As filed with the Securities and Exchange Commission on May 24, 1999
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENTERPRISE BANCORP, INC.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-3308902
(State of incorporation) (I.R.S. Employer Identification Number)
222 Merrimack Street
Lowell, Massachusetts 01852
(978) 459-9000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
JOHN P. CLANCY, JR.
Treasurer
Enterprise Bancorp, Inc.
222 Merrimack Street
Lowell, Massachusetts 01852
(978) 656-5502
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
STEPHEN J. COUKOS, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
(617) 338-2912
Approximate date of commencement of proposed sale to public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.|X|
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
Being be Offering Aggregate Offering Registration Fee
Registered Registered Price Per Share(1) Price(1)
<S> <C> <C> <C> <C>
Common Stock 250,000 $8.70 $2,175,000 $604.65
<FN>
(1) Estimated solely for the purpose of calculating the registration fee under to Rule 457 of the Securities Act
of 1933. There is no active trading market for the Common Stock and the proposed maximum offering price is
based upon the book value of the Common Stock at March 31, 1999.
</FN>
</TABLE>
<PAGE>
Prospectus
ENTERPRISE BANCORP, INC.
DIVIDEND REINVESTMENT PLAN
Enterprise Bancorp, Inc. (also referred to in this prospectus as the
Company) is offering to stockholders the opportunity to participate in an
automatic dividend reinvestment plan (referred to in this prospectus simply as
the Plan). The Plan provides stockholders with a convenient and economical way
to purchase additional shares of the Company's common stock, par value $0.01 per
share (also referred to in this prospectus as the Common Stock), without the
payment of any brokerage commissions or service fees of any kind. The Company
may issue up to 250,000 shares of Common Stock under the Plan.
If you choose to participate in the Plan you will have the choice of
automatically reinvesting the cash dividends you would otherwise receive on
either all or only some of the shares of Common Stock registered in your name.
There currently is no active trading market for the Common Stock. In
the absence of an active trading market to set the price at which shares may be
purchased under the Plan, the Company's Board of Directors will establish from
time to time the purchase price for the shares to be issued under the Plan. All
shares that you may purchase under the Plan will be, at least initially, either
newly issued shares or shares issued from treasury. We expect to retain an
independent third party to advise our Board of Directors in connection with this
periodic valuation of the Common Stock. We expect that we will continue to pay
dividends on an annual basis and that our Board of Directors will receive
valuation advice for purposes of setting the purchase price under the Plan
before each declaration and payment of a cash dividend on the Common Stock. If
an active trading market for the Common Stock develops in the future, then we
expect that the purchase price of shares under the Plan will be based at that
time on the market price of the Common Stock as established by such active
trading market.
If you prefer not to participate in the Plan you will continue to
receive checks for future cash dividends, as and when paid by the Company, in
the usual manner.
You should not view the existence of the Plan as a guaranty that we
will continue to pay cash dividends on the Common Stock in the future. Although
we have paid an annual cash dividend in each of the last seven years (not
including the most recently declared dividend), and intend to continue to do so,
our ability to pay future dividends, as well as the amount and timing of any
such dividends, will depend on a number of factors, such as our ongoing capital
requirements, regulatory limitations, our future operating results and financial
condition, our anticipated future growth and general economic conditions.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the shares or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The shares of Common Stock are not savings accounts or deposits and are
not insured by the Federal Deposit Insurance Corporation or any other federal or
state governmental agency or fund, and involve investment risk, including the
possible loss of principal.
We urge you to consider the matters set forth under the heading "Risk
Factors" beginning on page 4 of this prospectus.
The date of this prospectus is May 24, 1999
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You should rely only on the information contained or incorporated by
reference in this prospectus to decide whether you wish to participate in the
Plan. We have not authorized anyone to provide you with information that is
different from what is contained in this prospectus. You should not assume that
the information contained in this prospectus is accurate as of any date other
than the date on the front of this prospectus, and neither the delivery of this
prospectus nor the issuance of shares of the Common Stock pursuant to the Plan
shall create any implication to the contrary.
