<PAGE>
Registration No. 333-12645
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-4
PRE-EFFECTIVE AMENDMENT NO. 1 TO THE
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 6035 02-0430695
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
THE CARRIAGE HOUSE
NEW LONDON, NEW HAMPSHIRE 03257
(603) 863-5772
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------------
STEPHEN W. ENSIGN
President and
Chief Executive Officer
The Carriage House
New London, New Hampshire 03257
(603) 863-5772
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
RICHARD A. SCHABERG, ESQ. DENIS J. MALONEY, ESQ.
Thacher Proffitt & Wood Gallagher, Callahan & Gartrell, P.A.
1500 K Street, N.W., Suite 200 214 Main Street
Washington, D.C. 20005 Concord, New Hampshire
Telephone (202) 347-8400 Telephone (602) 228-1181
------------------------------
Approximate date of commencement of the proposed sale
of the securities to the public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the securities being registered on this Form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Proposed
maximum maximum
Title of each class of securities to be offering aggregate offering Amount of
registered Amount to be Registered/(1)/ price per unit price/(2)/ registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 364,210
($.01 par value)......................... Shares N/A $2,126,794 (3)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers the maximum number of shares of the
Registrant's common stock that may be issued in the transaction described
herein.
(2) Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(f)(2), based on the book value of the
common stock of Landmark Bank on August 31, 1996 of $7.13 and the maximum
number of such shares (298,288) that may be exchanged for the securities
being registered.
(3) Registration fee of $734 paid with Form S-4 filed on September 25, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
[NHTB LETTERHEAD]
_______ __, 1996
Dear Shareholder:
On behalf of the Board of Directors, you are cordially invited to attend a
Special Meeting of Shareholders of New Hampshire Thrift Bancshares, Inc.
("NHTB") to be held on Thursday, December 19, 1996, at the Lake Sunapee Bank
Building, 1868 Room, 9 Main Street, Newport, New Hampshire at 10:00 a.m.
At the Special Meeting, you will be asked to consider and vote upon the
approval and adoption of an Agreement and Plan of Reorganization, dated as of
July 26, 1996, by and among NHTB, Lake Sunapee Bank, fsb (the "Bank") and
Landmark Bank ("Landmark") and an Agreement and Plan of Merger, dated as of the
July 26, 1996, by and between Landmark and the Bank and joined in by NHTB,
(together, the "Agreements"), and the transactions contemplated thereby,
including the issuance of up to 364,210 shares of NHTB common stock.
The Agreements provide for the acquisition of Landmark by merger with and
into the Bank, a wholly owned subsidiary of NHTB, with the Bank as the surviving
institution (the "Merger"). Upon consummation of the Merger, each share of
Landmark common stock, except for any dissenting shares, will be converted into
and exchangeable for, at the election of each Landmark shareholder, a number of
shares of NHTB common stock determined pursuant to an Exchange Ratio, as defined
in the Agreements, or a Cash Election Price of $12.00 per share, subject to
certain election and allocation procedures. Cash will be paid in lieu of
fractional shares of NHTB common stock.
The Agreements have been approved by the Boards of Directors of NHTB and
Landmark. YOUR BOARD OF DIRECTORS HAS DETERMINED THAT THE MERGER IS IN THE BEST
INTERESTS OF NHTB AND ITS SHAREHOLDERS AND RECOMMENDS THAT YOU VOTE FOR APPROVAL
OF THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY. HAS Associates,
Inc., NHTB's financial advisor, has advised your Board of Directors, that, in
its opinion, as of ______________, 1996, the consideration to be paid by NHTB to
Landmark shareholders pursuant to the Agreements is fair from a financial point
of view to NHTB shareholders. The written opinion of HAS Associates, Inc. is
reproduced in full in Appendix B to the accompanying Joint Proxy Statement-
Prospectus. I urge you to read the opinion carefully.
Approval by the NHTB shareholders of the Agreements is a condition to the
consummation of the Merger. Consummation of the Merger is also subject to
certain other conditions, including the approval of the Agreements by Landmark's
shareholders and the approval of the Merger by various regulatory agencies. The
shareholders of Landmark will consider and vote upon a proposal to approve the
Agreements at a special meeting to be held in West Lebanon, New Hampshire on
December 19, 1996.
The enclosed Notice of Special Meeting of Shareholders and Joint Proxy
Statement-Prospectus describe the Merger and provide information concerning the
Special Meeting. Please read these materials carefully.
<PAGE>
2
YOUR VOTE IS VERY IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN.
WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, I URGE YOU TO SIGN, DATE
AND RETURN THE ENCLOSED PROXY CARD AS SOON AS POSSIBLE TO ENSURE THAT YOUR
SHARES WILL BE REPRESENTED AT THE SPECIAL MEETING. THEREFORE, TO ENSURE THAT
YOUR SHARES ARE REPRESENTED AT THE SPECIAL MEETING, PLEASE SIGN, DATE AND RETURN
THE ENCLOSED PROXY CARD AS SOON AS POSSIBLE IN THE ENCLOSED POSTAGE PAID
ENVELOPE.
The Merger is an important step for NHTB and its shareholders. On behalf
of the Board of Directors, I urge you to vote FOR the proposal.
If you have any questions, please call (603) 526-2116.
Sincerely,
[facsimile signature]
John J. Kiernan
Chairman of the Board
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
The Carriage House, P.O. Box 37
New London, New Hampshire 03257
Telephone: (603) 526-2116
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD DECEMBER 19, 1996
NOTICE IS HEREBY GIVEN that a Special Meeting of Shareholders (the
"NHTB Special Meeting") of New Hampshire Thrift Bancshares, Inc. ("NHTB") will
be held at the Lake Sunapee Bank Building, 1868 Room, 9 Main Street, Newport,
New Hampshire at 10:00 a.m. on Thursday, December 19, 1996, for the purpose of
considering and voting upon the following matters:
1. The adoption and approval of an Agreement and Plan of
Reorganization dated as of July 26, 1996, by and among NHTB, Lake
Sunapee Bank, fsb (the "Bank") and Landmark Bank ("Landmark") and
an Agreement and Plan of Merger, dated as of July 26, 1996, by
and between Landmark and the Bank and joined in by NHTB and the
transactions contemplated thereby. A copy of each of the
Agreements is included as Appendix A to the accompanying Joint
Proxy Statement-Prospectus.
2. A proposal to adjourn the NHTB Special Meeting for any reason.
3. Such other business as may properly come before the NHTB Special
Meeting or any adjournments or postponements thereof.
Pursuant to NHTB's Bylaws, the Board of Directors has fixed November 1,
1996 as the record date for the determination of shareholders entitled to notice
of and to vote at the NHTB Special Meeting and at any adjournments or
postponements thereof. Only holders of common stock of record at the close of
business on that date will be entitled to receive notice of and to vote at the
NHTB Special Meeting and any adjournments or postponements thereof. A majority
of the outstanding shares of NHTB common stock entitled to vote must be
represented at the NHTB Special Meeting, in person or by proxy, to constitute a
quorum for the transaction of business.
By Order of the Board of Directors
[facsimile signature]
Linda L. Oldham
Secretary
New London, New Hampshire
_____________ __, 1996
YOU ARE URGED, EVEN THOUGH YOU MAY PLAN TO ATTEND THE NHTB SPECIAL MEETING,
TO SIGN, DATE AND RETURN THE ENCLOSED PROXY CARD PROMPTLY TO ENSURE THAT YOUR
SHARES WILL BE VOTED AT THE NHTB SPECIAL MEETING. FOR YOUR CONVENIENCE, A
POSTAGE-PAID, ADDRESSED ENVELOPE IS ENCLOSED FOR YOU TO RETURN YOUR PROXY CARD.
YOU MAY REVOKE YOUR PROXY AT ANY TIME PRIOR TO ITS EXERCISE IN THE MANNER
DESCRIBED IN THE ATTACHED JOINT PROXY STATEMENT-PROSPECTUS. ANY SHAREHOLDER
PRESENT AT THE NHTB SPECIAL MEETING, INCLUDING ANY ADJOURNMENTS OR POSTPONEMENTS
THEREOF, MAY REVOKE HIS OR HER PROXY AND VOTE PERSONALLY ON EACH MATTER BROUGHT
BEFORE THE NHTB SPECIAL MEETING.
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
AND
LANDMARK BANK
JOINT PROXY STATEMENT
-------------------------
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
PROSPECTUS
This Joint Proxy Statement-Prospectus is being furnished to holders of
common stock, par value $0.01 per share ("NHTB Common Stock") of New Hampshire
Thrift Bancshares, Inc. ("NHTB") in connection with the solicitation of proxies
by the NHTB Board of Directors for use at a special meeting of NHTB shareholders
to be held at the Lake Sunapee Bank Building, 1868 Room, 9 Main Street, Newport,
New Hampshire, at 10:00 a.m. on December 19, 1996 and at any adjournment thereof
(the "NHTB Special Meeting").
At the NHTB Special Meeting, the NHTB shareholders will be asked to: (i)
consider and vote upon an Agreement and Plan of Reorganization dated as of July
26, 1996 (the "Plan of Reorganization"), by and among NHTB, Lake Sunapee Bank,
fsb (the "Bank") and Landmark Bank ("Landmark") and an Agreement and Plan of
Merger dated as of July 26, 1996 by and between Landmark and the Bank and joined
in by NHTB (the "Merger Agreement"), and the transactions contemplated thereby;
and (ii) approve a proposal to adjourn the NHTB Special Meeting for any reason,
including to permit further solicitation of proxies in the event that there are
not sufficient votes at the time of the NHTB Special Meeting to approve the Plan
of Reorganization and the Merger Agreement.
This Joint Proxy Statement-Prospectus is also being furnished to the
holders of common stock, par value $1.00 per share ("Landmark Common Stock") of
Landmark in connection with the solicitation of proxies by the Landmark Board of
Directors for use at a special meeting of Landmark shareholders to be held at
4:00 p.m. on December 19, 1996 at Landmark's branch banking office at 106 North
Main Street, West Lebanon, New Hampshire and at any adjournment thereof (the
"Landmark Special Meeting").
At the Landmark Special Meeting, the Landmark shareholders will be asked
to: (i) consider and vote upon the Plan of Reorganization and the Merger
Agreement, and the transactions contemplated thereby; and (ii) approve a
proposal to adjourn the Landmark Special Meeting for any reason, including to
permit further solicitation of proxies in the event there are not sufficient
votes at the time of the Landmark Special Meeting to approve the Plan of
Reorganization and the Merger Agreement.
Pursuant to the Merger Agreement, Landmark will merge with and into the
Bank in accordance with federal and New Hampshire banking law (the "Merger"). At
the effective time of the Merger, each outstanding share of Landmark Common
Stock, other than shares as to which dissenters' rights have been asserted and
not withdrawn, at the election of each Landmark shareholder, will be converted
into and exchangeable for (i) 1.221 (the "Exchange Ratio") shares of NHTB Common
Stock or (ii) $12.00 in cash (the "Cash Election Price"), subject to the total
consideration paid to Landmark shareholders being comprised of 60% NHTB Common
Stock and 40% cash and subject to the election and allocation procedures set
forth in the Merger Agreement. The Cash Election Price and Exchange Ratio
(together, the "Merger Consideration") are each subject to adjustment in certain
circumstances. See "THE MERGER--Adjustment of Merger Consideration." No
fractional shares of NHTB Common Stock will be issued and cash will be paid in
lieu thereof. See "THE MERGER--Merger Consideration." Pursuant to the Merger,
Landmark will be merged with and into the Bank, with the Bank as the surviving
entity. Upon consummation of the Merger, the shareholders of Landmark
immediately prior to the effective time of the Merger will no longer hold any
interest in Landmark other than as shareholders of NHTB to the extent that they
have received shares of NHTB Common Stock.
The Plan of Reorganization and the Merger Agreement are attached hereto as
Appendix A, and are incorporated herein by reference. This Joint Proxy
Statement-Prospectus and the accompanying proxy cards are first being mailed to
shareholders of NHTB and Landmark on or about ________ __, 1996.
NHTB has filed a Registration Statement on Form S-4 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") covering a
maximum of 364,210 shares of NHTB Common Stock, representing shares to be issued
in connection with the Merger. This Joint Proxy Statement-Prospectus also
constitutes the prospectus of NHTB filed as a part of such Registration
Statement.
This Joint Proxy Statement-Prospectus does not cover any resales of NHTB
Common Stock received by shareholders of Landmark upon consummation of the
Merger, and no person is authorized to make use of this Joint Proxy Statement-
Prospectus in connection with any such resale.
THE ABOVE MATTERS ARE DISCUSSED IN DETAIL IN THIS JOINT PROXY STATEMENT-
PROSPECTUS. THE PROPOSED MERGER IS A COMPLEX TRANSACTION. SHAREHOLDERS ARE
STRONGLY URGED TO READ AND CONSIDER CAREFULLY THIS JOINT PROXY STATEMENT-
PROSPECTUS IN ITS ENTIRETY.
THE SECURITIES OF NHTB OFFERED HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS JOINT PROXY STATEMENT-PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SHARES OF NHTB COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR SAVINGS ASSOCIATION OR NON-BANK
SUBSIDIARY OF NHTB AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION, OR ANY OTHER GOVERNMENT AGENCY.
THE DATE OF THIS JOINT PROXY STATEMENT-PROSPECTUS IS _________ __, 1996.
<PAGE>
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION............................................ 1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................. 1
INFORMATION RELATING TO NHTB..................................... 2
SUMMARY..................................................... 3
The Parties............................................ 3
The Meetings........................................... 3
The Merger............................................. 4
Merger Consideration................................... 5
Recommendations of the Boards of Directors
and Reasons for the Merger............................ 6
Opinions of Financial Advisors......................... 7
Conditions to the Consummation of the Merger........... 8
Termination............................................ 8
Amendment, Extension and Waiver........................ 9
Interests of Certain Persons in the Merger............. 9
Regulatory Approvals................................... 10
Material Federal Income Tax Consequences............... 10
Accounting Treatment................................... 11
Management and Operations After the Merger............. 11
The Stock Option Agreement............................. 11
Appraisal Rights of Dissenting Shareholders............ 12
Certain Differences in the Rights of Shareholders...... 12
Selected Historical and Pro Forma Per Share Data....... 12
Market Prices.......................................... 14
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
SELECTED HISTORICAL FINANCIAL DATA..................... 15
LANDMARK BANK
SELECTED HISTORICAL FINANCIAL DATA..................... 16
MEETING INFORMATION......................................... 17
NHTB Meeting........................................... 17
Landmark Meeting....................................... 18
THE MERGER.................................................. 20
General................................................ 20
Parties to the Merger.................................. 21
Effective Time......................................... 21
Management and Operations after the Merger............. 21
Merger Consideration................................... 22
Background of the Merger............................... 23
i
<PAGE>
Reasons for the Merger and Recommendation of the Boards
of Directors.......................................... 26
Opinions of Financial Advisors......................... 30
Adjustment of Merger Consideration..................... 39
Adjustment of Merger Consideration in the Event of
Delayed Effective Date................................ 39
Exchange of Certificates; Election Procedures;
Fractional Shares..................................... 40
Allocations............................................ 41
Issuance of Stock and Payment of Cash to Exchange Agent 43
Conduct of Business Pending the Merger................. 43
Conditions to Consummation............................. 45
No Solicitation........................................ 46
Regulatory Matters..................................... 47
Material Federal Income Tax Consequences............... 48
Accounting Treatment................................... 52
Termination............................................ 52
Amendment, Extension and Waiver........................ 52
Effect on Employees and Employee Benefits.............. 53
Interests of Certain Persons in the Merger............. 54
Beneficial Ownership of NHTB Common Stock.............. 54
Beneficial Ownership of Landmark Common Stock.......... 56
CERTAIN RELATED TRANSACTIONS................................ 57
The Stock Option Agreement............................. 57
Resale of NHTB Common Stock............................ 58
Rights of Dissenting Shareholders...................... 59
UNAUDITED PRO FORMA COMBINED FINANCIAL
DATA....................................................... 60
REGULATION OF THE BANK AND NHTB............................. 64
INFORMATION ABOUT LANDMARK.................................. 75
Description of Business................................ 75
Description of Properties.............................. 76
Legal Proceedings...................................... 76
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS OF LANDMARK BANK.......... 77
General................................................ 77
Rate/Volume Analysis................................... 79
Results of Operations--Six Months Ended June 30, 1996
as Compared to the Six Months Ended June 30, 1995.... 79
Financial Condition.................................... 81
Liquidity and Interest Rate Sensitivity Management..... 82
Capital................................................ 84
Three Years Ended December 31, 1995.................... 84
General................................................ 84
Average Balance Sheet.................................. 85
ii
<PAGE>
Rate/Volume Analysis................................... 86
Results of Operations--Year Ended December 31, 1995
as Compared to Year Ended December 31, 1994........ 86
Results of Operations--Year Ended December 31, 1994
as Compared to Year Ended December 31, 1993........ 88
Financial Condition.................................... 90
Liquidity and Interest Rate Sensitivity Management..... 91
Capital................................................ 93
Recent Accounting Developments......................... 93
CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO
LANDMARK........................................... 94
Investment Portfolio................................... 94
Loan Portfolio......................................... 97
Non-accrual, Past Due, Restructured, and Potential
Problem Loans......................................... 98
Summary of Loan Loss Experience........................ 98
Allowance For Loan Losses Allocation................... 100
Deposits............................................... 101
Short-Term Borrowing................................... 102
DESCRIPTION OF NHTB CAPITAL STOCK........................... 103
General................................................ 103
Common Stock........................................... 103
Preferred Stock........................................ 103
Certain Anti-takeover Provisions....................... 103
COMPARISON OF RIGHTS OF NHTB AND LANDMARK SHAREHOLDERS...... 105
Voting Requirements to Remove Directors................ 105
Business Combinations With Related Persons............. 106
Beneficial Ownership Limitation........................ 106
Amendments to Certificate of Incorporation............. 107
Evaluation of Certain Offers........................... 107
Anti-Greenmail......................................... 107
Special Meetings of Shareholders....................... 107
Actions Without a Meeting of Shareholders.............. 108
Qualification of Directors............................. 108
Amendments to Bylaws................................... 108
Cumulative Voting...................................... 108
TRANSACTIONS WITH CERTAIN RELATED PERSONS................... 110
COMPARATIVE STOCK PRICES AND DIVIDENDS...................... 110
EXPERTS..................................................... 111
LEGAL MATTERS............................................... 111
iii
<PAGE>
ADJOURNMENT OF SPECIAL MEETINGS............................. 111
INDEPENDENT PUBLIC ACCOUNTANTS.............................. 112
SHAREHOLDER PROPOSALS....................................... 112
APPENDICES.................................................. 113
INDEX TO FINANCIAL STATEMENTS............................... 114
iv
<PAGE>
AVAILABLE INFORMATION
NHTB 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. Proxy statements, reports and other information concerning NHTB
can be inspected and copied at the Commission's office at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and the
Commission's Regional Offices in New York (Seven World Trade Center, Suite
1300, New York, New York 10048) and Chicago (Northwest Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661), and copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Such information is also available on the Commission's Electronic
Data Gathering Analysis and Retrieval ("EDGAR") System. NHTB Common Stock
is traded on the Nasdaq National Market System. Reports, proxy statements
and other information concerning NHTB may also be inspected at the offices
of the National Association of Securities Dealers, Inc. ("NASD") at 1735 K
Street, N.W., Washington, D.C. 20006. NHTB has filed with the Commission a
Registration Statement under the Securities Act. This Joint Proxy
Statement-Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto. Such additional information
may be obtained from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of the prescribed fees, and to which reference is hereby made.
Statements contained in this Joint Proxy Statement-Prospectus or in any
document incorporated by reference in this Joint Proxy Statement-Prospectus
as to the contents of any contract or other document referred to herein or
therein are not necessarily complete, and in each instance reference is
made to the copy of such contract or other document filed as an exhibit to
the Registration Statement or such other document, each statement being
qualified in all respects by such reference.
THIS JOINT PROXY STATEMENT-PROSPECTUS INCORPORATES BY REFERENCE
DOCUMENTS WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. NHTB WILL
PROVIDE WITHOUT CHARGE TO ANY PERSON TO WHOM THIS JOINT PROXY STATEMENT-
PROSPECTUS IS DELIVERED, INCLUDING ANY BENEFICIAL OWNER OF LANDMARK COMMON
STOCK, UPON WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF
THE FOREGOING DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN
BY REFERENCE). WRITTEN REQUESTS FOR DOCUMENTS RELATING TO NHTB SHOULD BE
DIRECTED TO LINDA L. OLDHAM, SECRETARY, NEW HAMPSHIRE THRIFT BANCSHARES,
INC., THE CARRIAGE HOUSE, P.O. BOX 37, NEW LONDON, NEW HAMPSHIRE 03257.
TELEPHONE REQUESTS MAY BE DIRECTED TO LINDA L. OLDHAM AT (603) 526-2116.
IN ORDER TO ENSURE TIMELY DELIVERY OF ANY OF THE DOCUMENTS, REQUESTS SHOULD
BE MADE BY _____________, 1996.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the
Commission are incorporated by reference in this Joint Proxy Statement-
Prospectus:
Documents filed by NHTB (File No. 0-17859):
(1) NHTB's Annual Report on Form 10-KSB for the year ended December
31, 1995 (the "NHTB Form 10-KSB"); provided, however, that the information
referred to in Item 402(a)(7) of Regulation S-B promulgated by the
Commission shall not be deemed to be specifically incorporated by reference
herein;
1
<PAGE>
(2) NHTB's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1996 and June 30, 1996;
(3) The description of the NHTB Common Stock contained in the
Registration Statement on Form 8-A, as amended, filed with the Commission,
pursuant to which NHTB registered, among other things, the NHTB Common
Stock pursuant to Section 12(b) of the Exchange Act;
(4) NHTB's Current Report on Form 8-K, dated July 10, 1996; and
(5) NHTB's Current Report on Form 8-K, dated August 7, 1996.
All documents filed by NHTB pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Joint Proxy Statement-
Prospectus and prior to the date of the Landmark Special Meeting shall be
deemed to be incorporated by reference into this Joint Proxy Statement-
Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Joint Proxy Statement-Prospectus to the
extent that a statement contained herein, or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Joint Proxy Statement-Prospectus.
INFORMATION RELATING TO NHTB
The NHTB 1995 Annual Report to Shareholders, which includes the NHTB
Annual Report on Form 10-KSB for the year ended December 31, 1995 (without
the exhibits thereto), (the "NHTB Annual Report") and the NHTB Quarterly
Report on Form 10-QSB for the quarter ended June 30, 1996 appear as
Appendices E-1 and E-2, respectively, to this Joint Proxy Statement-
Prospectus. The foregoing documents attached as Appendices hereto are
hereby incorporated by reference into this Joint Proxy Statement-
Prospectus. Notwithstanding any statement to the contrary contained in any
of the foregoing documents, no effect shall be given to any incorporation
by reference provided for therein and any such documents or information so
incorporated shall not be deemed a part hereof or thereof.
ALL INFORMATION IN THIS JOINT PROXY STATEMENT-PROSPECTUS REGARDING
NHTB AND ITS SUBSIDIARIES HAS BEEN PROVIDED BY NHTB AND THE INFORMATION
REGARDING LANDMARK AND ITS SUBSIDIARIES HAS BEEN PROVIDED BY LANDMARK.
No person is authorized to give any information or to make any
representations other than those contained herein and, if given or made,
such information or representation must not be relied upon as having been
authorized. This document does not constitute an offer or solicitation by
anyone in any state in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified
to do so or to any person to whom it is unlawful to make such offer or
solicitation. Neither the delivery of this Joint Proxy Statement-Prospectus
nor any distribution of the shares of NHTB Common Stock hereunder shall,
under any circumstances, create any implication that there has not been any
change in the affairs of NHTB or Landmark since the date hereof.
MAP
2
<PAGE>
SUMMARY
The following is a brief summary, which is necessarily incomplete, of
certain information contained elsewhere in this Joint Proxy Statement-
Prospectus or in documents incorporated herein by reference. Reference is
made to, and this Summary is qualified in its entirety by, the more
detailed information contained herein, the Appendices hereto and the
documents incorporated by reference herein. Each shareholder is urged to
read the Joint Proxy Statement-Prospectus with care.
THE PARTIES
NHTB. NHTB, a Delaware corporation, is a savings association holding
company headquartered in New London, New Hampshire with total assets of
approximately $258.5 million as of June 30, 1996. NHTB's banking
subsidiary, Lake Sunapee Bank, fsb, is headquartered in Newport, New
Hampshire. The Bank is engaged principally in the business of attracting
deposits from the general public and investing those deposits in
residential and commercial real estate loans, in commercial and consumer
loans and in various investment securities. The Bank operates 10 full
service banking offices in New Hampshire. NHTB's principal executive office
is located at The Carriage House, P.O. Box 37, New London, New Hampshire
03257, and its telephone number is (603) 526-2116.
Landmark. Landmark is a guaranty savings bank chartered by the State
of New Hampshire and headquartered in Lebanon, New Hampshire. As of June
30, 1996, it had assets of approximately $57.8 million. Landmark's business
is principally commercial and residential mortgage banking, attracting
deposits from and making loans to small-to-medium sized businesses and
resident households primarily in the geographic areas of its offices.
Landmark also takes retail deposits from the general public and makes
personal and consumer loans. Landmark's principal executive office is
located at 106 Hanover Street, Lebanon, New Hampshire 03766, and its
telephone number is (603) 448-0101.
THE MEETINGS
NHTB. The NHTB Special Meeting will be held at the Lake Sunapee Bank
Building, 1868 Room, 9 Main Street, Newport, New Hampshire, at 10:00 a.m.
on Thursday, December 19, 1996. The purpose of the NHTB Special Meeting is
to consider and vote upon a proposal to adopt and approve the Plan of
Reorganization, the Merger Agreement (together, the "Agreements") and the
transactions contemplated thereby, including the issuance of up to 364,210
shares (based upon an Exchange Ratio of 1.221) of NHTB Common stock (the
"Merger Shares") and such other matters as may properly be brought before
the meeting and any adjournments or postponements thereof. See "MEETING
INFORMATION--NHTB Meeting" and "THE MERGER." Only holders of record of
NHTB Common Stock at the close of business on November 1, 1996 (the "NHTB
Record Date") will be entitled to notice of, and to vote at, the NHTB
Special Meeting and any adjournments and postponements thereof. The
affirmative vote of the holders of a majority of the outstanding shares of
NHTB Common Stock is required to approve the Agreements. As of the NHTB
Record Date, __________ shares of NHTB Common Stock were outstanding and
entitled to vote at the NHTB Special Meeting.
Of the _________ shares of NHTB Common Stock outstanding and entitled
to vote on the NHTB Record Date, _______ shares, or approximately ___% were
held by directors and executive officers of NHTB and their respective
affiliates. Assuming that all directors and executive officers of NHTB and
their respective affiliates vote in favor of the Agreements, the
affirmative vote of holders of approximately _________ additional shares of
NHTB Common Stock, representing approximately ____%
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of the shares issued and outstanding on the NHTB Record Date, will be
required to approve the Agreements.
The affirmative vote of a majority of shares of NHTB Common Stock
present or represented and entitled to vote and voting at the NHTB Special
Meeting is required to approve an adjournment of the NHTB Special Meeting,
including an adjournment to permit further solicitation of proxies in the
event that there are not sufficient votes at the time of the NHTB Special
Meeting to approve the Agreements.
Landmark. The Landmark Special Meeting will be held at Landmark's
branch banking office at 106 North Main Street, West Lebanon, New
Hampshire, at 4:00 p.m. on December 19, 1996. The purpose of the Landmark
Special Meeting is to consider and vote upon a proposal to adopt and
approve the Agreements and the transactions contemplated thereby, and such
other matters that may properly come before the Landmark Special Meeting,
or any adjournments or postponements thereof. See "MEETING INFORMATION--
Landmark Meeting" and "THE MERGER." Only the holders of record of the
outstanding shares of Landmark Common Stock on November 1, 1996 (the
"Landmark Record Date") will be entitled to notice of, and to vote at, the
Landmark Special Meeting and any adjournments or postponements thereof. The
affirmative vote of the holders of two-thirds of the shares of Landmark
Common Stock issued and outstanding will be required to approve the
Agreements. As of the Landmark Record Date, 354,138 shares of Landmark
Common Stock were outstanding, 342,803 of which are entitled to vote at the
Landmark Special Meeting. See "MEETING INFORMATION--Landmark--Excess
Shares."
Of the 354,138 shares of Landmark Common Stock outstanding on the
Landmark Record Date, 133,374 shares entitled to vote at the Landmark
Special Meeting (approximately 37.7%) were held by directors and executive
officers of Landmark and their respective affiliates. The affirmative vote
of holders of approximately 102,718 additional shares of Landmark Common
Stock not held by directors, executive officers and their affiliates,
representing approximately 29.0% of the shares issued and outstanding on
the Landmark Record Date, will be required to approve the Agreements if all
directors, executive officers and their affiliates vote in favor of the
Agreements. Directors and executive officers of Landmark and their
respective affiliates holding an aggregate of 133,374 shares of the
outstanding Landmark Common Stock have entered into Voting Agreements with
NHTB to vote their shares in favor of the Agreements. A copy of the form of
Voting Agreement is attached as Exhibit A to the Plan of Reorganization,
which is attached to this Joint Proxy Statement-Prospectus as Appendix A.
The affirmative vote of a majority of the shares of Landmark Common
Stock present or represented and entitled to vote at the Landmark Special
Meeting is required to approve an adjournment of the Landmark Special
Meeting, including an adjournment to permit further solicitation of proxies
in the event that there are not sufficient votes at the time of the
Landmark Special Meeting to approve the Agreements.
See "MEETING INFORMATION."
THE MERGER
Pursuant to the Merger Agreement, Landmark will be merged with and
into the Bank on the Effective Date with the Bank as the surviving bank.
The Merger will become effective on the date (the "Effective Date") and
time (the "Effective Time") as set forth in the Articles of Combination to
be filed with the Office of Thrift Supervision ("OTS"). The Effective Date
will occur as soon as practicable after
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the last required approval for the Merger has been obtained and the last of
all required waiting periods under such approvals has expired, assuming the
satisfaction of the conditions set forth in Article 5 of the Plan of
Reorganization. Landmark and NHTB each anticipate that the Merger will be
consummated in the first quarter of 1997. However, the consummation of the
Merger could be delayed as a result of delays in obtaining the necessary
governmental and regulatory approvals. There can be no assurances that such
approvals will be obtained or that the Merger will be completed at any
time. See "THE MERGER--Conditions to Consummation" and "--Regulatory
Matters." For information on how Landmark shareholders will be able to
exchange certificates representing shares of Landmark Common Stock for new
certificates representing shares of NHTB Common Stock to be issued to them
and/or cash, see "THE MERGER--Exchange of Certificates; Election
Procedures; Fractional Shares."
MERGER CONSIDERATION
In the Merger each share of Landmark Common Stock outstanding
immediately prior to the Effective Date, other than shares as to which
dissenters' rights have been asserted and not withdrawn, at the election of
each Landmark shareholder, will be converted into and exchangeable for (i)
1.221 shares of NHTB Common Stock or (ii) $12.00 in cash subject to the
total consideration paid to Landmark shareholders being comprised of 60%
NHTB Common Stock and 40% cash and subject to the election and allocation
procedures set forth in the Merger Agreement. Prior to the Effective Date
all outstanding shares of preferred stock of Landmark ("Landmark Preferred
Stock") will be converted into shares of Landmark Common Stock and the
holders of such converted shares will have the same rights as holders of
Landmark Common Stock to elect to receive either NHTB Common Stock or cash.
See "THE MERGER -- Exchange of Certificates; Election Procedures;
Fractional Shares" and "--Allocations." The Merger Consideration is
subject to adjustment in certain circumstances. See "THE MERGER--
Adjustment of Merger Consideration." In the Merger, Landmark will be
merged with and into the Bank, with the Bank as the surviving entity, and
the shareholders of Landmark immediately prior to the effective time of the
Merger will no longer hold any interest in Landmark other than as
shareholders of NHTB to the extent they elect to receive shares of NHTB
Common Stock.
Because the Merger Agreement provides that the total consideration
paid to Landmark shareholders will be comprised of 60% NHTB Common Stock
and 40% cash, no guarantee can be given that the election of any given
shareholder of Landmark will be honored. Rather, the election by each
holder will be subject to the election and allocation procedures described
herein. Thus, holders may not receive their requested form of
consideration or combination thereof. See "THE MERGER--Exchange of
Certificates; Election Procedures; Fractional Shares" and "--Allocations."
The Merger Consideration was proposed by NHTB and accepted by Landmark
following a due diligence process during which NHTB (with the assistance of
its financial advisor) reviewed information about Landmark and prepared and
refined an analysis of Landmark, the transaction and the appropriate
consideration to be paid to Landmark's shareholders.
No fractional shares of NHTB Common Stock will be issued in the
Merger. In lieu thereof, each holder of Landmark Common Stock who otherwise
would have been entitled to a fractional share of NHTB Common Stock will
receive cash in an amount equal to such fraction multiplied by the bid
price of the NHTB Common Stock as reported on the Nasdaq National Market
System on the last business day preceding the Effective Date.
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The number of shares of NHTB Common Stock to be received for each
share of Landmark Common Stock depends on the average bid price of NHTB
Common Stock on the Nasdaq National Market (as reported by the National
Association of Securities Dealers Automated Quotation System ("NASDAQ"))
for the thirty consecutive trading days ending on the business day before
the date on which the last regulatory approval required for consummation of
the Merger is obtained ("NHTB Trading Price"). The following table shows
the Exchange Ratio at various NHTB Trading Prices together with the Per
Landmark Share Value in each case. The Per Landmark Share Value is
calculated by multiplying the NHTB Trading Price by the applicable Exchange
Ratio, and represents the aggregate value of NHTB Common Stock that would
be received in the Merger for each share of Landmark Common Stock, based on
the NHTB Trading Price. Since the NHTB Trading Price is based on the
trading price on the NASDAQ for the thirty trading days prior to receipt of
the last required regulatory approval necessary for the Merger, the actual
Exchange Ratio cannot be determined until shortly before the Effective
Date. The market price of NHTB Common Stock at the Effective Date could
differ from the NHTB Trading Price used to determine the Exchange Ratio,
and the actual value of a share of NHTB Common Stock issued in the Merger
therefore could differ from the Per Landmark Share Value.
NHTB TRADING PRICE EXCHANGE RATIO PER LANDMARK SHARE
- ------------------ -------------- ------------------
Greater than $11.75 Fluctuates $ 14.00
$8.25 - $11.75 1.221 $10.07 - $14.35
$6.50 - $8.24 Fluctuates $ 10.00
Below $6.50 (1)
- ----------
(1) Landmark may, but need not, seek to terminate the Agreements if the
NHTB Trading Price is below $6.50. See "THE MERGER--Conditions to
Consummation."
See "THE MERGER--Merger Consideration," "--Adjustment of Merger
Consideration" "--Exchange of Certificates; Election Procedures; Fractional
Shares," "--Effective Time" and " "CERTAIN RELATED TRANSACTIONS--
Rights of Dissenting Shareholders."
RECOMMENDATIONS OF THE BOARDS OF DIRECTORS AND REASONS FOR THE MERGER
NHTB. THE BOARD OF DIRECTORS OF NHTB HAS UNANIMOUSLY ADOPTED A
RESOLUTION APPROVING THE AGREEMENTS AND UNANIMOUSLY RECOMMENDS APPROVAL AND
ADOPTION OF THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY
INCLUDING THE ISSUANCE OF THE MERGER SHARES BY NHTB SHAREHOLDERS. NHTB's
Board has adopted that resolution and makes that recommendation because it
believes that the terms of the Agreements are fair and in the best
interests of NHTB and its shareholders and because the NHTB Board believes
in its business judgment that the Merger Consideration is fair and
reasonable to the shareholders of NHTB. The terms of the Agreements were
reached on the basis of arms' length negotiations between Landmark and
NHTB. In the course of reaching its decision to approve the Agreements,
the NHTB Board consulted with its legal advisor Thacher Proffitt & Wood,
regarding
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the legal terms of the Agreements and the Board of Directors' obligations
in its consideration thereof, and with HAS Associates, Inc. ("HAS"), its
financial advisor, regarding the financial terms and fairness, from a
financial point of view, of the Merger Consideration in the proposed
Merger.
See "THE MERGER--Background of the Merger" and "--Reasons for the
Merger and Recommendation of the Boards of Directors."
LANDMARK. THE BOARD OF DIRECTORS OF LANDMARK HAS UNANIMOUSLY ADOPTED A
RESOLUTION APPROVING THE AGREEMENTS AND UNANIMOUSLY RECOMMENDS APPROVAL AND
ADOPTION OF THE AGREEMENTS BY LANDMARK'S SHAREHOLDERS. Landmark's Board
has adopted that resolution and makes that recommendation because it
believes that the terms of the Agreements are fair and in the best
interests of Landmark and its shareholders and because the Landmark Board
believes in its business judgment that the Merger Consideration is fair and
reasonable to the shareholders of Landmark. In the course of reaching its
decision to approve the Agreements, the Board of Directors of Landmark
consulted with its legal advisors, Gallagher, Callahan & Gartrell, P.A.,
regarding the legal terms of the Agreements and the Board of Directors'
obligations in its consideration thereof, and with McConnell, Budd &
Downes, Inc. ("MB&D"), its financial advisor, regarding the financial terms
and fairness, from a financial point of view, of the Merger Consideration
in the proposed Merger.
See "THE MERGER--Background of the Merger" and "--Reasons for the
Merger and Recommendation of the Boards of Directors."
OPINIONS OF FINANCIAL ADVISORS
NHTB. HAS has served as financial advisor to NHTB in connection with
the Merger and has delivered to the Board of Directors of NHTB its written
opinion, as of the date of this Joint Proxy Statement-Prospectus, that the
consideration to be paid by NHTB to Landmark shareholders pursuant to the
Agreements is fair, from a financial point of view, to NHTB's shareholders.
The full text of the opinion of HAS dated as of the date of this Joint
Proxy Statement-Prospectus, which sets forth assumptions made, matters
considered and limits on the review undertaken by HAS, is attached hereto
in Appendix B. Shareholders are urged to read this opinion in its
entirety. HAS's opinion is directed only to the terms of the Merger and
does not constitute a recommendation to any NHTB shareholder as to how such
shareholder should vote at the NHTB Special Meeting.
See "THE MERGER--Background of the Merger," "--Opinions of Financial
Advisors" and Appendix B to this Joint Proxy Statement-Prospectus.
Landmark. MB&D has served as financial advisor to Landmark in
connection with the Merger and has delivered to the Board of Directors of
Landmark its written opinion, as of the date of this Joint Proxy Statement-
Prospectus, that the Merger Consideration is fair, from a financial point
of view, to Landmark's shareholders. The full text of the opinion of MB&D
dated as of the date of this Joint Proxy Statement-Prospectus, which sets
forth assumptions made, matters considered and limits on the review
undertaken by MB&D, is attached hereto in Appendix B. Shareholders are
urged to read this opinion in its entirety. MB&D's opinion is directed only
to the Merger Consideration and does not constitute a recommendation to any
Landmark shareholder as to how such shareholder should vote at the Landmark
Special Meeting.
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See "THE MERGER--Background of the Merger," "--Opinions of Financial
Advisors" and Appendix B to this Joint Proxy Statement-Prospectus.
CONDITIONS TO THE CONSUMMATION OF THE MERGER
Consummation of the Merger is subject to various conditions, including
the approvals of the shareholders of Landmark and NHTB solicited hereby;
the effectiveness of the Registration Statement of which this Joint Proxy
Statement-Prospectus forms a part; approval by certain federal and New
Hampshire regulatory authorities; receipt by Landmark and NHTB of opinions
of their respective counsels as to the tax-free nature of the Merger for
federal income tax purposes (except for cash received by Landmark
shareholders as Merger Consideration or in lieu of fractional shares); that
there shall have been no material adverse change in the business,
operations, results of operations or condition of Landmark or NHTB since
December 31, 1995; that Landmark's allowance for loan losses on the balance
sheet of Landmark as of the last month immediately preceding the Effective
Date shall be at least $600,000 and Landmark's Tier 1 capital ratio
(determined in accordance with Generally Accepted Accounting Principles
("GAAP") shall be at least 5.8%; the receipt of a voting agreement from any
Landmark shareholder who at the Effective Time becomes the beneficial owner
of more than 3% of the outstanding shares of NHTB Common Stock whereby such
shareholder agrees not to vote any shares beneficially owned by him in
excess of 3% of the outstanding shares of NHTB for a period of two years
after the Effective Date; and other customary closing conditions. None of
the foregoing regulatory approvals has been obtained and there is no
assurance that such approvals will be obtained or as to the timing of such
approvals or the imposition of any material conditions to such approvals.
See "THE MERGER--Conditions to Consummation" and "--Regulatory
Matters."
TERMINATION
The Plan of Reorganization provides that the Merger may be terminated
at any time prior to the Effective Time (whether before or after
shareholder approval), by the mutual consent in writing of NHTB and
Landmark. The Merger also may be terminated by NHTB or Landmark, acting
individually, (a) if any regulatory authority shall have issued a final
nonappealable order enjoining, prohibiting or failing to approve the Merger
or the transactions contemplated thereby; (b) if the Effective Time has not
occurred on or before June 30, 1997 unless the failure to close by such
date is due to the failure of the party seeking to terminate the Agreements
to perform or observe the covenants and agreements set forth in the
Agreements; (c) if there is a material breach by the other party of any
representation, warranty, covenant or agreement contained in the Plan of
Reorganization or the Merger Agreement which is not timely cured; or (d) if
the vote of the shareholders of NHTB or Landmark solicited hereby is not
obtained. Landmark may terminate the Merger if the NHTB Trading Price is
less than $6.50 upon written notice to NHTB prior to the third business day
immediately preceding the Effective Date and NHTB does not elect to
increase the Exchange Ratio, as agreed to by Landmark. If the Plan of
Reorganization or the Merger Agreement is terminated (other than as a
result of a wilful breach by NHTB or Landmark), each of NHTB and Landmark
shall be responsible for its own costs and expenses. If the Plan of
Reorganization or the Merger Agreement is terminated as a result of a
breach of a representation, warranty or covenant which is caused by the
wilful conduct of either party, the breaching party may be liable for
damages to the other, including out-of-pocket costs and expenses incurred
in connection with the Merger.
See "THE MERGER--Termination."
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AMENDMENT, EXTENSION AND WAIVER
The Boards of Directors of NHTB and Landmark may, to the extent
legally allowable, (a) amend the Agreements; (b) extend the time for the
performance of any of the obligations or other acts required of the other
party contained in the Agreements; (c) waive any inaccuracies in the
representations and warranties of the other party contained in the
Agreements or in any document delivered pursuant to the Agreements; or (d)
waive compliance by the other party of any of its agreements or conditions
contained in the Agreements, except that after the Agreements have been
approved by the shareholders of Landmark, (i) no amendment shall alter or
change the amount or kind of Merger Consideration, or (ii) adversely affect
the tax treatment to Landmark shareholders as a result of receipt of the
Merger Consideration. Except in the circumstances described in (i) and
(ii) above, no amendment to the Agreements (including, but not limited to,
any waiver of conditions, waiver of inaccuracies in the representations and
warranties or extension of time for the performance of any of the
obligations contained in the Agreements) would require further solicitation
of proxies from or approval by the NHTB or Landmark shareholders.
See "THE MERGER--Amendment, Extension and Waiver."
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Certain members of Landmark's management and the Landmark Board have
interests in the Merger in addition to their interests as shareholders of
Landmark generally.
In connection with the Merger, NHTB has agreed to provide certain
benefits to the employees of Landmark and to appoint two members of
Landmark's Board to serve on NHTB's Board, one to serve for a three-year
term and the other to serve for a two-year term. In connection with the
Merger, the Bank has agreed to appoint three members of Landmark's Board to
serve on the Bank's Board, one to serve for a three-year term, one to serve
for a two-year term and one to serve for a one-year term. See "THE MERGER--
Interests of Certain Persons in the Merger."
NHTB has also agreed to continue the rights to indemnification of
officers and directors of Landmark and to continue in effect for a period
of time the directors' and officers' liability insurance currently
maintained by Landmark. See "THE MERGER--Effect on Employees and Employee
Benefits."
Landmark is a party to an employment agreement (the "Employment
Agreement") with Paul P. Tierney pursuant to which Mr. Tierney serves as
Landmark's President and Chief Executive Officer. In connection with the
Merger, Landmark will be merged with and into the Bank, with the Bank as
the surviving entity, and Mr. Tierney will not be elected or serve as
President and Chief Executive Officer of the Bank. Because of this
reduction in his responsibilities, pursuant to the Employment Agreement,
NHTB or the Bank will pay Mr. Tierney $188,400 (equivalent to two-years
salary and the monetary equivalent of certain benefits, as provided in the
Employment Agreement) and assume the liabilities of Landmark with respect
to certain deferred compensation arrangements established pursuant to the
Employment Agreement. In exchange, Mr. Tierney will acknowledge such
payment and assumption as full satisfaction of all obligations to him under
the Employment Agreement and execute a release in favor of Landmark, NHTB
and the Bank and their affiliates.
In addition, the Agreements provide that all employees of Landmark as
of the Effective Date shall become employees of NHTB, the Bank, or an
affiliate thereof as of the Effective Date. Subsequently, any employee of
NHTB, the Bank or an affiliate thereof who was employed by Landmark on the
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Effective Date, if terminated within one year after the Effective Date, in
addition to any severance payment, will receive reimbursement for the their
direct cost for health insurance continuation coverage under NHTB's group
health plan for the period, if any, for which NHTB provides severance
benefits. In exchange, each employee receiving such reimbursement will
execute a release in favor of Landmark, NHTB and the Bank and their
affiliates.
The Landmark Board was aware of these interests and considered them,
among other matters, in unanimously approving the Agreements and the
transactions contemplated thereby.
The Bank and Landmark have entered into agreements with five current
Landmark employees to provide for bonuses to be funded by Landmark and paid
by the Bank provided the employees remain employed in good standing and
continue such employment with the Bank for 105 days following the Effective
Date. The total amount accrued by Landmark to fund the bonus payments is
$53,462.
See "THE MERGER--Interests of Certain Persons in the Merger."
