Vice President, Chief Financial
Officer and Treasurer of the Bank
George L. Duncan Chairman of the Board of Directors and 149,379(9.45%) 36,300 113,079(7.16%)
Chief Executive Officer of the Company and
of the Bank
Robert R. Gilman Executive Vice President, Administration, 9,500** 8,000 1,500**
and Commercial Lender of the Bank since
December 1996, and prior thereto, Senior
Vice President, Administration, and
Commercial Lender of the Bank
Richard W. Main President of the Company and President, 31,450(1.99)*** 18,150 13,300** / ***
Chief Operating Officer and Chief Lending
Officer of the Bank; Director of the
Company and the Bank
- ---------
<FN>
* = For purposes of this table, the number of shares owned prior to this registration includes all
shares which would be owned if all options granted under the Plan were exercised.
** = Less than one percent.
*** = These figures do not include shares subject to options granted to each of Mr. Armstrong and Mr. Main
by Mr. Duncan. Each of Mr. Armstrong and Mr. Main has an option to purchase up to 25,000 shares of
Common Stock presently held by Mr. Duncan. For purposes of this table, these 50,000 shares are
included in the shares owned by Mr. Duncan prior to and following completion of this Offering.
</FN>
</TABLE>
5
<PAGE>
PLAN OF DISTRIBUTION
The sales of the Shares by the Selling Shareholders may be effected, from
time to time, on the Nasdaq Stock Market or on a stock exchange or other market
system if and to the extent that the Shares are listed or otherwise qualified
for trading thereon at the time of sale, in negotiated transactions, or through
a combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. The Common Stock is not
presently listed or otherwise qualified for trading on the Nasdaq Stock Market
or on any stock exchange or other market system. The Selling Shareholders may
effect such transactions by selling Shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions, or commissions from the Selling Shareholders and/or the purchasers
of Shares for whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer might be
in excess of customary commissions).
The Selling Shareholders and any broker-dealers that act in connection with
the sale of the Shares hereunder might be deemed to be "Underwriters" within the
meaning of Section 2(11) of the Securities Act; any commissions received by them
and any profit realized on the resale of Shares as principals might be deemed to
be underwriting compensation under the Securities Act.
Any broker-dealer acquiring Shares from a Selling Shareholder may sell the
Shares either directly, in its normal market-making activities, through or to
other brokers on a principal or agency basis, or to its customers. Any such
sales may be at then prevailing market prices, at prices related to such
prevailing market prices, at negotiated prices, or at prices reflecting the
application of a combination of such methods.
The Company has advised the Selling Shareholders that anti-manipulative
Rules 10b-5, 10b-6 and 10b-7 promulgated under the Exchange Act may apply to
their sales in the market. The Company has furnished the Selling Shareholders
with copies of these rules, and has informed the Selling Shareholders of the
possible need for them to deliver copies of this Prospectus in connection with
their resales of the Shares. The Selling Shareholders may indemnify any
broker-dealer that participates in transactions involving sale of the Shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealers, and, if any such broker-dealer purchases shares as a principal,
any profits received on the resale of such Shares may be deemed to be
underwriting discounts and commissions under the Securities Act.
Upon the Company's being notified by any Selling Shareholders that any
material arrangement has been entered into with a broker-dealer for the sale of
Shares through a cross or block trade, a supplemental prospectus will be filed
under Rule 424(c) under the Securities Act, setting forth the name of the
participating broker-dealer(s), the number of shares involved, the price at
which such Shares were sold by the Selling Shareholder, the commissions paid or
discounts or concessions allowed by the Selling Shareholder to such
broker-dealer(s), and where applicable, that such broker-dealer(s), did not
conduct any investigation to verify the information set out in this Prospectus.
Any Shares which qualify for resale pursuant to Rule 144 promulgated under
the Securities Act may be sold under the Rule rather than pursuant to this
Prospectus.
There can be no assurance that the Selling Shareholders will sell all or
even any of the Shares which may be offered by them or any of them hereunder.
INDEMNIFICATION
The By-laws of the Company provide for the indemnification of each
director, officer and employee against all expenses and liabilities reasonably
incurred by or imposed on him in connection with any proceeding or threatened
proceeding in which he may become involved by reason of his being or having been
a director, officer or employee of the Company or any affiliate of the Company
or any other entity at the request or direction of the Company's Board of
Directors, so long as 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
Company. The By-laws of the Company further provide that (a) if the Company is
merged into or consolidated with another corporation and the Company is not the
surviving corporation, the surviving corporation shall assume the
indemnification obligations of the Company under the By-laws with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring at or prior to the date of such merger
or consolidation; (b) if the By-laws are invalidated on any ground by any court
6
<PAGE>
of competent jurisdiction, the Company shall nevertheless indemnify and advance
expenses to each indemnitee as to any expenses (including reasonable attorneys'
fees), judgments, fines, liabilities, losses, and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Company, to the fullest extent permitted by any applicable portion of the
By-laws that has not been invalidated and to the fullest extent permitted by
applicable law; and (c) if the Massachusetts General Laws are amended after
adoption of the Company's Bylaws to expand further the indemnification permitted
to an indemnitee, the Company shall indemnify all such persons to the fullest
extent permitted by the Massachusetts General Laws, as so amended.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to Directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification, in the event of any such actual
liability under the Securities Act, is against public policy as expressed in the
Securities Act and is therefore unenforceable.