TABLE OF CONTENTS
Section Page
THE COMPANY..............................................................3
RISK FACTORS.............................................................4
THE PLAN ................................................................5
USE OF PROCEEDS.........................................................12
EXPERTS ...............................................................12
LEGAL MATTERS...........................................................12
INDEMNIFICATION.........................................................12
WHERE YOU CAN FIND MORE INFORMATION.....................................13
Our address is Enterprise Bancorp, Inc., 222 Merrimack Street, Lowell,
Massachusetts 01852 and our telephone number is (978) 459-9000.
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THE COMPANY
Overview
The Company is a Massachusetts corporation and the holding company for
Enterprise Bank and Trust Company (which we refer to in this prospectus simply
as the Bank). The only office of the Company, and its principal place of
business, is located at the main office of the Bank at 222 Merrimack Street,
Lowell, Massachusetts 01852.
The Company does not engage in any active business activities, other
than indirectly through its ownership of the Bank. In the future, the Company
may become an operating company or acquire other banking institutions or
companies engaged in bank-related or otherwise permissible nonbanking
activities. At this time, however, we do not have any definitive plans to engage
in any such activities or acquisitions and we expect that our primary business
for the foreseeable future will be the ongoing business of the Bank.
The Bank is a Massachusetts-chartered commercial bank, which commenced
business on January 3, 1989. 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.
Market Area
Our primary market area is composed of Greater Lowell and the
Leominster/Fitchburg, Massachusetts area. Including our main office in Lowell,
the Bank operates a network of six offices in the following Massachusetts
communities:
o Lowell
o Chelmsford
o Billerica
o Leominster
o Tewksbury
o Dracut
We are also currently in the process of establishing an additional
branch office of the Bank in Westford, Massachusetts. We expect this newest
branch to open in the fourth quarter of 1999.
Competition
We face strong competition in our primary market area. Numerous other
banks, thrifts and credit unions operate in this market. Many of these
competitors are much larger than we are. Their greater financial resources
enable them to make larger loans to a single borrower than is possible for the
Bank, offer a broad range of automated services, maintain numerous branch
offices and mount extensive advertising and promotional campaigns. Competition
for loans and deposits also comes from other businesses that provide financial
services. These nonbanking competitors include:
o consumer finance companies
o factors
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o mortgage brokers
o insurance companies
o securities brokerage firms
o money market mutual funds
o private lenders
Notwithstanding the substantial competition we face, we believe that we
have established a market niche in Greater Lowell and the Leominster/Fitchburg
area, which has been enhanced in recent years by the acquisitions of other
independent banks and the ongoing consolidation of competitors' operations and
services.
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 Common Stock will
develop in the future. Consequently, any purchase of shares of Common Stock may
constitute a long-term, illiquid investment.
Year 2000 Compliance
Year 2000 compliance issues concern the inability of computer systems
to accurately calculate, store or use data after 1999. These issues may cause
our computer systems, or those of our significant vendors or customers, to
process critical financial and operational information incorrectly. We have
taken action over the past year to correct this problem in accordance with
guidelines issued by the Federal Financial Institutions Examination Council, and
we expect to continue such efforts until all of our important business computer
systems, and those of our significant vendors and customers, are Year 2000
compliant. There can be no assurance, however, that the systems of the Company,
or those of our significant vendors and customers, will be completely Year 2000
compliant on a timely basis. There also can be no assurance that the systems of
third party vendors on which our systems rely will be completely Year 2000
compliant on a timely basis. The failure of the Company or a critical third
party vendor to timely correct all Year 2000 issues that may affect its systems
could cause, among other adverse consequences:
o systems malfunctions
o incorrect or incomplete transaction processing
o inability to reconcile accounting books and records
Our operations and financial condition could be negatively impacted to
the extent that the Company, our customers or our significant vendors are
unsuccessful in timely and properly addressing our respective Year 2000
compliance responsibilities.
Our Performance May Decline If We Lose The Services of Key Individuals
Both our chairman and chief executive officer, George L. Duncan, and
our president and chief operating officer, Richard W. Main, play critical roles
in our ongoing business success. The loss of either Mr. Duncan or Mr. Main, and
the resulting loss of the leadership, business experience and expertise and
community involvement and
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visibility each provides to the Company, could result in a material adverse
effect on the future growth and operations of the Company as well as our ability
to compete successfully in our market area.