REGULATORY APPROVALS
Consummation of the transactions contemplated by the Merger Agreement
is subject to approval by the OTS and the Commissioner of Banks of New
Hampshire (the "Commissioner of Banks"). Assuming the approval of the OTS,
the Merger may not be consummated for 30 days after the later of such
approvals (or such shorter period as the OTS may prescribe with the
concurrence of the Attorney General, but not less than 15 days), during
which time the United States Department of Justice may challenge the Merger
on antitrust grounds. Applications or notices seeking these approvals have
been filed as of the date of this Joint Proxy Statement-Prospectus. The
Merger will not proceed until all regulatory approvals required to
consummate the Merger have been obtained, such approvals are in full force
and effect and all statutory waiting periods in respect thereof have
expired. There can be no assurance that the Merger will be approved by each
of the required regulatory agencies. If such approvals are received, there
can be no assurance as to the date of such approvals, the terms thereof, or
the absence of any litigation challenging such approvals. See "THE MERGER--
Regulatory Matters."
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
Consummation of the Merger is conditioned on delivery to each of NHTB
and Landmark opinions of their respective counsels, to the effect that,
among other things, (a) the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986 (the
"Code"); (b) no gain or loss will be recognized by Landmark on the transfer
of its assets to the Bank pursuant to the Merger; (c) no gain or loss will
be recognized by NHTB or by the Bank on the issuance of shares of NHTB
Common Stock to shareholders of Landmark pursuant to the Merger; (d) no
gain or loss will be recognized by a shareholder of Landmark who exchanges
pursuant to the Merger all of such shareholder's shares of Landmark stock
solely for shares of NHTB Common Stock, except with respect to cash
received by such shareholder in lieu of a fractional share interest in NHTB
Common Stock; (e) the aggregate tax basis of the shares of NHTB Common
Stock received by a shareholder of Landmark who exchanges pursuant to the
Merger all of such shareholder's shares of Landmark stock solely for shares
of NHTB Common Stock will be the same as the tax basis of the shares of
Landmark stock surrendered in exchange therefor (reduced by any amount
allocable to a fractional share interest in NHTB Common Stock for which
cash is received); (f) the aggregate tax basis of the shares of NHTB Common
Stock received by a shareholder of Landmark who exchanges pursuant to the
Merger all of such shareholder's shares of Landmark stock for shares of
NHTB Common Stock and cash will be the same as such shareholder's aggregate
tax basis in the Landmark shares exchanged therefor (reduced by any amount
allocable to a fractional share interest in NHTB Common Stock for which
cash is received), decreased by the amount of cash received (other than
cash received in lieu of a fractional share interest)
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and increased by the amount of gain, if any, recognized by such shareholder
in the Merger (including any portion of such gain that is treated as a
dividend) and (g) the holding period of the shares of NHTB Common Stock to
be received by a shareholder of Landmark pursuant to the Merger will
include the period during which such shareholder held the shares of
Landmark stock surrendered in exchange therefor, provided that the shares
of Landmark stock surrendered is held as a capital asset as of the
Effective Time. In the opinion of NHTB and Landmark's respective counsels,
the foregoing sets forth the anticipated material federal income tax
consequences of the Merger to such Landmark shareholders and to Landmark
and NHTB. It is a condition of closing that each such respective counsel
will deliver to NHTB and Landmark, respectively, opinions as to the
foregoing tax consequences.
Shareholders should consult their own tax advisors as to the effect or
their own particular situation on the federal tax consequences of the
Merger to them and as to the applicability of any state, local or foreign
tax laws.
See "THE MERGER--Material Federal Income Tax Consequences."
ACCOUNTING TREATMENT
NHTB intends to treat the Merger as a purchase for accounting
purposes. See "THE MERGER--Accounting Treatment."
MANAGEMENT AND OPERATIONS AFTER THE MERGER
The Merger Agreement provides that prior to or at the Effective Time,
the Board of Directors of NHTB will appoint two of Landmark's current
directors to serve on the NHTB Board of Directors and the Board of
Directors of the Bank will elect three of Landmark's directors to serve on
the Board of Directors of the Bank.
See "THE MERGER--Management and Operations After the Merger."
THE STOCK OPTION AGREEMENT
As a condition to entering into the Agreements, NHTB required Landmark
to enter into the Stock Option Agreement (the "Option Agreement") which
allows NHTB to purchase up to 19.9% of the then-issued and outstanding
Landmark Common Stock under certain conditions, at a price of $9.00 per
share, subject to adjustment as set forth in the Option Agreement. The
Option is exercisable, in whole or in part, only upon the occurrence of
certain triggering events (none of which has occurred to the best of NHTB's
or Landmark's knowledge as of the date of the Joint Proxy Statement-
Prospectus). A copy of the Option Agreement is attached to this Joint Proxy
Statement-Prospectus as Appendix C.
The Option Agreement is intended to increase the likelihood that the
Merger will be consummated in accordance with the terms of the Agreements.
The Option may act to deter competing offers from third parties to acquire
Landmark. If a triggering event occurs, the Option could be exercised,
thereby increasing the number of outstanding shares of Landmark's Common
Stock and making it more difficult and costly for a third party to obtain
all or a specified percentage of Landmark's Common Stock.
See "CERTAIN RELATED TRANSACTIONS--The Stock Option Agreement."
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APPRAISAL RIGHTS OF DISSENTING SHAREHOLDERS
Under regulations of the Commissioner of Banks, holders of Landmark
Common Stock have the right to dissent from the Merger and receive payment
in accordance with regulations of the Comptroller of the Currency, U.S.
Department of Treasury ("OCC"), applicable to mergers of national banks
with federal savings associations (the "Dissent Regulations"). Each
outstanding share of Landmark Common Stock, the holder of which has
perfected his or her right to dissent and has not effectively withdrawn or
lost such right as of the Effective Date (the "Dissenting Shares"), shall
not be converted into or represent a right to receive shares of NHTB"
Common Stock or cash hereunder, and the holder thereof shall be entitled
only to such rights as are granted by applicable law. Under the Dissent
Regulations the value of Dissenting Shares will be determined by a
committee of three persons - one selected by the dissenting
shareholder(s), one by the Board of Directors of the Bank and a third
selected by these two persons. Any dissenting shareholder who disagrees
with the valuation made by the committee may appeal the determination to
the Commissioner of Banks. The Commissioner of Banks will review the
committee's valuation if the Bank, NHTB and Landmark agree to reimburse the
expenses of the Commissioner of Banks. The full text of the Dissent
Regulations is included as Appendix D to this Joint Proxy Statement-
Prospectus.
Holders of NHTB Common Stock do not have the right to dissent from the
Merger.
See "CERTAIN RELATED TRANSACTIONS--Rights of Dissenting
Shareholders."
CERTAIN DIFFERENCES IN THE RIGHTS OF SHAREHOLDERS
The rights of shareholders of Landmark are currently governed by the
provisions of the New Hampshire Revised Statutes applicable to state-
chartered banks and Landmark's Amended Articles of Agreement (the "Landmark
Articles") and Bylaws. Upon consummation of the Merger, Landmark's
shareholders who elect to receive NHTB Common Stock will automatically
become shareholders of NHTB, and their rights will be governed by the
provisions of the Delaware General Corporation Law ("DGCL") and NHTB's
Certificate of Incorporation and Bylaws. The rights of shareholders of
NHTB differ from the rights of shareholders of Landmark with respect to
certain important matters, including voting requirements to remove
directors, combinations with related persons, beneficial ownership
limitations, prohibition against greenmail and evaluation of certain
offers.
See "COMPARISON OF RIGHTS OF NHTB AND LANDMARK SHAREHOLDERS."
SELECTED HISTORICAL AND PRO FORMA PER SHARE DATA
The following tables set forth for NHTB Common Stock and Landmark
Common Stock certain historical, unaudited pro forma and unaudited pro
forma equivalent per share information at the end of and for the six months
ended June 30, 1996, and the year ended December 31, 1995 giving effect to
the Merger accounted for as a purchase transaction. The information is
derived from the historical consolidated financial statements of NHTB and
the historical financial statements of Landmark, including the related
notes thereto, and the pro forma combined financial information giving
effect to the Merger, including the related notes thereto, appearing
elsewhere herein. The information herein should be read in conjunction with
the historical and pro forma combined financial information of NHTB and
Landmark, including the notes thereto, appearing elsewhere in this Joint
Proxy Statement-Prospectus. See "UNAUDITED PRO FORMA COMBINED FINANCIAL
DATA."
12
<PAGE>
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------- -----------------------
1996 1995
---- ----
<S> <C> <C>
Earnings (loss) per common share(1):
NHTB............................... $ 0.49 $ 0.73
Landmark........................... (0.41) (0.20)
NHTB combined pro forma............ 0.29 0.54
Landmark equivalent pro forma...... 0.35 0.66
Dividends declared per common share:
NHTB............................... 0.25 0.50
Landmark........................... -- --
NHTB combined pro forma............ 0.25 0.50
Landmark equivalent pro forma(2)... 0.31 0.61
<CAPTION>
AT AT
JUNE 30, DECEMBER 31,
1996 1995
------ ------
<S> <C> <C>
Book value per share(3):
NHTB............................... $11.51 $11.57
Landmark........................... 7.00 7.90
NHTB combined pro forma(4)......... 11.21 N/A
Landmark equivalent pro forma(4)... 13.69 N/A
- ------------------
</TABLE>
(1) NHTB combined pro forma earnings per common share are calculated by
using aggregate historical income information for NHTB and Landmark
divided by the average pro forma shares outstanding of the combined
entity. The average pro forma shares of the combined entity have been
calculated by combining NHTB historical average shares with the shares
of Landmark to be exchanged for NHTB shares as adjusted by the Exchange
Ratio of 1.221. See "THE MERGER--Merger Consideration." The Landmark
equivalent pro forma earnings per share amounts are computed by
multiplying the NHTB combined pro forma amounts by the Exchange Ratio.
(2) Landmark equivalent pro forma dividends declared per share represent
NHTB pro forma cash dividends per share multiplied by the Exchange
Ratio. See "THE MERGER--Merger Consideration."
(3) NHTB combined pro forma book value per share is based on the aggregate
historical common shareholders' equity of NHTB and Landmark divided by
the total pro forma common shares of the combined entity based on the
Exchange Ratio of 1.221. Landmark equivalent pro forma book value per
share at period end represents NHTB pro forma amounts multiplied by the
Exchange Ratio. See "THE MERGER--Merger Consideration."
(4) Landmark and NHTB combined pro forma per share information is
calculated on the assumption that all outstanding shares of Landmark
Preferred Stock will be converted into shares of Landmark Common Stock.
13
<PAGE>
MARKET PRICES
The shares of NHTB Common Stock are quoted on the Nasdaq National
Market System. The following table shows the market value per share for
each of NHTB and Landmark and the Landmark equivalent for the date set
forth below:
CLOSING SALES PRICE
-------------------
NHTB LANDMARK LANDMARK
COMMON COMMON EQUIVALENT
STOCK STOCK(1) PER SHARE(2)
-----------------------------------------
Market value per common share:
July 25, 1996(3)........... $9.875 -- $12.057
November 1, 1996.......... 11.75 -- 14.35
- ----------------
(1) The shares of Landmark Common Stock are not quoted on any national or
regional exchange. In the recent three-year period, trading in
Landmark Common Stock has been minimal with 31,515 shares traded in
1993, 71,575 shares traded in 1994, 97,351 shares traded in 1995, and
23,519 shares traded through September 15, 1996. Since Landmark's
inception in 1991, no shares of Landmark Common Stock have been issued
by Landmark, except for the conversion of shares of Landmark Preferred
Stock into Landmark Common Stock for purposes of director's qualifying
shares. The shares traded during the referenced periods were
exchanged in private transactions; Landmark does not have available to
it reliable information regarding the prices at which such shares were
traded.
(2) Equivalent market value per share of Landmark Common Stock represents
the closing sales price of NHTB Common Stock on the date reported
multiplied by the Exchange Ratio of 1.221. The Cash Election Price is
$12.00 per share.
(3) The business day immediately preceding the public announcement of the
proposed Merger.
14
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
SELECTED HISTORICAL FINANCIAL DATA
The following selected financial data for the five years ended
December 31, 1995, are derived from the audited financial statements of
NHTB. The financial data for the six month periods ended June 30, 1996 and
1995 are derived from unaudited financial statements. The unaudited
financial statements include all adjustments, consisting of normal
recurring accruals, that NHTB considers necessary for a fair presentation
of the financial position and the results of operations for these periods.
Operating results for the six months ended June 30, 1996 are not
necessarily indicative of the results that may be expected for the entire
year. The data should be read in conjunction with the financial statements,
related notes, and other financial information included in this Joint Proxy
Statement-Prospectus.
<TABLE>
<CAPTION>
AT OR FOR THE SIX
MONTHS ENDED
JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
---------------------- ----------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
RESULTS OF OPERATIONS:
Interest and dividend income......... $ 9,197 $ 8,350 $ 17,466 $ 14,542 $ 14,089 $ 16,189 $ 18,637
Interest expense..................... 5,055 4,552 9,598 7,046 6,835 8,902 12,057
-------- -------- -------- -------- -------- -------- --------
Net interest income............... 4,142 3,798 7,868 7,496 7,254 7,287 6,580
Provision for loan losses, net....... 744 580 1,164 762 1,373 2,165 895
-------- -------- -------- -------- -------- -------- --------
Net interest and dividend income
after provision for loan losses.. 3,398 3,218 6,704 6,734 5,881 5,122 5,685
Non-interest income.................. 1,087 712 1,436 1,557 1,907 2,232 1,258
Non-interest expense................. 3,249 3,263 6,291 5,986 5,527 5,518 5,711
-------- -------- -------- -------- -------- -------- --------
Income before income tax expense..... 1,236 667 1,849 2,305 2,261 1,836 1,232
Income tax expense................... 408 220 604 723 736 642 397
-------- -------- -------- -------- -------- -------- --------
Net income........................ $ 828 $ 447 $ 1,245 $ 1,582 $ 1,525 $ 1,194 $ 835
======== ======== ======== ======== ======== ======== ========
ENDING BALANCE SHEET DATA:
Assets............................... $258,526 $246,683 $258,216 $233,363 $207,105 $208,981 $203,229
Investment securities................ 27,910 23,463 28,415 20,363 17,998 23,680 22,451
Gross loans.......................... 215,731 206,639 210,676 198,776 176,428 171,146 166,366
Allowance for possible loan losses... 1,507 1,473 1,828 2,753 2,374 2,095 2,290
Real estate owned.................... 820 1,282 984 1,505 1,854 2,737 4,876
Deposits............................. 200,303 196,138 199,971 194,533 176,716 182,404 172,671
Borrowed funds(2).................... 36,614 28,217 36,489 18,809 10,122 6,944 11,484
Shareholders' equity................. 19,475 18,874 19,544 18,253 18,387 18,036 17,645
PER SHARE DATA AND OTHER SELECTED
RATIOS:
Earnings per common share............ $ 0.49 $ 0.26 $ 0.73 $ 0.93 $ 0.88 $ 0.68 $ 0.45
Dividends declared per share......... $ 0.25 $ 0.25 $ 0.50 $ 0.50 $ 0.375 $ 0.35 $ 0.14
Dividend payout ratio................ 51.02% 96.15% 68.49% 53.76% 42.61% 51.47% 31.11%
Book value per share................. $ 11.51 $ 11.29 $ 11.57 $ 10.92 $ 11.01 $ 10.41 $ 9.98
Shareholders' equity to assets
at period end...................... 7.53% 7.65% 7.57% 7.82% 8.88% 8.63% 8.68%
Average shareholders' equity to
average assets..................... 7.65% 7.87% 7.72% 8.15% 8.76% 8.69% 8.80%
Return on average assets(1).......... 0.66% 0.38% 0.54% 0.71% 0.74% 0.58% 0.40%
Return on average equity(1).......... 8.59% 4.87% 6.95% 8.76% 8.43% 6.56% 4.59%
Net interest margin(1)............... 3.45% 3.43% 3.42% 3.61% 3.75% 3.79% 3.48%
</TABLE>
_______________
(1) Calculated on an annualized basis.
(2) Includes repurchase agreements, federal funds purchased and Federal
Home Loan Bank advances.
15
<PAGE>
LANDMARK BANK
SELECTED HISTORICAL FINANCIAL DATA
The following selected financial data for the five years ended
December 31, 1995, are derived from the audited financial statements of
Landmark. The financial data for the six month periods ended June 30, 1996
and 1995 are derived from unaudited financial statements. The unaudited
financial statements include all adjustments, consisting of normal
recurring accruals, that Landmark considers necessary for a fair
presentation of the financial position and the results of operations for
these periods. Operating results for the six months ended June 30, 1996
are not necessarily indicative of the results that may be expected for the
entire year. The data should be read in conjunction with the financial
statements, related notes, and other financial information included in this
Joint Proxy Statement-Prospectus.
<TABLE>
<CAPTION>
AT OR FOR THE SIX
MONTHS ENDED
JUNE 30, AT OR FOR THE YEAR ENDED DECEMBER 31,
---------------------- ----------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
RESULTS OF OPERATIONS:
Interest and dividend income................ $ 2,345 $ 2,478 $ 5,163 $ 3,593 $ 2,594 $ 1,921 $ 560
Interest expense............................ 1,458 1,258 2,858 1,392 971 830 334
------- ------- ------- ------- ------- ------- -------
Net interest income...................... 887 1,220 2,305 2,201 1,623 1,091 226
Provision for loan losses................... 317 48 205 203 145 71 71
------- ------- ------- ------- ------- ------- -------
Net interest and dividend income after
provision for loan losses.............. 570 1,172 2,100 1,998 1,478 1,020 155
Non-interest income......................... 304 187 411 561 863 335 24
Non-interest expense........................ 1,106 1,299 2,485 2,192 1,587 1,163 903
------- ------- ------- ------- ------- ------- -------
Income (loss) before income tax expense
(benefit) and cumulative effect of a change
in accounting principle................. (232) 60 26 367 754 192 (724)
Income tax expense (benefit)................ (86) 27 5 141 278 30 --
------- ------- ------- ------- ------- ------- -------
Income (loss) before cumulative effect of a
change in accounting principle............ (146) 33 21 226 476 162 (724)
Cumulative effect of a change in accounting -- -- -- -- -- 460 --
principle.................................. ------- ------- ------- ------- ------- ------- -------
Net income (loss)........................ (146) 33 21 226 476 622 (724)
Preferred stock dividends................... -- (50) (93) (106) -- -- --
------- --------- --------- ------- ------- ------- -------
Net income (loss) applicable to common $ (146) $ (17) $ (72) $ 120 $ 476 $ 622 $ (724)
stock(3)................................. ======= ========= ========= ======= ======= ======= =======
ENDING BALANCE SHEET DATA:
Assets...................................... $57,771 $66,403 $60,763 $56,330 $33,711 $27,984 $19,079
Securities.................................. 7,939 10,669 10,335 10,931 1,788 3,857 8,113
Loans(2).................................... 43,165 42,862 43,521 40,930 27,847 21,131 6,890
Allowance for loan losses................... 858 502 659 465 265 142 71
Deposits.................................... 53,736 61,935 56,359 51,991 29,345 25,118 16,771
Borrowed funds.............................. 309 392 304 220 351 29 49
Common stockholders' equity................. 2,481 2,757 2,797 2,731 2,789 2,365 1,743
PER SHARE DATA AND OTHER SELECTED RATIOS:
Earnings (loss) per common and common
equivalent share: primary.................. $ (0.41) $ (.05) $ (.20) $ 0.34 $ 1.15 $ 1.75 $ (2.05)
Book value per common share................. $ 7.00 $ 7.78 $ 7.90 $ 7.71 $ 7.88 $ 6.68 $ 4.92
Shareholders' equity to assets at end of
period..................................... 6.19% 5.78% 6.40% 6.73% 11.11% 8.99% 9.14%
Average shareholders' equity to average
assets..................................... 6.35% 6.78% 6.45% 9.18% 10.17% 8.37% 25.99%
Net interest margin(1)...................... 3.16% 4.48% 4.06% 5.52% 5.33% 2.35% 4.21%
</TABLE>
_______________
(1) Calculated on an annualized basis.
(2) Total loans represent gross loans less deferred fees (costs) and deferred
gain on sales of SBA loans.
(3) For purposes of computing earnings per share on common stock, the inclusion
or exclusion of outstanding convertible preferred shares of stock as common
stock equivalents in computing the weighted average number of shares of
common stock outstanding and the inclusion or exclusion of preferred stock
dividends in computing net income depends on whether the effect of inclusion
is dilutive or antidilutive on earnings per share. The inclusion of
outstanding convertible preferred shares was antidilutive for periods after
1993, so preferred stock dividends were deducted from net income (loss). The
inclusion for 1993 was dilutive, so preferred stock dividends of $42,000
were not included in computing earnings per share.
16
<PAGE>
MEETING INFORMATION
NHTB MEETING
General. This Joint Proxy Statement-Prospectus is being furnished in
connection with the solicitation of proxies by the Board of Directors of NHTB
for use at the NHTB Special Meeting. The NHTB Special Meeting will be held at
the Lake Sunapee Bank Building, 1868 Room, 9 Main Street, Newport, New
Hampshire, on Thursday, December 19, 1996 at 10:00 a.m.
The NHTB Special Meeting will be held for the purpose of (i) considering and
voting upon a proposal to approve and adopt the Agreements and the transactions
contemplated thereby, including the issuance of the Merger Shares; (ii)
approving a proposal to adjourn the NHTB Special Meeting for any reason,
including to permit further solicitation of proxies as to the Agreements; and
(iii) conducting any other business that may properly come before the NHTB
Special Meeting, or any adjournments or postponements thereof. Any action may be
taken on the foregoing proposals at the NHTB Special Meeting on the date
specified above, or on any date or dates to which, by original or later
adjournment, the NHTB Special Meeting may be adjourned, or to which the NHTB
Special Meeting may be postponed.
THE NHTB BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE NHTB SHAREHOLDERS
VOTE FOR APPROVAL AND ADOPTION OF THE AGREEMENTS AND THE TRANSACTIONS
CONTEMPLATED THEREBY, AND FOR THE OTHER MATTERS TO BE CONSIDERED AT THE NHTB
SPECIAL MEETING.
Record Date. The NHTB Board of Directors has fixed the close of business on
November 1, 1996 as the NHTB Record Date. Only the holders of record of the
outstanding shares of NHTB Common Stock on the NHTB Record Date will be entitled
to notice of, and to vote at, the NHTB Special Meeting and any adjournments or
postponements thereof. At the NHTB Record Date, ___________ shares of NHTB
Common Stock were outstanding and entitled to vote.
Proxies; Voting and Revocation. The presence, in person or by proxy, of one-
third of the aggregate number of shares of NHTB Common Stock outstanding and
entitled to vote on the NHTB Record Date is necessary to constitute a quorum at
the NHTB Special Meeting. The affirmative vote of (i) the holders of a majority
of the outstanding shares of NHTB Common Stock entitled to vote on the Merger is
required to approve and adopt the Agreements; and (ii) a majority of the NHTB
Common Stock present or represented and entitled to vote and voting at the NHTB
Special Meeting is required to approve an adjournment of the NHTB Special
Meeting. Abstentions will be included in the number of shares present or
represented and voting on each matter and broker non-votes will not be included
in the number of shares present or represented and voting on each matter. With
respect to the proposal to adopt and approve the Agreements, both an abstention
and a non-vote will have the effect of a negative vote. With respect to the
proposal to adjourn the NHTB Special Meeting, an abstention will have the effect
of a negative vote and a non-vote will have no effect. A non-vote occurs when a
nominee holding shares for a beneficial owner votes on one proposal, but does
not vote on another proposal because, in respect of such other proposal, the
nominee does not have discretionary voting power and has not received
instructions from the beneficial owner. Specifically, under applicable rules and
regulations, brokers who hold shares in street name for customers who are the
beneficial owners of such shares are prohibited from giving a proxy to vote
shares held for such customers on the approval and adoption of the Agreements
without specific instructions from such customers.
At the Record Date, _________ shares of NHTB Common Stock were outstanding and
entitled to vote. Assuming that directors and executive officers of NHTB and
their respective affiliates holding an aggregate of _______ shares (as of
____________, 1996), or approximately ___%, of the outstanding
17
<PAGE>
NHTB Common Stock vote their shares in favor of the Agreements, the affirmative
vote of holders of approximately _________ additional shares of NHTB Common
Stock, representing approximately ____% of the shares issued and outstanding on
the NHTB Record Date, will be required to approve the Agreements. The approval
of the Agreements by NHTB's shareholders is a condition to the consummation of
the Merger.
Approval of any proposal to adjourn the NHTB Special Meeting for any reason,
including to permit further solicitation of proxies, would require the
affirmative vote of a majority of the votes cast at the NHTB Special Meeting.
SHARES REPRESENTED BY A PROPERLY EXECUTED PROXY RECEIVED PRIOR TO THE VOTE AT
THE NHTB SPECIAL MEETING AND NOT REVOKED WILL BE VOTED AT THE NHTB SPECIAL
MEETING AS DIRECTED IN THE PROXY. IF A PROXY IS SUBMITTED AND NO DIRECTIONS ARE
GIVEN, THE PROXY WILL BE VOTED FOR THE APPROVAL AND ADOPTION OF THE AGREEMENTS
AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING ISSUANCE OF THE MERGER
SHARES AND FOR THE PROPOSAL TO ADJOURN THE MEETING.
A NHTB shareholder of record may revoke a proxy by filing an instrument of
revocation with Linda L. Oldham, Secretary of NHTB (The Carriage House, P.O. Box
37, New London, New Hampshire 03257), by filing a duly executed proxy bearing a
later date, or by appearing at the NHTB Special Meeting in person, notifying the
Secretary, and voting by ballot at the NHTB Special Meeting. Any NHTB
shareholder of record attending the NHTB Special Meeting may vote in person
whether or not a proxy has been previously given, but the mere presence (without
notifying the Secretary) of a shareholder at the NHTB Special Meeting will not
constitute revocation of a previously given proxy.
Solicitation of Proxies. The cost of solicitation of proxies by NHTB will be
borne by NHTB. In addition to the solicitation of proxies by mail, the
directors, officers and employees of NHTB may also solicit proxies personally or
by telephone or facsimile. NHTB will also request persons, firms and
corporations holding shares which are beneficially owned by others to send proxy
materials to and obtain proxies from such beneficial owners. NHTB will reimburse
those holders for their reasonable expenses. NHTB has also retained Morrow &
Company, a proxy soliciting firm, to assist in the solicitation of proxies at a
fee of approximately $4,500 plus reimbursement of certain out-of-pocket
expenses.
LANDMARK MEETING
General. This Joint Proxy Statement-Prospectus is being furnished in
connection with the solicitation of proxies by the Board of Directors of
Landmark for use at the Landmark Special Meeting. The Landmark Special Meeting
will be held at Landmark's branch banking office at 106 North Main Street, West
Lebanon, New Hampshire, at 4:00 p.m. on Thursday, December 19, 1996.
The Landmark Special Meeting will be held for the purpose of (i) considering
and voting upon a proposal to approve and adopt the Agreements and the
transactions contemplated thereby; (ii) approving a proposal to adjourn the
Landmark Special Meeting for any reason, including to permit further
solicitation of proxies as to the Agreements; and (iii) conducting any other
business that may properly come before the Landmark Special Meeting, or any
adjournments or postponements thereof. Any action may be taken on the foregoing
proposals at the Landmark Special Meeting on the date specified above, or on any
date or dates to which, by original or later adjournment, the Landmark Special
Meeting may be adjourned, or to which the Landmark Special Meeting may be
postponed.
18
<PAGE>
THE LANDMARK BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE LANDMARK
SHAREHOLDERS VOTE FOR APPROVAL AND ADOPTION OF THE AGREEMENTS AND THE
TRANSACTIONS CONTEMPLATED THEREBY AND FOR THE PROPOSAL TO ADJOURN THE LANDMARK
SPECIAL MEETING.
Record Date. The Landmark Board of Directors has fixed the close of business
on November 1, 1996 as the Landmark Record Date. Only the holders of record of
the outstanding shares of Landmark Common Stock on the Landmark Record Date will
be entitled to notice of, and to vote at, the Landmark Special Meeting and any
adjournments or postponements thereof. At the Landmark Record Date, 354,138
shares of Landmark Common Stock were outstanding and for the reasons discussed
in the following paragraph, only 342,803 of which are entitled to vote at the
Landmark Special Meeting.
Excess Shares. Article X of the Landmark Articles provides that no "person"
shall directly or indirectly acquire or offer to acquire the beneficial
ownership of more than fifteen percent (15%) of the issued and outstanding
shares of capital stock of Landmark entitled to vote. In the event voting
shares are acquired in violation of this provision, all shares beneficially
owned by such person in excess of the fifteen percent limitation are considered
"excess shares" and are not entitled to be voted or counted as voting shares in
connection with any matters submitted to Landmark's shareholders for a vote, and
are excluded from the determination of whether a quorum is present at a meeting
of shareholders. The Board of Directors of Landmark have determined that a
total of 11,335 shares of Landmark Common Stock are "excess shares" under the
provisions of Article X of the Landmark Articles and are therefore not entitled
to be voted or counted as voting shares at the Landmark Special Meeting. See
"THE MERGER-- Beneficial Ownership of Landmark Common Stock."
Proxies; Voting and Revocation. The presence, in person or by proxy, of a
majority of the aggregate number of shares of Landmark Common Stock outstanding
and entitled to vote on the Landmark Record Date is necessary to constitute a
quorum at the Landmark Special Meeting. The affirmative vote of (i) the holders
of two-thirds of the outstanding shares of Landmark Common Stock is required to
approve and adopt the Agreements; and (ii) a majority of the shares of Landmark
Common Stock present or represented and entitled to vote at the Landmark Special
Meeting is required to approve an adjournment of the Landmark Special Meeting.
Landmark intends to count broker non-votes and abstentions as present at the
meeting for purposes of determining a quorum. Abstentions will be included in
the number of shares present or represented and voting on each matter and broker
non-votes will not be included in the number of shares present or represented
and voting on each matter. With respect to the proposal to adopt and approve the
Agreements, both an abstention and a non-vote will have the effect of a negative
vote. With respect to the proposal to adjourn the Landmark Special Meeting, an
abstention will have the effect of a negative vote and a non-vote will have no
effect. A non-vote occurs when a nominee holding shares for a beneficial owner
votes on one proposal, but does not vote on another proposal because, in respect
of such other proposal, the nominee does not have discretionary voting power and
has not received instructions from the beneficial owner. Specifically, under
applicable rules and regulations, brokers who hold shares in street name for
customers who are the beneficial owners of such shares are prohibited from
giving a proxy to vote shares held for such customers on the approval and
adoption of the Agreements without specific instructions from such customers.
At the Record Date, 351,138 shares of Landmark Common Stock were outstanding,
of which directors and executive officers of Landmark and their respective
affiliates held an aggregate of 133,374 shares entitled to vote at the Landmark
Special Meeting, or approximately 37.7%. The affirmative vote of holders of
approximately 102,718 additional shares of Landmark Common Stock not held by
directors, executive officers and their affiliates, representing approximately
29.0% of the shares issued and outstanding and entitled to vote on the Landmark
Record Date, will be required to approve the Agreements if all directors,
executive officersQS
19
<PAGE>
and their affiliates vote in favor of the Merger. Directors and executive
officers of Landmark and their respective affiliates holding an aggregate of
133,374 shares of the outstanding Landmark Common Stock entitled to vote have
entered into Voting Agreements with NHTB to vote their shares in favor of the
Agreements. The approval of the Agreements by Landmark's shareholders is a
condition to the consummation of the Merger. A copy of the form of Voting
Agreement is attached as Exhibit A to the Plan of Reorganization, which is
attached to this Joint Proxy Statement-Prospectus as Appendix A.
Approval of any proposal to adjourn the Landmark Special Meeting for any
reason, including to permit the further solicitation of proxies, would require
the affirmative vote of holders of a majority of the votes present or
represented and entitled to vote at the Landmark Special Meeting.
Shares represented by a properly executed proxy received prior to the vote at
the Landmark Special Meeting and not revoked will be voted at the Landmark
Special Meeting as directed in the proxy. IF A PROXY IS SUBMITTED AND NO
DIRECTIONS ARE GIVEN, THE PROXY WILL BE VOTED FOR THE APPROVAL AND ADOPTION OF
THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY AND FOR THE PROPOSAL TO
ADJOURN THE LANDMARK SPECIAL MEETING.
A Landmark shareholder of record may revoke a proxy by filing an instrument of
revocation with Jack H. Nelson, Secretary of Landmark (106 Hanover Street,
Lebanon, New Hampshire 03766), by filing a duly executed proxy bearing a later
date, or by appearing at the Landmark Special Meeting in person, notifying the
Secretary, and voting by ballot at the Landmark Special Meeting. Any shareholder
of record attending the Landmark Special Meeting may vote in person whether or
not a proxy has been previously given, but the mere presence (without notifying
the Secretary) of a shareholder at the Landmark Special Meeting will not
constitute revocation of a previously given proxy.
Solicitation of Proxies. The cost of solicitation of proxies by Landmark will
be borne by Landmark. ln addition to the solicitation of proxies by mail, the
directors, officers and employees of Landmark may also solicit proxies
personally or by telephone or facsimile. Landmark will also request persons,
firms and corporations holding shares which are beneficially owned by others to
send proxy materials to and obtain proxies from such beneficial owners. Landmark
will reimburse those holders for their reasonable expenses.
THE MERGER
GENERAL
This section of the Joint Proxy Statement-Prospectus describes all material
aspects of the proposed Merger, including the principal provisions of the
Agreements. The discussion of matters contained in the Agreements is qualified
in its entirety by reference to the full text of the Agreements, which are
attached to this Joint Proxy Statement-Prospectus as Appendix A. All
shareholders of NHTB and Landmark are urged to read the Agreements in their
entirety.
The Agreements have been unanimously approved by the Boards of Directors of
NHTB and Landmark. The Board of Directors of NHTB believes that the terms of the
Agreements are fair and in the best interests of NHTB and its shareholders and
recommends that the NHTB shareholders vote to approve and adopt the Agreements
and the transactions contemplated thereby including the issuance of the Merger
Shares. The Board of Directors of Landmark believes that the terms of the
Agreements are fair and in the best interests of Landmark and its shareholders
and recommends that the Landmark shareholders vote to approve and adopt the
Agreements and the transactions contemplated thereby.
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THE BOARD OF DIRECTORS OF EACH OF NHTB AND LANDMARK UNANIMOUSLY RECOMMENDS
THAT SHAREHOLDERS VOTE FOR THE APPROVAL AND ADOPTION OF THE MERGER.
PARTIES TO THE MERGER
NHTB. NHTB, a Delaware corporation, is a savings association holding company
headquartered in New London, New Hampshire with total assets of approximately
$258.5 million as of June 30, 1996. NHTB's banking subsidiary, Lake Sunapee
Bank, fsb, is headquartered in Newport, New Hampshire. The Bank is engaged
principally in the business of attracting deposits from the general public and
investing those deposits in residential and commercial real estate loans, in
commercial and consumer loans and in various investment securities. The Bank
operates 10 full service banking offices in New Hampshire. NHTB's principal
executive office is located at The Carriage House, P.O. Box 37, New London, New
Hampshire 03257, and its telephone number is (603) 526-2116.
Landmark. Landmark is a guaranty savings bank chartered by the State of New
Hampshire and headquartered in Lebanon, New Hampshire. As of June 30, 1996, it
had assets of approximately $57.8 million. Landmark's business is principally
commercial and residential mortgage banking, attracting deposits from and making
loans to small-to-medium sized businesses and resident households primarily in
the geographic areas of its offices. Landmark also takes retail deposits from
the general public and makes personal and consumer loans. Landmark's principal
executive office is located at 106 Hanover Street, Lebanon, New Hampshire 03766,
and its telephone number is (603) 448-0101.
EFFECTIVE TIME
Pursuant to the Merger Agreement, Landmark will be merged with and into the
Bank on the Effective Date with the Bank as the surviving bank. The Effective
Date and the Effective Time of the Merger will be the date and time the Merger
becomes effective, as set forth in the Articles of Combination to be filed with
the OTS. The Effective Date will occur as soon as practicable after the last
required approval for the Merger has been obtained and the last of all required
waiting periods under such approvals has expired, assuming the satisfaction of
the conditions set forth in Article 5 of the Plan of Reorganization. Landmark
and NHTB each anticipate that the Merger will be consummated in the first
quarter of 1997. However, the consummation of the Merger could be delayed as a
result of delays in obtaining the necessary governmental and regulatory
approvals. There can be no assurances that such approvals will be obtained or
that the Merger will be completed at any time. See "--Conditions to
Consummation" and "--Regulatory Matters."
MANAGEMENT AND OPERATIONS AFTER THE MERGER
Prior to or at the Effective Time, the Board of Directors of NHTB will appoint
two of Landmark's current directors to serve on the NHTB Board of Directors.
Mr. Jack Nelson will be appointed to the NHTB Board of Directors for a three-
year term and Mr. Leonard R. Cashman for a two-year term. Prior to or at the
Effective Time, the Board of Directors of the Bank, NHTB's banking subsidiary,
will elect three of Landmark's directors to serve on the Board of Directors of
the Bank. Mr. Jack H. Nelson, Mr. Leonard R. Cashman and Mr. Joseph B. Willey
will be elected to the Bank's Board of Directors for terms of three years, two
years and one year, respectively.
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MERGER CONSIDERATION
In the Merger, each share of Landmark Common Stock outstanding immediately
prior to the Effective Date, other than shares as to which dissenters' rights
have been asserted and not withdrawn, at the election of each Landmark
shareholder, will be converted into and exchangeable for (i) 1.221 shares of
NHTB Common Stock or (ii) $12.00 in cash, subject to the total consideration to
Landmark shareholders being comprised of 60% NHTB Common Stock and 40% cash and
subject to the election and allocation procedures set forth in the Merger
Agreement. Prior to the Effective Date all outstanding shares of Landmark
Preferred Stock will be converted into shares of Landmark Common Stock and the
holders of such converted shares will have the same rights as holders of
Landmark Common Stock to elect to receive either NHTB Common Stock or cash. See
"--Exchange of Certificates; Election Procedures; Fractional Shares" and
"--Allocations." The Merger Consideration may be adjusted under certain
circumstances. See "--Adjustment of Merger Consideration." At the Effective
Time of the Merger, Landmark will be merged with and into the Bank, with the
Bank as the surviving entity of NHTB, and shareholders of Landmark at and after
the Effective Time will no longer hold any interest in Landmark other than as
shareholders of NHTB to the extent that they elect to receive NHTB Common Stock.
The number of shares of NHTB Common Stock to be received for each share of
Landmark Common Stock depends on the NHTB Trading Price. The following table
shows the Exchange Ratio at various NHTB Trading Prices together with the Per
Landmark Share Value in each case. The Per Landmark Share Value is calculated
by multiplying the NHTB Trading Price by the applicable Exchange Ratio, and
represents the aggregate value of NHTB Common Stock that would be received in
the Merger for each share of Landmark Common Stock, based on the NHTB Trading
Price. Since the NHTB Trading Price is based on the trading price on the NASDAQ
for the thirty trading days prior to receipt of the last required regulatory
approval necessary for the Merger, the actual Exchange Ratio cannot be
determined until shortly before the Effective Date. The market price of NHTB
Common Stock at the Effective Date could differ from the NHTB Trading Price used
to determine the Exchange Ratio, and the actual value of a share of NHTB Common
Stock issued in the Merger therefore could differ from the Per Landmark Share
Value.
NHTB TRADING PRICE EXCHANGE RATIO PER LANDMARK SHARE
------------------ -------------- ------------------
Greater than $11.75 Fluctuates $14.00
$8.25 - $11.75 1.221 $10.07 - $14.35
$6.50 - $8.24 Fluctuates $10.00
Below $6.50 (1)
______________
(1) Landmark may, but need not, seek to terminate the Agreements if the
NHTB Trading Price is below $6.50. See "THE MERGER--Conditions to
Consummation."
See "THE MERGER--Adjustment of Merger Consideration"
"--Exchange of Certificates; Election Procedures; Fractional Shares,"
"--Effective Time" and "CERTAIN RELATED TRANSACTIONS--Rights of
Dissenting Shareholders."
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THIS PRICING MECHANISM IS ALSO DEPICTED IN THE FOLLOWING GRAPH
[GRAPH]
BACKGROUND OF THE MERGER
As part of its strategy to provide community banking services in
western New Hampshire, the Board of Directors of NHTB in the late 1980's
determined to pursue opportunities to expand into the Upper Valley region
of New Hampshire by establishing de novo branch locations. The Upper
Valley region is located along the Connecticut River border of western New
Hampshire in the counties of Sullivan and Grafton and includes the
commercial and recreational areas surrounding Lebanon, New Hampshire on the
Vermont border and the education center of Dartmouth College in Hanover,
New Hampshire. NHTB's branching strategy was focused on geographic
expansion into a contiguous market with significant growth possibilities as
well as a desire to diversify NHTB's asset mix to include a greater
relative percentage of commercial loans and thereby enhance NHTB's core
earnings. In the 1990's, NHTB opened two branch offices in Lebanon and
West Lebanon, New Hampshire.
During 1995, NHTB began to explore expansion opportunities to
augment its ongoing branching strategy by initiating several informal
discussions with smaller community banks located in NHTB's market area. In
early 1996, NHTB approached Landmark management and expressed NHTB's
interest in acquiring Landmark. Landmark had been organized as a de novo
institution in 1991 for the purpose
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of meeting a perceived banking need in the Upper Valley area. In addition
to servicing the residential mortgage and consumer lending needs within its
market area, the Board of Directors of Landmark has attempted to establish
a niche market, using a focused marketing strategy, to serve small
businesses. NHTB believed that Landmark's commercial loans and lending
activities would greatly enhance NHTB's franchise value and earnings
potential.
Landmark experienced strong asset growth in its initial years of
operations, first achieving profitable operations in the second quarter of
1992. Such sustained growth levels, combined with a significant retained
deficit incurred by Landmark in the formation period before it commenced
banking operations, continually caused Landmark to need additional capital
to support its growth. Shares of Landmark Preferred Stock were sold by
Landmark in late 1992 and early 1993, which enabled Landmark to meet the
capital requirements imposed on new banks by the Federal Deposit Insurance
Corporation (the "FDIC") and to continue its strong rate of growth through
1994.
Strong asset growth in 1993 and 1994 imposed strains on
Landmark's management and regulatory compliance capabilities. In January
1995, Landmark entered into a Memorandum of Understanding ("MOU") with the
FDIC and the New Hampshire Banking Department in which it agreed, among
other things, to (i) assess its managerial resources and develop a
management plan to meet the needs of a growing banking institution, (ii)
revise its loan, asset/liability and investment policies, (iii) adopt an
ethics policy, and (iv) take necessary action to correct noted deficiencies
in its loan operations and compliance with applicable regulatory
requirements.
Landmark's management realized that it needed to reach a critical
minimum asset size to support profitable operations. Staff was added
throughout 1994 and early 1995, loan production offices were established,
and a branch office opened in West Lebanon. Nonetheless, Landmark's profit
margins continued to decline due to increasing labor costs, increased rates
paid to maintain appropriate liquidity levels, and strengthened competition
in the Upper Valley area as the New Hampshire banking industry, as well as
non-bank institutions, rebounded from the problems of the early 1990's.
As part of its ongoing strategic planning process, in late 1995,
the Board of Directors of Landmark engaged in a series of budgetary-
planning meetings to attempt to reach a consensus concerning the best means
to grow Landmark consistent with profitable operations and the maximization
of shareholder value in the near and long-term. This strategic planning
initiative explored mid- and long-term planning alternatives, including the
expansion of Landmark, additional branching, the raising of capital, and
possible affiliations with other banks. The Board of Directors of Landmark
called a Special Meeting of Shareholders in September 1995 at which
amendments to Landmark's Articles of Agreement were approved, providing
additional authorized shares of capital stock which could be sold to raise
capital funds to support growth. Simultaneously, Landmark informally
contacted several small banks within the Upper Valley market area to
determine their general willingness to affiliate. None of these contacts
resulted in an affiliation or merger proposal.
The ongoing consolidation of the financial industry, both within
the State of New Hampshire and New England gradually led the Board of
Directors of Landmark to the conclusion that the increasing costs of
regulatory compliance faced by banking institutions required a minimum
critical asset size in order to maintain sustained profitability. Given
the then buoyant results obtained in the capital securities markets, the
Board of Directors of Landmark was not optimistic about its likely ability
to raise additional capital in the marketplace to grow Landmark to such a
minimum-critical mass.
In February 1996, the Board of Directors retained the firm of
MB&D as its financial advisor to assist in its strategic planning process,
and in particular, to gauge the appetite of the marketplace for a
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potential acquisition of Landmark. On February 22, 1996, the Board of
Directors of Landmark authorized MB&D in conjunction with its Capital
Committee to solicit non-binding expressions of interest from likely
interested parties and to return to the Board with the results of their
efforts for prior approval of any recommended action. On February 28,
1996, MB&D contacted several financial institutions, including NHTB to
solicit interest in acquiring Landmark.
On March 14, 1996, NHTB provided Landmark's financial advisor
with a letter indicating its interest in an acquisition in which Landmark
would merge into NHTB's subsidiary bank. NHTB proposed a structure that
offered a combination of cash and stock at a range of exchange ratios,
subject to completion of due diligence. Following review of this
correspondence by Landmark's Capital Committee, NHTB was invited to conduct
on-site due diligence at Landmark, which occurred during the last week of
April, 1996.
Following the receipt of a more favorable examination report from
the FDIC, and the adoption of a resolution by Landmark's Board of Directors
in which Landmark agreed to take such immediate actions as are necessary to
maintain a "Tier 1 Capital ratio of not less than six percent (6%)", the
January 1995 MOU was terminated in early April 1996.
Following NHTB's due diligence review of Landmark, Landmark
continued to respond to other preliminary indications of interest received
either directly at Landmark or through its financial advisor, including
from an out-of-state thrift institution as well as a group of associated
individuals. Discussions between Landmark and NHTB included, among other
things, the value of Landmark's banking franchise, its strategic and
geographical positioning, whether it could retain its separate operations
if the organizations were to affiliate, and particular issues with respect
to the asset quality of its credit portfolio.
On May 8, 1996, the NHTB Board of Directors considered a report
from NHTB management and outside counsel on NHTB's due diligence and the
proposed terms of the affiliation, including the proposed exchange ratio.