The Articles of Organization of the Company provide that its directors
shall not be personally liable to the Company 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 Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for any unlawful distributions
to stockholders or loans to officers or directors, or (iv) for any transaction
from which the director derived an improper personal benefit.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1997 and
1996 and the related consolidated statements of income, changes in stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1997 included in the Company's Annual Report on Form 10-KSB for the
year ended December 31, 1997 have been audited by KPMG Peat Marwick LLP,
independent accountants, as set forth in their report contained therein. Such
financial statements are incorporated by reference in this Prospectus upon the
authority of such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Sullivan & Worcester LLP, Boston, Massachusetts.
7
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
*Documents containing the information required by Part I of this
Registration Statement will be sent or given to each Plan participant in
accordance with Rule 428(b)(1) of the Securities and Exchange Commission (the
"Commission"). In accordance with the Note to Part I of Form S-8, such documents
are not filed with the Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents (or parts thereof) filed with the Commission by the
Company are incorporated by reference in the Prospectus which forms a part of
this Registration Statement:
(a) The Company's Registration Statement on Form 8-A, dated July 16, 1996,
relating to the Common Stock.
(b) The Company's Annual Report on Form 10-KSB, for the year ended December
31, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), or
15(d) of the Exchange Act after the date of the Prospectus which forms a part of
this Registration Statement and prior to the filing of a post-effective
amendment indicating that all of the Shares offered hereby have been sold, or
deregistering all of the Shares that, at the time of such post-effective
amendment, remain unsold, shall be deemed to be incorporated by reference in
such Prospectus and to be a part thereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated by
reference herein which is deemed to be modified or superseded, shall not be
deemed, except as so modified or superseded, to constitute a part of such
Prospectus.
Item 4. Description of Securities
Not applicable, as the Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The By-laws of the Company provide for the indemnification of each
director, officer and employee against all expenses and liabilities reasonably
incurred by or imposed on him in connection with any proceeding or threatened
proceeding in which he may become involved by reason of his being or having been
a director, officer or employee of the Company or any affiliate of the Company
or any other entity at the request or direction of the Company's Board of
Directors, so long as 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
Company. The By-laws of the Company further provide that (a) if the Company is
merged into or consolidated with another corporation and the Company is not the
surviving corporation, the surviving corporation shall assume the
indemnification obligations of the Company under the By-laws with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring at or prior to the date of such merger
or consolidation; (b) if the By-laws are invalidated on any ground by any court
of competent jurisdiction, the Company shall nevertheless indemnify and advance
expenses to each indemnitee as to any expenses (including reasonable attorneys'
fees), judgments, fines, liabilities, losses, and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
II-1
<PAGE>
Company, to the fullest extent permitted by any applicable portion of the
By-laws that has not been invalidated and to the fullest extent permitted by
applicable law; and (c) if the Massachusetts General Laws are amended after
adoption of the Company's Bylaws to expand further the indemnification permitted
to an indemnitee, the Company shall indemnify all such persons to the fullest
extent permitted by the Massachusetts General Laws, as so amended.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to Directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification, in the event of any such actual
liability under the Securities Act, is against public policy as expressed in the
Securities Act and is therefore unenforceable.
The Articles of Organization of the Company provide that its directors
shall not be personally liable to the Company 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 Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for any unlawful distributions
to stockholders or loans to officers or directors, or (iv) for any transaction
from which the director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are furnished in connection with this Registration
Statement:
5 Opinion of Sullivan & Worcester LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Sullivan & Worcester LLP (contained in Exhibit 5)
24 Power of Attorney (included on signature pages)
Item 9. Undertakings
(1) The undersigned registrant hereby undertakes:
(a) 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;
(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)(i) and (a)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(b) 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; and
II-2
<PAGE>
(c) 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.
(2) The undersigned registrant hereby undertakes, that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 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) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in that Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
II-3
<PAGE>
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 Lowell, Commonwealth of Massachusetts, on the 6th day
of May, 1998.
ENTERPRISE BANCORP, INC.
By: /s/ George L. Duncan
George L. Duncan
Chairman and Chief Executive Officer
The undersigned Officers and Directors of Enterprise Bancorp, Inc. hereby
severally constitute George L. Duncan, Richard W. Main, Arnold S. Lerner and
John P. Clancy, Jr., and each of them, acting singly, our true and lawful
attorneys to sign for us and in our names in the capacities indicated below the
Company's Registration Statement on Form S-8 and any and all amendments and
supplements thereto, filed with the Securities and Exchange Commission, granting
unto each of said attorneys, acting singly, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming our signatures to said registration
statement signed by our said attorneys and all else that said attorneys may
lawfully do and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Company and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Capacity Date
<S> <C> <C>
/s/ George L. Duncan Chairman of the Board of Directors and Chief
George L. Duncan Executive Officer May 6, 1998
/s/ John P. Clancy, Jr.