THE PLAN
The text of the Plan consists of the following questions and answers:
Purpose
1. What is the purpose of the Plan?
The purpose of the Plan is to provide stockholders with a convenient
and simple method of investing cash dividends in additional shares of Common
Stock without payment of brokerage commissions or service fees of any kind. The
shares acquired under the Plan will be purchased directly from the Company, in
which event such shares will be either authorized but unissued shares or shares
held in the treasury of the Company. These sales of shares by the Company will
provide additional funds to the Company. The Company intends to add the proceeds
of such sales to the general funds of the Company for general corporate
purposes.
Advantages
2. What are the advantages of the Plan?
A participant in the Plan may have cash dividends on all of the shares
or less than all of the shares of Common Stock registered in the Participant's
name automatically reinvested in additional shares of Common Stock. Participants
in the Plan pay no brokerage fee or service charge in connection with purchases
under the Plan. Funds are fully invested through the purchase of fractions of
shares, as well as whole shares, and proportionate cash dividends on fractions
of shares will be used to purchase additional shares. You will also avoid the
necessity of safekeeping certificates for shares credited to your Plan account,
because, unless you request otherwise, all shares purchased for your Plan
account will be held in "uncertificated" form. All participants in the Plan will
receive statements of account, which will simplify your record keeping.
Administration
3. Who will administer the Plan?
The Bank, which is a registered transfer agent, will administer the
Plan, keep records, send statements of account activity to participants and
perform other duties related to the Plan. Participants may contact the Bank for
Plan purposes either in writing, to Enterprise Bank and Trust Company, 222
Merrimack Street, Lowell, Massachusetts 01852, Attention: Dividend Reinvestment
Plan, or by telephone at 1-978-459-9000.
Participation
4. Who is eligible to participate?
All holders of record of Common Stock are eligible to participate fully
in the Plan. If your shares are registered in a name other than your own (for
example, in the name of a broker or bank nominee), then, if you want to
participate in the Plan, you must either make appropriate arrangements for the
nominee to participate in the Plan or you must become the stockholder of record
for your shares by having your shares transferred to your own name.
Stockholders who are not residents of the United States will not be
eligible to participate in the Plan if their dividends are or become subject to
United States income tax withholding. In addition, you will not be eligible to
participate in the Plan if you are or become subject to backup withholding
taxes.
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Your right to participate in the Plan is not transferable apart from a
transfer of your underlying Common Stock to another person.
You or, if appropriate, your broker, bank nominee or trustee must
supply the Bank with your valid social security number or taxpayer
identification number in order to be eligible to participate in the Plan.
5. How does an eligible stockholder participate and when is participation
effective?
A stockholder of record may join the Plan at any time by signing the
Authorization Card which accompanies this prospectus and returning it to the
Bank. An additional Authorization Card may be obtained at any time by written
request to the Bank. A stockholder electing to join the Plan may participate
with respect to any number of shares owned of record.
Reinvestment of dividends commences with the first dividend paid after
a stockholder joins the Plan, provided that an Authorization Card is received
from the stockholder by the Bank before the record date for such dividend.
6. What does the Authorization Form provide?
The Authorization Form allows you to decide the extent to which you
want to participate in the Plan by choosing one of the following two investment
options:
o "Full Dividend Reinvestment" directs the Company to invest in
accordance with the Plan all of your dividends on all shares
of Common Stock now and in the future registered in your name
o "Partial Dividend Reinvestment" directs the Company to remit
cash dividends to you on those whole shares specified in the
appropriate space on the Authorization Form and directs the
Company to invest the remaining dividends in shares of Common
Stock in accordance with the Plan
Purchases and Price of Shares
7. How will the price of shares purchased under the Plan be determined?
The price of the shares purchased for your Plan account with dividends
on the Common Stock, including dividends on the shares credited to your Plan
account, will be a price determined by the Company's Board of Directors in its
good faith judgment to equal the fair market value of the Common Stock at the
approximate time at which each purchase of shares is made. If an active trading
market for the Common Stock develops at any time in the future, and the Plan is
still in effect at such time, the Company will amend the Plan so that the
purchase price of shares under the Plan is based on the market price of the
Common Stock as established by such active trading market.
8. When will the shares be purchased under the Plan?
The purchase of shares under the Plan will occur as of each date on
which a cash dividend that has been declared by the Company's Board of Directors
is paid to stockholders. Dividend and voting rights with respect to shares
purchased under the Plan will commence upon the settlement date for each such
purchase.