The Board authorized management to continue a dialogue with Landmark at a
price range consistent with the results of the due diligence findings and
the anticipated economies that could be achieved through combined
operations.
On May 10, 1996, NHTB presented a revised expression of interest
to Landmark which outlined a 60/40 stock and cash transaction nominally
valued at $12.00 per share. The letter also indicated that NHTB would add
Landmark representation to its Board of Directors.
During early June 1996, NHTB and Landmark exchanged
correspondence regarding various proposed terms of the transaction which
addressed the liquidity of the stock component to be received by Landmark
and the request by Landmark that its shareholders have the ability to elect
(within limits) to receive stock or cash in order to offer a tax-free
transaction to Landmark's shareholders. On June 19, 1996, the Board of
Directors of NHTB authorized management and counsel to proceed to negotiate
a merger agreement with Landmark. The following day, Landmark's Board of
Directors authorized the Capital Committee together with MB&D and legal
counsel to negotiate a merger agreement with NHTB in accordance with the
NHTB proposal.
During the latter part of June, Landmark conducted due diligence
at the offices of NHTB including obtaining the assistance of a recognized
asset quality review firm. Between June 26th and late July, a series of
meetings were held between Landmark and NHTB and their respective legal
counsel to discuss the terms of a merger agreement.
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On July 10, 1996, NHTB's Board of Directors held a meeting with
its financial and legal advisors (HAS Associates and Thacher Proffitt &
Wood, respectively) to review the status of negotiations and drafts of
proposed acquisition documents, as well as the financial terms and other
proposed terms and conditions. As financial advisor, HAS analyzed the
financial factors related to the Agreements in detail and orally rendered
its opinion that the proposed merger consideration was fair, from a
financial point of view to the shareholders of NHTB. The Board thoroughly
reviewed the drafts of the Agreements and the Option Agreement with its
advisors.
At a meeting of the Landmark Board of Directors on July 11, 1996,
counsel from Gallagher, Callahan & Gartrell, P.A., reviewed the material
terms of the proposed merger agreement and necessary actions related to the
merger, including necessary regulatory approvals, and material conditions
to closing expressed by NHTB. MB&D made a detailed presentation to the
Board of Directors of Landmark. At this meeting, the Board of Directors
reached a consensus to negotiate the final terms of a merger agreement with
NHTB. The Board of Directors of Landmark based its consideration on a
number of factors including the existing capital constraints born by
Landmark, the likelihood of increased liquidity for Landmark shareholders,
the stability of NHTB's stock price, the exchange ratio and comparisons
with other recent transactions, economies that could be achieved through
combining operations and the potential for growth in the value of NHTB's
common stock following the consummation of the merger.
During the following two weeks, the parties continue to discuss
the remaining outstanding items of negotiation, including the proposed
conditions to closing proposed by NHTB. By the last week of July, further
progress was made on resolving outstanding issues, including adjustments in
the terms of the closing conditions in the event that Landmark did not,
among other things, meet the required level of capital at closing.
On July 26, 1996, after reviewing with Thacher Proffitt & Wood
the final revisions to the merger documents, NHTB's Board of Directors
unanimously approved the terms of the Agreements with Landmark as being in
the best interest of NHTB and its shareholders. NHTB's Board of Directors
also unanimously recommended the shareholders of NHTB approve the
Agreements.
At a July 29, 1996, meeting of the Landmark Board of Directors,
counsel for Landmark reviewed in detail the proposed final terms of the
Agreements and the Option Agreement. The Board also heard a detailed
presentation by MB&D regarding the fairness to the shareholders of Landmark
of the financial terms of the merger. Counsel for Landmark then reviewed
the terms of the Voting Agreements asked of each Director, and the Board
also addressed the issue of NHTB's condition that no Landmark shareholder
beneficially vote more than three percent of the outstanding shares of NHTB
for a two-year period following consummation of the merger. Following the
Board of Directors' discussion of these matters, and its reasonable belief
that the closing conditions could be met, the Board of Directors voted to
approve the Merger Agreement.
REASONS FOR THE MERGER AND RECOMMENDATION OF THE BOARDS OF DIRECTORS
NHTB. The environment for independent community banks in New
England in general, and specifically in the New Hampshire area in which
NHTB is currently concentrated, has become increasingly more competitive.
Independent community institutions focusing on serving the New Hampshire
markets have faced rising cost structures, increasing competition from
"super regional" banking institutions and non-banking and thrift
organizations, continued consolidation in the bank industry, high costs of
technology needed to compete with much larger organizations, general
economic concerns affecting the health of major employers in the market and
concentration of credit risks in a
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relatively small area. Over the past year NHTB's Board of Directors and
management have concluded that NHTB must grow and diversify in the current
environment to enhance shareholder value.
In reaching its decision to approve the Agreements, the NHTB
Board considered that the Landmark acquisition would enhance and increase
the competitiveness of its community banking franchise and that NHTB
shareholders should realize the benefits of such an acquisition. Such
benefits include, but are not limited to, the future prospects of NHTB
combined with Landmark; the addition of Landmark's small business banking
culture which would complement NHTB's mortgage banking capability, deposit
base and community banking experience to enable NHTB to provide the full
range of community banking services necessary to competitively serve the
needs of the small towns and communities that comprise its markets; the
ability to add to NHTB's existing investment in the Upper Valley market and
to achieve a significant market position in the demographically attractive
market; and the cost savings potential resulting from back office
efficiencies possible, among other reasons, because of in-market economies
of scale.
In reaching the conclusion to approve the Landmark acquisition,
the NHTB Board consulted with NHTB management, as well as its financial and
legal advisors, and considered the factors described above and the
following additional factors, which together constitute the material
factors considered by the NHTB Board in approving the Agreement:
(i) NHTB's business, operations, financial condition, earnings,
and growth strategy, including the desirability of achieving a
significant market position in the Upper Valley of western New
Hampshire;
(ii) the current and prospective economic, regulatory and
competitive climate facing community banking institutions, including
without limitation the consolidation currently underway in the banking
industry, competition from larger institutions and from nonbank
providers of financial services;
(iii) the presentations by NHTB management and HAS as to the
business, operations, asset quality, earnings, competitive position
and financial condition of Landmark;
(iv) the anticipated cost savings and revenue enhancements
available to the combined institution from the Landmark merger, which
are estimated to be up to 40% of historical Landmark non-interest
expense, resulting from back office efficiencies;
(v) the common philosophies and cultures of NHTB and Landmark
particularly with respect to customer satisfaction, efficiency and
serving the banking needs of small towns and communities;
(vi) the Merger Consideration in the Merger from a number of
valuation perspectives, as presented by HAS with respect to the
Agreements and the July 10, 1996 opinion of HAS that the Merger
Consideration was fair to NHTB and its shareholders from a financial
point of view.
(vii) the terms of the Agreements, including the price
protection mechanism of NHTB, and the Option Agreement; the regulatory
and shareholder approval processes, the conditions to NHTB's
obligation to close the Merger, the treatment of the Merger as a
purchase for financial accounting purposes;
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(viii) the resultant capital of the combined institution after
the Merger and the implications of the Merger on NHTB's ongoing
business strategy, including its expansion strategy; and
(ix) the expectation that the transaction will be immediately
accretive to NHTB earnings.
The foregoing discussion of the information and factors considered by
the NHTB Board of Directors is not intended to be exhaustive but includes
all material factors considered by the NHTB Board of Directors. In
reaching its determinations to approve and recommend the Agreements, the
NHTB Board of Directors did not assign relative or specific weights to the
foregoing factors, and individual directors may have given differing
weights to different factors. After deliberating with respect to the
Merger and the other transactions contemplated by the Agreements,
considering, among other things the matters discussed above and the
opinions of HAS referred to above, the Board of Directors, by unanimous
vote of all directors, approved the Agreements as being in the best
interest of NHTB and its shareholders and directed that the Agreements be
submitted to the holders of NHTB Common Stock for approval at the NHTB
Special Meeting.
Based on the foregoing, the NHTB Board of Directors concluded that the
proposed Merger would be in the best interest of NHTB's shareholders,
customers and communities served. ACCORDINGLY, THE NHTB BOARD OF DIRECTORS
UNANIMOUSLY VOTED TO RECOMMEND THAT THE NHTB SHAREHOLDERS VOTE FOR
APPROVAL AND ADOPTION OF THE AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED
THEREBY.
Landmark. In the course of reaching its decision to approve the
Agreements (and the Option Agreement) and the transactions contemplated
thereby, the Board of Directors of Landmark consulted with its legal
advisors regarding the legal terms of the Agreements and the Board of
Directors' obligations in its consideration of the Merger; and, its
financial advisors regarding the financial terms and fairness, from a
financial point of view, to the shareholders of Landmark of the Exchange
Ratio of NHTB Common Stock to be exchanged for outstanding shares of
Landmark Common Stock and the Cash Election Price for outstanding shares of
Landmark Common Stock in the proposed Merger. Without assigning any
relative or specific weights to any factor, the Board of Directors
considered the factors outlined below, among others, that it believed
relevant to reaching its determination.
The terms of the Agreements were reached on the basis of arms' length
negotiations between Landmark and NHTB. In reaching the conclusion that
the terms of the Agreements are fair, the Landmark Board of Directors
considered, among other things, the market value, book value, liquidity,
earnings per share, and consistent dividends paid to holders of NHTB Common
Stock. The Board considered that the Merger provides an opportunity for
the shareholders of Landmark to receive consideration for their shares
having a value in excess of the book value of the Landmark Common Stock,
the likelihood of the payment of dividends to Landmark shareholders, and
that the Exchange Ratio together with the Cash Election Price represents a
premium over the price at which shares of Landmark Common Stock were sold
in its initial capitalization and the price at which the Board reasonably
anticipated the stock could be offered for sale in the future. The Board
believed that the premium to book value was reasonable under the
circumstances in comparison to other recent, comparable transactions.
In reaching its conclusion, the Landmark Board of Directors took into
consideration and relied in part upon the advice of MB&D, Landmark's
financial advisor, which confirmed the considered judgment of the Board as
to the financial aspects of the Merger. At its July 29, 1996 Landmark
Board meeting, MB&D indicated that, based upon information known as of that
date, MB&D expected to be
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able to render an opinion as to the fairness from a financial point of view
of the consideration to be received by the Landmark shareholders from the
Merger. That opinion was rendered in writing to the Board of Directors as
of the date of this Proxy Statement-Prospectus and is attached as Appendix
B to this Proxy Statement-Prospectus. Landmark's Board of Directors
considered the analyses presented to it by MB&D relating to selected
financial and stock market data concerning Landmark and NHTB and certain
financial analyses of the terms of the Merger, including comparison to the
terms of other recent acquisitions, which are described below under "--
Opinions of Financial Advisors."
The Landmark Board of Directors considered the strategic alternatives
available to Landmark, including the possibility of remaining independent,
together with the likely need to raise capital in accordance with
Landmark's agreement with the FDIC, and the regulatory and competitive
climate facing small community banking institutions such as Landmark,
continuing to solicit competing proposals, and accepting NHTB's bid, before
concluding, for the reasons discussed in this section, that the Merger
represented an opportunity to enhance Landmark shareholder value at this
time and that the Exchange Ratio together with the Cash Election Price was
fair to the shareholders.
The Board of Directors also considered the advantages of becoming part
of a larger financial institution that has considerably greater resources
and whose stock is traded on the NASDAQ National Market System. Landmark's
Board of Directors believed that the proposed affiliation with NHTB would
provide increased liquidity for the shareholders of Landmark and a
combination of the banking entities would lead to competitive advantages
through greater diversity in product offerings, and cost-savings through
certain integration of operations.
The Board of Directors considered the historical stability in NHTB's
earnings per share, dividends and book value. The Board of Directors also
considered the historical lack of dividends paid on the Landmark Common
Stock and the significant increase in dividends that would likely be
received by Landmark shareholders from the Merger. The Board of Directors
also considered the expectation that the Merger will be a tax-free
transaction to Landmark and NHTB, and to Landmark shareholders receiving
NHTB Common Stock.
The Board of Directors considered a variety of other factors,
including, without limitation, the social and economic affects of the
transaction on depositors, borrowers and employees of Landmark, and on the
communities in which Landmark operates or serves. The Board of Directors
believes that the Merger will provide Landmark's borrowers and depositors
and the communities it serves with expanded services and banking products,
and access to the resources of a stronger financial institution.
The foregoing discussion of the information and factors considered by
the Landmark Board of Directors is not intended to be exhaustive but
includes all material factors considered by the Landmark Board of
Directors. In reaching its determinations to approve and recommend the
Agreements, the Landmark Board of Directors did not assign relative or
specific weights to the foregoing factors, and individual directors may
have given differing weights to different factors. After deliberating with
respect to the Merger and the transactions contemplated by the Agreements,
considering among other things the matters discussed above and the opinions
of MB&D referred to above, the Board of Directors, by unanimous vote of all
directors, approved the Agreements as being in the best interests of
Landmark and its shareholders and directed that the Agreements be submitted
to the shareholders of Landmark for approval and adoption at the Landmark
Special Meeting.
Based on the foregoing, the Landmark Board of Directors concluded that
the proposed Merger would be in the best interests of Landmark's
shareholders, borrowers and depositors, and the communities it serves. THE
LANDMARK BOARD OF DIRECTORS UNANIMOUSLY VOTED TO RECOMMEND THAT THE
LANDMARK
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SHAREHOLDERS VOTE "FOR" APPROVAL AND ADOPTION OF THE AGREEMENTS AND THE
TRANSACTIONS CONTEMPLATED THEREBY.
OPINIONS OF FINANCIAL ADVISORS
NHTB. HAS has delivered to the Board of Directors of NHTB its written
opinion, as of the date of this Joint Proxy Statement-Prospectus, that both
the Exchange Ratio of NHTB Common Stock to be exchanged for outstanding
shares of Landmark Common Stock and the Cash Election Price for outstanding
shares of Landmark Common Stock (described in detail in this Joint Proxy
Statement-Prospectus) are fair, from a financial point of view, to NHTB's
shareholders. HAS has acted as financial advisor to NHTB since March 1996
in connection with NHTB's evaluation of the Landmark acquisition.
HAS advised NHTB during the negotiation process leading up to the
execution of the Agreements and provided NHTB with various analyses as to
the range of financially feasible exchange ratios and cash acquisition
prices that might be offered. A representative of HAS met with the
executive management on a number of occasions in connection with the
analysis of Landmark. Each of the Exchange Ratio and Cash Election Price
was arrived at in an arms' length negotiation between NHTB and Landmark
in a process in which HAS advised NHTB.
HAS was retained based on its qualifications and experience in the
financial analysis of banking and thrift institutions, knowledge of the New
Hampshire and New England banking markets, and its experience with merger
and acquisition transactions involving banking institutions. HAS has
worked with NHTB and/or its subsidiaries for over 15 years and has been
involved with numerous New England mergers or acquisitions of financial
institutions since 1980.
The full text of the opinion of HAS, which sets forth assumptions
made, matters considered and limits on the review undertaken by HAS, is
attached hereto as part of Appendix B. NHTB's shareholders are urged to
read the opinion in its entirety. HAS' opinion is directed only to the
Exchange Ratio and Cash Election Price and does not constitute a
recommendation to any holder of NHTB Common Stock as to how such holder
should vote at the NHTB Shareholder Meeting. The summary of the opinion of
HAS set forth in this Joint Proxy Statement-Prospectus was provided to NHTB
by HAS and is qualified in its entirety by reference to the full text of
the opinion itself. HAS' opinion was necessarily based upon conditions as
they existed and should be evaluated on the date hereof and the information
made available to HAS through the date hereof.
In arriving at its opinion, HAS (i) reviewed the Agreements and this
Joint Proxy Statement-Prospectus in substantially the form to be sent to
NHTB shareholders; (ii) reviewed publicly available business and financial
information with respect to both NHTB and Landmark and certain internal
financial information and financial projections prepared by the managements
of NHTB and Landmark; (iii) held discussions with members of the senior
management of NHTB concerning the past and current results of operations of
NHTB, its current financial condition and management's opinion of its
future prospects; (iv) reviewed the historical reported price and record of
trading volume for both NHTB and Landmark Common Stock; (v) held
discussions with the senior management of Landmark concerning the current
and past results of operations of Landmark and its current financial
condition; (vi) considered the current state of and future prospects for
the economy of New Hampshire generally and the relevant market areas for
NHTB and Landmark in particular; (vii) reviewed acquisition analysis models
employed by HAS to evaluate potential business combinations of banking
companies; (viii) reviewed the reported financial terms of certain recent
business combinations in the banking industry; and (ix) performed such
other studies and analyses as HAS considered appropriate under the
circumstances associated with this particular transaction.
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HAS' opinion takes into account its assessment of general economic,
market and financial conditions and its experience in other transactions,
as well as its experience in securities valuation and its knowledge of the
banking industry generally. For purposes of reaching its opinion, HAS has
assumed and relied upon the accuracy and completeness of the information
provided to it by NHTB and Landmark, and does not assume any responsibility
for the independent verification of such information or any independent
valuation or appraisal of any of the assets or liabilities of either NHTB
or Landmark. With respect to the financial projections reviewed by HAS in
the course of rendering its opinion, HAS has assumed that such projections
have been reasonably prepared to reflect the best currently available
estimates and judgements of the management of each of NHTB and Landmark as
to the most likely future performance of their respective companies.
The following is a summary of material analyses employed by HAS in
connection with rendering its written opinion. Given that it is a summary,
it does not purport to be a complete and comprehensive description of all
the analyses performed, or an enumeration of all the matters considered by
HAS in arriving at its opinion. The preparation of a fairness opinion is a
complicated process, involving a determination as to the most appropriate
and relevant methods of financial analysis and the application of those
methods to the particular circumstances. Therefore, such an opinion is not
readily susceptible to a summary description. In arriving at its fairness
opinion, HAS did not attribute any particular weight to any one specific
analysis or factor considered by it and made qualitative as well as
quantitative judgements as to the significance of each analysis and factor.
Therefore, HAS believes that its analyses must be considered as a whole and
feels that attributing undue weight to any single analysis or factor
considered could create a misleading or incomplete view of the process
leading to the formation of its opinion. In its analyses, HAS has made
certain assumptions with respect to banking industry performance, general
business and economic conditions and other factors, many of which are
beyond the control of management of either NHTB or Landmark. Any estimates
which are referred to in HAS' analyses are not necessarily indicative of
actual values or predictive of future results or values, which may vary
significantly from those set forth.
Specific Acquisition Analysis. HAS analyzed the transaction basically
from a number of different models which it employs to evaluate the prospect
of future earnings and the financial condition, and market and trading
characteristics of the proposed transaction. These models provide a
variety of variables that can affect various outcomes which include, but
are not limited to, interest rates, dividends, opportunity costs,
acquisition economies of scale and taxes. The model evaluates various
opportunities and measures the impact of various scenarios on regulatory
requirements and expectations of shareholders based on past financial
performance.
The resulting exchange ratio of 1.221 shares for NHTB for each share
of common stock of Landmark or a cash price of $12.00 was believed to be a
fair offer by NHTB to Landmark.
Discounted Cash Flow Analysis. HAS reviewed a discounted cash flow
analysis to permit the conceptual examination of the present discounted
values of potential future results employing selected assumptions and
discount rates.
The use of the discounted cash flow analysis assumes various discount
rates, earnings assumptions, terminal values, dividend payout ratios and
growth assumptions. The use of different assumptions can produce different
results and the Board of NHTB was advised of these factors and cautioned
that various assumptions can result in different outcomes. To avoid
confusion of values, the Board was presented with a discounted cash flow
approach which was based on normal growth assumptions.
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These assumptions were made based on the past history of NHTB and its
consistency in earnings, dividend payout and conservative operating
procedures and growth. Since the potential earnings of Landmark are
difficult to measure, a hypothetical return on average assets of 0.6% was
assumed based upon a discounted return on average assets of NHTB for the
last three years. A dividend payout ratio of 10% over a five year period
was used and long term growth of 10% was also used. A terminal multiple of
15 times earnings was used as control sale price/earnings ratio at the end
of a five year period. Given the five-year time horizon and a discount
rate of 12.0%, these cash flows resulted in an implied valuation of $11.87,
which can be compared to the nominal value of proposed exchange ratio of
approximately $12.00 in stock and/or cash.
Analysis of Other Comparable Transactions. The process of evaluating
the transaction also took into account other comparable transactions.
Although no true comparable transaction can be found due to the differences
of financial history, longevity of the entity, external factors and
differences in operation, it can be helpful as a point of reference and
provide the directors with an informational approach to assessing the
transaction.
The NHTB Board of Directors were made aware of current market
conditions as they relate to various ratios on a national and regional
level. The regional level of New England was the focus of the report. In
addition, a separate analysis of transactions was presented on a national
level where the value of the transaction was less than $10 million.
From these groups a series of selective groups was examined. The
first group comprised of 23 transactions in six northeastern states and the
District of Columbia, which had been announced since July 1995 and the
assets of the acquired institutions were less than $100 million. The 23
transactions were as follows:
New England Community Bancorp's acquisition of Manchester State Bank
Center Financial Corporation's acquisition of Heritage Bank
Norwich Financial Corporation's acquisition of Second Holding
George Mason Bankshares' acquisition of Palmer National Bancorp
Weetamoe Bancorp's acquisition of Fairbank, Inc.
First Mariner Bancorp's acquisition of Annapolis Bancshares
Sandy Spring Bancorp's acquisition of Annapolis Bancshares
Union National Bancorp's acquisition of Maryland Permanent
FCNB Corporation's acquisition of Harbor Investment
Community Bankshares' acquisition of Centerpoint Bank
Great Falls Bancorp's acquisition of Bergen Commercial Bank
Center Bancorp's acquisition of Lehigh Savings Bank
Trenton Savings Bank's acquisition of Burlington County Bank
Covenant Bank for Savings' acquisition of First Southern State Bank
Sovereign Bancorp's acquisition of West Jersey Bancshares
F&A Financial Company's acquisition of Farmers National Bank
Northwest Savings' acquisition of Bridgeville Savings Bank
Harleysville National Bank's acquisition of Farmers & Merchants
Northwest Savings' acquisition of First FSB of Kane
BT Financial Corporation's acquisition of Armstrong County TC
MLF Bancorp's acquisition of Suburban Federal SB
Northwest Savings' acquisition of First National Bancorp
Community Banks' acquisition of Citizens National Bank - Ashland
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The second group were transactions in New England since July 1995
where the acquiror had assets of less than $1 billion in assets. This
group showed ten transactions. The ten transactions are listed below:
Weetamoe Bancorp's acquisition of Fairbank, Inc.
CFX Corporation's acquisition of Milford Co-op Bank
CFX Corporation's acquisition of Safety Fund Corp.
New England Community Bancorp's acquisition of Manchester State Bank
Community Bankshares' acquisition of Centerpoint Bank
Norwich Financial Corporation's acquisition of Second Holding
Camden National Bank's acquisition of United Corporation
Co-op Bank of Concord's acquisition of Bank of Braintree
Main Street Community Bank's acquisition of Lexington Savings Bank
New England Community Bancorp's acquisition of Equity Bank
The final selective group was transactions in the Northeast where the
acquired institution had a ROAA in the last twelve months of less than
0.5%. There were 7 transactions in this group. These were:
Center Bancorp's acquisition of Lehigh Savings Bank
MLF Bancorp's acquisition of Suburban Federal Savings Bank
Center Financial Corporation's acquisition of Heritage Bank
Northwest Savings' acquisition of First FSB of Kane
Investor Group's acquisition of Abigail Adams National Bank
Sovereign Bancorp's acquisition of Colonial State Bank
USA BancShares' acquisition of Peoples Thrift Savings Bank
Three groups were used to examine the variables of size, location and low
earnings of the acquired institution in the transactions. The first group
had a median multiple of tangible book value paid by the acquiror of
170.9%, in a range of 113.3% to 233.4%. The second group had an average
multiple of 148.4% in a range of 93.4 to 217.3%. The third group had an
average price to book multiple of 152.3% in a range of 85.0% to 233.4%. In
this case the second and third groups compared to the multiple of 153% in
the proposed transaction with NHTB and Landmark.
The price to earnings ratios for the three groups was 20.5 times
earnings in Group 1, 13.9 times earnings in Group 2 and 24.6 times earnings
in Group 3. The statistics cannot be compared to any earnings multiples of
Landmark since it was unprofitable during the last twelve months.
HAS will receive a fee of $18,000 for the rendering of its fairness
opinion and received $10,500 in fees as a financial advisor. NHTB also
agreed to reimburse HAS for its reasonable out-of-pocket expenses. NHTB
also has agreed to indemnify HAS and its directors, officers and employees
against certain losses, claims, damages and liabilities relating to or
arising out of HAS' engagement, including liabilities under the federal
securities law.
Landmark. MB&D has delivered to the Board of Directors of Landmark
its written opinion, as of the date of this Joint Proxy Statement-
Prospectus, that both the Exchange Ratio of NHTB Common Stock to be
exchanged for outstanding shares of Landmark Common Stock and the Cash
Election Price for outstanding shares of Landmark Common Stock (described
in detail in this Joint Proxy Statement-Prospectus) are fair, from a
financial point of view, to Landmark's shareholders. MB&D has acted as
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financial advisor to Landmark since February 1996 in connection with
Landmark's evaluation of hypothetical affiliation opportunities.
MB&D advised Landmark during the negotiation process leading up to the
execution of the Agreements and provided Landmark with various analyses as
to the range of financially feasible exchange ratios and cash acquisition
prices that might be received in a hypothetical transaction. A
representative of MB&D met with the executive management and full Board of
Directors of Landmark on a number of occasions in connection with the
analysis of Landmark's options. The Merger Consideration was arrived at in
an arms' length negotiation between NHTB and Landmark in a process in which
MB&D advised Landmark.
MB&D was retained based on its qualifications and experience in the
financial analysis of banking and thrift institutions, knowledge of the New
Hampshire and New England banking markets, and its experience with merger
and acquisition transactions involving banking institutions. Members of the
Corporate Finance Department of MB&D have advised financial institution
clients on more than 50 successfully completed mergers or acquisitions of
financial institutions, many of which involved entities conducting business
in New England marketplaces, including New Hampshire.
The full text of the opinion of MB&D, which sets forth assumptions
made, matters considered and limits on the review undertaken by MB&D, is
attached hereto as a part of Appendix B. Landmark's shareholders are urged
to read the opinion in its entirety. MB&D's opinion is directed only to the
Merger Consideration and does not constitute a recommendation to any holder
of Landmark Common Stock as to how such holder should vote at the Landmark
Special Meeting. The summary of the opinion of MB&D set forth in this Joint
Proxy Statement-Prospectus was provided to Landmark by MB&D and is
qualified in its entirety by reference to the full text of the opinion
itself. MB&D's opinion is necessarily based upon conditions as of the date
hereof and upon information made available to MB&D through the date hereof.
In arriving at its opinion, MB&D (i) reviewed the Merger Agreement and
this Joint Proxy Statement-Prospectus in substantially the form to be sent
to Landmark shareholders; (ii) reviewed publicly available business and
financial information with respect to both Landmark and NHTB and certain
internal financial information and financial projections prepared by the
respective managements of Landmark and NHTB; (iii) held discussions with
members of the senior management and Board of Landmark concerning the past
and current results of operations of Landmark, its current financial
condition and management's opinion of its future prospects; (iv) reviewed
the historical reported price and record of trading volume for both
Landmark and NHTB Common Stock; (v) held discussions with the senior
management of NHTB concerning the current and past results of operations of
NHTB, its current financial condition and management's opinion of its
future prospects; (vi) considered the current state of and future prospects
for the economy of New Hampshire generally and the relevant market areas
for Landmark and NHTB in particular; (vii) reviewed the specific
acquisition analysis models employed by MB&D to evaluate potential business
combinations of financial institutions; (viii) reviewed the reported
financial terms of certain recent business combinations in the banking
industry; and (ix) performed such other studies and analyses as MB&D
considered appropriate under the circumstances associated with this
particular transaction.
MB&D's opinion takes into account its assessment of general economic,
market and financial conditions and its experience in other transactions,
as well as its experience in securities valuation and its knowledge of the
banking industry generally. For purposes of reaching its opinion, MB&D has
assumed and relied upon the accuracy and completeness of the information
provided to it by Landmark and NHTB, and does not assume any responsibility
for the independent verification of such information
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or any independent valuation or appraisal of any of the assets or
liabilities of either Landmark or NHTB. With respect to the financial
projections reviewed by MB&D in the course of rendering its opinion, MB&D
has assumed that such projections have been reasonably prepared to reflect
the best currently available estimates and judgment of the management of
each of Landmark and NHTB as to the most likely future performance of their
respective companies.
The following is a summary of material analyses employed by MB&D in
connection with rendering its written opinion. Given that it is a summary,
it does not purport to be a complete and comprehensive description of all
the analyses performed, or an enumeration of all the matters considered by
MB&D in arriving at its opinion. The preparation of a fairness opinion is
a complicated process, involving a determination as to the most appropriate
and relevant methods of financial analysis and the application of those
methods to the particular circumstances. Therefore, such an opinion is not
readily susceptible to a summary description. In arriving at its fairness
opinion, MB&D did not attribute any particular weight to any one specific
analysis or factor considered by it and made qualitative as well as
quantitative judgments as to the significance of each analysis and factor.
Therefore, MB&D believes that its analyses must be considered as a whole
and feels that attributing undue weight to any single analysis or factor
considered could create a misleading or incomplete view of the process
leading to the formation of its opinion. In its analyses, MB&D has made
certain assumptions with respect to banking industry performance, general
business and economic conditions and other factors, many of which are
beyond the control of management of either Landmark or NHTB. Any estimates
which are referred to in MB&D's analyses are not necessarily indicative of
actual values or predictive of future results or values, which may vary
significantly from those set forth.
Analysis of the Anticipated Proposed Merger and the Exchange
Ratio in Relation to NHTB. The anticipated consideration to be paid
in the Merger for each outstanding share of Landmark Common Stock is
the Exchange Ratio, 1.221 shares of NHTB Common Stock, or $12.00 in
cash, assuming a NHTB Trading Price between $8.25 and $11.75 during
the merger pricing period. When valued at the closing bid price of
NHTB Common Stock, $9.88, on the last day there were trades in NHTB
Common Stock prior to the announcement of the transaction, Thursday,
July 25, 1996, as well as the 30 day average closing bid price of NHTB
Common Stock computed as of the last business day prior to the
announcement of the transaction, Thursday, July 25, 1996, equal to
$9.84, the Merger Consideration represents the following transaction
multiples:
Transaction Value; $12.06 in NHTB Common Stock per share of
Landmark Common Stock based upon the single day closing bid price of
NHTB Common Stock on Thursday, July 25, 1996, or a Cash Election Price
of $12.00 per share. Based upon the 30 day average closing bid price
for NHTB Common Stock for the period ending July 25, 1996, the
transaction value would be $12.02 in NHTB Common Stock or $12.00 per
share of Landmark Common Stock if the Cash Election Price were
selected.
. Multiple of Earnings based upon the July 25, 1996 NHTB single day
closing bid price: (i) Landmark reported a net loss of $145,909 for
the first six months of 1996. Therefore the transaction value cannot
be computed as a multiple of current year earnings; and (ii)
Landmark's earnings for fiscal year 1995 were less than $25,000.
Therefore earnings multiples computed using either the Common Stock
exchange or the Cash Election Price and 1995 Landmark net income would
not be meaningful.
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. Multiple of Earnings based upon the 30 day average closing bid price
for NHTB for the period ending July 25, 1996: (i) Landmark had a
negative net income for the first six months of 1996, therefore the
transaction value cannot be computed as a multiple of current year
earnings; and (ii) Landmark's earnings for fiscal year 1995 were less
than $25,000, therefore any earnings multiples computed using either
the common stock exchange or the Cash Election Price transaction value
and 1995 Landmark net income would not be meaningful.
. Multiple of Book Value based upon the July 25, 1996 NHTB single day
closing bid price: As of June 30, 1996, 1.594 times Landmark's book
value per share.
. Multiple of Book Value based upon the 30 day average closing bid price
for NHTB for the period ending July 25, 1996: As of June 30, 1996,
1.591 times Landmark's book value per share.
. Multiple of Market Value based upon the July 25, 1996 NHTB single day
closing bid price: Because there has been no active market for
Landmark Common Stock and very little trading in the Common Stock of
Landmark since Landmark's inception, no reliable or meaningful
multiple of market value can be computed.
. Multiple of Market Value based upon the 30 day average closing bid
price for NHTB for the period ending July 25, 1996: Because there has
been no active market for Landmark Common Stock and very little
trading in the Common Stock of Landmark since Landmark's inception, no
reliable or meaningful multiple of market value can be computed.
Specific Acquisition Analysis. MB&D employs a number of
proprietary analysis models to examine hypothetical transactions
involving banking and/or thrift companies. The models use forecast
earnings data, selected current period balance sheet and income
statement data, current market and trading information and a number of
assumptions as to interest rates for borrowed funds, the opportunity
costs of funds, discount rates, dividend streams, effective tax rates
and transaction structures (the alternative or combined uses of common
equity, cash, debt or other securities, to fund a transaction). The
models distinguish between purchase and pooling accounting treatments
and inquire into the likely economic feasibility of a given
hypothetical transaction at a given price level or specified exchange
rate while employing a specified transaction structure. The models
also permit an examination of pro forma capital adequacy.
In this transaction, MB&D evaluated an exchange ratio of 1.221
shares of NHTB Common Stock for each share of Landmark Common Stock,
or a Cash Election Price of $12.00 per share or a combination thereof
(each subject to adjustment as provided for in the Merger Agreement)
in a merger transaction which is to be accounted for as a purchase
transaction.
Discounted Cash Flow Analysis. MB&D reviewed a discounted cash
flow analysis to permit the conceptual examination of the present
discounted values of potential future results employing selected
assumptions and discount rates.
In the discounted cash flow analysis, MB&D reviewed a cash flow
model with the management and board of Landmark that employed a
projection of hypothetical earnings for the three twelve month periods
subsequent to May of 1996 of $150,000, $300,000 and $643,000,
respectively, with projected earnings in two subsequent twelve month
periods equal to an ROAA of 1.00%. A hypothetical dividend pay-out
ratio assumption which depicted average annual pay-outs as a
percentage of earnings increasing gradually from a level of 0% to
33.7% over a five year period was also used. A long term growth rate
of 5% was also employed. MB&D assumed that
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the control sale price/earnings ratio at the end of a five year period
would approximate 12.5 times earnings, and in a separate exercise, a
price to tangible book value ratio of 160%. Given the model time
horizon of five years and a discount rate of 12.5%, these cash flow
calculations resulted in a range of present discounted values of cash
flows of $11.58 to $12.28 which can be compared to the nominal value
of the proposed exchange ratio of approximately $12.06 based upon the
trailing thirty day average closing bid price of NHTB Common Stock,
$12.02 based upon the closing bid price of NHTB Common Stock the day
before announcement as described above or $12.00 in payment of the
Cash Election Price.
It is important to note that the discount factors employed embody
both the concept of a riskless time value of money and risk factors
that reflect the uncertainty of the forecasted cash flows and terminal
price/earnings multiples. Use of higher discount rates would result
in lower discounted present values. Conversely, use of lower discount
rates would result in higher discounted present values. MB&D advised
the Landmark board of directors that although discounted cash flow
analysis is a widely used valuation methodology, it relies on numerous
assumptions, including discount rates, terminal values, earnings and
asset growth, as well as dividend payout ratios. Any or all of these
assumptions may vary from actual future performance and results.
MB&D also considered the fact that Landmark shareholders electing
and receiving NHTB Common Stock would substantially increase their
prospect for annual dividends based upon current and projected
dividend streams of both Landmark and NHTB. Based upon an
annualization of the quarterly dividend payout by NHTB at the
announcement date, Landmark shareholders electing and receiving NHTB
Common Stock would receive an equivalent dividend per share of
Landmark Common Stock exchanged of $0.61 per year using the Exchange
Ratio of 1.221 shares of NHTB Common Stock for each share of Landmark
Common Stock. By comparison, Landmark was not paying a dividend to
holders of shares of Landmark Common Stock or Landmark Preferred Stock
at announcement date.
Analysis of Other Comparable Transactions. MB&D is reluctant to
place excessive emphasis on "comparables analysis" as a valuation
methodology due to what it considers to be inherent limitations of the
application of the results to specific cases. It has observed that
such analysis as employed by some industry observers and financial
advisors frequently fails to adequately take into consideration such
factors as material differences in the underlying capitalization of
the comparable institutions which are being acquired; differences in
the historic earnings (or loss) patterns recorded by the compared
institutions which can depict a very different trend than might be
implied by examining only recent financial results; failure to exclude
non-recurring profit or loss items from the last twelve months'
earnings streams of target companies which can distort apparent
earnings multiples; differences in the form or forms of consideration
used to complete the transaction; differences between the planned
method of accounting for the completed transaction; and such less
accessible factors as the relative population, business and economic
demographics of the acquired entities markets as compared or
contrasted to such factors for the markets in which comparables are
doing business. Comparables analysis also rarely seems to take into
consideration the degree of facilities overlap between the acquirer's
market and that of the target or the absence of such overlap and the
resulting cost savings differentials between otherwise apparently
comparable transactions. MB&D consequently believes that comparables
analysis has limitations.
Nevertheless, between February and July of 1996, MB&D reviewed a
universe of 13 publicly announced transactions in the financial
institutions industry in which either a bank or a
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thrift (or their respective holding companies) engaged in the
acquisition of another financial institution. These transactions were
announced after February 1, 1995 and prior to July 25, 1996. All of
the examined transactions involved entities doing business in New
England and all but one involved the acquisition of a community bank
or thrift of less than $300 million in assets. Unlike Landmark, all
of the acquired institutions were profitable at announcement date.
The 13 transactions reviewed by MB&D are as follows: CFX
Corporation's acquisition of Milford Co-op Bank, CFX Corporation's
acquisition of Safety Fund Corporation, Peoples Heritage's acquisition
of Bank of New Hampshire Corp., Chittenden Corp.'s acquisition of
Flagship Bank & Trust, Community Bankshares acquisition of Centerpoint
Bank, The Co-operative Bank of Concord's acquisition of Bank of
Braintree; Baybanks, Inc.'s acquisition of Cornerstone Financial;
Peoples Heritage Financial Group's acquisition of Bankcore, Inc.;
Peterborough Savings Bank's acquisition of Horizon Banks; Chittenden
Corp.'s acquisition of Bank of Western Massachusetts; Banknorth
Group's acquisition of North American Bancorp; Compass Bank for
Savings acquisition of Martha's Vineyard National Bank; and, The Co-
operative Bank of Concord's acquisition of Depositors Trust Company.
From this universe, MB&D selected 8 transactions involving the
acquisition of community bank and thrift institutions as being most
representative of the NHTB/Landmark transaction.
The 8 transactions selected as most representative were: CFX
Corporation's acquisition of Milford Co-op Bank; CFX Corporation's
acquisition of Safety Fund Corporation, Peoples Heritage Financial
Group's acquisition of Bank of NH Corp., Chittenden Corp.'s
acquisition of Flagship Bank & Trust, Community Bankshares acquisition
of Centerpoint Bank, The Co-operative Bank of Concord's acquisition of
Bank of Braintree; Baybanks, Inc.'s acquisition of Cornerstone
Financial; and, Peoples Heritage Financial Group's acquisition of
Bankcore, Inc.
Within this group of 8 transactions, the median multiple of
tangible book value paid by the acquirer was 196%, the maximum
multiple paid was 230% and the minimum multiple was 125%. These
statistics can be compared to multiples derived using the indicated
values on transaction date, which can be derived for the proposed
acquisition of Landmark by NHTB as 153% based upon the nominal value
of the proposed exchange ratio of approximately $12.02 based upon the
trailing thirty day average closing bid price of NHTB Common Stock
pre-announcement and 153% based upon the nominal present value of the
proposed exchange ratio of approximately $12.06 based upon the closing
bid price of NHTB Common Stock the day before announcement as
described above and 152% based upon a Cash Election Price of $12.00.
With respect to trailing 12 months earnings multiples for
thissame data sample of twelve transactions, the median price/earnings
multiple paid was 13.27 and the maximum multiple was 25.97, while the
minimum multiple was 10.00. These statistics cannot be meaningfully
compared to any earnings multiples of Landmark because Landmark was
unprofitable during the twelve month period prior to announcement of
the transaction.
Pursuant to a letter agreement with Landmark dated February 16,
1996, MB&D will receive a fee of $50,000 for services rendered to
Landmark in conjunction with the proposed transaction, if the
transaction is consummated. The fee represents compensation for
services rendered in connection with the analysis of the hypothetical
transaction, support of the negotiations and for the rendering of its
opinions. Landmark paid MB&D $10,000 upon signing the agreement and
$20,000 following the execution of the Agreements. An additional
$20,000 will become payable, conditioned on the closing of the
transaction. In addition, Landmark has agreed to
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reimburse MB&D for its reasonable out-of-pocket expenses incurred in
connection with the transaction. Landmark also has agreed to
indemnify MB&D and its directors, officers and employees against
certain losses, claims, damages and liabilities relating to or arising
out of MB&D's engagement, including liabilities under the federal
securities law.
ADJUSTMENT OF MERGER CONSIDERATION
In certain circumstances, the Agreements provide for adjustment
of the Merger Consideration as follows:
(a) If the NHTB Trading Price is equal to or greater than $8.25 per
share and no greater than $11.75 per share, in the event that
Landmark's Tier 1 capital ratio (determined in accordance with
GAAP, including any adjustments required under SFAS No. 115), for
the month immediately prior to the Effective Date is between
6.00% and 5.90%, the Exchange Ratio shall be adjusted to 1.208
and the Cash Election Price shall be adjusted to $11.875 per
share.
(b) If the NHTB Trading Price is equal to or greater than $8.25 per
share and no greater than $11.75 per share, in the event that
Landmark's Tier 1 capital ratio (determined in accordance with
GAAP, including any adjustments required under SFAS No. 115), for
the month immediately prior to the Effective Date is between
5.89% and 5.80%, the Exchange Ratio shall be adjusted to 1.195
and the Cash Election Price shall be adjusted to $11.75 per
share.
(c) If the NHTB Trading Price exceeds $11.75 per share, the Exchange
Ratio shall be equal to 14.00 / NHTB Trading Price; however, if
Landmark's Tier 1 capital ratio is between 6.00% and 5.90% or
between 5.89% and 5.80% pursuant to paragraphs (a) and (b),
respectively, the Exchange Ratio shall be equal to 13.875 / NHTB
Trading Price or 13.75 / NHTB Trading Price, respectively, and
the Cash Election Price shall be $11.875 per share.
(d) If the NHTB Trading Price is less than $8.25 per share, the
Exchange Ratio shall be equal to 10.00 / NHTB Trading Price;
however, if Landmark's Tier 1 capital ratio is between 6.00% and
5.90% or between 5.89% and 5.80% pursuant to paragraphs (a) and
(b), respectively, the Exchange Ratio shall be equal to 9.875 /
NHTB Trading Price or 9.75 / NHTB Trading Price, respectively,
and the Cash Election Price shall be $11.875 per share.
ADJUSTMENT OF MERGER CONSIDERATION IN THE EVENT OF DELAYED EFFECTIVE DATE
In the event the Effective Date does not occur within one (1) month
after all required regulatory approvals are obtained, including the
expiration of any applicable waiting periods, NHTB shall increase the
consideration to be paid to holders of Landmark Common Stock by (1)
accruing interest on the 40% cash component of the consideration to be paid
to holders of Landmark Common Stock at a rate equal to the then current
yield on the Bank's "Treasury Account" and (2) crediting the 60% stock
component of the consideration to be paid to holders of Landmark Common
Stock with any and all dividends declared on the NHTB Common Stock during
such period.
EXCHANGE OF CERTIFICATES; ELECTION PROCEDURES; FRACTIONAL SHARES
Within three business days after the Effective Date, ChaseMellon
Shareholder Services, L.L.C. as exchange agent for the NHTB Common Stock
(the "Exchange Agent") will send to each holder of Landmark Common Stock
(or in the case of nominee record holders, the beneficial owner through
proper instructions and documentation) an election form and other
appropriate transmittal materials (the "Election Forms") permitting such
holder to (i) elect to receive NHTB Common Stock with respect to such
holder's Landmark Common Stock (the "Landmark Stock Election Shares"), (ii)
elect to receive cash with respect
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to such holder's Landmark Common Stock (the "Landmark Cash Election
Shares"), or (iii) indicate that such holder makes no such election (the
"Landmark No-Election Shares"). In order to elect to receive NHTB Common
Stock, the number of shares of Landmark Common Stock a Landmark stockholder
elects to convert must equal or exceed 100 shares.
Because the Merger Agreement provides that the total consideration
paid to Landmark shareholders will be comprised of 60% NHTB Common Stock
and 40% cash, no guarantee can be given that the election of any given
shareholder of Landmark will be honored. Rather, the election by each
holder will be subject to the election and allocation procedures described
herein. Thus, holders may not receive their requested form of consideration
or combination thereof. See " --Allocations."
Any election to receive NHTB Common Stock or cash shall have been
properly made only if the Exchange Agent shall have actually received a
properly completed Election Form by the Election Deadline specified on the
Election Forms (the "Election Deadline"). Election Forms will be properly
completed only if accompanied by certificates representing all shares of
Landmark Common Stock converted thereby. The Exchange Agent shall have
reasonable discretion to determine when any election, modification or
revocation is received and whether any such election, modification or
revocation has been properly made. Any shares of Landmark Common Stock with
respect to which the holder thereof shall not, as of the Election Deadline,
have made such an election by submission to the Exchange Agent, of
effective, properly completed Election Forms, shall be deemed to be
Landmark No-Election Shares. Any Dissenting Shares shall be deemed to be
Landmark Cash Election Shares, and with respect to such shares the holders
thereof shall in no event be classified as Stock Designees (as defined
herein).
LANDMARK STOCK CERTIFICATES SHOULD NOT BE FORWARDED TO THE EXCHANGE
AGENT UNTIL A LANDMARK SHAREHOLDER HAS RECEIVED THE ELECTION FORMS AND
SHOULD NOT BE RETURNED WITH THE ENCLOSED PROXY.