John P. Clancy, Jr. Treasurer (principal financial officer) May 6, 1998
/s/ Kenneth S. Ansin
Kenneth S. Ansin Director May 6, 1998
/s/ Walter L. Armstrong
Walter L. Armstrong Director May 6, 1998
/s/ Gerald G. Bousquet, M.D.
Gerald G. Bousquet, M.D. Director May 6, 1998
/s/ Kathleen M. Bradley
Kathleen M. Bradley Director May 6, 1998
II-4
<PAGE>
/s/ James F. Conway III
James F. Conway III Director May 6, 1998
/s/ Nancy L. Donahue
Nancy L. Donahue Director May 6, 1998
/s/ Lucy A. Flynn
Lucy A. Flynn Director May 6, 1998
/s/ Eric W. Hanson
Eric W. Hanson Director May 6, 1998
/s/ John P. Harrington
John P. Harrington Director May 6, 1998
/s/ Arnold S. Lerner
Arnold S. Lerner Director May 6, 1998
/s/ Richard W. Main
Richard W. Main Director May 6, 1998
/s/ Charles P. Sarantos
Charles P. Sarantos Director May 6, 1998
/s/ Michael A. Spinelli
Michael A. Spinelli Director May 6, 1998
</TABLE>
II-5
EXHIBIT 5
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
May 6, 1998
Enterprise Bancorp, Inc.
222 Merrimack Street
Lowell, Massachusetts 01852
Re: Registration Statement on Form S-8 of 227,287 shares of Common Stock,
par value $0.01 per share
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Enterprise Bancorp, Inc., a Massachusetts corporation
(the "Company"), of 227,287 shares (the "Registered Shares") of its Common
Stock, par value $.01 per share ("Common Stock"), all of which Registered Shares
are to be offered by the Company, the following opinion is furnished to you to
be filed with the Securities and Exchange Commission (the "Commission") as
Exhibit 5 to the Company's registration statement on Form S-8 (the "Registration
Statement") under the Act. The Registered Shares are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Act in connection with
options granted under the Company's 1988 Stock Option Plan (the "1988 Plan") and
either options granted or shares issued directly under the Company's 1998 Stock
Incentive Plan (the "1998 Plan" and together with the 1988 Plan, the "Plans").
We assume that the number and issuance of shares of Common Stock or
options granted or to be granted from time to time pursuant to the Plans have
been or will be authorized by proper action of the Company's Board of Directors
or the proper committee thereof and that the number, issuance and sale of the
Registered Shares to be issued directly or offered from time to time pursuant to
the exercise of such options will be determined in accordance with the
parameters described in the Plans, in accordance with the Company's Articles of
Organization, as amended (the "Articles"), and applicable Massachusetts law. We
further assume that prior to the issuance of any Registered Shares, there will
exist, under the Articles, the requisite number of authorized shares of Common
Stock for such issuance which are unissued and are not otherwise reserved for
issuance.
We have acted as counsel to the Company in connection with the
Registration Statement, and we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Articles as presently in effect, corporate records, certificates and
<PAGE>
Enterprise Bancorp, Inc.
May 6, 1998
Page 2
statements of officers and accountants of the Company and of public officials,
and such other documents as we have considered necessary in order to furnish the
opinion hereinafter set forth.
This opinion is limited to the laws of the Commonwealth of
Massachusetts and we express no opinion with respect to the law of any other
jurisdiction.
Based on and subject to the foregoing, we are of the opinion that, upon
the issuance by the Company of Registered Shares either directly or pursuant to
the exercise of options granted under either of the Plans and in each instance
upon delivery of certificates representing such Registered Shares in the manner
contemplated by the Plans and the authorization relating thereto by the
Company's Board of Directors or the proper committee thereof, the Registered
Shares represented by such certificates will be duly authorized, validly issued,
fully paid and nonassessable by the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
Board of Directors
Enterprise Bancorp, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Enterprise Bancorp, Inc. (the "Company") relating to offering of shares
of common stock of the Company pursuant to the exercise of options under the
1988 Stock Option Plan and the 1998 Stock Incentive Plan of our report dated
January 8, 1998, relating to the consolidated balance sheets of Enterprise
Bancorp, Inc. as of December 31, 1997 and 1996, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for each of
the years in the three-year period ended December 31, 1997, which report is
included in the December 31, 1997 annual report on Form 10- KSB of Enterprise
Bancorp, Inc. and the reference to our firm under the heading "Experts" in the
Registration Statement.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
May 6, 1998