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9. How many shares will be purchased for participants?
The number of shares to be purchased for your account at any one time
will depend on the amount of the total dividend payable to you at such time and
the price of the Common Stock at such time. Your account will be credited with
the number of shares, including fractions to three decimal places, equal to the
total dividend payable to you (or if you have chosen the "Partial Dividend
Reinvestment" option, that portion of your dividend that is available for
investment under the Plan), divided by the purchase price of the shares as
established in accordance with the response to Question 7 above.
In addition, the number of shares that the Company may issue under the
Plan at any time is limited to the number of shares that the Company has
registered with the Securities and Exchange Commission (referred to in this
prospectus simply as the SEC). At this time, the Company has registered 250,000
shares of the Common Stock with the SEC for issuance under the Plan.
Costs
10. Are there any expenses to participants in connection with purchases under
the Plan?
No. There are no brokerage commissions or service charges of any kind.
All costs of administration of the Plan are paid by the Company.
Reports to Participants
11. What kind of reports will be sent to participants in the Plan?
After each purchase, each participant will receive a statement of his
or her account, including the number of shares purchased and the purchase price
for such shares. These statements of account will serve as your continuing
record of the cost of each of your purchases under the Plan and should be
retained for tax purposes. In addition, each participant will receive, from time
to time, copies of all communications sent to every other stockholder.
Dividends
12. Will participants be credited with dividends on shares held in their account
under the Plan?
Yes. The Company pays dividends, as declared, to the record holders of
all issued and outstanding shares of Common Stock. If you choose the "Full
Dividend Reinvestment" option, then all dividends on shares held in the Plan
will be reinvested in additional shares of Common Stock under the Plan. If you
choose the "Partial Dividend Reinvestment" option, then, to the extent that you
request that cash dividends on Plan shares be sent to you, the Bank will send
the dividends on these shares to you in the usual manner in which cash dividends
are paid. In the latter case, if there are remaining Plan shares for which
dividends are to be reinvested, then the dividends on such shares will be
reinvested for your account in additional shares of Common Stock.
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Certificates for Shares
13. Will certificates be issued for shares purchased?
The number of shares credited to your account under the Plan will be
shown on your statement of account. Unless you otherwise request, shares held in
your Plan account will be "uncertificated".
You may obtain a certificate for any number of shares, up to the number
of all whole shares, credited to your account under the Plan at any time by
mailing a written request to the Bank at the address set forth in response to
Question 3 above.
Shares credited to your account under the Plan may not be pledged, so
long as they are held in uncertificated form. If you wish to pledge some or all
of these shares, you must request that a certificate for the shares you wish to
pledge be issued in your name.
We will not issue certificates for fractional shares under any
circumstances.
14. In whose name will accounts be maintained and certificates registered when
issued?
Accounts for each participant will be maintained by the Bank in the
participant's name as shown on the Company's records at the time the participant
enters the Plan. When issued, certificates for whole shares will be registered
in such account name.
Upon written request, certificates also may be registered and issued in
names other than the participant's name, subject to compliance with any
applicable laws and the payment by the participant of any applicable taxes,
provided that the request bears the signature of the participant and the
signature is guaranteed by a commercial bank or trust company or by a member of
a qualified stock exchange, such as the New York Stock Exchange or Boston Stock
Exchange.
Changing Method of Participation and Withdrawal from Participation
15. How may a participant change his or her way of participating in the Plan?
You may change your method of participating in the Plan at any time by
completing an Authorization Form and returning it to the Bank or by submitting a
written request to the Bank.
16. When will a participant's request to change his or her method of
participation become effective?
Any changes in your method of participating in the Plan will become
effective as of the next upcoming dividend payment date if written notice of
such intention is received by the Bank before the record date for such dividend
payment.
17. May a participant withdraw from the Plan?
Yes. The Plan is entirely voluntary and you may withdraw from the Plan
at any time.