Until the certificates representing Landmark Common Stock are
surrendered for exchange after the Effective Time, holders of such
certificates will accrue but will not be paid dividends or other
distributions on the NHTB Common Stock into which their shares have been
converted. When such certificates are surrendered, any unpaid dividends or
other distributions will be paid, without interest. No interest will be
paid or accrued on the cash in lieu of fractional shares payable to holders
of such certificates. For all other purposes, however, each certificate
which represents outstanding shares of Landmark Common Stock outstanding at
the Effective Time other than shares as to which dissenters' rights have
been asserted and not withdrawn will be deemed, as of the Effective Time,
to evidence ownership of the number of shares of NHTB Common Stock or the
right to receive the amount of cash into which such Landmark Common Stock
shall have been converted. After the Effective Date, there shall be no
further transfer on the records of Landmark of certificates representing
Landmark shares and if such certificates are presented to Landmark for
transfer, they shall be cancelled against delivery of certificates for NHTB
Common Stock or cash into which those shares have been converted pursuant
to the Merger.
No fractional shares of NHTB Common Stock will be issued to any
Landmark shareholder upon consummation of the Merger. For each fractional
share that would otherwise be issued, NHTB will pay cash in an amount equal
to such fraction multiplied by the bid price of NHTB Common Stock on the
Nasdaq National Market on the last business day preceding the Effective
Date.
Any shares of Landmark Common Stock with respect to which rights have
been properly perfected will be purchased in accordance with the procedures
described under "CERTAIN
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RELATED TRANSACTIONS - Rights of Dissenting Shareholders" and in Appendix D
to this Joint Proxy Statement-Prospectus.
For a description of the differences between the rights of the holders
of Landmark Common Stock and NHTB Common Stock, see "COMPARISON OF RIGHTS
OF NHTB AND LANDMARK SHAREHOLDERS." For a description of the capital stock
of NHTB, see "DESCRIPTION OF NHTB CAPITAL STOCK."
ALLOCATIONS
Within three business days after the Election Deadline, the Exchange
Agent will be required to effect the allocation among holders of Landmark
Common Stock of rights to receive NHTB Common Stock or cash in the Merger
in accordance with the Election Forms as follows:
(i) If the number of Landmark Stock Election Shares is less
than a number (the "Stock Conversion Number") equal to 60.0% of
the number of shares of Landmark Common Stock outstanding on the
Effective Date of the Merger (excluding treasury and certain
other shares to be cancelled and retired in accordance with the
Merger Agreement), then:
(1) all Landmark Stock Election Shares will be
converted into the right to receive NHTB Common Stock,
(2) the Exchange Agent will select first from among the
holders of Landmark No-Election Shares and then (if
necessary) from among the holders of Landmark Cash Election
Shares, by random selection (as described below), a
sufficient number of such holders ("Stock Designees") such
that the number of shares of Landmark Common Stock held by
the Stock Designees will, when added to the number of
Landmark Stock Election Shares, equal as closely as
practicable the Stock Conversion Number, and all shares held
by the Stock Designees will be converted into the right to
receive NHTB Common Stock, and
(3) the Landmark Cash Election Shares (subject to the
provisions of the Merger Agreement with respect to any
Dissenting Shares) and the Landmark No-Election Shares not
held by Stock Designees will be converted into the right to
receive cash; or
(ii) If the number of Landmark Stock Election Shares is
greater than the Stock Conversion Number, then:
(1) all Landmark Cash Election Shares (subject to the
provisions of the Merger Agreement with respect to any
Dissenting Shares) will be converted into the right to
receive cash,
(2) the Exchange Agent will select first from among the
holders of Landmark No-Election Shares and then (if
necessary) from among the holders of Landmark Stock Election
Shares, by random selection (as described below), a
sufficient number of such holders ("Cash Designees") such
that the number of shares of Landmark Common Stock held by
the Cash Designees will, when added to the number of
Landmark Cash Election Shares (including any
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Dissenting Shares), equal as closely as practicable a number
(the "Cash Conversion Number") equal to 40.0% of the shares
of Landmark Common Stock outstanding on the Effective Date
of the Merger (excluding treasury and certain other shares
which are to be cancelled and retired in accordance with the
Merger Agreement) and all shares held by the Cash Designees
will be converted into the right to receive cash, and
(3) the Landmark Stock Election Shares and Landmark No-
Election Shares not held by Cash Designees will be converted
into the right to receive NHTB Common Stock; or
(iii) If the number of Landmark Stock Election Shares is
equal or nearly equal (as determined by the Exchange Agent) to
the Stock Conversion Number, then subparagraphs (i) and (ii)
above and subparagraph (iv) below shall not apply and all
Landmark Stock Election Shares will be converted into the right
to receive NHTB Common Stock and all Landmark Cash Election
Shares (subject to the provisions applicable to Dissenting
Shares) and Landmark No-Election Shares will be converted into
the right to receive cash; or
(iv) If the number of Landmark Cash Election Shares is equal
or nearly equal (as determined by the Exchange Agent) to the Cash
Conversion Number, then subparagraphs (i), (ii) and (iii) above
shall not apply and all Landmark Cash Election Shares (subject to
the provisions of applicable to Dissenting Shares) will be
converted into the right to receive cash and all Landmark Stock
Election Shares and Landmark No-Election Shares will be converted
into the right to receive NHTB Common Stock.
The random selection process to be used by the Exchange Agent will
consist of such processes as shall be mutually determined by NHTB and
Landmark in a manner designed to select shareholders on a fair and
equitable basis, and as shall be described further in the Election Forms.
Within five business days after the Election Deadline, the Exchange
Agent shall distribute NHTB Common Stock and cash as provided herein.
If a certificate for Landmark Common Stock has been lost, stolen or
destroyed, the Exchange Agent will issue the consideration properly payable
in accordance with the Merger Agreement upon receipt of appropriate
evidence as to such loss, theft or destruction, appropriate evidence as to
the ownership of such certificate by the claimant, and appropriate and
customary indemnification.
Because the tax consequences of receiving cash or NHTB Common Stock
will differ, shareholders of Landmark are urged to read carefully the
information under the caption "Material Federal Income Tax Consequences."
ISSUANCE OF STOCK AND PAYMENT OF CASH TO EXCHANGE AGENT
On the Effective Date, NHTB shall issue to the Exchange Agent the
number of shares of NHTB Common Stock issuable and the amount of cash
payable in the Merger. Upon completion of the allocation procedures
described above, NHTB will, if necessary, issue to the Exchange Agent
additional shares of NHTB Common Stock in exchange for cash or issue to the
Exchange Agent any additional cash in exchange for NHTB Common Stock, as
may be required to effect the conversion of Landmark Common Stock. The
Exchange Agent will not be entitled to vote or exercise any rights of
ownership
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with respect to the shares of NHTB Common Stock held by it pursuant to the
Merger Agreement, except that it will receive and hold all dividends or
other distributions paid or distributed with respect to such shares for the
account of the persons entitled thereto.
CONDUCT OF BUSINESS PENDING THE MERGER
Pursuant to the Plan of Reorganization, prior to the Effective Time,
and except with the written consent of NHTB, Landmark has agreed that it
shall not, among other things:
(1) carry on its business other than in the usual, regular and
ordinary course in substantially the same manner as previously conducted;
(2) declare, set aside, make or pay any dividend or other distribution
in respect of its capital stock;
(3) issue any shares of its capital stock (except for the issuance of
the Landmark Common Stock that are converted from shares of Landmark
Preferred Stock) or permit any treasury shares to become outstanding other
than pursuant to the Option Agreement;
(4) incur any additional debt obligation or other obligation for
borrowed money other than in the ordinary course of business consistent
with past practice;
(5) issue, grant or authorize any warrants, options, rights and the
like or effect any recapitalization, reclassification, stock dividend,
stock split or like change in capitalization, or redeem, repurchase or
otherwise acquire any shares of its capital stock;
(6) amend the Landmark Articles or Bylaws;
(7) merge with any other corporation, savings association or bank or
permit any other corporation, savings association or bank to merge into it
or consolidate with any other corporation, savings association or bank;
acquire control over any other firm, bank, corporation, savings association
or organization or create any subsidiary;
(8) except in the ordinary course of business, waive or release any
material right or cancel or compromise any material debt or claim;
(9) fail to comply in any material respect with any laws, regulations,
ordinances or governmental actions applicable to it and to the conduct of
its business;
(10) enter into any material swap, hedge or other similar off-balance
sheet transaction;
(11) liquidate or sell or dispose of any material assets or acquire
any material assets; make any capital expenditure in excess of $25,000 in
any instance or in the aggregate; or, establish new branches or other
similar facilities or enter into or modify any leases or other contracts
relating thereto that involve annual payments that exceed $10,000 in any
instance or $25,000 in the aggregate;
(12) increase the rate of compensation of, pay or agree to pay any
bonus to, or provide any other employee benefit or incentive to, any of its
directors, officers or employees;
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(13) enter into, modify or extend any employment or severance
contracts with any of its present or former directors, officers or
employees;
(14) enter into or substantially modify (except as may be required by
applicable law) any pension, retirement, stock option, stock purchase,
stock appreciation right, savings, profit sharing, deferred compensation,
consulting, bonus, group insurance or other employee benefit, incentive or
welfare contract, plan or arrangement, or any trust agreement related
thereto, in respect of any of its directors, officers or other employees;
(15) change its lending, investment, asset/liability management or
other material banking policies in any material respect except as may be
required by changes in applicable law;
(16) change its methods of accounting in effect at December 31, 1995,
except as required by changes in generally accepted accounting principles
concurred in by its independent certified public accountants, or change any
of its methods of reporting income and deductions for federal income tax
purposes from those employed in the preparation of its federal income tax
returns for the year ended December 31, 1995, except as required by law;
(17) solicit or initiate inquiries or proposals with respect to any
acquisition or purchase of all or a substantial portion of the assets of,
or a substantial equity interest in, Landmark or any business combination
with Landmark other than as contemplated by the Plan of Reorganization; or
authorize or permit any officer, director, agent or affiliate of it to do
any of the above; or fail to notify NHTB as soon as practicable if any such
inquiries or proposals are received by Landmark, or if Landmark or any
officer, director, agent or affiliate thereof is requested to or does
furnish any confidential information relating to, or participates in any
negotiations or discussions concerning, any transaction of a type described
in this paragraph; or
(18) agree to do any of the foregoing.
NHTB, the Bank and Landmark each have also agreed, subject to the
terms and conditions of the Plan of Reorganization, to use their best
efforts in good faith, and NHTB has agreed to cause its subsidiaries to use
their best efforts in good faith to (a) furnish such information as may be
required in connection with the preparation of the Registration Statement
of which this Joint Proxy Statement-Prospectus is a part and all regulatory
applications, and (b) take or cause to be taken all action necessary or
desirable on its part so as to permit consummation of the Merger at the
earliest possible date, including, without limitation, (i) obtaining the
consent or approval of each individual, partnership, corporation,
association or other business or professional entity whose consent or
approval is required for consummation of the transactions contemplated
hereby, provided that Landmark shall not agree to make any payments or
modifications to agreements in connection therewith without the prior
written consent of NHTB, and (ii) requesting the delivery of appropriate
opinions, consents and letters from its counsel and independent auditors.
CONDITIONS TO CONSUMMATION
Each party's obligation to effect the Merger is subject to various
conditions, which include, in addition to other customary closing
conditions, the following:
(a) all corporate action necessary to authorize the execution,
delivery and performance of the Agreements and consummation of the
transactions contemplated hereby (including the approvals of
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shareholders of each of NHTB and Landmark solicited hereby) and thereby
shall have been duly and validly taken;
(b) the parties hereto shall have received all regulatory approvals
required or mutually deemed necessary in connection with the transactions
contemplated by the Agreements, all notice periods and waiting periods
required after the granting of any such approvals shall have passed and all
conditions contained in any such approval required to have been satisfied
prior to consummation of such transactions shall have been satisfied,
provided, however, that no such approval shall have imposed any condition
or requirement which, in the reasonable good faith opinion of the Board of
Directors of NHTB materially and adversely affects the anticipated economic
and business benefits to NHTB of the transactions contemplated by the Plan
of Reorganization to render consummation of such transactions inadvisable;
(c) the Registration Statement (including any post-effective amendment
thereto) of which this Joint Proxy Statement-Prospectus is a part shall
have been filed with the Commission and shall be effective under the
Securities Act and no proceeding shall be pending or to the knowledge of
NHTB threatened by the Commission to suspend the effectiveness of such
Registration Statement;
(d) NHTB shall have received all state securities or "Blue Sky"
permits or other authorizations, or confirmations as to the availability of
an exemption from registration requirements as may be necessary;
(e) to the extent that any lease, license, loan, financing agreement
or other contract or agreement to which Landmark is a party requires the
consent of or waiver from the other party thereto as a result of the
transactions contemplated by the Plan of Reorganization, such consent or
waiver shall have been obtained, unless the failure to obtain such consents
or waivers, individually or in the aggregate, would not have a material
adverse effect on Landmark;
(f) none of the parties hereto shall be subject to any order, decree
or injunction of a court or agency of competent jurisdiction which enjoins
or prohibits the consummation of the transactions contemplated by the
Agreements;
(g) the shares of NHTB Common Stock that may be issued in the Merger
shall have been approved for listing on the NASDAQ, subject to official
notice of issuance;
(h) the receipt of tax opinions described herein (see "--Material
Federal Income Tax Consequences");
(i) the representations and warranties of each party set forth in the
Plan of Reorganization shall be true and correct in all material respects
as of the date of the Plan of Reorganization and as of the Closing Date as
though made on and as of the Closing Date (or on the date when made in the
case of any representation and warranty which specifically relates to an
earlier date), except as otherwise contemplated by the Plan of
Reorganization or consented to in writing by the other; provided, however,
that the condition contained in this paragraph shall be deemed to be
satisfied unless the failure of such representations and warranties to be
so true and correct constitute, individually or in the aggregate, a
material adverse effect on NHTB;
(j) each party shall have in all material respects performed all
obligations and complied with all covenants required by the Agreements
prior to the Effective Time;
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(k) each of NHTB and Landmark shall have received from the other's
accountants a "comfort letter" dated not more than five days prior to (i)
the effective date of the Registration Statement, and (ii) the Closing
Date, with respect to certain financial information regarding the other, in
form and substance which is customary in transactions of the nature of the
Merger;
(l) each of NHTB and Landmark shall have received an opinion of the
other's counsel, dated the Closing Date, as to such matters as they may
reasonably request with respect to the Merger; and
(m) each of NHTB and Landmark shall have received a letter from its
financial consultants, dated as of a date not more than five (5) days prior
to the date this Joint Proxy Statement-Prospectus is mailed to
shareholders, containing its opinion that the consideration to be paid to
holders of Landmark Common Stock in connection with the Merger is fair to
such shareholders from a financial point of view in the case of Landmark,
and in the case of NHTB that the Merger is fair to NHTB shareholders from a
financial point of view.
In addition, NHTB's obligation to effect the Merger is subject to the
following conditions:
(1) Landmark's allowance for loan losses on the balance sheet of
Landmark as of the last month immediately preceding the Effective Date
shall be at least $600,000 and Landmark's Tier 1 capital ratio (determined
in accordance with GAAP, including any adjustments required under Statement
of Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities") shall be at least 6%, provided,
however, that if such capital ratio is between 6% and 5.8%, NHTB shall be
obligated to consummate the Merger only upon the adjustments to the Merger
Consideration provided in the Plan of Merger. See "--Adjustment of Merger
Consideration."
(2) Any Landmark shareholder who after the Closing Date would become
beneficial owner of more than 3% of the outstanding shares of NHTB Common
Stock has entered into an agreement that such shareholder, for a period of
2 years after the Closing Date, will not vote any shares beneficially owned
by him in excess of 3% of the outstanding shares of NHTB.
NO SOLICITATION
Landmark has agreed in the Plan of Reorganization that Landmark shall
not solicit or initiate inquiries or proposals with respect to any
acquisition or purchase of all or a substantial portion of the assets of,
or a substantial equity interest in, Landmark or any business combination
with Landmark other than as contemplated by the Plan of Reorganization; or
authorize or permit any officer, director, agent or affiliate of it to do
any of the above; or fail to notify NHTB as soon as practicable if any such
inquiries or proposals are received by Landmark, or if Landmark or any
officer, director, agent or affiliate thereof is requested to or does
furnish any confidential information relating to, or participates in any
negotiations or discussions concerning, any transaction of a type described
in this paragraph.
REGULATORY MATTERS
Office of Thrift Supervision. The merger of Landmark with and into
the Bank requires the approval of the OTS. The OTS is required to take
into consideration, among other things, the financial and managerial
resources and future prospects of the institutions involved, the insurance
risk to the Bank Insurance Fund (the "BIF") or the Savings Association
Insurance Fund (the "SAIF") of the FDIC and the convenience and needs of
the community to be served. In addition, the OTS may not approve any
proposed acquisition (i) which would result in a monopoly or which would be
in furtherance of any combination or conspiracy to monopolize or to attempt
to monopolize the savings and loan business in
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any part of the United States or (ii) which in any section of the country
may have the effect of substantially lessening competition or tending to
create a monopoly or which in any other manner would be in restraint of
trade, unless the OTS finds that the anti-competitive effects of the
proposed acquisition are clearly outweighed in the public interest by the
probable effect of the acquisition in meeting the convenience and needs of
the community to be served. Under the Community Reinvestment Act of 1977
(the "CRA"), the OTS must take into account the record of performance of
the existing institutions in meeting the credit needs of the entire
community including low- and moderate-income neighborhoods. The OTS also
considers, among other things, the fairness and disclosure of the Merger
(including compensation to officers, directors and controlling persons of
the disappearing association by the surviving association), the
justification, need for and compensation to be paid to any advisory board,
fees paid to each person or firm rendering legal or other professional
services in connection with a merger and the accounting treatment of any
goodwill in connection with a merger. Each of the Bank and Landmark was
rated "Satisfactory" in its most recent CRA examination.
The Merger may not be consummated until 30 days after OTS approval (or
such shorter period as the OTS may prescribe with the concurrence of the
Attorney General, but not less than 15 days), during which time the
Department of Justice may challenge the Merger on antitrust grounds. The
commencement of an antitrust action by the Department of Justice would stay
the effectiveness of OTS approval unless a court specifically orders
otherwise. In reviewing the Merger, the Department of Justice could analyze
the Merger's effect on competition differently than the OTS, and thus it is
possible that the Department of Justice could reach a different conclusion
than the OTS regarding the Merger's competitive effects. Failure of the
Department of Justice to object to the Merger does not prevent the filing
of antitrust actions by private persons.
Commissioner of Banks of New Hampshire. Under regulations of the
Commissioner of Banks, Landmark must follow the application and notice
requirements applicable to national banks merging with and into federal
savings associations that are set forth in the regulations of the OCC.
Applying the OCC regulations to the Merger, Landmark is required to file a
notice with the Commissioner of Banks advising the Commissioner of Banks of
the Merger. In addition, Landmark is required to publish notice of the
time, place and purpose of the Landmark Special Meeting in a newspaper of
general circulation where Landmark's principal office is located, at least
once a week for four consecutive weeks prior to the Landmark Special
Meeting. After the Landmark Special Meeting, Landmark must file a
certification with the Commissioner of Banks stating that: (i) the
Agreements were approved by Landmark's Board of Trustees or Directors; (ii)
the public notice requirements were met; (iii) Landmark's shareholders
approved the Agreements by an affirmative vote of two-thirds of the shares
of Landmark Common Stock outstanding; (iv) shareholders were advised of
their rights to dissent from the Merger; (v) the OTS approved the Merger;
and (vi) all reports of the Commissioner of Banks were destroyed for which
the Commissioner of Banks requested destruction. Under the OCC regulations,
Landmark's charter will be terminated automatically on the Effective Date
upon compliance with these procedures.
The Merger will not proceed until all regulatory approvals required to
consummate the Merger have been obtained, such approvals are in full force
and effect and all statutory waiting periods in respect thereof have
expired. Applications or notices seeking these approvals have been filed as
of the date of this Joint Proxy Statement-Prospectus. There can be no
assurance that the Merger will be approved by the OTS or the Commissioner
of Banks. If such approvals are received, there can be no assurance as to
the date of such approvals, the terms thereof or the absence of any
litigation challenging such approvals. NHTB and Landmark are not aware of
any other governmental approvals or actions that are required prior to the
parties' consummation of the Merger. It is currently contemplated that if
any such additional governmental approvals or actions are required, such
approvals or actions will be sought. There can be no assurance, however,
that any such additional approvals or actions will be obtained.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Thacher Proffitt & Wood, counsel to NHTB, and
Gallagher, Callahan & Gartrell, P.A. counsel to Landmark, the following
summary sets forth the anticipated material federal income tax consequences
of the Merger to Landmark shareholders and to Landmark and NHTB. The tax
treatment of each Landmark shareholder will depend in part upon such
shareholder's particular situation and the election of such shareholder as
to the form of consideration to be received. Special tax consequences not
described below may be applicable to particular classes of taxpayers,
including, without limitation,
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foreign corporations and tax-exempt entities. Landmark shareholders should
consult their own tax advisors as to the effect of their own particular
situation on the federal tax consequences of the Merger to them and as to
the applicability of any state, local or other tax laws. This summary is
based on the provisions of the Code, the Treasury Regulations promulgated
thereunder and administrative and judicial interpretations thereof, all as
in effect as of the date hereof. Such laws, regulations or interpretations
may differ at the Effective Time, and relevant facts also may differ.
Exchange of Landmark Shares Solely for NHTB Common Stock. The federal
income tax treatment of a Landmark shareholder who receives solely NHTB
Common Stock for such shareholder's shares of Landmark (other than cash
received in lieu of a fractional share interest in NHTB Common Stock) is
described in the opinions to be received by NHTB and Landmark from their
respective counsel, as discussed below.
Exchange of Landmark Shares Solely for Cash. A Landmark shareholder
who receives solely cash in exchange for such shareholder's Landmark shares
may be treated as having sold such shares to NHTB or as having had such
Landmark shares redeemed. In the event of sale treatment, such shareholder
would recognize gain or loss in an amount equal to the difference between
the amount of cash received and the shareholder's aggregate adjusted
federal income tax basis for such Landmark shares. Such gain or loss will
be capital gain or loss if the Landmark shares exchanged were held as
capital assets at the Effective Time. In the event of redemption treatment,
such deemed redemption would be subject to Section 302 of the Code, with
the result that such shareholder would recognize capital gain or loss in a
like amount if (i) the Landmark shares exchanged were held as capital
assets at the Effective Time and (ii) the deemed redemption is
"substantially disproportionate" with respect to such shareholder or is
"not essentially equivalent to a dividend." Landmark shareholders should
consult their own tax advisors as to the possibility that all or a portion
of any cash received in exchange for their Landmark shares will be treated
as a dividend. Capital gain realized on the exchange of Landmark shares for
cash will be long-term capital gain if the Landmark shares were held for
more than one year.
Exchange of Landmark Shares for NHTB Common Stock and Cash. A Landmark
shareholder who receives both NHTB Common Stock and cash (other than cash
received in lieu of a fractional share interest in NHTB Common Stock) will
recognize gain to the extent of the lesser of:
(i) the excess of (A) the sum of the aggregate fair market
value of the NHTB Common Stock received (including the fair
market value of any fractional share interest in NHTB Common
Stock for which cash is received) and the amount of cash received
(other than cash received in lieu of such fractional share
interest) over (B) the shareholder's aggregate adjusted federal
income tax basis for the shares of Landmark stock exchanged; or
(ii) the amount of cash received by such shareholder (other
than cash received in lieu of such fractional share interest).
If the shares of Landmark exchanged in the Merger were held as capital
assets at the Effective Time, any such gain recognized by a Landmark
shareholder who receives both NHTB Common Stock and cash will be treated as
capital gain (which will be long-term capital gain if the Landmark shares
exchanged were held for more than one year), unless the receipt of cash
(other than cash received in lieu of a fractional share interest) has the
effect of a distribution of a dividend within the meaning of Section
356(a)(2) of the Code, in which case such gain will be treated as a
dividend to the extent of such shareholder's ratable share of the
undistributed accumulated earnings and profits of Landmark. Following is a
brief discussion of such potential tax treatment; however, Landmark
shareholders should consult their
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own tax advisors as to the possibility that all or a portion of any cash
received in exchange for their Landmark shares will be treated as a
dividend.
The stock redemption provisions of Section 302 of the Code apply in
determining whether cash received by a Landmark shareholder pursuant to the
Merger has the effect of a distribution of a dividend under Section
356(a)(2) of the Code (the "Hypothetical Redemption Analysis"). Under the
Hypothetical Redemption Analysis, a Landmark shareholder will be treated as
if the portion of the Landmark shares exchanged for cash in the Merger had
been instead exchanged for shares of NHTB Common Stock (the "Hypothetical
Shares"), followed immediately by a redemption of the Hypothetical Shares
by NHTB for cash. Under the principles of Section 302 of the Code, a
Landmark shareholder will recognize capital gain rather than dividend
income with respect to the cash received if the hypothetical redemption is
"not essentially equivalent to a dividend" or is "substantially
disproportionate" with respect to such Landmark shareholder. In applying
the principles of Section 302, the constructive ownership rules of Section
318 of the Code will apply in comparing a Landmark shareholder's ownership
interest in NHTB both immediately after the Merger (but before the
hypothetical redemption) and after the hypothetical redemption.
Whether the hypothetical redemption by NHTB of the Hypothetical Shares
for cash is "not essentially equivalent to a dividend" with respect to a
Landmark shareholder will depend upon such shareholder's particular
circumstances; however, the hypothetical redemption must, in any event,
result in a "meaningful reduction" in such Landmark shareholder's
percentage ownership of NHTB stock. In determining whether the
hypothetical redemption by NHTB results in a meaningful reduction in a
Landmark shareholder's percentage ownership of NHTB stock, a Landmark
shareholder should compare his or her share interest in NHTB (including
interests owned actually, hypothetically and constructively) immediately
after the Merger (but before the hypothetical redemption) to his or her
share interest after the hypothetical redemption. The Internal Revenue
Service (the "Service") has indicated, in Revenue Ruling 76-385, that a
shareholder in a publicly-held corporation whose relative stock interest in
the corporation is minimal and who exercises no "control" over corporate
affairs is generally treated as having had a meaningful reduction in his or
her stockholders after a redemption transaction if his or her percentage
stock ownership in the corporation has been reduced to any extent, taking
into account the shareholder's actual and constructive ownership before and
after the redemption. In Revenue Ruling 76-385, a reduction from .0001118
percent to .0001081 percent was found to be a meaningful reduction in
stockholdings.
The hypothetical redemption transaction would be "substantially
disproportionate" with respect to a Landmark shareholder who owns less than
50% of the voting power of the outstanding NHTB stock if (i) the percentage
of NHTB Common Stock actually and constructively owned by such shareholder
immediately after the hypothetical redemption is less than 80 percent of
(ii) the percentage of NHTB Common Stock actually, hypothetically and
constructively owned by the Landmark shareholder immediately before the
hypothetical redemption.
In determining how many shares of NHTB Common Stock a Landmark
shareholder owns constructively before the hypothetical redemption for
purposes of making the "not essentially equivalent to a dividend" or
"substantially disproportionate" determination, a Landmark shareholder must
take into account any Hypothetical Shares owned by the persons or entities
whose stock he or she is deemed to own constructively under Section 318 of
the Code.
Tax Basis of NHTB Common Stock. A Landmark shareholder's aggregate tax
basis in the NHTB Common Stock received pursuant to the Merger will equal
such shareholder's aggregate tax basis in the Landmark shares exchanged
therefor, decreased by the amount of cash received (other than cash
received
49
<PAGE>
in lieu of a fractional share interest) and increased by the amount of
gain, if any, recognized by such shareholder in the Merger (including any
portion of such gain that is treated as a dividend). Landmark shareholders
should consult their own tax advisors concerning the determination of their
basis and holding period in any particular share of NHTB Common Stock since
several methods of determination may be available. The holding period of
NHTB Common Stock received will include the holding period of the Landmark
shares exchanged therefor, provided that such Landmark shares were held as
a capital asset as of the Effective Date.
Tax Opinions. The obligations of NHTB and Landmark to effect the
Merger are conditioned upon their receipt of an opinion of their respective
counsels, as set forth below. Thacher Proffitt & Wood, counsel to NHTB,
will deliver to NHTB and Gallagher, Callahan & Gartrell, P.A., counsel to
Landmark, will deliver to Landmark, an opinion letter, dated the Effective
Date, as to certain tax consequences of the Merger to NHTB, Landmark and
Landmark shareholders who receives solely NHTB Common Stock for their
shares of Landmark (other than cash received in lieu of a fractional share
interest in NHTB Common Stock). The tax opinions will not be binding on
the Service, and there can be no assurance that the Service will not
contest the conclusions expressed in such opinion letters.
The opinion letters to be delivered by Thacher Proffitt & Wood and
Gallagher, Callahan & Gartrell, P.A., respectively, are based upon certain
representations made to such counsels by Landmark, NHTB, the Bank and
certain Landmark shareholders and upon certain factual assumptions. If any
of the representations or assumptions were not correct, then each holder of
Landmark Common Stock could recognize gain or loss with respect to each
share of Landmark Common Stock surrendered equal to the difference between
(i) such shareholder's basis in the share and (ii) the fair market value of
the NHTB Common Stock received in exchange for the share. In such event,
the shareholder's aggregate basis in the shares of NHTB Common Stock
received in the exchange would equal the fair market value of such shares,
and the shareholder's holding period for such shares of NHTB Common Stock
would not include the period during which the shareholder held the Landmark
shares exchanged therefor.
Landmark shareholders should note that dispositions of NHTB Common
Stock received by Landmark shareholders in the Merger may cause the Merger
to become retroactively taxable to each Landmark shareholder, even those
who do not make such dispositions. In particular, Landmark shareholders
must not, pursuant to a plan or intent existing prior to the Effective
Time, dispose of an amount of NHTB Common Stock to be received in the
Merger (including, under certain circumstances, pre-merger dispositions of
Landmark Common Stock) such that the Landmark shareholders do not retain a
meaningful continuing equity ownership in NHTB. Generally, so long as the
Landmark shareholders have no plan or intention to dispose of NHTB Common
Stock to be received in the Merger that would result in their retention, in
the aggregate, of a continuing interest through stock ownership in NHTB
that is equal in value, as of the Effective Time, to less than 50 percent
of the value of all of the formerly outstanding Landmark Common Stock as of
the same time, this requirement will be satisfied.
The opinion letters to be delivered to NHTB and Landmark by Thacher
Proffitt & Wood and by Gallagher, Callahan & Gartrell, P.A. will state that
they are of the opinion, as of the date of the opinion and under existing
law, for United States federal income tax purposes, that:
(1) The Merger will constitute a reorganization within the
meaning of section 368(a) of the Code;
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<PAGE>
(2) No gain or loss will be recognized by Landmark on the
transfer of its assets to the Bank pursuant to the Merger;
(3) No gain or loss will be recognized by NHTB or by the Bank on
the issuance of shares of NHTB Common Stock to shareholders of
Landmark pursuant to the Merger;
(4) No gain or loss will be recognized by a shareholder of
Landmark who exchanges pursuant to the Merger all of such
shareholder's shares of Landmark stock solely for shares of NHTB
Common Stock, except with respect to cash received in lieu of a
fractional share interest in NHTB Common Stock;
(5) The aggregate tax basis of the shares of NHTB Common Stock
received by a shareholder of Landmark who exchanges pursuant to the
Merger all of such shareholder's shares of Landmark stock solely for
shares of NHTB Common Stock will be the same as the aggregate tax
basis of the shares of Landmark stock surrendered in exchange therefor
(reduced by any amount allocable to a fractional share interest in
NHTB Common Stock for which cash is received);
(6) The aggregate tax basis of the shares of NHTB Common Stock
received by a shareholder of Landmark who exchanges pursuant to the
Merger all of such shareholder's shares of Landmark stock for shares
of NHTB Common Stock and cash will be the same as the aggregate tax
basis of the shares of Landmark stock surrendered in exchange therefor
(reduced by any amount allocable to a fractional share interest in
NHTB Common Stock for which cash is received), decreased by the amount
of cash received (other than cash received in lieu of a fractional
share interest) and increased by the amount of gain, if any,
recognized by such shareholder in the Merger (including any portion of
such gain that is treated as a dividend); and
(7) The holding period of the shares of NHTB Common Stock to be
received by a shareholder of Landmark pursuant to the Merger will
include the period during which such shareholder held the shares of
Landmark stock surrendered in exchange therefor, provided that the
shares of Landmark stock surrendered is held as a capital asset as of
the Effective Time.
Fractional Shares of NHTB Common Stock. No fractional shares of NHTB
Common Stock will be issued in the Merger. A Landmark shareholder who
receives cash in lieu of a fractional share will be treated as having
received such fractional share pursuant to the Merger and then as having
exchanged such fractional share for cash in a redemption by NHTB subject to
Section 302(a) of the Code, provided that such deemed redemption is
"substantially disproportionate" with respect to such shareholder or is
"not essentially equivalent to a dividend." If the NHTB Common Stock
represents a capital asset in the hands of the shareholder, the shareholder
will generally recognize capital gain or loss on such a deemed redemption
of the fractional share in an amount determined by the excess of the amount
of cash received therefor and the shareholder's tax basis in the fractional
share. Any such capital gain will be long-term if the Landmark stock
exchanged was held for more than one year.
Backup Withholding. Unless an exemption applies under applicable law
and regulations, the Exchange Agent will be required to withhold 31 percent
of any cash payments to which a shareholder or other payee is entitled
pursuant to the Merger unless the shareholder or other payee provides its
taxpayer identification number (social security number, employer
identification number or individual taxpayer identification number) and
certifies that such number is correct. Each shareholder and, if applicable,
each other payee should complete and sign the substitute Form W-9 included
with the Election Forms, so as to provide the information and certification
necessary to avoid backup withholding, unless
51
<PAGE>
an applicable exemption exists and is established in a manner satisfactory
to NHTB and the Exchange Agent.
ACCOUNTING TREATMENT
NHTB intends to treat the Merger as a purchase for accounting
purposes.
The pro forma financial information presented in this Joint Proxy
Statement-Prospectus has been prepared using the purchase method of
accounting to account for the Merger. See "UNAUDITED PRO FORMA COMBINED
FINANCIAL DATA."
TERMINATION
The Plan of Reorganization provides that the Merger may be terminated
at any time prior to the Effective Time (whether before or after
shareholder approval) by the mutual consent in writing of NHTB and
Landmark. The Merger also may be terminated by NHTB or Landmark, acting
individually, (a) if any regulatory authority shall have issued a final
nonappealable order enjoining, prohibiting or failing to approve the Merger
or the transactions contemplated thereby; (b) if the Effective Time has not
occurred on or before June 30, 1997 unless the failure to close by such
date is due to the failure of the party seeking to terminate the Agreements
to perform or observe the covenants and agreements set forth with the
Agreements; (c) if there is a material breach by the other party of any
representation, warranty, covenant or agreement contained in the Plan of
Reorganization or the Merger Agreement which is not timely cured; or (d) if
the vote of the shareholders of NHTB or Landmark required to approve the
Plan of Reorganization and the Merger Agreement is not obtained. Landmark
may terminate the Merger if the NHTB Trading Price is less than $6.50 upon
written notice to NHTB prior to the third business day immediately
preceding the Effective Date. If the Plan of Reorganization and the Merger
Agreement is terminated (other than as a result of a wilful breach by NHTB
or Landmark), each of NHTB and Landmark shall be responsible for its own
costs and expenses. If the Plan of Reorganization and the Merger Agreement
is terminated as a result of a breach of a representation, warranty or
covenant which is caused by the wilful conduct of either party, the
breaching party may be liable for damages to the other, including out-of-
pocket costs and expenses incurred in connection with the Merger.
AMENDMENT, EXTENSION AND WAIVER
The Board of Directors of NHTB and Landmark may, to the extent legally
allowable, (a) amend the Plan of Reorganization or the Merger Agreement;
(b) extend the time for the performance of any of the obligations or other
acts required of the other party contained in the Plan of Reorganization or
the Merger Agreement; (c) waive any inaccuracies in the representations and
warranties of the other party contained in the Plan of Reorganization or
the Merger Agreement or in any document delivered pursuant to the Plan of
Reorganization; or (d) waive compliance by the other party of any of its
agreements or conditions contained in the Plan of Reorganization or the
Merger Agreement, except that after the Agreements have been approved by
the shareholders of Landmark, (i) no amendment shall reduce the amount or
kind of Merger Consideration or (ii) adversely affect the tax treatment to
Landmark shareholders as a result of receipt of the Merger Consideration.
Except in the circumstances described in (i) and (ii) above, no amendment
to the Plan of Reorganization or the Merger Agreement (including, but not
limited to, any waiver of conditions, waiver of inaccuracies in the
representations and warranties or extension of time for the performance of
any of the obligations contained in the Plan of Reorganization or the
Merger Agreement) would require further solicitation of proxies from or
approval by the NHTB or Landmark shareholders.
52
<PAGE>
EFFECT ON EMPLOYEES AND EMPLOYEE BENEFITS
The Plan of Reorganization provides that, after the Merger, NHTB will
provide Landmark employees who were employees of Landmark immediately prior
to the Merger with employee benefits no less favorable than those available
to employees of NHTB, subject to the terms and conditions under which those
employee benefits are made available to employees of NHTB. For purposes of
determining eligibility for and vesting of such employee benefits plan,
service with Landmark by persons who were employees of Landmark at the
Effective Time shall be treated as service with an "employer" to the same
extent as if such persons had been employees of NHTB during the period such
persons were employed by Landmark. The Agreements provide that all
employees of Landmark as of the Effective Date shall become employees of
NHTB, the Bank, or an affiliate thereof as of the Effective Date. In the
event any employee of NHTB who was employed by Landmark at the Effective
Time is terminated from NHTB within one year after the Effective Time, in
addition to any severance payment, each such employee shall be reimbursed
for the costs they incur, if any, for COBRA coverage during such employee's
severance period, provided that such employee execute a general release
discharging NHTB from liability in connection with such employee's
employment.
The Bank and Landmark have entered into agreements with five current
Landmark employees to provide for bonuses to be funded by Landmark and paid
by the Bank provided the employees remain employed in good standing and
continue such employment with the Bank for 105 days following the Effective
Date. The total amount accrued by Landmark to fund the bonus payments is
$53,462.
NHTB has also agreed that all rights to indemnification existing in
favor of the Directors and Officers of Landmark as provided in the Landmark
Articles and Landmark's Bylaws as in effect on July 26, 1996, will survive
the Merger and continue in full force and effect with respect to claims or
liabilities arising from facts or events existing or occurring prior to the
Effective Time. All rights to indemnification in respect of any claim
asserted or made within such period shall continue until the final
disposition of such claim.
NHTB has also agreed to maintain in effect for three years after the
Effective Time, if available, the directors' and officers' liability
insurance policy currently maintained by Landmark or to substitute policies
having at least the same coverage containing terms and conditions which are
not less advantageous than the present policies of Landmark. NHTB will not,
however, be required to expend more than 150 percent per annum of the
amount expended by Landmark to maintain or procure such insurance coverage.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
In connection with the Merger, NHTB has agreed to provide certain
benefits to the employees of Landmark. See "--Effect on Employees and
Employee Benefits".
NHTB has also agreed to continue the rights to indemnification of
officers and directors of Landmark and to continue in effect for a period
of time the directors' and officers' liability insurance currently
maintained by Landmark. See "--Effect on Employees and Employee Benefits."
Prior to or at the Effective Time, the Board of Directors of NHTB will
elect two of Landmark's current Directors to serve on the Board of
Directors of NHTB, who will be designated prior to the Effective Time as
follows: one of the nominees will be Mr. Jack H. Nelson for a three-year
term and the other will be Mr. Leonard R. Cashman for a two-year term.
Prior to or at the Effective Time, the Board of Directors of the Bank,
NHTB's banking subsidiary, will elect Mr. Nelson, Mr. Cashman and Mr.
Willey to serve on the Board of Directors of the Bank. As new Directors of
NHTB and the Bank, Messrs. Nelson, Cashman and Willey will each be entitled
to an annual retainer of $11,000 plus $100 for attendance at meetings of
any committees to which they are appointed. Messrs. Nelson, Cashman and
Willey shall also be entitled to such other benefits as are generally
available to outside directors.
Landmark is a party to an Employment Agreement with Paul P. Tierney
pursuant to which Mr. Tierney serves as Landmark's President and Chief
Executive Officer. In connection with the Merger, Landmark will be merged
with and into the Bank, with the Bank as the surviving entity, and Mr.
Tierney will not be elected or serve as President and Chief Executive
Officer of the Bank. Because of this reduction in his responsibilities,
pursuant to the Employment Agreement, NHTB or the Bank will pay Mr. Tierney
$188,400 (equivalent
53
<PAGE>
to two-years salary as provided in the Employment Agreement) and assume the
liabilities of Landmark with respect to certain deferred compensation
arrangements established pursuant to the Employment Agreement. In
exchange, Mr. Tierney will acknowledge such payment and assumption as full
satisfaction of all obligation to him under the Employment Agreement and
execute a release in favor Landmark, NHTB and the Bank and their
affiliates.
BENEFICIAL OWNERSHIP OF NHTB COMMON STOCK
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information as of September 3,
1996 regarding each director individually and all directors and executive
officers of NHTB as a group. Except as otherwise noted in the footnotes to
the table, the beneficial owners have sole voting and investment power as
to all shares of NHTB Common Stock beneficially owned by them. All of the
individuals named below are directors of NHTB.
<TABLE>
<CAPTION> EQUIVALENT SHARES
OF NHTB COMMON
STOCK ASSUMING
CONSUMMATION OF
THE MERGER
AMOUNT AND ----------------
NATURE OF PERCENTAGE PERCENTAGE OF
NAME BENEFICIAL OWNERSHIP OF CLASS (1) CLASS (1)
---- -------------------- ---------- -----------------
<S> <C> <C> <C>
Stephen W. Ensign 51,123 (2) 3.01% 2.50%
Ralph B. Fifield, Jr. 6,997 * *
John A. Kelley, Jr. 8,040 (3) * *
John J. Kiernan 29,171 (4) 1.72% 1.43%
Dennis A. Morrow 13,398 (5) * *
Priscilla W. Ohler 8,768 * *
Perry R. Smith, Jr. 3,216 (6) * *
Stephen R. Theroux 23,896 (7) 1.41% 1.17%
Kenneth D. Weed 14,956 (8) * *
All Directors and Executive
Officers as a group (9 persons) 159,565 9.40% 7.81%
</TABLE>
- ------------------
*Less than 1%.
(1) Based upon 1,698,136 shares of NHTB Common Stock outstanding as of
September 3, 1996. The number of equivalent shares of NHTB Common Stock is
based upon 2,045,001 shares, the maximum number of shares that could be
outstanding assuming consummation of the Merger.
(2) Includes 21,456 shares held by Mr. Ensign and his wife with shared voting
and investment power, 200 shares held by Mr. Ensign as custodian for his
minor child under the Uniform Gift to Minors Act for which he has sole
voting and investment power, and 26,022 shares subject to outstanding
options which are exercisable within 60 days from September 3, 1996.
(3) All 8,040 shares are held jointly by Mr. Kelley and his wife with
shared voting and investment power.
(4) Includes 25,300 shares held jointly by Mr. Kiernan and his wife with
shared voting and investment power, and 1,937 shares held in a spousal
IRA for which his wife has sole voting and investment power and to
which Mr. Kiernan disclaims beneficial ownership.
(5) Includes 8,700 shares held jointly by Mr. Morrow and his wife with
shared voting and investment power.
(6) All 3,216 shares are held jointly by Mr. Smith and his wife with
shared voting and investment power.
(7) Includes 5,216 shares held jointly by Mr. Theroux and his wife with
shared voting and investment power, and 16,632 shares which are
subject to outstanding options which are exercisable within 60 days
from September 3, 1996.
(8) Includes 7,478 shares held in trust by Mr. Weed's wife.
54
<PAGE>
BENEFICIAL OWNERSHIP OF LANDMARK COMMON STOCK
To the best knowledge of Landmark, the following table sets forth
certain information as of September 3, 1996 regarding holders of more than
5% of Landmark's Common Stock, each director of Landmark and all Directors
and Officers of Landmark as a group. Except as otherwise noted in the
footnotes to the table, the beneficial owners have sole voting and
investment power as to all shares beneficially owned by them.
<TABLE>
<CAPTION>
EQUIVALENT SHARES
OF NHTB
COMMON STOCK
SHARES OF PREFERRED ASSUMING
SHARES OF COMMON STOCK OWNED STOCK OWNED CONSUMMATION
BENEFICIALLY (1)(2)(3) BENEFICIALLY(1)(4)(5) OF THE MERGER(4)(7)
----------------------------- ----------------------- ---------------------
NAME OF PERCENT OF PERCENT OF NUMBER OF PERCENT OF
BENEFICIAL OWNER TOTAL CLASS TOTAL CLASS SHARES CLASS
- ---------------------------- ------------ --------------- -------- ------------ --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Harry H. Holland 64,455 18.20% 3,625 6.08% 87,552 4.28%
P.O. Box 51
Bethel, Vermont 05032
Paul P. Tierney 38,198 10.79 -- -- 46,640 2.28
Leonard R. Cashman 11,076 3.13 -- -- 13,524 *
Richard S. Daniels 26,580 7.51 -- -- 32,454 1.59
Lorin P. Dore 100 * -- -- 122 --
William N. Josler 19,298 5.45 -- -- 23,563 1.15
Ellen E. Knights 100 * 2,992 5.01 7,429 *
Richard B. Logan 200 * -- -- 244 *
Jack H. Nelson 6,667 1.88 2,500 4.19 14,245 *
Joseph B. Willey 31,155 8.80 9,075 15.21 60,201 2.94
Thomas J. Bascetta 19,994 5.65 2,500 4.19 30,517 1.50
9 Laurel Road
Etna, New Hampshire 03750
All Directors and Officers
as a group (12 persons) 133,374 37.66% 14,567 24.41% 198,422 9.69%
</TABLE>
- ---------------
* Less than 1%.
(1) Shares beneficially owned means shares over which a person exercises sole
or shared voting or investment power, or shares which a person has the
right to acquire beneficial ownership of within 60 days of September 3,
1996. Shares of capital stock of the Bank may be beneficially owned by more
than one person.
(2) Calculation of percentages is based upon a total of 354,138 shares of
Common Stock outstanding as of September 3, 1996. Individual percentages
have been rounded. No account is made for shares of Common Stock that may
be issued and/or acquired upon conversion of outstanding shares of Landmark
Preferred Stock. No account is made for the impact of the Excess Share
voting limitation contained in the Landmark Articles, the effect of which
is to reduce the number of shares of Landmark Common Stock entitled to vote
to 342,803 shares.