18. How does a participant withdraw from the Plan?
In order to withdraw from the Plan, a participant must notify the Bank
in writing that he or she wishes to withdraw. Written notice should be addressed
to the Bank at the address set forth in response to Question 3 above. When a
participant withdraws from the Plan, or upon termination of the Plan by the
Company, a certificate for all whole shares credited to the participant's
account under the Plan will be issued and a cash payment will be made for any
remaining fraction of a share. The cash payment for a fractional share interest
will be based on the most recent
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determination by the Company's Board of Directors of the fair market value of
the Common Stock or, if an active trading market then exists for the Common
Stock, on the market price of the Common Stock as established by such active
trading market.
If the Bank receives a request from a participant to withdraw from the
Plan on or after the record date for a cash dividend, the cash dividend paid on
the applicable dividend payment date will be reinvested in Common Stock and
credited to the participant's account in accordance with the participant's
previous instructions under the Plan. The request to withdraw will then be
processed as promptly as reasonably possible following such dividend payment
date. Thereafter, all cash dividends declared and paid by the Company on such
former participant's shares of Common Stock will be paid by check to such former
participant in accordance with the Company's normal dividend payment procedures.
A stockholder may elect to re-enroll in the Plan at any time.
19. What happens if a participant dies or becomes legally incapacitated?
Upon receipt by the Bank of notice of death or adjudicated incompetence
of a participant, no further purchases of shares will be made for the Plan
account of the participant. The shares and any cash held by the Plan in the
participant's account will be delivered to the appropriate person upon receipt
of evidence satisfactory to the Bank of the appointment of a legal
representative and instruction from the representative regarding delivery.
Voting
20. How will a participant's shares held under the Plan be voted at meetings of
stockholders?
You will receive a single proxy card covering those whole shares of
Common Stock credited to your account under the Plan and those shares registered
in your name that are not within the Plan. If the proxy card is returned
properly signed and marked for voting, all of the shares will be voted as
marked. The total number of whole shares held may also be voted in person at
stockholders' meetings.
If a proxy card is returned properly signed but without instructions as
to the manner in which shares are to be voted with respect to any item, then all
of your whole shares (that is, both under the Plan and outside of the Plan) will
be voted (to the extent legally permissible) in accordance with the
recommendations of the Company's Board of Directors. If the proxy card is not
returned, or if it is returned unsigned or improperly signed, none of your
shares covered by such proxy card will be voted unless you or your duly
appointed representative votes in person at the meeting. These procedures are
consistent with the voting procedures that apply with respect to stockholders
who are not participating in the Plan.
Limitations on Participation
21. Are there limitations on participation in the Plan?
The Company reserves the right to limit participation in the Plan for
any reason, even if a stockholder is otherwise eligible to participate. Some
stockholders may be residents of jurisdictions in which the Company determines
that it may not legally or economically offer its shares under the Plan, and
accordingly residents of such jurisdictions may be precluded from participating
in the Plan. The Company has no present plans to limit participation in the Plan
by any stockholder of record for reasons other than those that may be generally
applicable to all stockholders, but it reserves such right in the event that it
determines in its sole discretion that such limitation may be in the best
interests of the Company.
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Tax Consequences
22. What are the federal income tax consequences of participation in the Plan?
The amount of cash dividends paid by the Company to a participant must
be included in the participant's taxable income to the extent of the Company's
earnings and profits, even though the cash dividend has been reinvested under
the Plan. The cost basis for federal income tax purposes of any shares acquired
through the Plan will be the price at which the shares are purchased for the
participant's Plan account.
A participant will not realize any taxable income upon receipt of
certificates for whole shares which have been credited to the participant's
account, whether received upon the participant's request, or upon termination of
participation in the Plan or upon termination of the Plan.
A participant will realize gain or loss when shares are sold or
exchanged after withdrawal from, or termination of, the Plan and, in the case of
a fractional share, when the participant receives a cash payment for a fraction
of a share credited to his or her account. The amount of such gain or loss will
be the difference between the amount that the participant receives for the
shares or fraction of a share and the tax basis therein. Gain will be long term
if the participant's holding period for the shares exceeds one year. The holding
period for shares acquired pursuant to the Plan will begin on the day following
the applicable dividend payment date.
We believe the foregoing is an accurate summary of the federal income
tax consequences of participation in the Plan as of the date of this prospectus,
but we urge you to consult with your own tax adviser for advice applicable to
your particular situation and for any state, local or foreign tax consequences
that may apply to you.
Sale of Plan Shares
23. When and how may a participant sell shares held in the Plan?
Any participant, including a participant who is withdrawing from the
Plan, may sell some or all of his or her shares in the Plan in a privately
negotiated transaction or, if an active trading market exists for the Common
Stock at the time of such sale, in the market through the participant's broker.
If you wish to sell some or all of the shares held in your Plan account, you
must first request the Bank in writing to send to you a certificate or
certificates representing the number of shares credited to your Plan account
that you wish to sell. As soon as reasonably possible after receipt of your
request, the Bank will issue to you a certificate or certificates representing
such number of shares in your name as it appears in your Plan account, unless
you provide the Bank with other instructions in writing.
If you wish to sell some or all of your shares in the Plan you should
be aware of the risk that the price of the Common Stock may decrease between the
time that you decide to sell shares in the Plan and the time that the sale is
completed. This risk is borne solely by you. In a sale through a broker, no
check for proceeds of such sale will be issued prior to the settlement of funds
from the brokerage firm through which the shares in the Plan are sold.
Settlement typically occurs three business days after the sale of the shares.
Resale Restrictions
24. Are employees restricted in any way from reselling shares acquired under the
Plan?
Some employees are so restricted. Employees who are "affiliates" of the
Company, as that term is defined under SEC rules, may not publicly re-offer
shares acquired under the Plan except pursuant to Rule 144 of the SEC or
pursuant to an effective registration statement or an exemption from SEC
registration requirements. An "affiliate" is a person who, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with the Company. Directors and executive officers of
the Company are ordinarily considered "affiliates" of the Company. The Company
has no present intention of filing a registration statement which would permit
the Company's affiliates to re-offer shares acquired under the Plan other than
pursuant to Rule 144 or an exemption from SEC registration requirements.
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Provided that employees who are not affiliates of the Company comply
with all relevant federal and state securities laws and regulations, they are
free to sell, at any time, as are all other participants, their shares acquired
under the Plan.
Any directors and executive officers of the Company who may participate
in the Plan may be subject to reporting obligations under Section 16(a), but
will not be subject to the short-swing profit recovery provisions of Section
16(b), of the Securities Exchange Act of 1934 with respect to their shares
purchased under the Plan.
Miscellaneous
25. What happens if a participant sells or transfers all of the shares
registered in his or her name other than shares under the Plan?
If a participant disposes of all shares registered in his or her name
other than shares held under the Plan, the Company will, unless otherwise
instructed by the participant, continue to reinvest the dividends on the shares
credited to the participant's Plan account. If a participant, however, has only
a fractional share of stock credited to his or her Plan account on the record
date for any dividend, then the Company reserves the right not to reinvest any
additional dividends on such fractional share. If the Company exercises this
right, the participant will receive a cash adjustment representing such
fractional share interest and a cash payment for the dividend.
26. What happens if the Company declares a stock split, stock dividend or
makes a rights offering?
Any stock dividends or split shares distributed by the Company on
shares credited to your Plan account will be added to the account. Stock
dividends or split shares distributed on shares registered in your name
directly, and not held under the Plan, will be mailed directly to you in the
same manner as delivered to stockholders who are not participating in the Plan.
In the event of a rights offering (that is, an offering by the Company
to all stockholders of rights to purchase additional shares of Common Stock
based, with respect to each stockholder, on the number of shares held by the
stockholder at the time of the offering), you will receive rights based upon the
total number of whole shares credited to your Plan account and the number of
shares owned in your name outside of the Plan.
27. What is the responsibility of the Company and the Bank under the Plan?
The Company and the Bank will not be liable for any act done in good
faith or for any omission to act in good faith, including, without limitation,
any claim of liability arising out of failure to terminate a participant's
account upon a participant's death prior to receipt of notice in writing of such
death.
You should recognize that neither the Company nor the Bank can assure
you of a profit or protect you against a loss on any shares purchased for your
account under the Plan. An investment in shares of Common Stock under the Plan
is, as is any equity investment, subject to investment risk and possible loss of
some or all of the principal amount invested.
28. Who interprets and regulates the Plan?
The Company reserves the right to interpret and regulate the Plan as
may be necessary or desirable in connection with the operation of the Plan and
to make all factual determinations with respect to any issues that may arise in
connection with the administration of the Plan. The Plan will be governed by the
laws of the Commonwealth of Massachusetts.