(3) The individuals noted above have sole voting and investment power with
respect to shares of Common Stock beneficially owned, except that voting
and investment power is shared as follows: Mr. Holland, 35,676 shares; Mr.
Cashman, 5,500 shares; Mr. Daniels, 11,000 shares; Mr. Josler, 5,798
shares; Ms. Knights, 100 shares; Mr. Tierney, 33,989 shares; Mr. Willey,
9,566 shares; and Mr. Bascetta, 19,994 shares.
(4) Based upon 2,045,001 shares of NHTB Common Stock, the maximum number of
such shares that could be outstanding assuming consummation of the Merger.
Equivalent shares of NHTB Common Stock are based on an assumed Exchange
Ratio of 1.221 and on the assumption that all of the named parties' shares
---
of Landmark Common Stock and Preferred Stock are exchanged solely for
shares of NHTB Common Stock. A share of Landmark Preferred Stock is
convertible into two (2) shares of Landmark Common Stock.
(5) Calculation of percentages is based upon a total of 59,667 shares of
Preferred Stock outstanding as of September 3, 1996. Individual percentages
have been rounded.
(6) The individuals noted above have sole voting and investment power with
respect to shares of Preferred Stock beneficially owned, except that voting
and investment power is shared as follows: Mr. Holland, 625 shares are;
Ms. Knights, 2,892 shares; Mr. Willey, 9,075 shares and Mr. Bascetta, 2,500
shares.
55
<PAGE>
CERTAIN RELATED TRANSACTIONS
THE STOCK OPTION AGREEMENT
As a condition to entering into the Agreements, NHTB
required Landmark to enter into the Option Agreement which allows NHTB to
purchase up to 19.9% of the then-issued and outstanding shares of Landmark
Common Stock, under certain conditions, at a price of $9.00 per share,
subject to adjustment as set forth in the Option Agreement. The Option is
exercisable, in whole or in part, only upon the occurrence of certain
triggering events which are described below (none of which has occurred to
the best of NHTB's or Landmark's knowledge as of the date of this Joint
Proxy Statement-Prospectus).
Effect of Stock Option Agreement. The Option Agreement is intended to
increase the likelihood that the Merger will be consummated in accordance
with the terms of the Agreements. Consequently, certain aspects of the
Option Agreement may have the effect of discouraging persons who might now
or prior to the Effective Time be interested in acquiring all of, or a
significant interest in, Landmark, from considering or proposing such an
acquisition, even if such persons were prepared to pay a higher price per
share for Landmark Common Stock than either the per share Merger
Consideration or the then-current market price of such shares. The
acquisition of, or an interest in, Landmark, or an agreement to do either,
could cause the Option to become exercisable. The existence of the Option
Agreement could significantly increase the cost to a potential acquiror of
acquiring Landmark compared to its cost had the Option Agreement not been
entered into. Such increased cost might discourage a potential acquiror
from considering or proposing an acquisition or might result in a potential
acquiror proposing to pay a lower per share price to acquire Landmark than
it might otherwise have proposed to pay.
Terms of Stock Option Agreement. The following is a summary of the
material provisions of the Option Agreement. The following summary is
qualified in its entirety by reference to the Option Agreement, which is
annexed hereto as Appendix C. The Option is exercisable only upon the
occurrence of one of the following events (each a "Purchase Event"):
(a) any person (other than NHTB or its subsidiaries) shall
have acquired beneficial ownership of 25% or more of then outstanding
Landmark Common Stock; or
(b) Landmark or any of its subsidiaries without having received NHTB's
prior written consent, shall have entered into an agreement to engage in an
Acquisition Transaction (as defined below) with any person other than NHTB
or any of its subsidiaries or the Board of Directors shall have recommended
that the shareholders of Landmark approve or accept any Acquisition
Transaction with any person other than NHTB or any of its subsidiaries.
"Acquisition Transaction" means (i) a merger or consolidation, or any
similar transaction, involving Landmark or any of Landmark's subsidiaries,
(ii) a purchase, lease or other acquisition of all or substantially all of
the assets of Landmark or any subsidiary or (iii) a purchase or other
acquisition (including by way of merger, consolidation, share exchange or
otherwise) of securities representing 25% or more of the voting power of
Landmark or any subsidiary; provided that the term "Acquisition
Transaction" does not include any internal merger or consolidation
involving only Landmark and/or its subsidiaries; or
(c) after a bona fide proposal is made by a third party to Landmark or
its shareholders to engage in an Acquisition Transaction and after such
proposal any of the following events occurs: (i) Landmark shall willfully
have breached any covenant or obligation contained in the Plan of
Reorganization and such breach would entitle NHTB to terminate the Plan of
Reorganization; (ii) the shareholders of Landmark shall not have approved
the Agreements at the Landmark Special Meeting; (iii) the Landmark Special
Meeting shall not have been held or shall have been canceled prior to
termination
56
<PAGE>
of the Agreements; or (iv) the Landmark Board of Directors shall have
withdrawn or modified, in a manner adverse to NHTB, the recommendation
of the Landmark Board with respect to the Agreements.
The Option terminates upon the earliest to occur of (i) the time
immediately prior to the Effective Time, (ii) 12 months after the first
occurrence of a Purchase Event, (iii) 18 months after the termination of
the Agreements following the occurrence of a Preliminary Purchase Event (as
defined therein), (iv) termination of the Plan of Reorganization in
accordance with the terms thereof prior to the occurrence of a Purchase
Event or a Preliminary Purchase Event (other than a termination resulting
from a material breach of Landmark's covenants, representations or
warranties under the Plan of Reorganization), or (v) 18 months after the
termination of the Plan of Reorganization if such termination results from
a material breach of Landmark's covenants, representations or warranties
under the Plan of Reorganization (each of (i), (ii), (iii), (iv) and (v)
herein referred to as an Exercise Termination Event).
The number and type of securities subject to the Option and the
purchase price of shares will be adjusted for any change in the Landmark
Common Stock by reason of a stock dividend, stock split, recapitalization,
combination, exchange of shares or similar transaction, such that NHTB will
receive (upon exercise of the Option) the same number and type of
securities as if the Option had been exercised immediately prior to the
occurrence of such event (or the record date therefor). The number of
shares of Landmark Common Stock subject to such Option will also be
adjusted in the event Landmark issues additional shares of Landmark Common
Stock such that the number of shares of Landmark Common Stock subject to
the Option, together with shares previously purchased pursuant thereto,
represents 19.9% of Landmark's Common Stock then issued and outstanding,
without giving effect to shares subject to or issued pursuant to the
Option.
If, prior to an Exercise Termination Event, Landmark were to take
certain action to consolidate with or sell substantial assets to another
entity, as described in detail in the Option, then the Option shall be
converted into, or exchanged for, an option (the "Substitute Option"), at
the election of NHTB of either (x) the acquiring corporation or (y) any
person that controls the acquiring corporation, which shall have
substantially the same terms as the Option, with adjustments in the
exercise price as set forth in the Option Agreement.
Landmark has granted NHTB certain registration rights with respect to
shares of common stock acquired by NHTB upon exercise of the Option, in
certain circumstances. These rights include that Landmark will promptly
prepare and file a registration statement under the Securities Act or
offering circular under the rules and regulations of the FDIC if requested
by NHTB.
RESALE OF NHTB COMMON STOCK
The NHTB Common Stock issued pursuant to the Merger will be freely
transferable under the Securities Act, except for shares issued to any
Landmark shareholder who may be deemed to be an affiliate (an "Affiliate")
of Landmark for purposes of Rule 145 under the Securities Act. Generally,
Affiliates of Landmark are defined as persons (generally executive officers
and directors) who control, are controlled by, or are under common control
with Landmark at the time of the Landmark Special Meeting.
Rules 144 and 145 promulgated by the Commission under the Securities
Act impose certain restrictions on the public sale of NHTB Common Stock
received in the Merger by Affiliates and certain of their family members
and related interests. Generally speaking, during the two years following
the Effective Time, Affiliates of Landmark, provided they are not
Affiliates of NHTB, may publicly resell the NHTB Common Stock received by
them in the Merger, subject to certain limitations as to the amount
57
<PAGE>
of NHTB Common Stock sold by them in any three-month period and as to the
manner of sale. After the two-year period, such Affiliates of Landmark who
are not Affiliates of NHTB may resell their shares without such
restrictions so long as there is adequate current public information with
respect to NHTB as required by Rule 144. Persons who become Affiliates of
NHTB prior to, at or after the Effective Time may publicly resell the NHTB
Common Stock received by them in the Merger subject to similar limitations
and subject to certain filing requirements specified in Rule 144. The
ability of Affiliates to resell shares of NHTB Common Stock received in the
Merger under Rule 144 or 145 as summarized herein generally will be subject
to NHTB's having satisfied its Exchange Act reporting requirements for
specified periods prior to the time of sale. Affiliates also would be
permitted to resell NHTB Common Stock received in the Merger pursuant to an
effective Registration Statement under the Securities Act or another
available exemption from the Securities Act registration requirements.
This Joint Proxy Statement-Prospectus does not cover any resales of
NHTB Common Stock received by persons who may be deemed to be Affiliates of
Landmark.
RIGHTS OF DISSENTING SHAREHOLDERS
Landmark. Under regulations of the Commissioner of Banks at Part BAN
523, any Landmark shareholder has the right to assert dissenters' rights
with respect to the Merger and to receive payment for his or her shares of
Landmark Common Stock, in accordance with regulations of the OCC applicable
to mergers of national banks with and into federal savings associations,
copies of which are set forth as Appendix D to this Joint Proxy Statement-
Prospectus. Each outstanding share of Landmark Common Stock, the holder of
which has perfected his or her right to dissent and has not effectively
withdrawn or lost such right as of the Effective Date, shall not be
converted into or represent a right to receive shares of NHTB Common Stock
or cash hereunder, and the holder thereof shall be entitled only to such
rights as are granted by applicable law.
A shareholder may not dissent as to less than all of the shares that
he or she beneficially owns. A shareholder who votes against the Merger or
who has given notice in writing to Landmark at or prior to the Landmark
Special Meeting that he or she dissents from the Merger, shall be entitled
to receive in cash the value of the shares he or she holds, if the Merger
is consummated. To receive cash for Dissenting Shares, a dissenting
shareholder must send a written request to the Bank within thirty days
after the dissenting shareholder receives notice of the Effective Date of
the Merger, accompanied by his or her stock certificates.
The value of such shares shall be determined as of the date of the
Landmark Special Meeting by a committee of three persons, one to be
selected by majority vote of the dissenting shareholders entitled to
receive the value of their shares, one by the Directors of the Bank, and
the third by the two so chosen. The valuation agreed upon by any two of the
three appraisers thus chosen shall govern.
If the value so fixed is not satisfactory to any dissenting
shareholder who has requested payment in the manner provided in the Dissent
Regulations, such shareholder may within five days after being notified of
the appraised value of his or her shares appeal to the Commissioner of
Banks. The Commissioner of Banks may cause a reappraisal to be made if the
parties agree that such reappraisal shall be final and binding on all
parties as to the value of the shares of the dissenting shareholder and
also agree on how the full expenses of the Commissioner of Banks, in making
the reappraisal, shall be divided among the parties and paid to the
Commissioner of Banks.
If, within ninety days from the Effective Date of the Merger, for any
reason one or more of the appraisers is not selected in the manner provided
in the Dissent Regulations, or the appraisers fail to determine the value
of Dissenting Shares, the Commissioner of Banks may, upon written request
of any interested party, cause an appraisal to be made, provided that the
parties agree that such appraisal shall be final and binding on all parties
as to the value of the shares of the dissenting shareholders and also agree
on how the full expenses of the Commissioner of Banks in making the
appraisal shall be divided among the parties and paid to the Commissioner
of Banks.
58
<PAGE>
59
<PAGE>
The foregoing summary of the applicable provisions of the Dissent
Statute is not intended to be a complete statement of such provisions, and
is qualified in its entirety by reference to such sections, which are
attached hereto as Appendix D.
For a discussion of certain tax consequences in connection with
dissenting shareholders, see "Material Federal Income Tax Consequences"
above.
NHTB. NHTB shareholders do not have dissenters' rights with
respect to the Merger.
UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
The following unaudited pro forma combined condensed financial
statements have been prepared to reflect the Merger as a purchase
transaction. See "THE MERGER--Accounting Treatment." The following pro
forma financial statements reflect the exchange of Landmark Common Stock
for NHTB Common Stock in connection with the Merger at the Exchange Ratio
of 1.221. This unaudited pro forma combined financial data should be read
in conjunction with the consolidated historical financial statements of
Landmark and NHTB, including the respective notes thereto, which are
included in this Joint Proxy Statement-Prospectus. See the NHTB
Consolidated Financial Statements and the Landmark Financial Statements
beginning at page F-1.
The unaudited pro forma information presented in the following
schedules does not include any expected cost savings as a result of the
Merger. The June 30, 1996 unaudited pro forma information presented in the
following schedules includes Merger transaction costs incurred to date
through June 30, 1996, which amounted to $15,509. Also included in the
following schedules are the remaining Merger transaction costs currently
estimated at approximately $315,000. These costs represent legal,
accounting, financial advisory, printing, registration, severance and other
expenses.
The unaudited pro forma combined financial data is not
necessarily indicative of the financial position and results of future
operations of the combined entity or the actual financial position and
results of operations that would have been achieved had the Merger been
consummated at the dates indicated. Moreover, the pro forma combined
condensed balance sheet reflects preliminary pro forma adjustments made to
combine Landmark with NHTB utilizing purchase accounting treatment. The
actual adjustments to the surviving corporation's accounts will be made as
of the Effective Time of the Merger and may differ from those reflected in
the pro forma financial statements.
60
<PAGE>
NHTB -- LANDMARK
UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEETS
JUNE 30, 1996
<TABLE>
<CAPTION>
LANDMARK NHTB
-------------------------------------- --------------------------------
NHTB PRO FORMA PRO FORMA PRO FORMA
(HISTORICAL) (HISTORICAL) ADJUSTMENTS PRO FORMA ADJUSTMENTS COMBINED
------------ ------------ ------------ ---------- ----------------- -------------
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
ASSETS:
Cash and due from banks.................... $ 7,660 $ 1,572 $ -- $ 1,572 $ (2,273)(b) $ 6,959
Federal funds sold......................... -- 1,240 1,240 1,240
Securities available-for-sale.............. 25,234 7,111 7,111 32,345
Securities held-to-maturity................ 368 828 828 1,196
Other investments.......................... 2,308 2,308
Loans held-for-sale........................ 1,001 1,001
Loans receivable, net...................... 211,439 42,307 42,307 253,746
Bank premises and equipment, net........... 5,794 2,644 2,644 8,438
Real estate owned and property acquired
in settlement of loans................... 820 820
Non-earning assets......................... 1,444 1,444
Accrued interest receivable................ 1,551 281 281 1,832
Goodwill................................... 2,411(b) 2,411
Deferred income taxes...................... 305 305 305
Other assets............................... 907 1,483 1,483 16(b) 2,390
---------- -------- --------- -------- ----------
Total assets.......................... $ 258,526 $ 57,771 $ $ 57,771 $ (122) $ 316,419
========== ======== ========= ======== ========= ==========
LIABILITIES AND SHAREHOLDERS' EQUITY:
LIABILITIES:
Deposits................................... $ 200,303 $ 53,736 $ $ 53,736 $ $ 254,039
Repurchase Agreements...................... 4,201 309 309 4,510
Borrowed funds............................. 32,413 32,413
Other liabilities.......................... 2,134 151 151 315(b) 2,600
---------- -------- --------- -------- --------- ----------
Total liabilities..................... 239,051 54,196 54,196 315 293,562
---------- -------- --------- -------- --------- ----------
SHAREHOLDERS' EQUITY:
Preferred stock............................ -- 1,094 (1,094)(a)
Common stock............................... 21 354 119 (a) 473 (473)(e)
3 (c) 24
Additional paid-in capital................. 13,168 2,826 975 (a) 3,801 (3,801)(d)
3,379 (c) 16,547
Retained earnings (deficit)................ 9,079 (478) (478) 478 (d) 9,079
Unrealized net loss on securities
available-for-sale........................ (394) (221) (221) 221 (d) (394)
---------- -------- -------- --------- ----------
21,874 3,575 3,575 (193) 25,256
Treasury stock--........................... (2,399) (2,399)
---------- -------- --------- -------- --------- ----------
Total shareholders' equity............ 19,475 3,575 3,575 (193) 22,857
---------- -------- --------- -------- --------- ----------
Total liabilities and shareholders' $ 258,526 $ 57,771 $ $ 57,771 $ (122) $ 316,419
equity............................... ========== ======== ========= ======== ========= ==========
Number of common shares outstanding........ 1,691,803 354,138 473,472 $2,038,668
========== ======== ========= ======== ==========
Common shareholders' equity per share...... $ 11.51 $ 7.00 $ $ 7.55 $ 11.21
========== ======== ========= ======== ==========
</TABLE>
See Notes to Pro Forma Combined Condensed Financial Statements.
61
<PAGE>
NHTB--LANDMARK
UNAUDITED PRO FORMA COMBINED CONDENSED INCOME STATEMENT
FOR THE SIX MONTHS ENDED JUNE 30, 1996
<TABLE>
<CAPTION>
NHTB LANDMARK PRO FORMA NHTB
(HISTORICAL) (HISTORICAL) ADJUSTMENTS PRO FORMA
------------ -------------- ------------ ----------
<S> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS EXCEPT PER SHARE DATA)
Interest and dividend income:
Interest on loans............................................ $ 8,244 $ 1,993 $ $ 10,237
Interest and dividends on securities and federal funds sold.. 953 352 1,305
---------- -------- ------- ----------
Total interest and dividend income.......................... 9,197 2,345 11,542
---------- -------- ------- ----------
Interest expense:
Interest on deposits......................................... 4,199 1,454 5,653
Interest on borrowed funds................................... 856 4 860
---------- -------- ------- ----------
Total interest expense...................................... 5,055 1,458 6,513
---------- -------- ------- ----------
Net interest and dividend income............................ 4,142 887 5,029
Provision for loan losses, net.................................. 744 317 1,061
---------- -------- ------- ----------
Net interest and dividend income after provision for 3,398 570 3,968
loan losses...............................................
Non-interest income............................................. 1,087 304 1,391
Non-interest expense............................................ 3,249 1,106 80(e) 4,435
---------- -------- ------- ----------
Income (loss) before income taxes............................... 1,236 (232) (80) 924
Income tax expense (benefit).................................... 408 (86) 322
---------- -------- ------- ----------
Net income (loss)........................................... $ 828 $ (146)(g)$ (80) 602
========== ======== ======= ==========
Weighted average number of common shares 1,695,931 354,138 (g) 2,042,796
outstanding................................................... ========== ======== ==========
Earnings (loss) per common share................................ $0.49 $ (0.41)(g) $ 0.29
========== ======== ==========
</TABLE>
FOR THE YEAR ENDED DECEMBER 31, 1995
<TABLE>
<CAPTION>
NHTB LANDMARK PRO FORMA NHTB
(HISTORICAL) (HISTORICAL) ADJUSTMENTS PRO FORMA
------------ ------------ ------------ ----------
<S> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS EXCEPT PER SHARE DATA)
Interest and dividend income:
Interest on loans............................................ $ 15,846 $ 4,269 $ $ 20,115
Interest and dividends on securities and federal funds sold.. 1,620 894 2,514
---------- -------- -------- ----------
Total interest and dividend income.......................... 17,466 5,163 22,629
---------- -------- -------- ----------
Interest expense:
Interest on deposits......................................... 8,097 2,848 10,945
Interest on borrowed funds................................... 1,501 10 1,511
---------- -------- -------- ----------
Total interest expense...................................... 9,598 2,858 12,456
---------- -------- -------- ----------
Net interest and dividend income............................ 7,868 2,305 10,173
Provision for loan losses, net.................................. 1,164 205 1,369
---------- -------- -------- ----------
Net interest and dividend income after provision for 6,704 2,100 8,804
loan losses...............................................
Non-interest income............................................. 1,436 411 1,847
Non-interest expense............................................ 6,291 2,485 161(e) 8,937
---------- -------- -------- ----------
Income before income tax........................................ 1,849 26 (161) 1,714
Income tax expense.............................................. 604 5 609
---------- -------- -------- ----------
Net income.................................................. $ 1,245 $ 21 $ (161) $ 1,105
========== ======== ======== ==========
Weighted average number of common shares 1,699,536 354,138 (h) 2,046,401
outstanding................................................... ========== ======== ==========
Earnings per common share....................................... $ 0.73 $ (0.20) $ 0.54
========== ======== ==========
</TABLE>
Landmark and NHTB combined pro forma per share information is calculated on the
assumption that all shares of Landmark Preferred Stock will be converted into
shares of Landmark Common Stock.
See notes to Pro Forma Combined Condensed Financial Statements.
62
<PAGE>
NOTES TO PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS:
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS:
<S> <C>
a. Conversion of all shares of Landmark preferred stock to Landmark common stock, $1 par value:
Common stock shares, 119,334 at $1 par value, in thousands................................. $ 119
Preferred stock balance, in thousands...................................................... 1,094
----------
Difference is paid-in capital, in thousands................................................ $ 975
b. Computation of goodwill:
Cost to NHTB to purchase Landmark common shares:
Number of shares of Landmark common outstanding before pro forma........................ 354,138
Add number of Landmark common shares to be issued for all preferred stock:
59,667 preferred converted to common shares............................................ 119,334
----------
Pro forma number of shares of Landmark common outstanding............................... 473,472
Pro forma number of shares of Landmark common stock to be issued the right to
receive NHTB common stock 60%.......................................................... 284,083
Pro forma number of shares of NHTB common shares to be issued:
284,083 times 1.221.................................................................... 346,865
At fair value of $9.75 per share, in thousands.......................................... $ 3,382
Pro forma number of shares of Landmark common stock to be issued the right to
receive cash 40%....................................................................... $ 189,389
Cash to be paid at $12 per share, in thousands.......................................... $ 2,273
Direct acquisition costs, in thousands.................................................. $ 331
Total cost of purchase, in thousands.................................................... $ 5,986
Pro forma book value net worth of Landmark after fair value adjustments, if any,
in thousands.............................................................................. $ 3,575
----------
Difference is goodwill, in thousands....................................................... $ 2,411
==========
c. NHTB pro forma combined stockholders' equity:
Common stock, 346,865 shares issued to Landmark common stockholders at $.01 par value,
in thousands.............................................................................. $ 3
Net fair value of NHTB common stock issued................................................. $ 3,382
----------
Difference is paid-in capital............................................................... $ 3,379
==========
d. Elimination of Landmark's stockholders' equity accounts........................................
e. Reflects the amortization of goodwill over a fifteen-year period...............................
f. Reflects the tax effect of the above adjustments, except goodwill, at 40%......................
g. Weighted average number of shares of NHTB Common Stock outstanding January 1, 1996 to
June 30, 1996.................................................................................. 1,695,931
Add number of shares of NHTB Common Stock to be issued to Landmark shareholders................ 346,865
----------
Pro forma weighted average number of shares of NHTB Common Stock outstanding January 1, 1996
to June 30, 1996.............................................................................. 2,042,796
==========
h. Weighted average number of shares of NHTB Common Stock outstanding in 1995..................... 1,699,536
Add number of shares of NHTB Common Stock to be issued to Landmark shareholders................ 346,865
----------
Pro forma weighted average number of shares of NHTB Common Stock outstanding in 1995........... 2,046,401
==========
</TABLE>
63
<PAGE>
REGULATION OF THE BANK AND NHTB
GENERAL
The Bank is subject to extensive regulation, examination, and supervision
by the OTS, as its chartering agency, and the FDIC, as its deposit insurer.
The Bank's deposits are insured up to applicable limits by the SAIF
administered by the FDIC, and the Bank is a member of the Federal Home Loan
Bank of Boston ("FHLB of Boston"). The Bank must file reports with the OTS
and the FDIC concerning its activities and financial condition, and it must
obtain regulatory approvals prior to entering into certain transactions,
such as mergers with, or acquisitions of, other depository institutions.
The OTS and the FDIC conduct periodic examinations to assess the Bank's
compliance with various regulatory requirements. This regulation and
supervision establishes a comprehensive framework of activities in which a
savings association can engage and is intended primarily for the protection
of the insurance fund and depositors. NHTB, as a savings association
holding company, is required to file certain reports with, and otherwise
comply with, the rules and regulations of the OTS and of the Commission
under the federal securities laws.
The OTS and the FDIC have significant discretion in connection with their
supervisory and enforcement activities and examination policies, including
policies with respect to the classification of assets and the establishment
of adequate loan loss reserves for regulatory purposes. Any change in such
policies, whether by the OTS, the FDIC or the Congress, could have a
material adverse impact on NHTB, the Bank and the operations of both.
The following discussion is intended to be a summary of the material
statutes and regulations applicable to savings associations and their
holding companies, and it does not purport to be a comprehensive
description of all such statutes and regulations.
REGULATION OF FEDERAL SAVINGS ASSOCIATIONS
Business Activities. The Bank derives its lending and investment powers
from the Home Owners' Loan Act, as amended (the "HOLA"), and the
regulations of the OTS thereunder. Under these laws and regulations, the
Bank may invest in mortgage loans secured by residential and commercial
real estate, commercial and consumer loans, certain types of debt
securities, and certain other assets. The Bank may also establish service
corporations that may engage in activities not otherwise permissible for
the Bank, including certain real estate equity investments and securities
and insurance brokerage. These investment powers are subject to various
limitations, including (a) a prohibition against the acquisition of any
corporate debt security that is not rated in one of the four highest rating
categories; (b) a limit of 400% of an association's capital on the
aggregate amount of loans secured by non-residential real estate property;
(c) a limit of 10% of an association's assets on the aggregate amount of
commercial loans; (d) a limit of 35% of an association's assets on the
aggregate amount of consumer loans and acquisitions of certain debt
securities; (e) a limit of 5% of assets on non-conforming loans (loans in
excess of the specific limitations of the HOLA); and (f) a limit of the
greater of 5% of assets or an association's capital on certain construction
loans made for the purpose of financing what is or is expected to become
residential property.
Loans to One Borrower. Under the HOLA, savings associations are generally
subject to the same limits on loans to one borrower as are imposed on
national banks. Generally, under these limits, a savings association may
not make a loan or extend credit to a single or related group of borrowers
in excess of 15% of the association's unimpaired capital and surplus.
Additional amounts may be lent, not in excess of 10% of unimpaired capital
and surplus, if such loans or extensions of credit are fully secured
64
<PAGE>
by readily-marketable collateral. Such collateral is defined to include
certain debt and equity securities and bullion but generally does not
include real estate. At June 30, 1996, the Bank's regulatory limit on
loans to one borrower was $2.670 million. At June 30, 1996, the Bank's
largest aggregate amount of loans to one borrower was $2.577 million, and
the second largest borrower had an aggregate balance of $1.782. The Bank
is in compliance with all applicable limitations on loans to one borrower.
QTL Test. The HOLA requires a savings association to meet a qualified
thrift lender, or "QTL" test. Under the QTL test, a savings association is
required to maintain at least 65% of its "portfolio assets" in certain
"qualified thrift investments" in at least nine months of the most recent
12-month period. "Portfolio assets" means, in general, an association's
total assets less the sum of (a) specified liquid assets up to 20% of total
assets, (b) certain intangibles, including goodwill and credit card and
purchased mortgage servicing rights, and (c) the value of property used to
conduct the association's business. Qualified thrift investments includes
various types of loans made for residential and housing purposes,
investments related to such purposes, including certain mortgage-backed and
related securities, and consumer loans up to 10% of the association's
portfolio assets. At June 30, 1996, the Bank maintained 88.93% of its
portfolio assets in qualified thrift investments. The Bank had also met
the QTL test in each of the prior 12 months and was, therefore, a qualified
thrift lender.
A savings association that fails the QTL test must either operate under
certain restrictions on its activities or convert to a bank charter. The
initial restrictions include prohibitions against (a) engaging in any new
activity not permissible for a national bank, (b) paying dividends not
permissible under national bank regulations, (c) obtaining new advances
from any Federal Home Loan Bank and (d) establishing any new branch office
in a location not permissible for a national bank in the association's home
state. In addition, within one year of the date that a savings association
ceases to meet the QTL test, any company controlling the association would
have to register under, and become subject to the requirements of, the Bank
Holding Company Act of 1956, as amended (the "BHC Act"). If the savings
association does not requalify under the QTL test within the three-year
period after it failed the QTL test, it would be required to terminate any
activity and to dispose of any investment not permissible for a national
bank and would have to repay as promptly as possible any outstanding
advances from a Federal Home Loan Bank. A savings association that has
failed the QTL test may requalify under the QTL test and be free of such
limitations, but it may do so only once.
Capital Requirements. The OTS regulations require savings associations
to meet three minimum capital standards: a tangible capital ratio
requirement of 1.5% of total assets as adjusted under the OTS regulations,
a leverage ratio requirement of 3% of core capital to such adjusted total
assets, and a risk-based capital ratio requirement of 8% of core and
supplementary capital to total risk-weighted assets. In determining
compliance with the risk-based capital requirement, a savings association
must compute its risk-weighted assets by multiplying its assets and certain
off-balance sheet items by risk-weights, which range from 0% for cash and
obligations issued by the United States Government or its agencies to 100%
for consumer and commercial loans, as assigned by the OTS capital
regulation based on the risks OTS believes are inherent in the type of
asset.
Tangible capital is defined, generally, as common stockholders' equity
(including retained earnings), certain noncumulative perpetual preferred
stock and related earnings and minority interests in equity accounts of
fully consolidated subsidiaries, less intangibles (other than certain
purchased mortgage servicing rights) and investments in and loans to
subsidiaries engaged in activities not permissible for a national bank.
Core capital is defined similarly to tangible capital, but core capital
also includes certain qualifying supervisory goodwill and certain purchased
credit card relationships. Supplementary capital currently includes
cumulative and other perpetual preferred stock, mandatory convertible
securities, subordinated debt, and intermediate preferred stock, and the
allowance for loan and lease losses. The
65
<PAGE>
allowance for loan and lease losses includable in supplementary capital is
limited to a maximum of 1.25% of risk-weighted assets, and the amount of
supplementary capital that may be included as total capital cannot exceed
the amount of core capital.
The OTS has promulgated a regulation that requires a savings association
with "above normal" interest rate risk, when determining compliance with
its risk-based capital requirements, to hold additional capital to account
for its "above normal" interest rate risk. Pending resolution of related
regulatory issues, the OTS has deferred enforcement of this regulation. A
savings association's interest rate risk is measured by the decline in the
net portfolio value of its assets (i.e., the difference between incoming
and outgoing discounted cash flows from assets, liabilities and off-balance
sheet contracts) resulting from a hypothetical 2% increase or decrease in
market rates of interest, divided by the estimated economic value of the
association's assets, as calculated in accordance with guidelines set forth
by the OTS. At the times when the 3-month Treasury bond equivalent yield
falls below 4%, an association may compute its interest rate risk on the
basis of a decrease equal to one-half of that Treasury rate rather than on
the basis of 2%. A savings association whose measured interest rate risk
exposure exceeds 2% would be considered to have "above normal" risk. The
interest rate risk component is an amount equal to one-half of the
difference between the association's measured interest rate risk and 2%,
multiplied by the estimated economic value of the association's assets.
That dollar amount is deducted from an association's total capital in
calculating compliance with its risk-based capital requirement. Any
required deduction for interest rate risk becomes effective on the last day
of the third quarter following the reporting date of the association's
financial data on which the interest rate risk was computed.
At June 30, 1996, the Bank met each of its capital requirements.
The table below presents the Bank's regulatory capital as compared to the
OTS regulatory capital requirements at June 30, 1996.
<TABLE>
<CAPTION>
BANK CAPITAL REQUIREMENTS EXCESS
------------------ --------------------- -----------------
AMOUNT PERCENT AMOUNT PERCENT AMOUNT PERCENT
-------- -------- --------- ---------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Tangible capital.......... $18,060 6.98% $ 3,882 1.50% $14,178 5.48%
Core capital.............. 18,060 6.98% 7,764 3.00% 10,296 3.98%
Total Risk-based capital.. 17,791 11.88% 11,324 8.00% 6,467 3.88%
</TABLE>
A reconciliation between regulatory capital and GAAP capital at June 30, 1996
is presented below.
<TABLE>
<CAPTION>
TOTAL RISK-
TANGIBLE CAPITAL CORE CAPITAL BASED CAPITAL
---------------- ------------ -------------
<S> <C> <C> <C>
(DOLLARS IN THOUSANDS)
GAAP capital................................... $17,801 $17,801 $17,801
Unrealized loss on certain
securities available-for-sale................ 259 259 259
Assets required to be deducted................. n/a n/a 1,791
Includable portion of allowance for loan loss.. n/a n/a 1,522
------- ------- -------
Regulatory capital............................. $18,060 $18,060 $17,791
======= ======= =======
</TABLE>
66
<PAGE>
Limitation on Capital Distributions. OTS regulations currently impose
limitations upon capital distributions by savings associations, such as cash
dividends, payments to repurchase or otherwise acquire its shares, payments to
shareholders of another institution in a cash-out merger and other distributions
charged against capital. At least 30-days written notice must be given to the
OTS of a proposed capital distribution by a savings association, and capital
distributions in excess of specified earnings or by certain institutions are
subject to approval by the OTS. An association that has capital in excess of all
fully phased-in regulatory capital requirements before and after a proposed
capital distribution and that is not otherwise restricted in making capital
distributions, may, after prior notice but without the approval of the OTS, make
capital distributions during a calendar year equal to the greater of (a) 100% of
its net earnings to date during the calendar year plus the amount that would
reduce by one-half its "surplus capital ratio" (the excess capital over its
fully phased-in capital requirements) at the beginning of the calendar year, or
(b) 75% of its net earnings for the previous four quarters. Any additional
capital distributions would require prior OTS approval. In addition, the OTS can
prohibit a proposed capital distribution, otherwise permissible under the
regulation, if the OTS has determined that the association is in need of more
than normal supervision or if it determines that a proposed distribution by an
association would constitute an unsafe or unsound practice. Furthermore, under
the OTS prompt corrective action regulations, the Bank would be prohibited from
making any capital distribution if, after the distribution, the Bank failed to
meet its minimum capital requirements, as described above. See "--Prompt
Corrective Regulatory Action."
The OTS has proposed regulations that would simplify the existing procedures
governing capital distributions by savings associations. Under the proposed
regulations, the approval of the OTS would be required only for capital
distributions by an association that is deemed to be in troubled condition or
that is undercapitalized or would be undercapitalized after the capital
distribution. A savings association would be able to make a capital distribution
without notice to or approval of the OTS if it is not held by a savings
association holding company, is not deemed to be in troubled condition, has
received either of the two highest composite supervisory ratings, and would
continue to be adequately capitalized after such distribution. Notice would have
to be given to the OTS by any association that is held by a savings association
holding company or that had received a composite supervisory rating below the
highest two composite supervisory ratings. An association's capital rating would
be determined under the prompt corrective action regulations. See "-- Prompt
Corrective Regulatory Action."
Liquidity. The Bank is required to maintain an average daily balance of
liquid assets (cash, certain time deposits, bankers' acceptances, specified
United States Government, state or federal agency obligations, shares of certain
mutual funds and certain corporate debt securities and commercial paper) equal
to a monthly average of not less than a specified percentage of its net
withdrawable deposit accounts plus short-term borrowings. This liquidity
requirement may be changed from time to time by the OTS to any amount within the
range of 4% to 10% depending upon economic conditions and the savings flows of
member institutions, and is currently 5%. OTS regulations also require each
savings association to maintain an average daily balance of short-term liquid
assets at a specified percentage (currently 1%) of the total of its net
withdrawable deposit accounts and borrowings payable in one year or less.
Monetary penalties may be imposed for failure to meet these liquidity
requirements. The Bank's average long-term liquidity ratio for the month ended
June 30, 1996 was 10.49%, which exceeded the applicable requirements. The Bank
has never been subject to monetary penalties for failure to meet its liquidity
requirements.
Assessments. Savings associations are required by OTS regulation to pay
assessments to the OTS to fund the operations of the OTS. The general
assessment, paid on a semi-annual basis, is computed upon the savings
association's total assets, including consolidated subsidiaries, as reported in
the
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association's latest quarterly Thrift Financial Report. During July 1996, the
Bank paid the semiannual assessment of $34,785.
Branching. Subject to certain limitations, the HOLA and the OTS regulations
permit federally chartered savings associations to establish branches in any
state of the United States. The authority to establish such branches is
available (a) in states that expressly authorize branches of savings
associations located in another state or (b) to an association that qualifies as
a "domestic building and loan association" under the Code, which imposes
qualification requirements similar to those for a "qualified thrift lender"
under the HOLA. See "-- QTL Test." The authority for a federal savings
association to establish an interstate branch network would facilitate a
geographic diversification of the association's activities. This authority under
the HOLA and the OTS regulations preempts any state law purporting to regulate
branching by federal savings associations. The Bank does not presently maintain
a branch office in any state other than New Hampshire.
Community Reinvestment. Under the CRA, as implemented by OTS regulations, a
savings association has a continuing and affirmative obligation consistent with
its safe and sound operation to help meet the credit needs of its entire
community, including low and moderate income neighborhoods. The CRA does not
establish specific lending requirements or programs for financial institutions
nor does it limit an institution's discretion to develop the types of products
and services that it believes are best suited to its particular community,
consistent with the CRA. The CRA requires the OTS, in connection with its
examination of a savings association, to assess the association's record of
meeting the credit needs of its community and to take such record into account
in its evaluation of certain applications by such association. The CRA also
requires all institutions to make public disclosure of their CRA ratings. The
Bank received a "Satisfactory" CRA rating in its most recent examination.
The CRA regulations use an evaluation system that rates an institution based
on its actual performance in meeting community needs. In particular, the system
focuses on three tests: (a) a lending test, to evaluate the institution's record
of making loans in its assessment areas; (b) an investment test, to evaluate the
institution's record of investing in community development projects, affordable
housing, and programs benefiting low or moderate income individuals and
businesses; and (c) a service test, to evaluate the institution's delivery of
services through its branches, ATMs, and other offices. An institution's CRA
performance is considered in the application process for approval of the Merger.
Transactions with Related Parties. The Bank's authority to engage in
transactions with its "affiliates" is limited by the OTS regulations and by
Sections 23A and 23B of the Federal Reserve Act (the "FRA"). In general, an
affiliate of the Bank is any company that controls the Bank or any other company
that is controlled by a company that controls the Bank, excluding the Bank's
subsidiaries other than those that are insured depository institutions. The OTS
regulations prohibit a savings association (a) from lending to any of its
affiliates that is engaged in activities that are not permissible for bank
holding companies under Section 4(c) of the BHC Act and (b) from purchasing the
securities of any affiliate other than a subsidiary. Section 23A limits the
aggregate amount of transactions with any individual affiliate to 10% of the
capital and surplus of the savings association and also limits the aggregate
amount of transactions with all affiliates to 20% of the savings association's
capital and surplus. Extensions of credit to affiliates are required to be
secured by collateral in an amount and of a type described in Section 23A, and
the purchase of low quality assets from affiliates is generally prohibited.
Section 23B provides that certain transactions with affiliates, including loans
and asset purchases, must be on terms and under circumstances, including credit
standards, that are substantially the same or at least as favorable to the
association as those prevailing at the time for comparable transactions with
nonaffiliated companies. In the absence of comparable transactions, such
transactions may only occur
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under terms and circumstances, including credit standards, that in good faith
would be offered to or would apply to nonaffiliated companies.
The Bank's authority to extend credit to its directors, executive officers,
and 10% shareholders, as well as to entities controlled by such persons, is
currently governed by the requirements of Sections 22(g) and 22(h) of the FRA
and Regulation O of the Board of Governors of the Federal Reserve System (the
"FRB") thereunder. Among other things, these provisions require that extensions
of credit to insiders (a) be made on terms that are substantially the same as,
and follow credit underwriting procedures that are not less stringent than,
those prevailing for comparable transactions with unaffiliated persons and that
do not involve more than the normal risk of repayment or present other
unfavorable features and (b) not exceed certain limitations on the amount of
credit extended to such persons, individually and in the aggregate, which limits
are based, in part, on the amount of the association's capital. In addition,
extensions of credit in excess of certain limits must be approved by the
association's board of directors.
Enforcement. Under the Federal Deposit Insurance Act (the "FDI Act"), the
OTS has primary enforcement responsibility over savings associations and has the
authority to bring enforcement action against all "institution-affiliated
parties," including any controlling stockholder or any stockholder, attorney,
appraiser or accountant who knowingly or recklessly participates in any
violation of applicable law or regulation or breach of fiduciary duty or certain
other wrongful actions that causes or is likely to cause more than a minimal
loss or other significant adverse effect on an insured savings association.
Civil penalties cover a wide range of violations and actions and range from
$5,000 for each day during which violations of law, regulations, orders, and
certain written agreements and conditions continue, up to $1 million per day for
such violations if the person obtained a substantial pecuniary gain as a result
of such violation or knowingly or recklessly caused a substantial loss to the
institution. Criminal penalties for certain financial institution crimes include
fines of up to $1 million and imprisonment for up to 30 years. In addition,
regulators have substantial discretion to take enforcement action against an
institution that fails to comply with its regulatory requirements, particularly
with respect to its capital requirements. Possible enforcement actions range
from the imposition of a capital plan and capital directive to receivership,
conservatorship, or the termination of deposit insurance. Under the FDI Act, the
FDIC has the authority to recommend to the Director of OTS that enforcement
action be taken with respect to a particular savings association. If action is
not taken by the Director of the OTS, the FDIC has authority to take such action
under certain circumstances.
Standards for Safety and Soundness. The FDI Act, as amended by the Federal
Deposit Insurance Corporation Improvement Act of 1991 (the "FDICIA") and the
Riegle Community Development and Regulatory Improvement Act of 1994 (the
"Community Development Act"), requires the OTS, together with the other federal
bank regulatory agencies, to prescribe standards, by regulations or guidelines,
relating to internal controls, information systems and internal audit systems,
loan documentation, credit underwriting, interest rate risk exposure, asset
growth, asset quality, earnings, stock valuation, and compensation, fees, and
benefits, and such other operational and managerial standards as the agencies
deem appropriate. The OTS and the federal bank regulatory agencies have adopted
a set of guidelines prescribing safety and soundness standards pursuant to
FDICIA, as amended. The guidelines establish general standards relating to
internal controls and information systems, internal audit systems, loan
documentation, credit underwriting, interest rate exposure, asset growth, and
compensation, fees and benefits. In general, the guidelines require, among other
things, appropriate systems and practices to identify and manage the risks and
exposures specified in the guidelines. The guidelines prohibit excessive
compensation as an unsafe and unsound practice and describe compensation as
excessive when the amounts paid are unreasonable or disproportionate to the
services performed by an executive officer, employee, director or principal
stockholder. The OTS and the other agencies determined that stock
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valuation standards were not appropriate. In addition, the OTS adopted
regulations that authorize, but do not require, the OTS to order an institution
that has been given notice by the OTS that it is not satisfying any of such
safety and soundness standards to submit a compliance plan. If, after being so
notified, an institution fails to submit an acceptable compliance plan or fails
in any material respect to implement an accepted compliance plan, the OTS must
issue an order directing action to correct the deficiency and may issue an order
directing other actions of the types to which an undercapitalized association is
subject under the "prompt corrective action" provisions of FDICIA. If an
institution fails to comply with such an order, the OTS may seek to enforce such
order in judicial proceedings and to impose civil money penalties. The OTS and
the federal bank regulatory agencies also adopted guidelines, effective October
1, 1996, requiring appropriate systems for identifying and maintaining asset
quality and earnings.
Real Estate Lending Standards. The OTS and the other federal banking
agencies adopted regulations to prescribe standards for extensions of credit
that (a) are secured by real estate or (b) are made for the purpose of financing
the construction of improvements on real estate. The OTS regulations require
each savings association to establish and maintain written internal real estate
lending standards that are consistent with safe and sound banking practices and
appropriate to the size of the association and the nature and scope of its real
estate lending activities. The standards also must be consistent with
accompanying OTS guidelines, which include loan-to-value ratios for the
different types of real estate loans. Associations are also permitted to make a
limited amount of loans that do not conform to the proposed loan-to-value
limitations so long as such exceptions are reviewed and justified appropriately.
The guidelines also list a number of lending situations in which exceptions to
the loan-to-value standards are justified.
Prompt Corrective Regulatory Action. Under the OTS prompt corrective action
regulations, the OTS is required to take certain, and is authorized to take
other, supervisory actions against undercapitalized savings associations. For
this purpose, a savings association would be placed in one of five categories
based on the association's capital. Generally, a savings association is treated
as "well capitalized" if its ratio of total capital to risk-weighted assets is
at least 10.0%, its ratio of core capital to risk-weighted assets is at least
6.0%, its ratio of core capital to total assets is at least 5.0%, and it is not
subject to any order or directive by the OTS to meet a specific capital level. A
savings association will be treated as "adequately capitalized" if its ratio of
total capital to risk-weighted assets is at least 8.0%, its ratio of core
capital to risk-weighted assets is at least 4.0%, and its ratio of core capital
to total assets is at least 4.0% (3.0% if the association receives the highest
rating on the CAMEL financial institutions rating system). A savings association
that has a total risk-based capital of less than 8.0% or a leverage ratio or a
Tier 1 capital ratio that is less than 4.0% (3.0% leverage ratio if the
association receives the highest rating on the CAMEL financial institutions
rating system) is considered to be "undercapitalized." A savings association
that has a total risk-based capital of less than 6.0% or a Tier 1 risk-based
capital ratio or a leverage ratio of less than 3.0% is considered to be
"significantly undercapitalized." A savings association that has a tangible
capital to assets ratio equal to or less than 2% is deemed to be "critically
undercapitalized." The elements of an association's capital for purposes of the
prompt corrective action regulations are defined generally as they are under the
regulations for minimum capital requirements. See "--Capital Requirements."