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29. Who bears the risk of market fluctuations in the Common Stock?
Your investment in shares held in your Plan account is no different
than your investment in any equity security purchased and held directly by you,
including your shares of Common Stock held outside of the Plan. You will bear
all risk of loss that may result from changes in the price of the Common Stock.
In addition, a decline in the sales price of the shares held in the Plan could
occur between the time at which you notify the Bank of your request to receive a
certificate for shares in your Plan account, in order to sell the shares, and
the actual time of the sale. Neither the Company nor the Bank can guarantee that
shares purchased under the Plan will, at any particular time, be worth more or
not be worth less than their purchase price.
30. May the Plan be changed or terminated?
While the Company presently intends to continue the Plan indefinitely,
we reserve the right to suspend, modify or terminate the Plan at any time.
Notice of such suspension, modification or termination will be sent to all
participants. No such event will affect any shares then credited to a
participant's account. We also reserve the right to terminate any individual
participant's participation in the Plan at any time for any reason.
Upon a termination of the Plan or of a participant's participation in
the Plan, any uninvested cash dividends will be remitted in cash, a certificate
for whole shares of Common Stock credited to the participant's account will be
issued, and a cash payment will be made for any fractional share interest
credited to the participant's account.
USE OF PROCEEDS
The Company intends to use the proceeds from the sale of its Common
Stock under the Plan for general corporate purposes.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1998
and 1997 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, 1998 included in the Company's Annual Report on Form
10-KSB for the year ended December 31, 1998 have been audited by KPMG 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.
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:
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<PAGE>
o 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
o 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 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
o if the Massachusetts General Laws are amended after adoption
of the Company's by-laws 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 of 1933 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 Securities and Exchange Commission such indemnification,
in the event of any such actual liability under the Securities Act of 1933, is
against public policy as expressed in the Securities Act of 1933 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 based
on the following:
o for any breach of the director's duty of loyalty to the
Company or its stockholders
o for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law
o for any unlawful distributions to stockholders or loans to
officers or directors
o for any transaction from which the director derived an
improper personal benefit
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
reports, statements or other information we file at the SEC's public reference
rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our SEC filings are also available to the public from commercial document
retrieval services and at the web site maintained by the SEC at
"http://www.sec.gov."
The Company has filed a registration statement on Form S-3 to register
with the SEC the shares of Common Stock to be issued pursuant to the Plan. This
prospectus is a part of the registration statement. As allowed by SEC rules,
this prospectus does not contain all the information you can find in the
registration statement or the exhibits to the registration statement.
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<PAGE>
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in this prospectus. This prospectus
incorporates by reference the documents set forth below that we have previously
filed with the SEC. These documents contain important information about the
Company, its finances and the Common Stock.
Enterprise Bancorp, Inc. SEC Filings (File No. 000-21021) Incorporated By
Reference:
o Annual Report on Form 10-KSB for the year ended December 31,
1998
o Quarterly Report on Form 10-QSB for the three months ended
March 31, 1999
o Registration Statement on Form 8-A, dated July 16, 1996,
relating to the Common Stock
o Registration Statement on Form 8-A, dated January 14, 1998,
relating to certain Preferred Share Purchase Rights
We are also incorporating by reference additional documents that we
file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and prior to
the termination of the offering of the Common Stock offered by this prospectus.
As a stockholder, we may have sent you some of the documents
incorporated by reference, but you can obtain any of them through us or the SEC.
Documents incorporated by reference are available from us without charge,
excluding all exhibits unless we have specifically incorporated by reference an
exhibit in this prospectus. Stockholders may obtain documents incorporated by
reference in this prospectus by requesting them in writing or by telephone. All
such requests should be directed to:
Enterprise Bancorp, Inc.
222 Merrimack Street
Lowell, Massachusetts 01852
Attention: John P. Clancy, Jr.,
Treasurer
Telephone: (978) 459-9000
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<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee are estimated):
Registration fee $ 604.65
Legal fees and expenses 18,000.00
Printing, mailing and other miscellaneous expenses 7,000.00
----------
Total $25,604.65
==========
All expenses in connection with the issuance and distribution of the securities
being offered hereby will be borne by the Company.