The severity of the action authorized or required to be taken under the
prompt corrective action regulations increases as an association's capital
deteriorates within the three undercapitalized categories. All associations are
prohibited from paying dividends or other capital distributions or paying
management fees to any controlling person if, following such distribution, the
association would be undercapitalized. An undercapitalized association is
required to file a capital restoration plan within 45 days of the date the
association receives notice that it is within any of the three undercapitalized
categories. The OTS is
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required to monitor closely the condition of an undercapitalized association and
to restrict the asset growth, acquisitions, branching, and new lines of business
of such an association. Significantly undercapitalized associations are subject
to restrictions on compensation of senior executive officers; such an
association may not, without OTS consent, pay any bonus or provide compensation
to any senior executive officer at a rate exceeding the officer's average rate
of compensation (excluding bonuses, stock options and profit-sharing) during the
12 months preceding the month when the association became undercapitalized. A
significantly undercapitalized association may also be subject, among other
things, to forced changes in the composition of its board of directors or senior
management, additional restrictions on transactions with affiliates,
restrictions on acceptance of deposits from correspondent associations, further
restrictions on asset growth, restrictions on rates paid on deposits, forced
termination or reduction of activities deemed risky, and any further operational
restrictions deemed necessary by the OTS.
If one or more grounds exist for appointing a conservator or receiver
for an association, the OTS may require the association to issue additional debt
or stock, sell assets, be acquired by a depository association holding company
or combine with another depository association. The OTS and the FDIC have a
broad range of grounds under which they may appoint a receiver or conservator
for an insured depositary association. Under FDICIA, the OTS is required to
appoint a receiver (or with the concurrence of the FDIC, a conservator) for a
critically undercapitalized association within 90 days after the association
becomes critically undercapitalized or, with the concurrence of the FDIC, to
take such other action that would better achieve the purposes of the prompt
corrective action provisions. Such alternative action can be renewed for
successive 90-day periods. However, if the association continues to be
critically undercapitalized on average during the quarter that begins 270 days
after it first became critically undercapitalized, a receiver must be appointed,
unless the OTS makes certain findings with which the FDIC concurs and the
Director of the OTS and the Chairman of the FDIC certify that the association is
viable. In addition, an association that is critically undercapitalized is
subject to more severe restrictions on its activities, and is prohibited,
without prior approval of the FDIC from, among other things, entering into
certain material transactions or paying interest on new or renewed liabilities
at a rate that would significantly increase the association's weighted average
cost of funds.
When appropriate, the OTS can require corrective action by a savings
association holding company under the "prompt corrective action" provisions of
FDICIA.
Insurance of Deposit Accounts. The Bank is a member of the SAIF, and the
Bank pays its deposit insurance assessments to the SAIF. The FDIC also maintains
another insurance fund, the BIF, which primarily insures the deposits of banks
and state chartered savings banks.
Pursuant to FDICIA, the FDIC established a new risk-based assessment
system for determining the deposit insurance assessments to be paid by insured
depositary institutions. Under the new assessment system, which began in 1993,
the FDIC assigns an institution to one of three capital categories based on the
institution's financial information as of the reporting period ending seven
months before the assessment period. The three capital categories consist of (a)
well capitalized, (b) adequately capitalized or (c) undercapitalized. The FDIC
also assigns an institution to one of three supervisory subcategories within
each capital group. The supervisory subgroup to which an institution is assigned
is based on a supervisory evaluation provided to the FDIC by the institution's
primary federal regulator and information that the FDIC determines to be
relevant to the institution's financial condition and the risk posed to the
deposit insurance funds. An institution's assessment rate depends on the capital
category and supervisory category to which it is assigned. Under the regulation,
there are nine assessment risk classifications (i.e., combinations of capital
groups and supervisory subgroups) to which different assessment rates are
applied. Beginning in 1993, the assessment rates for both the BIF and the SAIF
had ranged from 0.23%
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of deposits for an institution in the highest category (i.e., well-capitalized
and financially sound, with no more than a few minor weaknesses) to 0.31% of
deposits for an institution in the lowest category (i.e., undercapitalized and
substantial supervisory concern).
The FDI Act requires that the BIF and the SAIF funds each be recapitalized
until reserves are at least 1.25% of the deposits insured by that fund. After a
fund reached the 1.25% reserve ratio, the assessment rates for that fund could
be reduced. During 1995, the BIF reached the required reserve ratio, and the
FDIC reduced the BIF assessment. Effective January 1, 1996, the BIF assessment
rate for "well capitalized" institutions without any significant supervisory
concerns was set at the statutory minimum of $2,000 annually, and the rates for
other BIF-insured institutions ranged from 0.03% to 0.27% of deposits.
The SAIF remained undercapitalized, and it was not expected to be
recapitalized until 2001. SAIF reserves have not grown as quickly as the BIF
reserves due to a number of factors, including the fact that a significant
portion of SAIF assessments had been used to make payments on bonds (the "FICO
bonds") issued in the late 1980s by the Financing Corporation to recapitalize
the now defunct Federal Savings and Loan Insurance Corporation. Accordingly,
SAIF-insured institutions continued to pay assessments at rates that ranged from
0.23% of deposits to 0.31% of deposits. The Bank's assessment rate for the first
three quarters of 1996 was 0.23% of deposits.
On September 30, 1996, the Deposit Funds Insurance Act of 1996 (the "1996
Act") was enacted into law, and it amended the FDI Act in several ways to
recapitalize the SAIF and reduce the disparity in the assessment rates for the
BIF and the SAIF. The 1996 Act authorized the FDIC to impose a special
assessment on all institutions with SAIF-assessable deposits in the amount
necessary to recapitalize the SAIF. As implemented by the FDIC, the special
assessment has been fixed, subject to adjustment, at 65.7 basis points of an
institution's SAIF-assessable deposits, and the special assessment will be paid
on November 27, 1996. The special assessment is based on the amount of SAIF-
assessable deposits held on March 31, 1995. Based on the foregoing, the
special SAIF assessment to be paid by the Bank on November 27, 1996 will be
approximately $955,000.
In view of the recapitalization of the SAIF by the special assessment, on
October 8, 1996, the FDIC proposed a reduction in the assessment rate for SAIF-
assessable deposits for periods beginning on October 1, 1996. As would be
effective for the SAIF-assessable deposits of savings associations, such as the
Bank, the proposed assessment rates would range from 18 to 27 basis points for
the last quarter of 1996 and would range from 0 to 27 basis points for the
following assessment periods.
In addition, the 1996 Act expanded the assessment base for the payments on
the FICO bonds to include, beginning January 1, 1997, the deposits of both BIF-
and SAIF-insured institutions. Until December 31, 1999, or such earlier date on
which the last savings association ceases to exist, the rate of assessment for
BIF-assessable deposits shall be one-fifth of the rate imposed on SAIF-
assessable deposits. It has been estimated that the rate of assessments for the
payment of interest on the FICO bonds will be approximately 1.3 basis points for
BIF assessable deposits and approximately 6.4 basis points for SAIF-assessable
deposits beginning on January 1, 1997.
The 1996 Act also provides that the FDIC cannot assess regular insurance
assessments for an insurance fund unless required to maintain or to achieve the
designated reserve ratio of 1.25%, except on those of its member institutions
that are not classified as "well capitalized" or that have been found to have
"moderately severe" or "unsatisfactory" financial, operational or compliance
weaknesses. The Bank has not been so classified by the FDIC or the OTS.
Accordingly, assuming that the designated reserve ratio is maintained by the BIF
and by the SAIF after the collection of the special SAIF assessment and the
Bank maintains its regulatory status, the Bank will have to pay substantially
lower regular assessments on its deposits compared to those paid in recent
years.
The 1996 Act also provides for the merger of the BIF and SAIF on January 1,
1999, with such merger being conditioned upon the prior elimination of the
thrift charter. The Secretary of the Treasury is required to conduct a study of
relevant factors with respect to the development of a common charter for all
insured depository institutions and abolition of separate charters for banks and
thrifts and to report the Secretary's conclusions and findings to the Congress
on or before March 31, 1997.
Under the FDI Act, insurance of deposits may be terminated by the FDIC upon
a finding that the institution has engaged in unsafe or unsound practices, is in
an unsafe or unsound condition to continue operations or has violated any
applicable law, regulation, rule, order or condition imposed by the FDIC or the
OTS. The management of the Bank does not know of any practice, condition or
violation that might lead to termination of deposit insurance.
Federal Home Loan Bank System. The Bank is a member of the FHLB of Boston,
which is one of the regional Federal Home Loan Banks composing the Federal Home
Loan Bank System. Each Federal Home Loan Bank provides a central credit facility
primarily for its member institutions. The Bank, as a member of the FHLB of
Boston, is required to acquire and hold shares of capital stock in the FHLB of
Boston in an amount at least equal to the greater of 1% of the aggregate
principal amount of its unpaid residential mortgage loans and similar
obligations at the beginning of each year or 1/20 of its advances (borrowings)
from the FHLB of Boston. The Bank was in compliance with this requirement with
an investment in the capital stock of the FHLB of Boston at June 30, 1996, of
$1.861 million. Any advance from a Federal Home Loan Bank must be secured by
specified types of collateral, and all long-term advances may be obtained only
for the purpose of providing funds for residential housing finance.
The Federal Home Loan Banks are required to provide funds for the
resolution of insolvent thrifts and to contribute funds for affordable housing
programs. These requirements could reduce the amount of earnings that the
Federal Home Loan Banks can pay as dividends to their members and could also
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result in the Federal Home Loan Banks imposing a higher rate of interest on
advances to their members. The Bank earned dividends on the FHLB of Boston
capital stock in amounts equal to $150,058, $101,600 and $88,061 during the
years ended December 31, 1995, 1994 and 1993, respectively. If dividends were
reduced, or interest on future Federal Home Loan Bank advances increased, the
Bank's net interest income would likely also be reduced.
Federal Reserve System. The Bank is subject to provisions of the FRA and
the FRB's regulations pursuant to which depositary institutions may be required
to maintain non-interest-earning reserves against their deposit accounts and
certain other liabilities. Currently, reserves must be maintained against
transaction accounts (primarily NOW and regular checking accounts). The FRB
regulations generally require that reserves be maintained in the amount of 3% of
the aggregate of transaction accounts up to $52.0 million. The amount of
aggregate transaction accounts in excess of $52.0 million are currently subject
to a reserve ratio of 10%, which ratio the FRB may adjust between 8% and 12%.
The FRB regulations currently exempt $4.3 million of otherwise reservable
balances from the reserve requirements, which exemption is adjusted by the FRB
at the end of each year. The Bank is in compliance with the foregoing reserve
requirements. Because required reserves must be maintained in the form of either
vault cash, a non-interest-bearing account at a Federal Reserve Bank, or a pass-
through account as defined by the FRB, the effect of this reserve requirement is
to reduce the Bank's interest-earning assets. The balances maintained to meet
the reserve requirements imposed by the FRB may be used to satisfy liquidity
requirements imposed by the OTS. Federal Home Loan Bank System members are also
authorized to borrow from the Federal Reserve "discount window," but FRB
regulations require such institutions to exhaust all Federal Home Loan Bank
sources before borrowing from a Federal Reserve Bank.
REGULATION OF SAVINGS ASSOCIATION HOLDING COMPANIES
NHTB is a non-diversified unitary savings association holding company
within the meaning of the HOLA. As such, NHTB is required to register with the
OTS and is subject to OTS regulations, examinations, supervision and reporting
requirements. In addition, the OTS has enforcement authority over NHTB and its
non-savings association subsidiaries, if any. Among other things, this authority
permits the OTS to restrict or prohibit activities that are determined to be a
serious risk to the financial safety, soundness, or stability of a subsidiary
savings association.
The HOLA prohibits a savings association holding company, directly or
indirectly, or through one or more subsidiaries, from acquiring another savings
association or holding company thereof, without prior written approval of the
OTS; acquiring or retaining, with certain exceptions, more than 5% of a non-
subsidiary savings association, a non-subsidiary holding company, or a non-
subsidiary company engaged in activities other than those permitted by the HOLA;
or acquiring or retaining control of a depository institution that is not
insured by the FDIC. In evaluating an application by a holding company to
acquire a savings association, the OTS must consider the financial and
managerial resources and future prospects of the company and savings association
involved, the effect of the acquisition on the risk to the insurance funds, the
convenience and needs of the community and competitive factors.
As a unitary savings association holding company, NHTB is not restricted
under existing laws as to the types of business activities in which it may
engage, provided that the Bank continues to satisfy the QTL test. See "--
Regulation of Federal Savings Associations -- QTL Test" for a discussion of the
QTL requirements. Upon any non-supervisory acquisition by NHTB of another
savings association or savings bank that meets the QTL test and is deemed to be
a savings association by the OTS and that will be held as a separate subsidiary,
NHTB would become a multiple savings association holding company and would be
subject to limitations on the types of business activities in which it could
engage. The HOLA limits the activities of a multiple savings association holding
company and its non-insured
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association subsidiaries primarily to activities permissible for bank holding
companies under Section 4(c)(8) of the BHC Act, subject to the prior approval of
the OTS, and to other activities authorized by OTS regulation.
The OTS is prohibited from approving any acquisition that would result in a
multiple savings association holding company controlling savings associations in
more than one state, subject to two exceptions: an acquisition of a savings
association in another state (a) in a supervisory transaction or (b) pursuant to
authority under the laws of the state of the association to be acquired that
specifically permit such acquisitions. The conditions imposed upon interstate
acquisitions by those states that have enacted authorizing legislation vary.
Some states impose conditions of reciprocity, which have the effect of requiring
that the laws of both the state in which the acquiring holding company is
located (as determined by the location of its subsidiary savings association)
and the state in which the association to be acquired is located, have each
enacted legislation allowing its savings associations to be acquired by out-of-
state holding companies on the condition that the laws of the other state
authorize such transactions on terms no more restrictive than those imposed on
the acquiror by the state of the target association. Some of these states also
impose regional limitations, which restrict such acquisitions to states within a
defined geographic region. Other states allow full nationwide banking without
any condition of reciprocity. Some states do not authorize interstate
acquisitions of savings associations.
Transactions between the Bank and NHTB and its other subsidiaries would be
subject to various conditions and limitations. See "-- Regulation of Federal
Savings Associations -- Transactions with Related Parties." The Bank would have
to give 30-days written notice to the OTS prior to any declaration of the
payment of any dividends or other capital distributions to NHTB. See "--
Regulation of Federal Savings Associations -- Limitation on Capital
Distributions."
INFORMATION ABOUT LANDMARK
DESCRIPTION OF BUSINESS
Landmark was formed in 1989 as a New Hampshire-chartered guaranty savings
bank; banking operations commenced in March 1991. Landmark is insured to the
full extent authorized by law by the FDIC.
Landmark is engaged in the business of attracting deposits from the general
public, making commercial, residential and consumer loans and making investments
in securities. Landmark's earnings primarily depend on the spread between the
income it receives from its loan and investment securities portfolios and the
interest cost it pays for money in the form of deposits. Landmark conducts its
business from its main office located at 106 Hanover Street in Lebanon, New
Hampshire, and its branch banking office located at 106 North Main Street in
West Lebanon, New Hampshire. As of September 1, 1996, Landmark had 26 full-time
and 2 part-time employees. None of Landmark's employees is subject to a
collective bargaining agreement.
Landmark has a primary market focus of establishing total banking
relationships with small-to-medium sized businesses and professionals. Services
offered include a wide range of commercial credit and deposit products, together
with residential mortgage products. Landmark's primary geographic territory
extends through the greater Upper Valley area. Approximately 40% of Landmark's
loan portfolio is comprised of commercial or commercial real estate loans made
to support borrowers' working capital, equipment, and/or building requirements.
This proportion of commercial loans, which is consistent with Landmark's focus
on commercial lending, is significantly higher than the proportion of commercial
loans that would be typical for a savings bank. Landmark also offers a wide
range of
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consumer loan products, including, but not limited to, automobile loans, home
equity and credit card loans. Landmark also offers residential mortgage loans to
homeowners, residential construction loans (primarily to developers and secured
by pre-sold residential units) and land development loans secured primarily by
land and improvements in approved subdivisions. Landmark's loan portfolio is
predominantly of a variable rate nature.
Landmark's primary focus on commercial and commercial real estate lending
may expose it to greater risks than those presented by consumer and residential
mortgage lending. Landmark's loans typically involve larger loan balances to
single borrowers or groups of related borrowers than typical loan balances on
consumer and residential mortgage loans. In addition, payment on commercial
loans is typically dependent on the successful operation of the borrowers'
businesses or properties and, therefore, may be more influenced by adverse
changes or cycles in the economy. General economic trends in the market area of
Landmark during the past few years have been positive. The Upper Valley area has
experienced consistent growth in population and jobs and declining unemployment
since the end of a recessionary trend experienced in the early 1990's.
Commercial real estate values in the same areas have stabilized in the last few
years, following a period of substantial declines in values, and residential
real estate values have moderately increased in the same areas following a
period of more moderate declines.
Significant asset growth in 1993 and 1994 imposed strains on Landmark's
management and regulatory compliance capabilities. In January 1995, Landmark
entered into a Memorandum of Understanding ("MOU") with the FDIC and the New
Hampshire Banking Department in which it agreed, among other things, to (i)
assess its managerial resources and develop a management plan to meet the needs
of a growing banking institution, (ii) revise its loan, asset/liability and
investment policies, (iii) adopt an ethics policy, and (iv) take necessary
action to correct noted deficiencies in its loan operations and compliance with
applicable regulatory requirements. Following the receipt of a more favorable
examination report from the FDIC, and the adoption of a resolution by Landmark's
Board of Directors in which Landmark agreed to take such immediate actions as
are necessary to maintain a "Tier 1 Capital ratio of not less than six percent
(6%)", the January 1995 MOU was terminated in early April 1996.
Landmark is subject to extensive competition from other commercial banks
from savings banks, as well as from cooperative banks and credit unions, in both
attracting and retaining deposits. Additionally, significant competition for
deposits comes from money market mutual funds and government securities.
Including Landmark, there are approximately 28 banking offices of 9 federally-
insured depository institutions (excluding non-bank financial service providers)
within Landmark's principal market area.
Competition for commercial loans is experienced principally from other
banks. Consumer loan competition is principally from commercial banks, finance
companies and credit unions.
The principal methods used by competing institutions to attract deposits
include the offering of a variety of services and premiums, convenience of
office location and offering of attractive interest rates. The primary factors
in competing for loans are quality of service to the borrower, interest rates,
and loan fee charges. Landmark's staff is actively involved in community
organizations and service groups, which results in customer relationships.
Deposits maintained with Landmark are insured by the BIF of the FDIC up to
FDIC limits (generally $100,000 per depositor). As a New Hampshire-chartered
savings bank, Landmark is subject to regulation, examination and supervision by
the New Hampshire Banking Department and the FDIC.
75
<PAGE>
DESCRIPTION OF PROPERTIES
Landmark's main office has been located at 106 Hanover Street in Lebanon,
New Hampshire since the commencement of FDIC insured banking operations in 1991.
Landmarkbanc Realty Holdings Corp., a wholly-owned subsidiary of Landmark,
purchased this building from LM Realty Corp., then an affiliate of the Bank, in
August 1995. There is one other commercial tenant within this building.
Landmark opened a branch office located at 106 North Main Street in West
Lebanon, New Hampshire in September 1995. The West Lebanon branch is located
within a free standing building consisting of approximately 6,700 square feet.
The lease is for a term of ten (10) years, with renewal options and a limited
option to purchase.
LEGAL PROCEEDINGS
There are no material pending legal proceedings, other than ordinary
routine litigation incidental to its business, to which Landmark is a party or
of which any of its property is the subject.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS OF LANDMARK BANK
SIX MONTHS ENDED JUNE 30, 1996 AND 1995
(UNAUDITED)
GENERAL
The following is a discussion and analysis of Landmark's results of
operations and financial condition for the six month period ended June 30, 1996
and 1995. In order to understand this section in context, it should be read in
conjunction with the Landmark Financial Statements and Notes presented elsewhere
in this Joint Proxy Statement-Prospectus and with the tables appearing
throughout the discussion and analysis.
The operating results of Landmark depend primarily on its net interest
income, which is the difference between (i) interest income on earning assets,
primarily loans and securities, and (ii) interest expense on interest bearing
liabilities, which consist of deposits and borrowings. Landmark's results of
operations are also affected by the provision for loan losses resulting from
Landmark's assessment of the adequacy of the allowance for loan losses; the
level of its other operating income, including gains and losses on the sale of
securities, and loan and other fees; operating expenses; and income tax expenses
or benefits.
Landmark had a net loss of $146,000, or $(0.41) per share of Landmark
Common Stock, for the six months ended June 30, 1996 as compared to net income
of $33,000, or $.09 per share of Landmark Common Stock, in the comparable period
in 1995. The net loss and net income and earnings (loss) per share from
operations were computed without deducting any preferred stock dividends paid.
At June 30, 1996, Landmark had total assets of $57,771,000, a decrease of
$2,992,000, or 4.92%, from $60,763,000 at December 31, 1995. Total deposits
decreased from $56,359,000 at December 31, 1995 to $53,736,000 at June 30, 1996,
a decrease of $2,623,000 or 4.65%. Securities
76
<PAGE>
available-for-sale decreased from $9,523,000 at December 31, 1995 to $7,111,000
at June 30, 1996, a decrease of $2,412,000 or 25.33%.
At June 30, 1996, Landmark's equity to assets ratio was 6.19%, its Tier 1
leverage ratio was 9.16% and its total risk-based capital ratio was 10.42%, all
of which exceeded published regulatory minimums. The capital ratios for December
31, 1995 were 6.40%, 9.69% and 10.95%, respectively. At June 30, 1996, Landmark
remained subject to an agreement with the FDIC that it would maintain a Tier 1
capital ratio in excess of 6%. See " -- Description of Business."
77
<PAGE>
The following table sets forth certain information relating to Landmark's
consolidated balance sheet at June 30, 1996, and consolidated balance sheet and
the consolidated statements of operations for the six months ended June 30, 1996
and 1995, and reflects the average yield on assets and average cost of
liabilities for the periods indicated. Such yields and costs are derived by
dividing income or expense by the average balance of assets or liabilities,
respectively, for the periods shown. Average balances are derived from average
daily balances. The yields and costs include fees which are considered
adjustments to yields.
<TABLE>
<CAPTION>
FOR THE SIX MONTHS ENDED JUNE 30,
----------------------------------------------------------------
AT JUNE 30, 1996 1996 1995
-------------------- ------------------------------- ------------------------------
WEIGHTED AVERAGE AVERAGE
AVERAGE AVERAGE YIELD/ AVERAGE YIELD/
BALANCE RATE BALANCE INTEREST COST(1) BALANCE INTEREST COST(1)
--------- --------- --------- -------- ---------- --------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
ASSETS:
Interest-earning assets:
Loans(2)............................ $43,165 8.96% $43,547 $1,993 9.15% $41,460 $2,077 10.02%
Securities(3)....................... 7,939 5.98% 9,510 270 5.68% 10,782 343 6.36%
Federal funds sold.................. 1,240 4.75% 3,121 82 5.25% 2,243 58 5.17%
------- ------- ------ ------- ------
Total interest-earning assets..... 52,344 56,178 $2,345 8.35% 54,485 $2,478 9.10%
------ ------
Non-interest-earning assets:
Cash and due from banks.......... 1,572 1,595 1,390
Premises and equipment, net...... 2,644 2,656 569
Other assets..................... 2,069 1,324 1,011
Less allowance for loan losses.......... (858) (615) (427)
------- ------- -------
Total assets..................... $57,771 $61,138 $57,028
======= ======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY:
Interest-bearing liabilities:
NOW accounts........................ $ 3,814 2.00% $ 3,585 $ 36 2.01% $ 3,343 $ 32 1.91%
Money market accounts............... 1,334 3.22% 1,580 26 3.29% 2,772 44 3.17%
Regular savings and other........... 12,243 4.16% 11,911 252 4.23% 13,758 285 4.14%
Time certificates of deposit........ 33,222 5.90% 35,955 1,139 6.34% 29,799 892 5.99%
Repurchase agreements............... 309 3.31% 269 5 3.72% 216 4 3.70%
Lease obligations................... -- -- -- -- -- 19 1 10.53%
------- ------- ------ ------- ------
Total interest-bearing liabilities 50,922 53,300 $1,458 5.47% 49,907 $1,258 5.05%
------ ------
Non-interest-bearing liabilities:
Demand deposits..................... 3,123 3,455 3,023
Other liabilities................... 151 502 232
------- ------- -------
Total liabilities............ 54,196 57,257 53,162
Shareholders' equity.................... 3,575 3,881 3,866
------- ------- -------
Total liabilities and $57,028
shareholders' equity......... $57,771 $61,138 =======
======= =======
Net interest income/interest rate $ 887 2.88% $1,220 4.05%
spread(4)......................... ====== ==== ====== =====
Net interest margin(5).................. 3.16% 4.48%
==== =====
Ratio of interest-earning assets to 1.03 1.05 1.09
interest-bearing liabilities.......... ======= ======= =======
- -------------------------
</TABLE>
(1) Calculated on an annualized basis.
(2) Includes non-accrual loans.
(3) Securities are shown at average amortized cost.
(4) Interest rate spread is the average yield earned on total earning
assets less the average cost paid for total interest-bearing liabilities.
(5) Net interest margin equals net interest income for the period
(annualized) divided by average interest-earning assets.
78
<PAGE>
RATE/VOLUME ANALYSIS
Net interest income can also be analyzed in terms of the impact of changing
interest rates on interest-earning assets and interest-bearing liabilities and
changing the volume or amount of these assets and liabilities. The following
table represents the extent to which changes in interest rates and changes in
the volume of interest-earning assets and interest-bearing liabilities have
affected Landmark's interest income and interest expense during the periods
indicated. Information is provided in each category with respect to (i) changes
attributable to changes in volume (change in volume multiplied by prior rate),
(ii) changes attributable to rate (changes in rate multiplied by prior volume),
and (iii) the net change. Changes attributable to the combined impact of volume
and rate have been allocated proportionately to the changes due to the volume
and the changes due to rate.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, 1996
COMPARED TO
SIX MONTHS ENDED
JUNE 30, 1995
-----------------------------
INCREASE/(DECREASE) DUE TO
-----------------------------
VOLUME RATE NET
--------- -------- --------
<S> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Interest-earning assets:
Loans..................................... $105 $(189) $ (84)
Securities................................ (40) (33) (73)
Federal Funds Sold........................ 23 1 24
---- ----- -----
Total interest-earning assets........ 88 (221) (133)
---- ----- -----
Interest-bearing liabilities:
Deposits.................................. 129 71 200
Borrowed Funds............................ (1) 1 --
---- ----- -----
Total interest-bearing liabilities.. 128 72 200
---- ----- -----
Net change in net interest income............ $(40) $(293) $(333)
==== ===== =====
</TABLE>
RESULTS OF OPERATIONS--SIX MONTHS ENDED JUNE 30, 1996 AS COMPARED TO THE
SIX MONTHS ENDED JUNE 30, 1995
Net Income (Loss). Landmark recorded a net loss of $146,000, or $(0.41) per
share of Landmark Common Stock, for the six months ended June 30, 1996, as
compared to net income of $33,000, or $0.09 per share of Landmark Common Stock,
in the comparable period in 1995. The net loss and net income from operations
and earnings (loss) per share were computed without deducting any preferred
stock dividends paid. For the six months ended June 30, 1996, Landmark recorded
net interest income of $887,000, resulting in a net interest margin on average
earning assets of 3.16%, compared to $1,220,000 and 4.48%, respectively, for the
six months ended June 30, 1995. Average interest-earning assets for the six
months ended June 30, 1996 were $56,178,000 with an average yield of 8.35%,
compared to $54,485,000 and 9.10%, respectively, for the comparable period in
1995. Average interest-bearing liabilities for the six months ended June 30,
1996 were $53,300,000 with an average cost of funds of 5.47%, compared to
$49,907,000 and 5.05%, respectively, for the comparable period in 1995.
Net interest income. For the six months ended June 30, 1996, interest and fees
on loans decreased by $84,000, or 4.04%, from amounts for the comparable period
in 1995. Loan interest and fee income decreased due to a decrease in average
interest rates earned on loans, partially offset by an increase in the growth in
the average balance of loans outstanding. The average balance of loans
outstanding increased by $2,087,000, or 5.03%, for the six months ended June 30,
1996 over the comparable period
79
<PAGE>
in 1995, resulting in an increase of interest and fee income on loans due to
volume of $105,000. The average interest rates earned on loans decreased to
9.15% for the six months ended June 30, 1996, compared to 10.02% for the six
months ended June 30, 1995, resulting in a decrease of interest and fee income
on loans due to rates of $189,000.
For the six months ended June 30, 1996, interest income on securities
decreased by $73,000, or 21.28%, from amounts earned for the comparable period
in 1995. The decrease in securities interest income was due to the combined
effects of a decrease in the average balance of securities and a decrease in
interest rates. The average balance of securities for the six months ended June
30, 1996 decreased by $1,272,000, or 11.80%, over the comparable period in 1995.
The average interest rates earned on securities decreased to 5.68% for the six
months ended June 30, 1996 from 6.36% for the six months ended June 30, 1995.
Interest income on federal funds sold increased by $24,000, or 41.38%, for the
six months ended June 30, 1996 from the comparable period in 1995. The net
increase in interest income on federal funds was the result of an increase in
rates earned and an increase in average balances.
Interest expense on deposits increased by $200,000, or 15.96%, for the six
months ended June 30, 1996 as compared to the same period in 1995. The increase
was due to a combination of growth in the average balance of interest-bearing
deposits and increases in the interest rates paid on such deposits. The average
balance of interest-bearing deposits outstanding increased by $3,359,000, or
6.76%, during the six months ended June 30, 1996 over the comparable period in
1995, resulting in an increase in interest expense on interest-bearing deposits
due to volume of $129,000. The average rate paid on interest-bearing deposits
increased to 5.47% for the six months ended June 30, 1996 compared to average
rates of 5.05% for the six months ended June 30, 1995 resulting in an increase
in interest expense on deposits due to rates of $71,000.
The above factors contributed to a decrease of net interest income of
$333,000, or 27.29%, for the six months ended June 30, 1996 as compared to the
six months ended June 30, 1995.
Future net interest income levels will be dependent on Landmark's ability to
control levels of nonperforming assets, earn sufficient returns on earning
assets by achieving a proper mix of loans and short-and long-term securities.
Future net interest income levels will also be dependent on future interest rate
levels.
Provision for Loan Losses. In determining an appropriate provision for
possible loan losses for any period, management evaluates the adequacy of its
allowance for loan losses. Management's periodic evaluation of the adequacy of
the allowance is based on Landmark's past loan loss experience, known and
inherent risks in the portfolio, adverse situations that may affect the
borrower's ability to repay (including the timing of future payments), the
estimated value of any underlying collateral, composition of the loan portfolio,
current economic conditions, and other relevant factors. This evaluation is
inherently subjective as it requires material estimates (including the amounts
and timing of future cash flows expected to be received on impaired loans) that
may be susceptible to significant change.
Loan loss provisions for the six months ended June 30, 1996 were $317,000, as
compared to $48,000 for the six months ended June 30, 1995. Charge-offs were
$120,000 and $11,000 for the six months ended June 30, 1996 and June 30, 1995,
respectively. The increase in the provision was a result of additional
provisions for impaired loans. During the six months ended June 30, 1996,
Landmark realized recoveries of previously charged-off amounts totaling $2,000.
At June 30, 1996, the allowance for loan losses was $858,000, or 1.99% of total
loans, compared to $659,000, or 1.51%, at December 31, 1995. See Notes 1 and 5
of Notes to the Landmark Financial Statements.
80
<PAGE>
Other Income and Expenses. Customer service fees decreased slightly to $43,000
for the six months ended June 30, 1996, as compared to $48,000 for the
comparable period in 1995. The small net decrease, despite increases in total
deposit balances, results from decreases in fees on transaction accounts.
Other expenses decreased by $193,000, or 14.86%, for the six months ended June
30, 1996 as compared to the six months ended June 30, 1995.
Income Taxes. Landmark's income tax benefit for the six months ended June 30,
1996 was $86,000, or 37.07% of pretax earnings, as compared to income tax
expense of $27,000, or 44.26%, for the comparable period in 1995. For 1995, the
effective tax rate differed from the federal statutory rate of 34% primarily due
to additional accruals for state income taxes.
FINANCIAL CONDITION
Loans. Net loans were $42,307,000, or 73.23% of total assets at June 30,
1996, compared with $42,862,000, or 70.54% of total assets at December 31, 1995.
During the 1996 period, Landmark's commercial real estate loans decreased by
$6,000 to $10,566,000 at June 30, 1996 from $10,572,000 at December 31, 1995.
Commercial loans decreased by $782,000, or 11.40%, and totaled $6,078,000 at
June 30, 1996, compared to $6,860,000 at December 31, 1995. Residential
construction loans decreased by $1,205,000, or 42.27%, and totaled $1,646,000 at
June 30, 1996, compared to $2,851,000 at December 31, 1995. Installment loans
increased by $342,000, or 8.84%, and totaled $4,210,000 at June 30, 1995,
compared to $3,868,000 at December 31, 1995. See "CERTAIN STATISTICAL AND OTHER
INFORMATION WITH RESPECT TO LANDMARK--Loan Portfolio" and Note 4 of Notes to the
Landmark Financial Statements.
Asset Quality. The aggregate amount of non-accrual loans and other loans past
due 90 days and still accruing totaled $1,200,000 at June 30, 1996, compared to
$572,000 at December 31, 1995. During the period from December 31, 1995 to June
30, 1996, management placed a commercial real estate loan with a balance of
$640,000 on non-accrual and provided an allowance for loan losses of $290,000
for that loan based on management's belief that the collectibility of principal
and/or interest on this loan is questionable. This commercial real estate loan
is secured by a first priority mortgage on a 176 acre parcel of land located on
Greensboro Road in Hanover, New Hampshire. In addition there is a related
allowance for loan losses on the other aggregate non-accrual balances of
$360,000 totalling $128,000, or 35.55% as of June 30, 1996. Landmark had no
"other real estate owned" as of June 30, 1996 or December 31, 1995. Non-
performing assets as a percent of net loans increased to 2.84% at June 30, 1996
from 1.33% at December 31, 1995.
It is Landmark management's policy to discontinue the accrual of interest on a
loan when there is reasonable doubt as to its collectibility. The accrual of
income on some loans, however, may continue even though they are more than 90
days past due if the loans are both well secured and in the process of
collection and if management deems it appropriate.
While Landmark considers the allowance for loan losses to be adequate at June
30, 1996, it is not able to predict the future of the local economy. Given this
uncertainty, any declines in the local economy could result in additional
provisions for loan losses, additional charge-offs, changes in the level of the
allowance for loan losses, and increases in the level of non-performing assets.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--Non-
accrual, Past Due, Restructured, and Potential Problem Loans," "--Summary of
Loan Loss Experience" and "--Allowance for Loan Loss Allocation" and Notes 1 and
5 of Notes to the Landmark Financial Statements.
81
<PAGE>
Securities. Securities totaled $7,939,000 and $10,335,000 at June 30, 1996
and December 31, 1995, respectively. The portfolio is comprised primarily of
mortgage-backed and U.S. Treasury securities. The total securities portfolio had
an expected average life of approximately three and one fourth years at June 30,
1996.
At June 30, 1996, securities available-for-sale and held-to-maturity totaled
$7,111,000 and $828,000 respectively, which represented 89.57% and 10.43%,
respectively, of total securities. Unrealized net losses on securities
available-for-sale, net of applicable taxes, amounted to $87,000 at June 30,
1996.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--
Securities Portfolio" and Note 3 of Notes to the Landmark Financial Statements.
Deposits. Interest-bearing deposit balances at June 30, 1996 totaled
$50,613,000 compared to $52,492,000 at year-end 1995, a decrease of $1,879,000,
or 3.58%. Regular savings balances totaled $12,243,000 at June 30, 1996 compared
to $10,619,000 at December 31, 1995, an increase of $1,624,000, or 15.29%. Time
certificates of deposit totaled $33,222,000 at June 30, 1996 compared to
$36,780,000 at December 31, 1995, a decrease of $3,558,000, or 9.67%. Demand
deposits totaled $3,123,000 at June 30, 1996 compared to $3,867,000 at December
31, 1995, a decrease of $744,000, or 19.24%. Due to normal fluctuations in
demand deposit balances, consistent with the cash flow needs of commercial
customers, average volumes more accurately reflect growth in demand deposits
than do period-end balances. The average balance of demand deposits totaled
$3,455,000 for the six months ended June 30, 1996 compared to $3,187,000 for the
year ended December 31, 1995, an increase of $268,000, or 8.41%. See "CERTAIN
STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--Deposits" and Note 7
of Notes to the Landmark Financial Statements.
LIQUIDITY AND INTEREST RATE SENSITIVITY MANAGEMENT
Landmark maintains numerous sources of liquidity in the form of marketable
assets and borrowing capacity. Sources of liquidity include interest-bearing
deposits with other banks, federal funds sold, available-for-sale securities,
and regular cash flows from loan and securities portfolios. The investment
portfolio is predominantly made up of securities which can be readily utilized
for the repurchase agreement market.
Landmark evaluates its sensitivity to changes in interest rates by monitoring
the timing of repricing of interest-sensitive assets compared to interest-
sensitive liabilities. This is commonly known as an interest rate sensitivity
analysis. The interest rate sensitivity gap is the difference between rate
sensitive assets and rate sensitive liabilities. A positive gap exists when rate
sensitive assets exceed rate sensitive liabilities and indicates that a greater
volume of assets than liabilities will be impacted by changes in interest rates
during the stated period. With a positive gap, earnings will generally increase
when rates rise and decrease when rates decline within the period. Conversely,
when rate sensitive liabilities exceed rate sensitive assets, the gap is
referred to as negative and indicates that a greater volume of liabilities than
assets will be impacted by changes in interest rates during the period. With a
negative gap, earnings will generally decrease when rates rise and increase when
rates decline within the period. Landmark seeks to insulate itself from
interest rate risk . Toward that end, Landmark monitors the relative volume,
maturity and yields of interest-earning assets and interest-bearing liabilities
over various time horizons, with particular emphasis on the immediate one year
time horizon.
82
<PAGE>
The following table illustrates the excess (or deficiency) of interest-earning
assets over interest-bearing liabilities at June 30, 1996. Due to Landmark's
positive gap, increases in interest rates would generally enhance earnings and
decreases in rates would generally inhibit earnings.
INTEREST RATE SENSITIVITY ANALYSIS
AT JUNE 30, 1996
<TABLE>
<CAPTION>
1 1-3 3-6 6-12 OVER 1
MONTH MONTHS MONTHS MONTHS YEAR TOTAL
--------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
INTEREST-EARNING ASSETS
Loans and Mortgages Held for Resale....... $16,206 $ 5,259 $ 6,752 $11,289 $ 3,659 $43,165
Securities................................ 48 81 119 409 7,282 7,939
Federal Funds............................. 1,240 -- -- -- -- 1,240
------- ------- ------- ------- ------- -------
TOTAL $17,494 $ 5,340 $ 6,871 $11,698 $10,941 $52,344
======= ======= ======= ======= ======= =======
INTEREST-BEARING LIABILITIES
NOW and MMDA.............................. $ 172 $ 343 $ 515 $ 1,030 $ 3,089 $ 5,149
Savings................................... 408 816 1,224 2,448 7,346 12,242
Time Deposits Including IRA............... 1,588 3,156 6,838 15,764 5,876 33,222
Borrowings (Repurchase Agreement)......... 309 -- -- -- -- 309
------- ------- ------- ------- ------- -------
TOTAL $ 2,477 $ 4,315 $ 8,577 $19,242 $16,311 $50,922
======= ======= ======= ======= ======= =======
Period Sensitivity Gap....................... $15,017 $ 1,025 $(1,706) $(7,544) $(5,370) $ 1,422
======= ======= ======= ======= ======= =======
Cumulative Sensitivity Gap................... $15,017 $16,042 $14,336 $ 6,792 $ 1,422
======= ======= ======= ======= =======
Cumulative Excess/(Deficiency) as a Percent
of Total Rate Sensitive Assets............ 28.69% 30.65% 27.39% 12.98% 2.72%
</TABLE>
Loan Maturity and Repricing. The following table shows the maturity or period
to repricing of Landmark's loan portfolio at June 30, 1996. Loans that have
adjustable rates are shown as being due in the period during which the interest
rates are next subject to change. The table does not include prepayments or
scheduled principal amortization. Prepayments and scheduled principal
amortization on Landmark's loan portfolio totaled $9,786,000 for the six months
ended June 30, 1996.
<TABLE>
<CAPTION>
AT JUNE 30, 1996
-----------------------------------------
MORTGAGE LOANS
----------------------
MULTI-FAMILY
ONE- TO AND OTHER
FOUR- REAL ESTATE OTHER TOTAL
FAMILY LOANS LOANS LOANS
-------- ------------ ------- --------
<S> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
AMOUNT DUE:
One year or less..................... $20,125 $11,416 $7,965 $39,506
------- ------- ------ -------
AFTER ONE YEAR:
One to three years................... 1,352 986 473 2,811
More than three years to five years.. 134 -- 283 417
More than five years to ten years.... -- -- -- --
More than ten years.................. 245 186 -- 431
------- ------- ------ -------
TOTAL DUE OR REPRICING AFTER ONE YEAR... 1,731 1,172 756 3,659
------- ------- ------ -------
TOTAL AMOUNTS DUE OR REPRICING, GROSS... $21,856 $12,588 $8,721 $43,165
======= ======= ====== =======
</TABLE>
83
<PAGE>
The following table sets forth the dollar amounts in each loan category at
June 30, 1996 that are due after June 30, 1997, and whether such loans have
fixed or adjustable interest rates.
<TABLE>
<CAPTION>
DUE AFTER JUNE 30, 1997
----------------------------
FIXED ADJUSTABLE TOTAL
------- ---------- -------
<S> <C> <C> <C>
(DOLLARS IN THOUSANDS)
MORTGAGE LOANS:
One- to four-family....................... $ 461 $1,270 $1,731
Multi-family and other Real Estate Loans.. 287 885 1,172
OTHER LOANS................................. 756 -- 756
------ ------ ------
Total loans............................ $1,504 $2,155 $3,659
====== ====== ======
</TABLE>
CAPITAL
At June 30, 1996 and December 31, 1995, the FDIC required minimum total and
Tier 1 risk-based capital ratios for "well-capitalized" banks of 10% and 6%,
respectively. Landmark's total risk-based capital ratios at June 30, 1996 and
December 31, 1995 were 10.42% and 10.95%, respectively, and its Tier 1 risk-
based capital ratios were 9.16% and 9.69%, respectively. At June 30, 1996,
Landmark remained subject to an agreement with the FDIC that it would maintain a
Tier 1 capital ratio in exces of 6%. See "--Description of Business."
To complement risk-based capital guidelines, the FDIC adopted a Tier 1
leverage capital of 3% for the most highly rated banks and up to 5% for other
banks. The leverage ratios are used in tandem with the risk-based capital
requirements as the minimum capital standards for banks. Landmark's Tier 1
leverage capital ratios were 6.19% and 6.40% at June 30, 1996 and December 31,
1995, respectively.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--
Return on Shareholders' Equity and Assets" and Note 11 of Notes to the
Landmark Financial Statements.
THREE YEARS ENDED DECEMBER 31, 1995
GENERAL
Landmark had net income from operations of $21,000, or $0.06 per share of
Landmark Common Stock, for the year ended December 31, 1995. Net income from
operations for the year ended December 31, 1994 was $226,000 or $0.64 per share
of Landmark Common Stock. Net income from operations for the year ended December
31, 1993 was $476,000 or $1.15 per fully diluted share of Landmark Common Stock.
Net income from operations and earnings per share for the three years were
computed without deducting any preferred stock dividends paid.
At December 31, 1995, Landmark had total assets of $60,763,000, an increase
of $4,433,000, or 7.87%, from $56,330,000 at December 31, 1994. Loans (primarily
commercial and commercial real estate) provided $2,591,000 of the asset growth
for the year ended December 31, 1995. In addition, Landmark purchased the
building housing its main office and operations center in August, 1995 for
$2,000,000.
At December 31, 1995, Landmark's equity to assets ratio was 6.40%, its Tier
1 leverage ratio was 9.69% and its total risk-based capital ratio was 10.95%,
all of which exceeded published regulatory minimums. The comparable capital
ratios for December 31, 1994 were 6.73%, 10.42% and 11.67%, respectively.
84
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AVERAGE BALANCE SHEET
The following table sets forth certain information relating to Landmark's
average balance sheet, including interest-earning assets, interest-bearing
liabilities and net interest income for the periods indicated:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
-------------------------------------------------------------------------------------------
1995 1994 1993
----------------------------- ---------------------------- ----------------------------
AVERAGE AVERAGE AVERAGE
AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/
BALANCE INTEREST COST BALANCE INTEREST COST BALANCE INTEREST COST
--------- -------- -------- --------- -------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
ASSETS:
Interest-earning assets:
Loans(1)......................... $42,320 $4,269 10.09% $33,629 $3,197 9.51% $25,976 $2,417 9.30%
Securities(2).................... 10,596 676 6.38 4,878 343 7.03 3,133 142 4.53
Federal funds sold............... 3,895 218 5.60 1,384 53 3.83 1,337 35 2.62
------- ------ ------- ------ ------- ------
Total interest-earning assets.. 56,811 $5,163 9.09 39,891 $3,593 9.01 30,446 $2,594 8.52
------ ------ ------
Non-interest-earning assets:
Cash and due from banks........ 1,444 1,314 887
Premises and equipment, net.... 1,339 536 493
Other assets................... 1,105 694 586
Less allowance for loan losses..... (473) (309) (165)
------- ------- -------
Total assets................... $60,226 $42,126 $32,247
======= ======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY:
Interest-bearing liabilities:
NOW.............................. $ 3,443 $ 65 1.89 $ 3,553 $ 77 2.17 $ 2,812 $ 66 2.35
Money market accounts............ 2,368 77 3.25 3,668 112 3.05 3,143 97 3.09
Regular savings and other........ 12,560 532 4.24 11,188 480 4.29 4,046 118 2.92
Time certificates of deposit..... 34,236 2,174 6.35 16,551 704 4.25 16,157 660 4.08
Repurchase agreements............ 259 9 3.47 164 5 3.05 259 8 3.09
Lease obligations................ 10 1 10.00 80 14 17.50 157 22 14.01
------- ------ ------- ------ ------- ------
Total interest-bearing
liabilities................. 52,876 $2,858 5.41 35,204 $1,392 3.95 26,574 $ 971 3.65
------ ------ ------
Non-interest-bearing liabilities:
Demand deposits.................. 3,187 2,908 2,270
Other liabilities................ 278 148 124
------- ------- -------
Total liabilities............. 56,341 38,260 28,968
Shareholders' equity............... 3,885 3,866 3,279
------- ------- -------
Total liabilities and $60,226 $42,126 $32,247
shareholders' equity........ ======= ======= =======
Net interest income/interest rate
spread(3).......................... $2,305 3.68 $2,201 5.06 $1,623 4.87
====== ===== ====== ===== ====== =====
Net interest margin(4).............. 4.06% 5.52% 5.33%
===== ===== =====
Ratio of interest-earning assets to
interest-bearing liabilities....... 1.07 1.13 1.15
======= ======= =======
- ------------------
</TABLE>
(1) Includes non-accrual loans.