Item 15. Indemnification of Directors and Officers.
Included in Part I of this registration statement.
Item 16. Exhibits
Exhibit No. Description
5 Opinion of Sullivan & Worcester LLP as to the legality of
securities being registered
23.1 Consent of KPMG LLP
23.2 Consent of Sullivan & Worcester LLP (included in Exhibit 5)
24 Power of Attorney (contained in signature page to this
registration statement)
Item 17. 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
(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.
II-1
<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-3 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 24th
day of May, 1999.
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-3 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.
Signatures Capacity Date
- ---------- -------- ----
/s/ George L. Duncan Chairman of the Board May 24, 1999
George L. Duncan of Directors and Chief
Executive Officer
/s/ John P. Clancy, Jr. Treasurer (principal May 24, 1999
John P. Clancy, Jr. financial officer)
/s/ Kenneth S. Ansin Director May 24, 1999
Kenneth S. Ansin
/s/ Walter L. Armstrong Director May 24, 1999
Walter L. Armstrong
/s/ Gerald G. Bousquet, M.D. Director May 24, 1999
Gerald G. Bousquet, M.D.
II-2
<PAGE>
/s/Kathleen M. Bradley Director May 24, 1999
Kathleen M. Bradley
/s/ John R. Clementi Director May 24, 1999
John R. Clementi
/s/ James F. Conway III Director May 24, 1999
James F. Conway III
/s/ Lucy A. Flynn Director May 24, 1999
Lucy A. Flynn
/s/ Eric W. Hanson Director May 24, 1999
Eric W. Hanson
/s/ John P. Harrington Director May 24, 1999
John P. Harrington
/s/ Arnold S. Lerner Director May 24, 1999
Arnold S. Lerner
/s/ Richard W. Main Director May 24, 1999
Richard W. Main
/s/ Charles P. Sarantos Director May 24, 1999
Charles P. Sarantos
/s/ Michael A. Spinelli Director May 24, 1999
Michael A. Spinelli
II-3
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 24, 1999
Enterprise Bancorp, Inc.
222 Merrimack Street
Lowell, Massachusetts 01852
Re: Registration Statement on Form S-3 of 250,000 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 250,000 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-3 (the "Registration
Statement") under the Act. The Registered Shares are to be offered and sold
exclusively to stockholders of the Company in connection with the Company's
implementation of an automatic dividend reinvestment plan (the "Plan").
We assume that the sale and issuance of the Registered Shares will be
undertaken in accordance with the terms and conditions of the Plan and that
prior to the issuance of any Registered Shares, there will exist, under the
Company's Articles of Organization, as amended (the "Articles"), the requisite
number of authorized shares of Common Stock for such issuance which are
unissued, or held as treasury shares, 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, which
includes the Plan in its entirety, the Articles, that certain Action of the
Board of Directors by Unanimous Written Consent dated as of May 6, 1999 and such
other corporate records, certificates and statements of officers and accountants
of the Company and of public officials and other documents as we have considered
necessary or appropriate in order to furnish the opinion hereinafter set forth.
<PAGE>
Enterprise Bancorp, Inc.
May 24, 1999
Page 2
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.
We understand that the foregoing assumptions and limitations are
acceptable to you.
Based upon and subject to the foregoing, we hereby advise you that, in
our opinion, upon the issuance by the Company of Registered Shares in accordance
with the terms and conditions of the Plan, such Registered Shares shall be duly
authorized and validly issued and shall be fully paid and nonassessable.
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 this consent, we do not
hereby 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. This opinion may not be referred to or used
for any other purpose or in any other context or otherwise relied upon by any
other person or entity without our express written consent.
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-3 of Enterprise Bancorp, Inc. (the "Company") relating to the offering of
shares of common stock pursuant to the dividend reinvestment plan of our report
dated January 7, 1999, relating to the consolidated balance sheets of Enterprise
Bancorp, Inc. as of December 31, 1998 and 1997, 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, 1998, which report is
included in the December 31, 1998 annual report on Form 10-KSB of Enterprise
Bancorp, Inc. and to the reference to our firm under the heading "Experts" in
the Registration Statement.
/s/ KPMG LLP
Boston, Massachusetts
May 24, 1999