(2) Securities are shown at average amortized cost.
(3) Interest rate spread is the average yield earned on total earning assets
less the average cost paid for total interest-bearing liabilities.
(4) Net interest margin equals net interest income for the period divided by
average interest-earning assets.
85
<PAGE>
RATE/VOLUME ANALYSIS
Net interest income can also be analyzed in terms of the impact of changing
interest rates on interest-earning assets and interest-bearing liabilities, and
changing the volume or amount of these assets and liabilities. The following
table represents the extent to which changes in interest rates and changes in
the volume of interest-earning assets and interest-bearing liabilities have
affected Landmark's interest income and interest expense during the periods
indicated. Information is provided in each category with respect to (i) changes
attributable to changes in volume (change in volume multiplied by prior rate),
(ii) changes attributable to rate (changes in rate multiplied by prior volume),
and (iii) the net change. Changes attributable to the combined impact of volume
and rate have been allocated proportionately to the changes due to the volume
and the changes due to rate.
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, 1995 DECEMBER 31, 1994
COMPARED TO COMPARED TO
YEAR ENDED YEAR ENDED
DECEMBER 31, 1994 DECEMBER 31, 1993
----------------------------- ---------------------------
INCREASE/(DECREASE) DUE TO INCREASE/(DECREASE) DUE TO
----------------------------- ---------------------------
VOLUME RATE NET VOLUME RATE NET
-------- -------- --------- ------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
Interest-earning assets:
Loans............................... $ 826 $ 246 $1,072 $712 $ 68 $780
Securities.......................... 403 (70) 333 79 122 201
Federal Funds Sold.................. 96 69 165 1 17 18
------ ----- ------ ---- ---- ----
Total interest-earning assets.. 1,325 245 1,570 792 207 999
------ ----- ------ ---- ---- ----
Interest-bearing liabilities:
Deposits............................ 769 706 1,475 258 174 432
Borrowed Funds...................... (9) -- (9) (14) 3 (11)
------ ----- ------ ---- ---- ----
Total interest-bearing 760 (706) 1,466 244 177 421
liabilities................. ------ ----- ------ ---- ---- ----
Net change in net interest income...... $ 565 $(461) $ 104 $548 $ 30 $578
====== ===== ====== ==== ==== ====
</TABLE>
RESULTS OF OPERATIONS--YEAR ENDED DECEMBER 31, 1995 AS COMPARED TO YEAR
ENDED DECEMBER 31, 1994
Net Income. Landmark had net income from operations of $21,000, or $0.06
per share of Landmark Common Stock, for the year ended December 31, 1995, as
compared to $226,000, or $0.64 per share of Landmark Common Stock, for the year
ended December 31, 1994. Net income from operations and earnings per share was
computed without deducting any preferred stock dividends paid. For the year
ended December 31, 1995, Landmark recorded net interest income of $2,305,000,
resulting in a net interest margin on average earning assets of 4.06%, compared
to $2,201,000 and 5.52%, respectively, for the year ended December 31, 1994.
Average interest-earning assets for the year ended December 31, 1995 were
$56,811,000 with an average yield of 9.09%, compared to $39,891,000 and 9.01%,
respectively, for the year ended December 31, 1994. Average interest-bearing
liabilities for the year ended December 31, 1995 were $52,876,000 with an
average cost of funds of 5.41%, compared to $35,204,000 and 3.95%, respectively,
for the year ended December 31, 1994.
Net Interest Income. During 1995, interest income and fees on loans
increased by $1,072,000, or 33.54%, over amounts earned in 1994. Loan interest
and fee income increased due to growth in the average balance of loans
outstanding combined with an increase in average interest rates earned on such
loans. The average balance of loans outstanding increased by $8,691,000 or
25.84%, in 1995 over 1994, resulting in an increase of interest and fee income
on loans due to volume of $826,000. The average
86
<PAGE>
interest rates earned on loans increased from 9.51% in 1994 to 10.09% in 1995,
resulting in an increase of interest and fee income on loans due to rates of
$246,000.
During 1995, interest income on securities increased by $333,000, or
97.08%, from amounts earned in 1994. The increase in securities interest income
was due to the growth in the average balance of securities outstanding partially
offset by a slight decrease in rates. The 1995 average balance of securities
increased by $5,718,000, or 117.22% from the 1994 average balance resulting in
an increase in income due to volume increases of $403,000. The average interest
rates earned on securities decreased from 7.03% in 1994 to 6.38% in 1995
resulting in a decrease of income due to average rate decreases of $70,000.
Interest income on federal funds sold increased by $165,000, or 311.32%, in 1995
over 1994. The increase in interest income on federal funds as a result of
increases in interest rates was $69,000. The average balance invested in federal
funds sold increased $2,511,000 from $1,384,000 in 1994 to $3,895,000 in 1995.
The increase in federal funds income due to increased average volume was
$96,000.
Interest expense on deposits increased by $1,475,000, or 107.43%, in 1995
as compared to 1994. The increase was due to growth in the average balance of
interest-bearing deposits to $52,607,000 during 1995 from $34,960,000 during
1994, an increase of $17,647,000 or 50.48%. The total average yield on interest-
bearing deposits increased to 5.41% in 1995 from 3.93% in 1994, an increase of
1.48% or 37.66%. These increases are primarily due to an increase in the average
balances of time certificates of deposit from an average of $16,551,000 bearing
interest at an average rate of 4.25% in 1994 to average balances of $34,236,000
bearing interest at an average rate of 6.35% in 1995.
Interest expense on borrowed funds, consisting of repurchase agreements and
capitalized lease obligations, decreased by $9,000, or 47.37%, in 1995 from
1994. The average balance on borrowings outstanding increased by $25,000, or
10.25%, in 1995 over 1994, resulting in a decrease of interest expense on
borrowings due to volume of $9,000. The average interest rates paid on
borrowings in 1995 was 3.72% compared to 7.79% in 1994, resulting in an decrease
of interest expense on borrowings due to rates of $0.
The above factors contributed to an overall increase of net interest income
of $104,000, or 4.73%, for 1995 as compared to 1994.
Future net interest income levels will be dependent on Landmark's ability
to control levels of non-performing assets, earn sufficient returns on earning
assets by achieving a proper mix of loans and short- and long-term securities.
Future net interest income levels will also be dependent on future interest rate
levels.
Provision For Loan Losses. In determining an appropriate provision for
possible loan losses for any period, management evaluates the adequacy of its
allowance for loan losses. Management's periodic evaluation of the adequacy of
the allowance is based on Landmark's past loan loss experience, known and
inherent risks in the portfolio, adverse situations that may affect the
borrower's ability to repay (including the timing of future payments), the
estimated value of any underlying collateral, composition of the loan portfolio,
current economic conditions, and other relevant factors. This evaluation is
inherently subjective as it requires material estimates (including the amounts
and timing of future cash flows expected to be received on impaired loans) that
may be susceptible to significant change. The allowance for loan losses is
maintained at a level believed adequate by management to absorb estimated
probable loan losses.
87
<PAGE>
Loan loss provisions during 1995 were $205,000 as compared to $203,000 for
1994. Charge-offs were $11,000 and $3,000 in 1995 and 1994, respectively. The
increase in the provision was primarily a result of the decision by the Board of
Directors to increase the general allowance on commercial loans from 1.00% to
1.50%. See Notes 1 and 5 of Notes to the Landmark Financial Statements. There
were no realized recoveries of previously charged-off loans in 1995 or 1994. At
year end 1995, the allowance for loan losses was $659,000, or 1.51% of total
loans, compared to $465,000, or 1.14%, at year-end 1994. Landmark had no "other
real estate owned" as of December 31, 1995 or 1994.
Other Income and Expenses. During the years ended December 31, 1995 and
1994, securities available-for-sale were sold with a fair value at the date of
sale of $0 and $120,000, respectively. The gross realized gains on such sales in
1995 and 1994 were $0 and $1,000, respectively, and there were no gross realized
losses. These securities were sold in order to manage Landmark's asset-liability
and liquidity positions.
Customer service fees were $90,000 in 1995 as compared to $86,000 in 1994,
representing an increase of $4,000 or 4.65%. These fee increases resulted from
more uniform collection of service charges.
Other expenses increased by $293,000, or 13.38% in 1995, as compared to
1994. The increase was primarily the result of additional personnel expense and
the costs of additional internal controls and planning efforts.
Income Taxes. Landmark's income tax expense for 1995 was $5,000, or 19.23%
of pretax earnings. The effective tax rate differed from the federal statutory
rate of 15.0%. Income tax expense for 1994 was $141,000 or 38.42% of pretax
earnings. See Note 9 of Notes to the Landmark Financial Statements.
RESULTS OF OPERATIONS--YEAR ENDED DECEMBER 31, 1994 AS COMPARED TO YEAR
ENDED DECEMBER 31, 1993
Net Income. Landmark had net income from operations of $226,000, or $0.64
per share of Landmark Common Stock, for the year ended December 31, 1994, as
compared to $476,000, or $1.15 per fully diluted share of Landmark Common Stock,
for the year ended December 31, 1993. Net income from operations and earnings
per share was computed without deducting any preferred stock dividends paid. For
the year ended December 31, 1994, Landmark recorded net interest income of
$2,201,000, resulting in a net interest margin on average earning assets of
5.52%, compared to $1,623,000 and 5.33%, respectively, for the year ended
December 31, 1993. Average interest-earning assets for the year ended December
31, 1994 were $39,891,000 with an average yield of 9.01%, compared to
$30,446,000 and 8.52%, respectively, for the year ended December 31, 1993.
Average interest-bearing liabilities for the year ended December 31, 1994 were
$35,204,000 with an average cost of funds of 3.95%, compared to $26,574,000 and
3.65%, respectively, for the year ended December 31, 1993.
Net Interest Income. During 1994, interest and fees on loans increased by
$780,000, or 32.27%, over amounts earned in 1993. The increase in loan interest
and fee income was due to the growth in the average balance of loans outstanding
and a slight increase in the average rates earned on such loans. The average
balance of loans outstanding increased by $7,653,000, or 29.46%, in 1994 over
1993, resulting in an increase of interest and fee income on loans due to volume
of $712,000. The average interest rates earned on loans increased from 9.30% in
1993 to 9.51% in 1994, resulting in an increase in interest and fee income on
loans due to rates of $68,000.
88
<PAGE>
During 1994, interest income on securities increased by $201,000, or
141.55% from amounts earned in 1993. The increase was due both to increased
average balances and to higher average interest rates in 1994 compared to 1993.
Average balances increased to $4,878,000 in 1994 from $3,133,000 in 1993, an
increase in average balances of $1,745,000 or 55.70%. The average earnings rate
on securities was 7.03% in 1994 up from an average rate of 4.53% earned on
securities in 1993.
Interest expense on deposits increased by $432,000, or 45.91% in 1994, as
compared to 1993. The average balance of interest-bearing deposits increased by
$8,802,000 or 33.64% in 1994 in comparison to 1993, which resulted in increased
interest expense due to volume of $258,000. The average cost of interest rates
paid on interest-bearing deposits increased to 3.93% in 1994 as compared to
3.60% in 1993, which resulted in an increase in interest expense due to rates of
$174,000. The average balance on savings accounts increased $7,142,000 from an
average balance in 1993 of $4,046,000 bearing interest at an average rate of
2.92% to an average balance of $11,188,000 bearing interest at an average rate
of 4.29%.
Interest expense on borrowed funds decreased by $11,000, or 36.66% in 1994
from 1993. The decrease was due to a decrease in the average balances of
borrowed funds partially offset by an increase in the average rate paid on those
funds.
The above factors contributed to an overall increase in net interest
income of $578,000, or 35.61%, for 1994 as compared with 1993.
Provision for Loan Losses. The provision for loan losses during 1994 was
$203,000, compared to $145,000 during 1993. The increase in the provision was a
result of growth in the loan portfolio. Loans of $3,000 and $22,000 were charged
to the allowance for loan losses during 1994 and 1993, respectively. There were
no recoveries in 1994 or 1993. At year end 1994, the allowance for loan losses
was $465,000, or 1.14% of total loans, compared to $265,000, or 0.95% at year
end 1993. See Notes 1 and 5 of Notes to the Landmark Financial Statements.
Other Income and Expenses. Gross gains from securities transactions in 1994
were $1,000 on sales of $120,000, as compared to gross gains in 1993 of $5,000
on sales of $556,000. Gross losses from securities transactions in 1994 were $0,
as compared to gross losses in 1993 of $1,000 on gross sales of $755,000. In
1993, $570,000 of gross sales had no gain or loss. These securities matured in
accordance with their terms.
Gains on sales of the guaranteed portions of Small Business Administration
("SBA") loans amounted to $163,000 in 1994, in comparison to $421,000 in 1993.
Fees on origination of loans for the secondary mortgage market totaled
$137,000 in 1994, in comparison to $255,000 in 1993.
Customer service fees were $86,000 in 1994, as compared to $71,000 in 1993.
The $15,000, or 21.12%, increase was primarily due to increases in transaction
volumes resulting from balance sheet growth.
Other expenses increased by $605,000, or 38.12% in 1994 as compared to
1993. The increase was primarily attributable to the combined effects of higher
transaction volumes due to balance sheet growth and increased staffing costs.
89
<PAGE>
Income Taxes. Income tax expense amounted to $141,000, or 38.42% on pretax
income of $367,000 in 1994, in comparison to $278,000, or 36.87% on pretax
income of $754,000 in 1993 . Income tax expense differs from that computed at
the statutory rate of 34% primarily because of expenses deductible for financial
reporting purposes that are not deductible for income tax reporting purposes.
See Notes to the Landmark Financial Statements.
FINANCIAL CONDITION
Loans. Loan growth was moderate in 1995 as net loans increased to
$42,862,000, or 70.54% of total assets at December 31, 1995 from $40,465,000, or
71.84% of total assets at December 31,1994, an increase of $2,397,000 or 5.92%.
The majority of the asset growth in 1994 was in the loan portfolio. Net loans
were $40,465,000, or 71.84% of total assets at December 31, 1994, compared with
$27,582,000, or 81.82% of total assets at December 31, 1993. During 1995,
Landmark experienced loan growth in commercial and commercial real estate and
residential loans. Commercial real estate loans increased by $483,000, or 4.78%,
and totaled $10,572,000 at December 31, 1995, compared to $10,089,000 at
December 31, 1994. Commercial loans increased by $1,021,000, or 17.49%, and
totaled $6,860,000 at December 31, 1995, compared to $5,839,000 at December 31,
1994. Additionally, Landmark's single-family residential real estate and single-
family residential construction loans increased by $1,649,000, or 8.17%, and
totaled $21,839,000 at December 31, 1995, compared to $20,190,000 at December
31, 1994. These increases can be attributed to management's referral network and
providing additional services to businesses and professionals with whom Landmark
has existing relationships. See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH
RESPECT TO LANDMARK--Loan Portfolio" and Note 4 of Notes to the Landmark
Financial Statements.
Asset Quality. The aggregate amount of non-accrual loans and other loans
past due 90 days and still accruing totaled $572,000 at the end of 1995 compared
to $4,000 at the end of 1994. Landmark had no "other real estate owned" as of
December 31, 1995, 1994 or 1993. Non-performing assets as a percent of net loans
increased to 1.33% at December 31, 1995 from 0.01% at December 31, 1994. During
the same period, the aggregate amount of non-accrual loans and other loans past
due 90 days and still accruing, increased as follows: (1) real estate - from
$3,000 to $365,000; (2) commercial - from $0 to $201,000; and (3) consumer- from
$1,000 to $6,000.
It is management's policy to discontinue the accrual of interest on a loan
when there is reasonable doubt as to its collectibility. The accrual of some
loans, however, may continue even though they are more than 90 days past due if
the loans are both well secured and in the process of collection and if
management deems it appropriate.
While Landmark considers the allowance for loan losses to be adequate at
December 31, 1995, it is not able to predict the future direction of the local
economy. Given this uncertainty, any declines in the local economy could result
in additional provisions for loan losses, additional charge-offs, changes in the
level of the allowance for loan losses, and increases in the level of non-
performing assets.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--
Non-accrual, Past Due, Restructured, and Potential Problem Loans," "--Summary of
Loan Loss Experience" and "--Allowance for Loan Loss Allocation" and Notes 1 and
5 of Notes to the Landmark Financial Statements.
Securities. Securities totaled $10,335,000 and $10,931,000 at December 31,
1995 and 1994, respectively. The other major increase in assets during 1994 was
securities. Total securities increased to $10,931,000 at December 31,1994 from
$1,788,000 at December 31, 1993, an increase of $9,143,000 or 511.35%. The
average balance invested in securities increased to an average balance of
$4,878,000 in 1994 from an average balance of $3,133,000 in 1993, an increase in
average balances of $1,745,000, or 55.70%. The portfolio is comprised primarily
of mortgage-backed and U.S. Treasury securities. The
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<PAGE>
total securities portfolio had an expected average life of approximately three
and one fourth years at December 31, 1995.
Effective December 31, 1993, Landmark adopted SFAS No. 115 "Accounting for
Certain Investments in Debt and Equity Securities". In accordance with the
Statement, management determines the appropriate classification of debt
securities at the time of purchase and reevaluates such designation as of each
balance sheet date. Debt securities are classified as held-to-maturity when
Landmark has the positive intent and ability to hold the securities to maturity.
Held-to-maturity securities are carried at amortized historical cost.
Debt securities not classified as held-to-maturity are classified as
available-for-sale and are carried at fair value. Unrealized holding gains and
losses, net of taxes, on available-for-sale securities are reported as a
separate component of shareholders' equity. Landmark does not have a trading
account and has no derivative financial instruments.
Prior to December 31, 1993, Landmark's securities were held-for-investment
and carried at amortized cost.
At December 31, 1995, securities available-for-sale and held-to-maturity
totaled $9,523,000 and $812,000, respectively, which represented 92.14% and
7.86%, respectively, of total securities. Unrealized net gains on securities
available-for-sale, net of applicable taxes, amounted to $92,000 at December 31,
1995.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--
Securities Portfolio" and Note 3 of Notes to the Landmark Financial
Statements.
Deposits. Interest-bearing deposit balances at December 31, 1995 totaled
$52,492,000 compared to $47,902,000 at year-end 1994, an increase of $4,590,000,
or 9.58%. Demand deposits decreased by $223,000 in 1995 from the 1994 year-end
balance of $4,090,000 to $3,867,000 at December 31, 1995. Regular savings
decreased by $6,173,000, or 36.76%, from the 1994 year-end balance of
$16,792,000 to $10,619,000 at December 31, 1995. This decline can be attributed
to customers transferring funds from relatively low rate savings accounts to
relatively higher rate certificates of deposit. Time certificates of deposit
increased by $13,328,000, or 56.83% to $36,780,000 at December 31, 1995 from the
1994 year-end balance of $23,452,000. This increase can be primarily attributed
to a certificate of deposit promotion utilized to generate funds to replace out
of area certificates. See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH
RESPECT TO LANDMARK--Deposits" and Note 7 of Notes to the Landmark Financial
Statements.
LIQUIDITY AND INTEREST RATE SENSITIVITY MANAGEMENT
Liquidity management involves Landmark's ability to meet the cash flow
requirements of customers who may be either depositors wanting to withdraw funds
or borrowers needing assurance that sufficient funds will be available to meet
their credit needs. Interest rate sensitivity management seeks to avoid
fluctuating net interest margins and to enhance consistent growth of net
interest income through periods of changing interest rates.
Landmark's most important liquidity source is liability liquidity, the
ability to raise new funds and to renew maturing liabilities in a variety of
markets. The most important factor in assuring liability liquidity is
maintaining the confidence of Landmark depositors. Out of area deposits have
been used when they are a low cost and controllable funding source. Funds are
primarily generated locally and regionally.
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<PAGE>
Other types of assets, such as federal funds sold, repurchase agreements and
maturing loans, are supplemental sources of liquidity.
Landmark evaluates its sensitivity to changes in interest rates by
monitoring the timing of repricing of interest-sensitive assets compared to
interest-sensitive liabilities. This is commonly known as an interest rate
sensitivity analysis. The interest rate sensitivity gap is the difference
between rate sensitive assets and rate sensitive liabilities. A positive gap
exists when rate sensitive assets exceed rate sensitive liabilities and
indicates that a greater volume of assets than liabilities will be impacted by
changes in interest rates during the stated period. With a positive gap,
earnings will generally increase when rates rise and decrease when rates decline
within the period. Conversely, when rate sensitive liabilities exceed rate
sensitive assets, the gap is referred to as negative and indicates that a
greater volume of liabilities than assets will be impacted by changes in
interest rates during the period. With a negative gap, earnings will generally
decrease when rates rise and increase when rates decline within the period.
Landmark seeks to insulate itself from interest rate risk over the near term.
Toward that end, Landmark monitors the relative volume, maturity and yields of
interest-earning assets and interest-bearing liabilities over various time
horizons, with particular emphasis on the immediate one year time horizon. As
evidenced by the following interest sensitivity table, due to Landmark's
positive gap, increases in rates would generally enhance earnings and decreases
in rates would generally inhibit earnings.
INTEREST RATE SENSITIVITY ANALYSIS
AT DECEMBER 31, 1995
<TABLE>
<CAPTION>
1 1-3 3-6 6-12 OVER 1
MONTH MONTHS MONTHS MONTHS YEAR TOTAL
--------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(Dollars in thousands)
INTEREST-EARNING ASSETS:
Loans and Mortgages Held for Resale....... $2,486 $18,409 $ 7,043 $11,948 $ 3,635 $43,521
Securities................................ 306 586 816 2,375 6,252 10,335
Federal Funds............................. 1,980 -- -- -- -- 1,980
------ ------- ------- ------- ------- -------
TOTAL $4,772 $18,995 $ 7,859 $14,323 $ 9,887 $55,836
====== ======= ======= ======= ======= =======
INTEREST-BEARING LIABILITIES:
NOW and MMDA.............................. $ 170 $ 340 $ 509 $ 1,019 $ 3,055 $ 5,093
Savings................................... 350 701 1,052 2,103 6,413 10,619
Time Deposits Including IRA............... 3,171 4,726 13,732 8,215 6,936 36,780
Borrowings (Repurchase Agreement)......... 304 -- -- -- -- 304
------ ------- ------- ------- ------- -------
TOTAL $3,995 $ 5,767 $15,293 $11,337 $16,404 $52,796
====== ======= ======= ======= ======= =======
Period Sensitivity Gap....................... $ 777 $13,228 $(7,434) $ 2,986 $(6,517) $ 3,040
====== ======= ======= ======= ======= =======
Cumulative Sensitivity Gap................... $ 777 $14,005 $ 6,571 $ 9,557 $ 3,040
====== ======= ======= ======= =======
Cumulative Excess/(Deficiency) as a Percent 1.39% 25.08% 11.77% 17.12% 5.45%
of Total Rate Sensitive Assets............
</TABLE>
CAPITAL
Landmark is subject to regulation by the FDIC, which has adopted certain
risk-based capital guidelines. The guidelines, which establish a risk-adjusted
ratio relating capital to different categories of balance sheet assets and off-
balance sheet obligations, require Landmark to maintain a minimum risk-based
capital ratio.
92
<PAGE>
The guidelines define two categories of capital: Tier 1 or core capital
(primarily, common shareholders' equity and a limited amount of perpetual
preferred stock, less intangible assets) and Tier 2 or supplementary capital
(primarily, a limited amount of loan loss reserves, perpetual preferred stock in
excess of the amounts included in Tier 1 capital and certain "hybrid
instruments," including mandatory convertible debt). Qualifying (or total)
capital is the sum of Tier 1 and Tier 2 capital. According to the guidelines,
Tier 1 capital must represent at least 50% of qualifying total capital. Risk-
based capital ratio guidelines assign both balance sheet assets and off-balance
sheet obligations to one of four risk categories. At December 31, 1995 and 1994,
the minimum total and Tier 1 risk-based capital ratios required for "well-
capitalized" banks were 10% and 6%, respectively. Landmark Preferred Stock
qualifies for both risk based capital calculations. Landmark's total risk-based
capital ratios at December 31, 1995 and 1994 were 10.95% and 11.67%,
respectively, and its Tier 1 risk-based capital ratios were 9.69% and 10.42%
respectively. To complement risk-based guidelines, the FDIC adopted a Tier 1
leverage capital ratio of 3% for the most highly rated banks and up to 5% for
other banks which would represent the minimum capital to total assets standard
for banks. The leverage ratios are used in tandem with the risk-based capital
requirements as the minimum capital standards for banks. Landmark's Tier 1
leverage capital ratios were 6.40% and 6.73% at December 31, 1995 and 1994,
respectively.
See "CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK--
Return on Shareholders' Equity and Assets" and Note 11 of Notes to the Landmark
Financial Statements.
RECENT ACCOUNTING DEVELOPMENTS
On January 1, 1995, Landmark adopted SFAS No. 114 "Accounting by Creditors
for Impairment of a Loan," and SFAS No. 118, "Accounting by Creditors for
Impairment of a Loan--Income Recognition and Disclosure." These statements
generally require all creditors to account for impaired loans, except those
loans accounted for at fair value or at the lower of cost or fair value, at the
present value of the expected future cash flows discounted at the loan's
effective interest rate or, alternatively, at the fair value of the loan's
collateral. In addition, criteria for classification of a loan as in-substance
foreclosure has been modified so that such classification need be made only when
the lender is in possession of the collateral.
These statements also require troubled debt restructuring to be measured
for impairment using the pre-modification rate of interest as a discount rate.
Adoption of these statements had no material impact on Landmark's financial
position or results of operations.
93
<PAGE>
CERTAIN STATISTICAL AND OTHER INFORMATION WITH RESPECT TO LANDMARK
Set forth below is certain statistical and other information
relating to Landmark. This information should be used in conjunction with
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS OF LANDMARK" and the Landmark Financial Statements.
INVESTMENT PORTFOLIO
The following table sets forth the amortized cost and fair value
of Landmark's securities, by accounting classification and by type of
security, at the dates indicated.
<TABLE>
<CAPTION>
AT DECEMBER 31,
------------------------------------------------------------
AT JUNE 30, 1996 1995 1994 1993
------------------ ------------------- ------------------- ------------------
AMORTIZED FAIR AMORTIZED FAIR AMORTIZED FAIR AMORTIZED FAIR
COST VALUE COST VALUE COST VALUE COST VALUE
--------- ------- --------- -------- --------- -------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
HELD-TO-MATURITY:
U.S. Government treasury and
agency obligations.................. $ 828 $ 756 $ 812 $ 824 $ 808 $ 715 $ -- $ --
Mortgage-backed securities............ -- -- -- -- 7,725 7,381 -- --
------ ------ ------- ------- ------- ------- ------ ------
Total held-to-maturity.... 828 756 812 824 8,533 8,096 -- --
------ ------ ------- ------- ------- ------- ------ ------
AVAILABLE-FOR-SALE:
U.S. Government treasury and
agency obligations.................. 1,495 1,482 1,999 2,004 1,986 1,948 1,093 1,062
Mortgage-backed securities............ 302 306 7,348 7,490 421 415 520 540
Collateralized mortgage obligations... 5,452 5,323 29 29 36 35 185 186
------ ------ ------- ------- ------- ------- ------ ------
Total available-for-sale.. 7,249 7,111 9,376 9,523 2,443 2,398 1,798 1,788
------ ------ ------- ------- ------- ------- ------ ------
TOTAL SECURITIES, NET.................... $8,077 $7,867 $10,188 $10,347 $10,976 $10,494 $1,798 $1,788
====== ====== ======= ======= ======= ======= ====== ======
</TABLE>
94
<PAGE>
The following table sets forth certain information regarding the
amortized cost, fair value and weighted average yield of Landmark's debt
securities at June 30, 1996, by remaining period to contractual maturity.
With respect to mortgage-backed securities, the entire amount is reflected
in the maturity period that includes the final security payment date and,
accordingly, no effect has been given to periodic repayments or possible
prepayments.
<TABLE>
<CAPTION>
AT JUNE 30, 1996
-----------------------------------------------------------
HELD-TO-MATURITY AVAILABLE-FOR-SALE
--------------------------- -----------------------------
WEIGHTED WEIGHTED
AMORTIZED FAIR AVERAGE AMORTIZED FAIR AVERAGE
COST VALUE YIELD COST VALUE YIELD
--------- ----- --------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Mortgage-backed securities:
Due within 1 year...................... $ -- $ -- --% $ 57 $ 58 8.38%
Due after 1 year but within 5 years.... -- -- -- 146 148 8.35%
Due after 5 years but within 10 years.. -- -- -- 41 42 8.42%
Due after 10 years..................... -- -- -- 58 58 7.75%
--------- ----- ------ ------
Total............................... $ -- $ -- --% $ 302 $ 306 8.25%
========= ===== ====== ======
Collateralized Mortgage Obligations:
Due within 1 year...................... $ -- $ -- --% $ 612 $ 600 6.46%
Due after 1 year but within 5 years.... -- -- -- 3,903 3,813 6.42%
Due after 5 years but within 10 years.. -- -- -- 937 910 6.38%
Due after 10 years..................... -- -- -- -- -- 6.69%
--------- ----- ------ ------
Total............................... $ -- $ -- --% $5,452 $5,323 6.42%
========= ===== ====== ======
U.S. Treasury and Agency:
Due within 1 year...................... $ -- $ -- --% $ -- $ -- --%
Due after 1 year but within 5 years.... 500 438 4.37% 1,495 1,482 5.58%
Due after 5 years but within 10 years.. -- -- -- -- -- --
Due after 10 years..................... 328 318 3.41% -- -- --
--------- ----- ------ ------
Total............................... $828 $756 3.99% $1,495 $1,482 5.58%
========= ===== ====== ======
Total:
Due within 1 year...................... $ -- $ -- --% $ 669 $ 658 6.62%
Due after 1 year but within 5 years.... 500 438 4.37% 5,544 5,443 6.24%
Due after 5 years but within 10 years.. -- -- -- 978 952 6.47%
Due after 10 years..................... 328 318 3.41% 58 58 7.75%
--------- ----- ------ ------
Total.............................. $828 $756 3.99% $7,249 $7,111 6.32%
========= ===== ====== ======
</TABLE>
At June 30, 1996, all of Landmark's mortgage-backed securities
("MBSs") and collateralized mortgage-backed securities ("CMOs") were
guaranteed by Federal Home Loan Mortgage Corporation ("FHLMC"), Federal
National Mortgage Association ("FNMA") or Government National Mortgage
Association ("GNMA"). All of Landmark's MBSs and CMOs bear a fixed interest
rate. The market values of MBSs and CMOs change with market and economic
conditions. The most significant factors affecting market value are
prepayments of the underlying loans and interest rates. As interest rates
increase, prepayments generally decline, causing an extension of the
expected maturity and a decline in market value. The converse is generally
true when interest rates decrease. The market value of fixed-rate MBSs and
CMOs are generally more sensitive to market interest rate changes than
variable or adjustable rate MBSs and CMOs. MBSs and CMOs are expected to
have shorter average lives than their contractual
95
<PAGE>
maturities because borrowers may repay obligations without prepayment
penalties. Landmark's investment portfolio is managed by Landmark in
accordance with the investment policy established by the Investment
Committee of Landmark's Board of Directors and with the advice of
professional investment advisors. The objectives of Landmark's investment
policy are to provide liquidity, diversification of assets and earnings.
96
<PAGE>
LOAN PORTFOLIO
The following table sets forth the composition of Landmark's loan
portfolio in dollar amounts and percentages at the dates indicated.
<TABLE>
<CAPTION>
AT JUNE 30, AT DECEMBER 31,
---------------------------------------- ----------------------------------------
1996 1995 1995 1994
------------------- ------------------- ------------------- -------------------
PERCENT PERCENT PERCENT PERCENT
AMOUNT OF TOTAL AMOUNT OF TOTAL AMOUNT OF TOTAL AMOUNT OF TOTAL
-------- --------- -------- --------- -------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
COMMERCIAL................... $ 6,078 14.08% $ 7,389 17.24% $ 6,860 15.76% $ 5,839 14.27%
------- ------- ------- -------
MORTGAGE LOANS:
One-to-four family......... 20,289 47.00% 17,873 41.70% 18,988 43.63% 17,547 42.87%
Multi-family............... 376 0.87% 387 0.90% 382 0.88% 540 1.32%
Commercial................. 10,566 24.48% 11,002 25.67% 10,572 24.29% 10,089 24.65%
Construction............... 1,646 3.81% 2,233 5.21% 2,851 6.55% 2,643 6.46%
------- ------- ------- -------
Total mortgage loans.... 32,877 31,495 32,793 30,819
------- ------- ------- -------
OTHER LOANS:
Consumer installment....... 2,005 4.65% 1,409 3.29% 1,390 3.19% 1,676 4.09%
Home equity loans.......... 1,567 3.63% 1,989 4.64% 1,821 4.19% 2,037 4.98%
Credit card loans.......... 606 1.41% 579 1.35% 647 1.49% 552 1.35%
All other consumer loans... 32 0.07% 1 -- 10 0.02% 7 0.01%
------- ------ ------- ------ ------- ------ ------- ------
Total other loans....... 4,210 3,978 3,868 4,272
------- ------- ------- -------
Gross loans........ 43,165 100.00% 42,862 100.00% 43,521 100.00% 40,930 100.00%
====== ====== ====== ======
LESS:
Allowance for loan losses.. 858 502 659 465
------- ------- ------- -------
Loans, net......... $42,307 $42,360 $42,862 $40,465
======= ======= ======= =======
</TABLE>
97
<PAGE>
NON-ACCRUAL, PAST DUE, RESTRUCTURED, AND POTENTIAL PROBLEM LOANS
The following table sets forth information regarding Landmark's non-
performing assets at the dates indicated. During the periods shown in the table
below there were no non-performing assets other than non-performing loans and
there were no troubled debt restructurings.
<TABLE>
<CAPTION>
AT JUNE 30, AT DECEMBER 31,
---------------- -----------------
1996 1995 1995 1994
-------- ------ -------- -------
<S> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Non-performing loans:
Non-accrual loans:
One- to four-family....................... $ 122 $ -- $ -- $ 3
Multi-family and commercial real estate... 810 -- 365 --
Commercial Loans.......................... 68 185 201 --
Consumer and other loans.................. -- 3 -- 1
Loans 90 days or more past due............ 200 1 6 --
------ ----- ----- -----
Total.......................... $1,200 $ 189 $ 572 $ 4
====== ===== ===== =====
Total non-performing loans to loans, net 2.84% 0.45% 1.33% 0.01%
====== ===== ===== =====
Total non-performing loans to total assets.. 2.08% 0.28% 0.94% 0.01%
====== ===== ===== =====
</TABLE>
Generally, a loan is classified as non-accrual and the accrual of
interest on such loan is discontinued when the contractual payment of
principal or interest has become 90 days past due or management has serious
doubts about further collectibility of principal or interest, even though
the loan currently is performing. A loan may remain on accrual status if it
is in the process of collection and is either guaranteed or well secured.
When a loan is placed on non-accrual status, unpaid interest credited to
income in the current year is reversed and unpaid interest accrued in prior
years is charged against the allowance for loan losses. Interest received
on non-accrual loans generally is either applied against principal or
reported as interest income, according to management's judgment as to the
collectibility of principal. Generally, loans are restored to accrual
status when the obligation is brought current, has performed in accordance
with the contractual terms for a reasonable period of time and the ultimate
collectibility of the total contractual principal and interest is no longer
in doubt.
During the regular quarterly loan loss review in September, management
identified one consumer loan of $7,000, one commercial loan of $153,000 and
two residential mortgage loans of $225,000 with loss potential and provided
allowances of $7,000, $15,000, and $31,000, respectively, for the potential
losses. Management is not aware of any other loans not included in the
table or discussed above where known information about the possible credit
problems of borrowers caused management to have doubts as to the abilities
of the borrowers to comply with present loan repayment terms and which may
result in disclosure of such loans in the future.
SUMMARY OF LOAN LOSS EXPERIENCE
The allowance for loan losses is maintained at a level believed adequate
by management to absorb estimated probable loan losses. Management's
periodic evaluation of the adequacy of the allowance is based on Landmark's
past loan loss experience, known and inherent risks in the portfolio,
adverse situations that may affect the borrower's ability to repay
(including the timing of future payments), the estimated value of any
underlying collateral, composition of the loan portfolio, current economic
conditions, and other relevant factors. This evaluation is inherently
subjective as it requires material estimates, including the amounts and
timing of future cash flows expected to be received on impaired loans that
may be susceptible to significant change.
98
<PAGE>
The following table sets forth activity in Landmark's allowance for loan
losses at or for the dates indicated.
<TABLE>
<CAPTION>
AT OR FOR THE
SIX MONTHS ENDED
JUNE 30, AT OR FOR THE YEAR ENDED December 31,
-------------------- ----------------------------------------
1996 1995 1995 1994 1993
--------- --------- ------------ ------------- -----------
<S> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Total loans outstanding at end of period(1).. $43,165 $42,862 $43,521 $ 40,930 $ 27,847
======= ======= ======= ========== =========
Average total loans outstanding(1)........... $43,547 $41,460 $42,320 $ 33,629 $ 25,976
======= ======= ======= ========== =========
Balance at beginning of period............... $ 659 $ 465 $ 465 $ 265 $ 142
------- ------- ------- ---------- ---------
Provision for loan losses.................... 317 48 205 203 145
------- ------- ------- ---------- ---------
Charge-offs:
Commercial................................. 106 -- -- 1 2
Real Estate................................ -- -- -- -- --
Installment and Other...................... 14 11 11 2 20
------- ------- ------- ---------- ---------
Total charge-offs....................... 120 11 11 3 22
------- ------- ------- ---------- ---------
Recoveries:
Commercial................................. -- -- -- -- --
Real Estate................................ 2 -- -- -- --
Installment and other...................... -- -- -- -- --
------- ------- ------- ---------- ---------
Total recoveries........................ 2 -- -- -- --
------- ------- ------- ---------- ---------
Net charge-offs......................... 118 11 11 3 22
------- ------- ------- ---------- ---------
Balance of allowance at end of period........ $ 858 $ 502 $ 659 $ 465 $ 265
======= ======= ======= ========== =========
Ratio of net charge-offs to average loans 0.27% 0.03% 0.03% 0.01% 0.08%
outstanding............................. ======= ======= ======= ========== =========
Allowance for loan losses to total 1.99% 1.17% 1.51% 1.14% 0.95%
loans at end of period.................. ======= ======= ======= ========== =========
Allowance for loan losses to total 85.80% 267.02% 116.43% 11,625.00% 1,558.82%
non-performing loans at end of ======= ======= ======= ========== =========
period..................................
</TABLE>
____________________
(1) Total loans represent gross loans less deferred fees (costs) and deferred
gain on sales of SBA loans.
99
<PAGE>
ALLOWANCE FOR LOAN LOSSES ALLOCATION
The following table sets forth the breakdown of the allowance for loan
losses by loan type and the percentage of loans in each type at the dates
indicated. The allocation of the allowance to each loan type is not
necessarily indicative of future losses and does not restrict the use of
the allowance to absorb losses in any type.
<TABLE>
<CAPTION>
AT JUNE 30, 1996 AT JUNE 30, 1995 AT DECEMBER 31, 1995 AT DECEMBER 31, 1994
----------------------- ----------------------- ----------------------- -----------------------
PERCENT OF PERCENT OF PERCENT OF PERCENT OF
LOANS IN LOANS IN LOANS IN LOANS IN
EACH EACH EACH EACH
ALLOWANCE CATEGORY TO ALLOWANCE CATEGORY TO ALLOWANCE CATEGORY TO ALLOWANCE CATEGORY TO
AMOUNT TOTAL LOANS AMOUNT TOTAL LOANS AMOUNT TOTAL LOANS AMOUNT TOTAL LOANS
--------- ------------ --------- ------------ --------- ------------ --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
COMMERCIAL................ $533 14.08% $192 17.24% $342 15.76% $150 14.27%
MORTGAGE LOANS:
Residential............. 121 47.00 93 41.70 103 43.63 94 42.87
Commercial.............. 157 25.35 172 26.57 163 25.17 164 25.97
Construction............ 2 3.81 2 5.21 1 6.55 3 6.46
OTHER LOANS:
Consumer & home equity.. 26 8.35 29 7.93 30 7.40 34 9.08
Credit card loans....... 12 1.41 11 1.35 13 1.49 19 1.35
Unallocated............. 7 -- 3 -- 7 -- 1 --
---- ------ ---- ------ ---- ------ ---- ------
Total................ $858 100.00% $502 100.00% $659 100.00% $465 100.00%
==== ====== ==== ====== ==== ====== ==== ======
</TABLE>
100
<PAGE>
DEPOSITS
The following table sets forth the distribution of Landmark's daily average
deposit accounts and the related weighted average interest rates at the dates
indicated.
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
FOR THE SIX MONTHS ENDED --------------------------------------------------------------
------------------------------ 1995 1994
JUNE 30, 1996
------------------------------- ----------------------------- ------------------------------
PERCENT PERCENT PERCENT
AVERAGE OF TOTAL AVERAGE AVERAGE OF TOTAL AVERAGE AVERAGE OF TOTAL AVERAGE
AMOUNT DEPOSITS RATE AMOUNT DEPOSITS RATE AMOUNT DEPOSITS RATE
--------- --------- -------- --------- --------- -------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(DOLLARS IN THOUSANDS)
Demand accounts....... $ 3,455 6.11% --% $ 3,187 5.71% --% $ 2,908 7.68% --%
NOW accounts.......... 3,585 6.35% 2.01 3,443 6.17 1.89 3,553 9.38 2.17
Money market accounts. 1,580 2.80% 3.29 2,368 4.25 3.25 3,668 9.69 3.05
Savings & Other....... 11,911 21.09% 4.23 12,560 22.51 4.24 11,188 29.54 4.29
Certificate accounts.. 35,955 63.65% 6.34 34,236 61.36 6.35 16,551 43.71 4.25
------- ------ ------- ------ ------- ------
Totals........... $56,486 100.00% 5.15% $55,794 100.00% 5.04% $37,868 100.00% 3.63%
======= ====== ======= ====== ======= ======
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
-------------------------------
1993
-----------------------------
PERCENT
AVERAGE OF TOTAL AVERAGE
AMOUNT DEPOSITS RATE
--------- --------- --------
<S> <C> <C> <C>
Demand accounts....... $ 2,270 7.99% --%
NOW accounts.......... 2,812 9.89 2.35
Money market accounts. 3,143 11.06 3.09
Savings & Other....... 4,046 14.23 2.92
Certificate accounts.. 16,157 56.83 4.08
------- ------
Totals........... $28,428 100.00% 3.31%
======= ======
</TABLE>
101
<PAGE>
The average interest rates paid on total deposits, excluding non-interest
bearing deposits, at June 30, 1996 and December 31, 1995 and 1994, were 5.11%,
5.71%, and 4.98%, respectively.
At June 30, 1996, Landmark had $7,045,000 in Jumbo certificates of deposits
(accounts in amounts over $100,000) maturing as follows:
<TABLE>
<CAPTION>
AT JUNE 30, 1996
-----------------------
WEIGHTED
AMOUNT AVERAGE RATE
-------- -------------
<S> <C> <C>
(DOLLARS IN THOUSANDS)
MATURITY PERIOD:
Within three months................ $ 842 5.70%
After three but within six months.. 828 5.75
After six but within 12 months..... 3,354 6.47
After 12 months.................... 2,021 6.78
------
Total........................... $7,045 6.38%
======
</TABLE>
SHORT-TERM BORROWING
The following table outlines Landmark's short-term borrowing and the
weighted average interest rate for the indicated periods. Also provided are the
maximum amount of the borrowing and the average amount outstanding as well as
weighted average interest rate.
<TABLE>
<CAPTION>
SECURITIES
SOLD UNDER
AGREEMENT
TO REPURCHASE
-----------------------
<S> <C>
(DOLLARS IN THOUSANDS)
Balance at June 30, 1996............................ $ 309
Weighted average interest rate at period end...... 3.31%
Maximum amount outstanding during the period...... $ 359
Average amount outstanding during the period...... $ 269
Weighted average interest rate during the period.. 2.97%
Balance at December 31, 1995........................ $ 304
Weighted average interest rate at year end........ 3.10%
Maximum amount outstanding during the year........ $ 392
Average amount outstanding during the year........ $ 259
Weighted average interest rate during the year.... 3.09%
Balance at December 31, 1994........................ $ 220
Weighted average interest rate at year end........ 3.10%
Maximum amount outstanding during the year........ $ 994
Average amount outstanding during the year........ $ 164
Weighted average interest rate during the year.... 3.05%
Balance at December 31, 1993........................ $ 351
Weighted average interest rate at year end........ 3.05%
Maximum amount outstanding during the year........ $1,109
Average amount outstanding during the year........ $ 259
Weighted average interest rate during the year.... 3.09%
</TABLE>
102
<PAGE>
DESCRIPTION OF NHTB CAPITAL STOCK
GENERAL
NHTB is authorized to issue 5,000,000 shares of Common Stock, par value
$.01 per share, and 2,500,000 shares of Preferred Stock (the "Preferred Stock"),
par value $.01 per share. No shares of Preferred Stock have been issued.
COMMON STOCK
Each holder of NHTB Common Stock is entitled to one vote per share for all
purposes and does not have the right to cumulate his votes in the election of
directors. Subject to preferences that may be applicable to any outstanding
Preferred Stock, each holder of NHTB Common Stock is entitled to receive such
dividends as may be declared by the Board of Directors in its discretion from
funds legally available therefor. In the event of a liquidation, dissolution or
winding up of NHTB, each holder of NHTB Common Stock will be entitled to share
in the assets of NHTB pro rata in accordance with his holdings, after payment of
liabilities and the liquidation preference of any outstanding Preferred Stock.
The NHTB Common Stock has no preemptive rights. Except as otherwise determined
by the Board of Directors or by applicable law, all voting rights are vested
exclusively in the holders of the NHTB Common Stock.
PREFERRED STOCK
The NHTB Board of Directors is authorized to issue 2,500,000 shares of
Preferred Stock in one or more series and to fix the voting powers,
designations, preferences or other rights of the shares of each such series and
the qualifications, limitations and restrictions thereon.
CERTAIN ANTITAKEOVER PROVISIONS
Certain provisions of the NHTB Certificate of Incorporation and Bylaws may
be deemed to have an "anti-takeover" effect. A discussion of these provisions
follows.
Classified Board of Directors. Pursuant to the NHTB Certificate of
Incorporation and Bylaws, the NHTB Board is divided into three classes with
staggered terms, each class comprising approximately one third of the members of
the Board. The classification of directors will have the effect of making it
more difficult for shareholders to change the composition of the Board in a
relatively short period of time. At least two annual meetings of shareholders,
instead of one, will generally be required to effect a change in a majority of
the Board. This delay will provide the Board with additional time to evaluate
proposed takeover efforts and other extraordinary corporate transactions, to
consider appropriate alternatives to such proposals and to act in what it
believes to be the best interests of the shareholders. The classification of
directors could have the effect of discouraging a third party from making a
tender offer or otherwise attempting to obtain control of NHTB.
Special Meetings. Moreover, special meetings of shareholders of NHTB may be
called only by the chairman of the board or the president of NHTB, or a majority
of the Board of Directors of NHTB.
Authorized Shares. The Certificate of Incorporation authorizes the issuance
of 5,000,000 shares of Common Stock and 2,500,000 shares of Preferred Stock. The
shares of Common Stock and Preferred Stock were authorized in an amount greater
than intended to be issued to provide NHTB's Board of Directors with as much
flexibility as possible to effect, among other transactions, financings,
acquisitions, stock dividends, stock splits and employee stock options. However,
these additional authorized shares may also be used by the Board of Directors
consistent with its fiduciary duty to deter future attempts to gain control of
NHTB. The Board of Directors also has sole authority to determine the terms of
any one or more series of Preferred Stock, including voting rights, conversion
rates, and liquidation preferences.
103
<PAGE>
As a result of the ability to fix voting rights for a series of Preferred Stock,
the Board has the power, to the extent consistent with its fiduciary duty, to
issue a series of Preferred Stock to persons friendly to management in order to
attempt to block a post-tender offer merger or other transaction by which a
third party seeks control, and thereby assist management to retain its position.
Shareholder Vote Required to Approve Business Combinations with Principal
Shareholders. The Certificate of Incorporation requires the affirmative vote of
at least 75% of the holders of NHTB's outstanding shares of voting stock, not
beneficially owned by an Interested Shareholder (as defined below) to approve
certain "Business Combinations," as defined therein, and related transactions.
Under Delaware law, absent this provision, Business Combinations, including
mergers, consolidations and sales of all or substantially all of the assets of a
corporation must, subject to certain exceptions, be approved by the vote of the
holders of only a majority of the outstanding shares of NHTB Common Stock and
any other affected class of stock. Under the Certificate of Incorporation, the
affirmative vote of at least 75% approval of shareholders entitled to vote
generally for the election of directors (the "Voting Stock") is required in
connection with any transaction involving an Interested Shareholder except (i)
in cases where the proposed transaction has been approved in advance by a
majority of those members of NHTB Board of Directors who are unaffiliated with
the Interested Shareholder and were directors prior to the time when the
Interested Shareholder became an Interested Shareholder or (ii) if the proposed
transaction meets certain conditions set forth therein which are designed to
afford the shareholders a fair price in consideration for their shares in which
case, if a shareholder vote is required, approval of only a majority of the
outstanding shares of voting stock would be sufficient. The term "Interested
Shareholder" is defined to include any individual, firm, corporation, or other
entity (other than NHTB or subsidiary thereof) who or which is (a) the
beneficial owner, directly or indirectly, of 10% or more of the voting power of
the outstanding Voting Stock; (b) an affiliate of NHTB at any time within the
two-year period immediately prior to the date in question was the beneficial
owner of 10% or more of voting power of the then outstanding Voting Stock or (c)
is an assignee of or has otherwise succeeded to any shares of Voting Stock which
were at any time within the two-year period immediately prior to the date in
question beneficially owned by any Interested Shareholder, if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act, as amended.
The Certificate of Incorporation further provides that Article 8 thereof,
entitled "Certain Business Combinations," may not be amended unless such
amendment is first proposed by the NHTB Board of Directors and thereafter
approved by the shareholders by no less than 75% of the total votes eligible to
be cast at a legal meeting.
Evaluation of Offers. The Certificate of Incorporation of NHTB further
provides that the NHTB Board of Directors, when evaluating any offer to NHTB
from another party to (i) make a tender or exchange offer for the NHTB Common
Stock, (ii) merge or consolidate NHTB with another corporation or entity or
(iii) purchase or otherwise acquire all or substantially all of the properties
and assets of NHTB, may, in connection with the exercise of its judgment in
determining what is in the best interest of NHTB and its shareholders, give due
consideration to the extent permitted by law to all relevant factors, including,
without limitation, the possible effects on the business of NHTB and its
subsidiaries and on the depositors, borrowers, employees, its financial
institution subsidiary, and the effects on the communities in which NHTB's and
its subsidiaries' facilities are located. By having these standards in the
Certificate of Incorporation of the NHTB, the Board of Directors may be in a
stronger position to oppose such a transaction if the Board concludes that the
transaction would not be in the best interest of NHTB, even if the price offered
is significantly greater than the then market price of the NHTB Common Stock.
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Excess Shares not voted. The NHTB Certificate of Incorporation generally
provides any person who acquires more than 10% of the stock of NHTB without
approval of the NHTB Board of Directors and the applicable regulatory agency is
not entitled to vote such shares in excess of the 10% limit.
Anti-Greenmail. The Certificate of Incorporation provides that any direct
or indirect purchase or other acquisition by NHTB of any Voting Stock from the
beneficial owner of more than 5% of NHTB Common Stock who has been the
beneficial owner of such common stock for less than two years shall require the
vote of at least a majority of the total number of the outstanding shares of
Voting Stock (excluding shares held by such beneficial owner), except with
respect to a purchase or other acquisition of Voting Stock made as part of a
tender or exchange offer on the same terms from all holders of the same class of
Voting Stock and complying with the applicable requirements of the Exchange Act,
as amended, and the rules and regulations thereunder or with respect to any
purchase of Voting Stock determined by the NHTB Board of Directors to not exceed
the fair market value of the Voting Stock.
Certain Bylaw Provisions. The NHTB Bylaws also require a shareholder who
intends to nominate a candidate for election to the Board of Directors, or to
raise new business at a shareholder meeting, to give 30 to 90 days advance
notice to the Secretary of the Company. The notice provision requires a
shareholder who desires to raise new business to provide certain information to
the Company concerning the nature of the new business, the shareholder and the
shareholder's interest in the business matter. Similarly, a stockholder wishing
to nominate any person for election as a director must provide the Company with
certain information concerning the nominee and the proposing shareholder.
COMPARISON OF RIGHTS OF NHTB
AND LANDMARK SHAREHOLDERS
The rights of holders of Landmark Common Stock are currently governed by
the Landmark Articles, the Landmark Bylaws, RSA 384 (General Provisions as to
Savings Banks, Trust Companies and Depositories), RSA 386 (Savings Banks) and
RSA 392 (Incorporation and Management of Trust Companies). These rights differ
in certain respects from the rights that shareholders of Landmark Common Stock
would have as shareholders of NHTB Common Stock. The rights of shareholders of
NHTB Common Stock are governed by the NHTB Certificate of Incorporation, NHTB
Bylaws, and the Delaware General Corporation Law ("DGCL"). This summary contains
a list of the material differences of the rights of NHTB and Landmark
shareholders, but is not intended to be relied upon as an exhaustive list or a
detailed description of the provisions discussed and is qualified in its
entirety by reference to the NHTB Certificate of Incorporation and Bylaws, the
Landmark Articles and Bylaws, the DGCL and RSA 384, 386 and 392.
VOTING REQUIREMENTS TO REMOVE DIRECTORS
NHTB. The NHTB Bylaws permits removal of a director only for cause and then
upon by an affirmative vote of a majority of the total votes eligible to be cast
at a meeting of shareholders, held upon 30 days notice, expressly for such
purpose.
Landmark. The Landmark Bylaws provide that a director may be removed from
office with or without cause upon the affirmative vote therefor of the holders
of two-thirds of the shares entitled to vote at an annual meeting held inter
alia, for the purpose of electing directors, or for cause by a majority of the
Directors then in office, after reasonable notice and opportunity to be heard
before a meeting duly called for such purpose.
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<PAGE>
BUSINESS COMBINATIONS WITH RELATED PERSONS
NHTB. The NHTB Certificate of Incorporation provides that in addition to
any vote required by law or the Certificate of Incorporation, the approval or
authorization of any business combination of the corporation with any Interested
Shareholder (as defined above) requires the affirmative vote of the holders of
outstanding shares of stock of NHTB representing not less than 75% of the votes
entitled to be cast generally in the election of directors, all such shares
voting together as a single class for this purpose (not including the votes held
by the Interested Shareholder); provided, however, that this requirement is not
applicable if the Continuing Directors have approved the business combination or
if the transaction meets certain Fair Price Provisions set forth in the NHTB
Certificate of Incorporation. For these purposes, the term "business
combination" generally includes, without limitation, any (i) merger or
consolidation of the corporation with an Interested Shareholder or affiliate
thereof; (ii) any sale, lease, exchange mortgage or other disposition to or with
any Interested Share or Affiliate thereof of any assets of NHTB of any
subsidiary thereof having an aggregate fair market value of $1,000,000 or more;
(iii) the issuance or transfer by NHTB or any subsidiary thereof of any
securities of NHTB or any subsidiary thereof to any Interested Shareholder or
any affiliate of any Interested Shareholder in exchange for cash, securities or
other property for a combination thereof having an aggregate Fair Market Value
of $1,000,000 or more; (iv) the adoption of any plan or proposal for the
liquidation or dissolution of NHTB proposed by or on behalf of an Interested
Shareholder or any Affiliate thereof; or (v) any reclassification of securities
(including any reverse stock split), or recapitalization of NHTB, or any merger
or consolidation of NHTB with any of its subsidiaries or any other transaction
(whether or not with or into or otherwise involving an Interested Shareholder)
which has the effect, directly or indirectly, or increasing the proportionate
share of the outstanding shares of any class of equity or convertible securities
of NHTB or any subsidiary thereof which is directly or indirectly owned by any
Interested Shareholder or any Affiliate thereof. The term "Continuing Director"
generally means any NHTB Board member who is unaffiliated with the Interested
Shareholders and was a member of the NHTB Board of Directors prior to the time
when Interested Shareholder became an Interested Shareholder, and any successor
of a Continuing Directors recommended for such succession by a majority of
Continuing Directors then on the NHTB Board of Directors.
Landmark. There is no analogous provision in the Landmark Articles. A
"business combination" such as the ones described above would generally require
the affirmative vote of a majority of the directors and, in some cases, a
majority of the shareholders present at a meeting. In other cases, dependent
primarily on the nature of the charter of the banking entity with which Landmark
seeks to merge, such a merger or consolidation would require the vote of two-
thirds of the outstanding shares eligible to vote. A merger, consolidation,
issuance of capital stock and dissolution would also require the approval of
certain regulators, particularly the New Hampshire Bank Commissioner.
BENEFICIAL OWNERSHIP LIMITATION
NHTB. NHTB's Certificate of Incorporation does not restrict beneficial
ownership. The NHTB Certificate of Incorporation, however, provides generally
any person who acquires more than 10% of the stock of NHTB without approval of
the NHTB Board of Directors and the applicable regulatory agency is not entitled
to vote such shares in excess of the 10% limit.
Landmark. For a period of five years from January 22, 1996, the Landmark
Articles restricts any person from directly or indirectly offering to acquire or
acquiring beneficial ownership in excess of 15% of the issued and outstanding
capital stock of Landmark entitled to vote on a matter for which a meeting of
shareholders is called. In the event shares are acquired or held in violation of
such restriction, all shares beneficially owned by any person in excess of 15%
shall be considered "excess shares" and
106
<PAGE>
shall not be counted as shares entitled to vote and shall not be voted by any
person or counted as voting shares in connection with any matter submitted to
the shareholder for a vote.
AMENDMENTS TO CERTIFICATE OF INCORPORATION
NHTB. The NHTB Certificate of Incorporation provides that, except as
otherwise required by law, amendments alterations, change or repeal of the NHTB
Certificate of Incorporation must be first proposed by the NHTB Board of
Directors and thereafter approved by a vote of a majority of shareholders,
except for the provision described above in "Business Combinations With Related
Persons," which requires the affirmative vote of 75% of shareholders.
Landmark. Any amendments to the Landmark Articles must be approved by a
majority of shares entitled to vote except for the provisions applicable to
amendments to the Landmark Articles and Bylaws, the classified Board of
Directors and the Beneficial Ownership Limitation, described above, which
require a two-thirds shareholder vote.
EVALUATION OF CERTAIN OFFERS
NHTB. The Certificate of Incorporation of NHTB further provides that the
NHTB Board of Directors, when evaluating any offer to NHTB from another party to
engage in certain business combinations, the NHTB may give due consideration to
the extent permitted by law to all relevant factors, including, without
limitation, the possible effects on the business of NHTB and its subsidiaries
and on the depositors, borrowers, employees, its financial institution
subsidiary, and the effects on the communities in which NHTB's and its
subsidiaries' facilities are located. By having these standards in the
Certificate of Incorporation of the NHTB, the Board of Directors may be in a
stronger position to oppose such a transaction if the Board concludes that the
transaction would not be in the best interest of NHTB, even if the price offered
is significantly greater than the then market price of the NHTB Common Stock.
Landmark. There is no analogous provision in the Landmark Articles.
ANTI-GREENMAIL
NHTB. The Certificate of Incorporation provides that any direct or indirect
purchase or other acquisition by NHTB of any Voting Stock from the beneficial
owner of more than 5% of NHTB Common Stock who has been the beneficial owner of
such common stock for less than two years shall require the vote of at least a
majority of the total number of the outstanding shares of Voting Stock
(excluding shares held by such beneficial owner), except with respect to a
purchase or other acquisition of Voting Stock made as part of a tender or
exchange offer on the same terms from all holders of the same class of Voting
Stock and complying with the applicable requirements of the Exchange Act, as
amended, and the rules and regulations thereunder or with respect to any
purchase of Voting Stock determined by the NHTB Board of Directors to not exceed
the fair market value of the Voting Stock.
Landmark. There is no analogous provision in the Landmark Articles.
SPECIAL MEETINGS OF SHAREHOLDERS
NHTB. The NHTB Certificate of Incorporation provides that special meetings
of shareholders may be called by the Chairman of the Board, the President or a
majority of the Board of Directors.
Landmark. The Landmark Bylaws provide that a special meeting of
shareholders may be called at any time by the President, Chairman of the Board
of Directors, by a majority of the Board of Directors or by holders of not less
than 10% of all outstanding shares entitled to vote at the proposed meeting.
107
<PAGE>
ACTIONS WITHOUT A MEETING OF SHAREHOLDERS
NHTB. Section 228 of the DGCL generally provides that NHTB shareholders may
take any action without a meeting if it is evidenced by one or more written
consents signed by shareholders representing the number of votes required to
approve such action.
Landmark. The Landmark Bylaws provide that any action which may be taken at
a meeting of the shareholders may be taken without a meeting (and without
notice), if a consent or consents in writing, setting forth the action so taken,
are signed by the holders of record of all of the outstanding shares entitled to
vote on such matter.
QUALIFICATION OF DIRECTORS
NHTB. The NHTB Bylaws provide that each director shall hold at least 100
shares of the capital stock of NHTB.
Landmark. The Landmark Bylaws provide that each director shall at all
times be a shareholder of Landmark, owning in his or her own right or on a
jointly held basis as husband and wife, unencumbered shares of Landmark Common
Stock having an aggregate fair market value at time of acquisition of not less
than $10,000; provided however, that the Board, by affirmative vote of a
majority of the full Board, may waive such requirement in the case of a finding
of hardship to an individual director. New Hampshire banking laws, however,
require each director to own in his or her own right or on a jointly held basis,
not less than $1000 in aggregate fair market value of Landmark Common Stock
valued at the time of acquisition.
AMENDMENTS TO BYLAWS
NHTB. The NHTB Articles and Bylaws provide that the Bylaws may be amended
at any time by the affirmative vote of two-thirds of the full Board of Directors
then in office or by vote of the holders of two-thirds of the shares entitled to
vote in the election of directors at a meeting expressly called for that
purpose.
Landmark. The Landmark Bylaws provide that the Bylaws may be amended by a
majority of the full Board of Directors subject to repeal, or change by the vote
of the holders of two-thirds of the shares entitled to vote at a meeting
expressly held for that purpose.
CUMULATIVE VOTING
NHTB. Delaware statutory law applicable to NHTB provides that shareholders
do not have a right to cumulate their votes for directors unless the Certificate
of Incorporation so provides. The NHTB Certificate of Incorporation does not
provide for cumulative voting.
Landmark. There is no analogous statutory law applicable to Landmark. The
Landmark Articles expressly provide that there shall be no cumulative voting
rights in the election of Directors or in respect to any other matter.
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TRANSACTIONS WITH CERTAIN RELATED PERSONS
In the ordinary course of business, the Bank makes loans to its and NHTB's
directors and officers and parties related to them. Such transactions are on
substantially the same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other persons, and do
not involve more than normal risk of collectibility or present other unfavorable
features.
COMPARATIVE STOCK PRICES AND DIVIDENDS
The shares of NHTB Common Stock are quoted on the Nasdaq National Market
System. The shares of Landmark Common Stock are not listed on any exchange and
has traded sporadically in private sales at prices that are not reported. The
table below sets forth high and low sales prices for NHTB Common Stock as quoted
on the Nasdaq National Market System, respectively, and the cash dividends
declared, for the periods indicated:
<TABLE>
<CAPTION>
NHTB
---------------------------
QUARTER ENDED HIGH LOW DIVIDENDS
------------- ------- ------- ---------
<S> <C> <C> <C>
1994
March 31, 1994...... $ 9.500 $8.750 $.125
June 30, 1994....... 10.750 8.875 .125
September 30, 1994.. 10.500 9.500 .125
December 31, 1994... 10.250 8.500 .125
1995
March 31, 1995...... 10.000 8.875 .125
June 30, 1995....... 10.250 8.750 .125
September 30, 1995.. 11.000 9.500 .125
December 31, 1995... 11.000 9.750 .125
1996
March 31, 1996...... 10.500 9.250 .125
June 30, 1996....... 10.437 9.500 .125
</TABLE>
On July 25, 1996, the business day immediately preceding the public
announcement of the proposed Merger, the high and low sales prices for NHTB
Common Stock as quoted on the Nasdaq National Market System were $10.125 and
$9.875 per share, respectively. Shares of Landmark Common Stock were offered and
sold at a price of $10.00 per share in Landmark's initial capitalization
offering in March 1991. Since that date, shares of Landmark Common Stock have
been exchanged only in private transactions. Landmark does not have available to
it reliable information regarding the prices at which such shares were traded.
EXPERTS
NHTB. The consolidated financial statements of NHTB as of December 31, 1995
and the year ended December 31, 1995 have been included in this Joint Proxy
Statement-Prospectus in reliance upon the report of Berry, Dunn, McNeil &
Parker, independent
109
<PAGE>
certified public accountants, appearing elsewhere herein, and upon the authority
of said firm as experts in accounting and auditing. The consolidated financial
statements of NHTB as of December 31, 1994 and for each of the years ended
December 31, 1994 and 1993 have been included in this Joint Proxy Statement -
Prospectus in reliance upon the report of Smith, Batchelder & Rugg, independent
certified public accountants, appearing elsewhere herein, and upon the authority
of said firm as experts in accounting and auditing.
Landmark. The financial statements of Landmark at December 31, 1995 and
1994, and for each of the years in the three year period ended December 31,
1995, included in this Joint Proxy Statement-Prospectus, have been audited by
A.M. Peisch & Company, independent auditors, as set forth in their report
appearing elsewhere herein, and are included in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
LEGAL MATTERS
The legality of the shares of NHTB Common Stock to be issued to the
Landmark shareholders pursuant to the Merger, will be passed upon by Thacher
Proffitt & Wood, New York, New York and Washington, D.C. Certain tax
consequences to NHTB and the Landmark shareholders of the Merger, and certain
legal matters in connection with the Merger, will be passed upon by Thacher
Proffitt & Wood, Washington, D.C. and Gallagher, Callahan & Gartrell, P.A.,
Concord, New Hampshire.
ADJOURNMENT OF SPECIAL MEETINGS
The proxies solicited hereby requests approval of the proposals to adjourn
each Special Meeting. NHTB or Landmark may seek an adjournment of their
respective Special Meetings for not more than 29 days in order to solicit
additional votes in favor of the proposal to approve and adopt the Agreements in
the event that such proposal has not received the requisite affirmative vote of
shareholders at the Special Meeting. If either NHTB or Landmark desires to
adjourn its Special Meeting, it will request a motion that the meeting be
adjourned for up to 29 days, and no vote will be taken on the proposal to
approve and adopt the Agreements at the originally scheduled Special Meeting. An
adjournment for 29 days or less would not require either the setting of a new
record date or notice of the new meeting date, so long as the time and place of
the new meeting is announced at such Special Meeting. The proxy solicited by
each of NHTB and Landmark hereby, if properly signed and returned to NHTB or
Landmark, as the case may be, on or before December 19, 1996 and not revoked
prior to its use, will be voted on any motion for adjournment in accordance with
the instructions contained therein. If no contrary instructions are given, each
proxy received will be voted for any motion to adjourn the applicable Special
Meeting. Unless revoked prior to its use, a proxy solicited for a Special
Meeting will continue to be valid for any adjourned meeting, and will be voted
in accordance with the instructions contained therein and, if no contrary
instructions are given, for the proposal to approve and adopt the Agreements.
Any adjournment will permit NHTB and Landmark to solicit additional proxies
and will permit a greater expression of the views of their shareholders with
respect to the Merger. Such an adjournment would be disadvantageous to
shareholders who are against the proposal to approve and adopt the Agreements
because an adjournment will give NHTB and Landmark additional time to solicit
favorable votes and increase the chances of approving such proposal. NHTB and
Landmark have no reason to believe that an adjournment of a Special Meeting will
be necessary at this time.
If a quorum is not present at either Special Meeting, no proposal will be
acted upon and the Board of Directors will adjourn such Special Meeting to an
alternate date in order to solicit additional proxies on each of the proposals
being submitted to shareholders.
BECAUSE THE BOARD OF DIRECTORS OF NHTB AND LANDMARK EACH RECOMMEND THAT
SHAREHOLDERS VOTE FOR THE PROPOSAL TO APPROVE AND ADOPT THE AGREEMENTS, EACH OF
THE BOARD OF DIRECTORS RECOMMEND THAT SHAREHOLDERS VOTE FOR THE ADJOURNMENT
PROPOSAL. THE HOLDERS OF A
110
<PAGE>
MAJORITY OF THE SHARES VOTING IN PERSON OR BY PROXY AT THE SPECIAL MEETING
WILL BE REQUIRED TO APPROVE THE ADJOURNMENT PROPOSAL.
INDEPENDENT PUBLIC ACCOUNTANTS
A representative of Shatswell, MacLeod & Company, P.C. independent public
accountants, is expected to be present at the NHTB Special Meeting, will have an
opportunity to make a statement if he or she desires to do so and will be
available to respond to questions raised at the NHTB Special Meeting.
A representative of A.M. Peisch & Company, certified public accountants, is
expected to be present at the Landmark Special Meeting, will have an opportunity
to make a statement if he or she desires to do so and will be available to
respond to questions raised at the Landmark Special Meeting.
SHAREHOLDER PROPOSALS
In the event the Merger is not consummated, any shareholder who wishes to
have a proposal considered for inclusion in NHTB's proxy statement for its 1997
Annual Meeting of Shareholders must have delivered such proposal in writing to
the main office of NHTB no later than November 8, 1996 (or depending on the date
of such meeting, such later date as determined pursuant to Rule 14a-8 under the
Securities Act).
The Board of Directors of each of NHTB and Landmark are not aware of any
other matters to be presented at their respective Special Meeting. If any
additional matters are properly presented, the persons named in the proxy will
have discretion to vote in accordance with their own judgment on such matters.
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<PAGE>
APPENDICES
APPENDIX A
(1) THE PLAN OF REORGANIZATION
EXHIBIT A (2) VOTING AGREEMENTS BETWEEN LANDMARK AND NHTB
(3) THE MERGER AGREEMENT
APPENDIX B
(1) OPINION OF HAS ASSOCIATES, INC.
(2) OPINION OF MCCONNELL, BUDD & DOWNES, INC.
APPENDIX C
STOCK OPTION AGREEMENT
APPENDIX D
DISSENTERS' RIGHTS - REGULATIONS OF THE U.S. COMPTROLLER OF THE CURRENCY
APPENDIX E
(1) NHTB 1995 ANNUAL REPORT TO SHAREHOLDERS AND ANNUAL REPORT ON FORM 10-
KSB FOR THE YEAR ENDED DECEMBER 31, 1995
(2) NHTB QUARTERLY REPORT ON FORM 10-QSB FOR QUARTER ENDED JUNE 30, 1996
112
<PAGE>
INDEX TO FINANCIAL STATEMENTS
NHTB
Audited Financial Statements for NHTB are included in the Annual
Report to Shareholders annexed hereto as Appendix E. Unaudited financial
statements for the six months ended June 30, 1996 and 1995 are included in
the Quarterly Report on Form 10-QSB for the quarter ended June 30, 1996,
annexed hereto as Appendix E.
LANDMARK BANK
Page
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Consolidated balance sheets as of June 30, 1996 and 1995 F-1
Consolidated statements of income for the six months
ended June 30, 1996 and 1995 F-2
Consolidated statements of changes in stockholders' equity for
the six months ended June 30, 1996 December 31, 1995 and June 30, 1995 F-3
Consolidated statements of cash flows for the six months ended
June 30, 1996 and 1995 F-4
Notes to unaudited consolidated financial statements F-5
AUDITED CONSOLIDATED FINANCIAL STATEMENTS
Independent auditor's report F-6
Consolidated balance sheets as of December 31, 1995 and 1994 F-7
Consolidated statements of income for the years ended
December 31, 1995, 1994 and 1993 F-8
Consolidated statements of changes in stockholders' equity for the
years ended December 31, 1995, 1994 and 1993 F-9
Consolidated statements of cash flows for the years ended
December 31, 1995, 1994 and 1993 F-10 and F-11
Notes to consolidated financial statements F-12 - F-29
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<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JUNE 30, 1996 AND 1995
(UNAUDITED)
<TABLE>
<CAPTION>
1996 1995
ASSETS
<S> <C> <C>
Cash and due from banks $ 1,571,608 $ 1,384,504
Federal funds sold 1,240,000 10,280,000
Securities available-for-sale, at fair value 7,111,206 2,418,986
Securities held-to-maturity 827,696 8,250,149
Loans, net 42,307,270 42,360,058
Premises and equipment, net 2,644,303 576,173
Accrued interest receivable 281,034 315,795
Deferred income taxes 304,535 253,218
Investment in real estate 115,671 163,387
Cash surrender value of life insurance 265,000 -0-
Accounts receivable - SBA 512,191 -0-
Other assets 590,179 400,586
----------- -----------
$57,770,693 $66,402,856
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Deposits:
Demand $ 3,123,629 $ 3,342,521
NOW accounts 5,148,238 3,804,806
Savings 12,242,705 14,162,568
Time, $100,000 and over 7,044,843 3,431,841
Other time 26,176,671 37,192,840
----------- -----------
53,736,086 61,934,576
Securities sold under repurchase agreements 308,944 392,200
Capital lease obligations -0- 4,639
Accrued interest and other liabilities 151,095 233,791
----------- -----------
54,196,125 62,565,206
----------- -----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Series A convertible, noncumulative, perpetual
preferred stock, $1 par value, $20 stated value;
600,000 shares authorized, 59,667 and
59,015 issued and outstanding in 1996 and
1995, respectively 1,094,064 1,080,964
Common stock, $1 par value; 354,138 shares
authorized, 354,138 issued and outstanding 354,138 354,138
Additional paid-in capital 2,826,281 2,826,281
Accumulated deficit ( 478,119) ( 276,731)
Unrealized gain (loss) on securities available-for-sale, net ( 86,882) 4,390
Unrealized loss on securities held-to-maturity, net ( 134,914) ( 151,392)
----------- -----------
3,574,568 3,837,650
----------- -----------
$57,770,693 $66,402,856
=========== ===========
</TABLE>
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 1996 AND 1995
(UNAUDITED)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Interest income:
Interest and fees on loans $ 1,993,203 $2,077,263
Interest on investment securities:
U.S. Treasury 54,811 89,489
U.S. government agencies and mortgage-backed securities 215,130 253,402
Interest on federal funds sold 81,619 57,869
----------- ----------
2,344,763 2,478,023
----------- ----------
Interest expense:
Interest on deposits 1,453,198 1,253,525
Other interest expense 4,341 4,751
----------- ----------
1,457,539 1,258,276
----------- ----------
Net interest income 887,224 1,219,747
Provision for possible loan losses 317,000 47,930
----------- ----------
Net interest income after provision for possible loan losses 570,224 1,171,817
----------- ----------
Other income:
Service fees 43,137 48,411
Net gains on sales of securities available-for-sale 135,330 -0-
Gains on sales of loans -0- 21,516
Gain on sale of bank owned real estate 14,789 -0-
Secondary market loan fees 41,006 39,829
Other 69,962 77,714
----------- ----------
304,224 187,470
----------- ----------
Other expenses:
Salaries and employee benefits 570,189 567,964
Advertising and promotion 70,708 80,578
Occupancy expenses 65,014 142,591
Equipment rentals, depreciation and maintenance 139,966 117,268
Other operating expenses 260,180 390,198
----------- ----------
1,106,057 1,298,599
----------- ----------
Income (loss) before income taxes ( 231,609) 60,688
Income tax expense ( 85,700) 27,314
----------- ----------
Net income (loss) ($ 145,909) $ 33,374
=========== ==========
Earnings (loss) per share on weighted average
number of common and common equivalent shares ($ .41) ($ .05)
=========== ==========
Weighted average number of common and common equivalent shares 354,138 354,138
=========== ==========
</TABLE>
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE SIX MONTHS ENDED JUNE 30, 1996, DECEMBER 31, 1995 AND JUNE 30, 1995
(UNAUDITED)
<TABLE>
<CAPTION>
--Unrealized Loss on Securities--
Additional Available- Held-to-
Preferred Common Paid-in Accumulated for-Sale Maturity
Stock Stock Capital Deficit Net of Tax Net of Tax Totals
<S> <C> <C> <C> <C> <C> <C> <C>
Balances, December 31, 1994 $1,059,824 $354,138 $2,826,281 ($ 260,584) ($ 28,581) ($ 159,630) $3,791,448
Net income -0- -0- -0- 33,374 -0- -0- 33,374
Preferred stock dividends
declared -0- -0- -0- ( 49,521) -0- -0- ( 49,521)
Reinvested preferred stock
dividends 21,140 -0- -0- -0- -0- -0- 21,140
Unrealized gain on securities
available-for-sale, net of tax
-0- -0- -0- -0- 32,971 -0- 32,971
Amortization of unrealized loss
on securities held-to-maturity
-0- -0- -0- -0- -0- 8,238 8,238
---------- ----------- ---------- ---------- ----------- ----------- ----------
Balances, June 30, 1995 1,080,964 354,138 2,826,281 ( 276,731) 4,390 ( 151,392 3,837,650
Net income (loss) -0- -0- -0- ( 12,391) -0- -0- ( 12,391)
Preferred stock dividends
declared -0- -0- -0- ( 43,088) -0- -0- ( 43,088)
Reinvested preferred stock
dividends 13,040 -0- -0- -0- -0- -0- 13,040
Unrealized gain on securities
available-for-sale, net of tax
-0- -0- -0- -0- 87,509 -0- 87,509
Amortization of unrealized loss
on securities held-to-maturity -0- -0- -0- -0- -0- 8,239 8,239
---------- ----------- ---------- ---------- ----------- ----------- ----------
Balances, December 31, 1995 1,094,004 354,138 2,826,281 ( 332,210) 91,899 ( 143,153) 3,890,959
Net income (loss) -0- -0- -0- ( 145,909) -0- -0- ( 145,909)
Issuance of preferred stock 60 -0- -0- -0- -0- -0- 60
Unrealized loss on securities
available-for-sale,
net of tax -0- -0- -0- -0- ( 178,781) -0- ( 178,781)
Amortization of unrealized loss
on securities held-to-maturity -0- -0- -0- -0- -0- 8,239 8,239
---------- ----------- ---------- ---------- ----------- ----------- ----------
Balances, June 30, 1996 $1,094,064 $354,138 $2,826,281 ($ 478,119) ($ 86,882) ($ 134,914) $3,574,568
========== =========== ========== ========== =========== =========== ==========
</TABLE>
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE SIX MONTHS ENDED JUNE 30, 1996 AND 1995
(UNAUDITED)
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
RECONCILIATION OF NET INCOME TO NET CASH PROVIDED
BY OPERATING ACTIVITIES
Net income (loss) ($ 145,909) $ 33,374
Adjustments to reconcile net income (loss) to
net cash used in operating activities:
Depreciation and amortization 85,372 74,573
Provision for loan losses 317,000 47,930
Securities gains, net ( 135,330) -0-
Gains on sales of loans -0- ( 21,516)
Net amortization (accretion) 17,018 ( 62,040)
Provision for deferred income taxes ( 2,157) 44,782
Decrease in deferred loan fees ( 15,947) ( 10,291)
Decrease (increase) in accrued interest receivable 60,761 ( 10,043)
Increase in other assets and receivables ( 880,483) ( 108,652)
Decrease in accrued interest and other liabilities ( 58,042) ( 54,854)
Gain on sale of real estate ( 14,789) -0-
------------- --------------
Net cash used in operating activities ( 772,506) ( 66,737)
------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES
Decrease (increase) in federal funds sold 740,000 ( 8,950,000)
Purchases of securities available-for-sale ( 6,973,462) -0-
Proceeds from sales and maturities of securities available-for-sale 9,218,890 40,722
Proceeds from maturities of securities held-to-maturity -0- 305,206
Net decrease (increase) in loans 251,535 ( 1,911,521)
Purchases of premises and equipment ( 76,437) ( 92,635)
Recoveries of loans charged off 1,744 20
Proceeds from sale of bank-owned real estate 56,226 -0-
Purchase of real estate held for investment -0- ( 7,240)
------------- --------------
Net cash provided by (used in) investing activities 3,218,496 ( 10,615,448)
------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES
Net increase (decrease) in demand deposits,
NOW accounts and savings deposits 935,440 ( 7,228,654)
Net (decrease) increase in time deposits ( 3,558,349) 17,172,327
Net increase in repurchase agreements 4,991 171,998
Decrease in capital lease obligations -0- ( 34,271)
Proceeds from sale of preferred stock 60 -0-
Dividends paid, net of reinvestment -0- ( 28,381)
------------- --------------
Net cash (used in) provided by financing activities ( 2,617,858) 10,053,019
------------- --------------
Net decrease in cash and cash equivalents ( 171,868) ( 629,166)
Cash and cash equivalents:
Beginning 1,743,476 2,013,670
------------- --------------
Ending $ 1,571,608 $ 1,384,504
============= ==============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash payments for:
Interest $ 1,464,224 $ 1,294,933
============= ==============
Income taxes $ 25,000 $ 128,480
============= ==============
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Increase in unrealized gain (loss) on securities available-for-sale ($ 284,947) $ 52,753
============= ==============
</TABLE>
<PAGE>
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have
been prepared in accordance with generally accepted accounting
principles for interim financial information and accordingly do not
include all the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of the management of Landmark Bank, all adjustments
(consisting of normal recurring accruals) considered necessary for a
fair presentation have been included.
NOTE 2. ACCOUNTING POLICIES
The accounting principles followed by Landmark Bank and Subsidiaries
and the methods of applying these principles which materially affect
the determination of financial position, results of operations and
cash flows are consistent throughout.
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors and Stockholders
Landmark Bank
Lebanon, New Hampshire
We have audited the accompanying consolidated balance sheets of Landmark Bank
and Subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for the
years ended December 31, 1995, 1994 and 1993. These consolidated financial
statements are the responsibility of the Bank's management. Our responsibility
is to express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Landmark Bank and
Subsidiaries as of December 31, 1995 and 1994, and the results of their
operations and their cash flows for the years ended December 31, 1995, 1994 and
1993 in conformity with generally accepted accounting principles.
As discussed in Note 1 to the consolidated financial statements, the Bank
adopted a new method of accounting for investment securities effective December
31, 1993.
February 2, 1996
White River Junction, Vermont /s/ A.M. Peisch & Company
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1995 AND 1994
<TABLE>
<CAPTION>
1995 1994
ASSETS
<S> <C> <C>
Cash and due from banks (Note 2) $ 1,743,476 $ 2,013,670
Federal funds sold 1,980,000 1,330,000
Securities available-for-sale, at fair value (Note 3) 9,523,269 2,397,668
Securities, held-to-maturity (approximate fair value
1995 $823,916; 1994 $8,095,604) (Note 3) 812,357 8,533,151
Loans, net (Notes 4 and 5) 42,861,602 40,464,680
Premises and equipment, net (Note 6) 2,652,038 556,886
Accrued interest receivable 341,795 305,752
Deferred income taxes (Note 9) 203,312 278,995
Investment in real estate 158,308 157,372
Other assets 486,887 291,934
----------- -----------
$60,763,044 $56,330,108
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Deposits:
Demand $ 3,867,185 $ 4,089,808
NOW accounts 3,616,980 4,007,414
Savings 12,094,967 20,441,327
Time, $100,000 and over (Note 7) 7,986,106 4,626,522
Other time (Note 7) 28,793,757 18,825,832
----------- -----------
56,358,995 51,990,903
Securities sold under repurchase agreements (Note 11) 303,953 220,202
Capital lease obligations (Note 12) -0- 38,910
Accrued interest and other liabilities 209,137 288,645
----------- -----------
56,872,085 52,538,660
----------- -----------
COMMITMENTS AND CONTINGENCIES (Notes 12, 13 and 14)
STOCKHOLDERS' EQUITY
Preferred stock, $1 par value, $20 stated value (Note 15) 1,094,004 1,059,824
Common stock, $1 par value; 865,658 shares
authorized; 354,138 shares issued and outstanding (Note 16) 354,138 354,138
Additional paid-in capital 2,826,281 2,826,281
Accumulated deficit (33,210) (260,584)
Unrealized gain (loss) on securities available-for-sale, net 91,899 ( 28,581)
Unrealized loss on securities held-to-maturity, net (143,153) (159,630)
----------- -----------
3,890,959 3,791,448
----------- -----------
$60,763,044 $56,330,108
=========== ===========
</TABLE>
The Notes to Consolidated Financial Statements are an integral part of these
statements.
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
<TABLE>
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
Interest income:
Interest and fees on loans $4,268,442 $3,196,571 $2,417,396
Interest on investment securities:
U.S. Treasury 145,979 58,346 2,333
U.S. government agencies and mortgage-backed securities 530,277 285,109 125,452
Other -0- -0- 14,089
Interest on federal funds sold 217,962 52,910 34,970
---------- ---------- ----------
5,162,660 3,592,936 2,594,240
---------- ---------- ----------
Interest expense:
Interest on deposits 2,847,901 1,373,080 940,778
Other interest expense 9,662 18,478 29,963
---------- ---------- ----------
2,857,563 1,391,558 970,741
---------- ---------- ----------
Net interest income 2,305,097 2,201,378 1,623,499
Provision for possible loan losses (Note 5) 205,483 203,013 145,500
---------- ---------- ----------
Net interest income after provision for possible loan losses 2,099,614 1,998,365 1,477,999
---------- ---------- ----------
Other income:
Service fees 89,707 85,877 70,834
Net gains on sales of securities available-for-sale (Note 3) -0- 841 3,735
Gains on sales of loans 63,989 162,550 421,534
Secondary market loan fees 111,408 137,265 255,231
Other 146,713 174,663 111,249
---------- ---------- ----------
411,817 561,196 862,583
---------- ---------- ----------
Other expenses:
Salaries and employee benefits 1,165,997 1,056,710 738,145
Advertising and promotion 135,297 138,503 91,216
Occupancy expenses 243,049 214,875 131,484
Equipment rentals, depreciation and maintenance 250,553 193,791 168,577
Other operating expenses 690,237 588,696 457,535
---------- ---------- ----------
2,485,133 2,192,575 1,586,957
---------- ---------- ----------
Income before income taxes 26,298 366,986 753,625
Income tax expense (Note 9) 5,315 140,632 277,751
---------- ---------- ----------
Net income $ 20,983 $ 226,354 $ 475,874
========== ========== ==========
Earnings per share on weighted average number
of common and common equivalent shares ($ .20) $ .34 $ 1.15
========== ========== ==========
Weighted average number of common and common
equivalent shares $ 354,138 $ 354,138 $ 414,127
========== ========== ==========
</TABLE>
The Notes to Consolidated Financial Statements are an integral part of these
statements.
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
<TABLE>
<CAPTION>
Unrealized Gain (Loss) on Securities
Additional Available- Held-to-
Preferred Common Paid-in Accumulated for-Sale Maturity,
Stock Stock Capital Deficit Net Net Totals
<S> <C> <C> <C> <C> <C> <C> <C>
Balances, December 31, 1992 $ 150,000 $354,038 $2,825,381 ($ 814,297) -0- $ -0- $2,515,122
Net income, as restated
(Note 19) -0- -0- -0- 475,874 -0- -0- 475,874
Issuance of preferred stock 900,000 -0- -0- -0- -0- -0- 900,000
Conversion of 50 shares of
preferred
stock to 100 shares of
common stock ( 1,000) 100 900 -0- -0- -0- -0-
Preferred stock offering
costs (Note 15) ( 99,276) -0- -0- -0- -0- -0- ( 99,276)
Preferred stock dividends
declared -0- -0- -0- ( 42,178) -0- -0- ( 42,178)
Reinvested preferred stock
dividends (Note 15) 7,140 -0- -0- -0- -0- -0- 7,140
Unrealized loss on
securities available-
for-sale, net of tax -0- -0- -0- -0- ( 9,841) -0- ( 9,841)
---------- -------- ---------- ---------- ------------- ----------- ----------
Balances, December 31, 1993 956,864 354,138 2,826,281 ( 380,601) ( 9,841) -0- 3,746,841
Net income -0- -0- -0- 226,354 -0- -0- 226,354
Issuance of preferred stock 60,000 -0- -0- -0- -0- -0- 60,000
Preferred stock dividends
declared -0- -0- -0- ( 106,337) -0- -0- ( 106,337)
Reinvested preferred stock
dividends (Note 15) 42,960 -0- -0- -0- -0- -0- 42,960
Unrealized loss on
securities
available-for-sale, net -0- -0- -0- -0- ( 182,490) -0- ( 182,490)
Transfer of securities
available-
for-sale to
held-to-maturity, (Note 3) -0- -0- -0- -0- 163,750 ( 163,750) -0-
Amortization of unrealized
loss on
securities
held-to-maturity -0- -0- -0- -0- -0- 4,120 4,120
---------- -------- ---------- ---------- ---------- ----------- ----------
Balances, December 31, 1994 1,059,824 354,138 2,826,281 ( 260,584) ( 28,581) ( 159,630) 3,791,448
Net income -0- -0- -0- 20,983 -0- -0- 20,983
Preferred stock dividends
declared -0- -0- -0- ( 92,609) -0- -0- ( 92,609)
Reinvested preferred stock
dividends (Note 15) 34,180 -0- -0- -0- -0- -0- 34,180
Unrealized gain on
securities
available-for-sale, net -0- -0- -0- -0- 120,480 -0- 120,480
Amortization of unrealized
loss on
securities
held-to-maturity -0- -0- -0- -0- -0- 16,477 16,477
---------- -------- ---------- ---------- ---------- ----------- ----------
Balances, December 31, 1995 $1,094,004 $354,138 $2,826,281 ($ 332,210) 91,899 ($ 143,153) $3,890,959
========== ======== ========== ========== ========== =========== ==========
</TABLE>
The Notes to Consolidated Financial Statements are an integral part of these
statements.
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
<TABLE>
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 20,983 $ 226,354 $ 475,874
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 178,485 133,179 107,387
Provision for loan losses 205,483 203,013 145,500
Securities gains, net -0- ( 841) ( 3,735)
Gains on sales of loans ( 63,989) ( 162,550) ( 421,534)
Decrease in loans held for sale -0- 174,898 438,918
Accretion, net of amortization ( 94,615) ( 43,426) 65,805
Provision for deferred income taxes ( 10,615) 23,548 248,481
Increase in accrued interest receivable and other assets ( 243,097) ( 190,080) ( 59,074)
(Increase) decrease in deferred loan costs ( 33,357) ( 27,908) 16,962
(Decrease) increase in accrued interest and other liabilities ( 97,451) 140,785 13,872
------------- ------------
Net cash (used in) provided by operating activities ( 138,173) 476,972 1,028,456
-------------- ------------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES
(Increase) decrease in federal funds sold ( 650,000) 529,000 ( 974,000)
Purchases of securities available-for-sale ( 499,766) ( 1,977,929) -0-
Proceeds from sales and maturities of securities
available-for-sale 581,443 241,921 -0-
Purchases of securities held-to-maturity -0- ( 7,807,934) -0-
Proceeds from maturities of securities held-to-maturity 827,263 146,229 -0-
Purchases of investment securities -0- -0- ( 1,452,505)
Proceeds from sales and maturities of investment securities -0- -0- 3,449,492
Net increase in loans ( 2,505,059) ( 13,070,481) ( 6,772,215)
Purchase of premises and equipment ( 2,257,413) ( 129,159) ( 140,557)
Purchase of real estate held for investment ( 936) ( 157,383) -0-
-------------- ------------ --------------
Net cash used in investing activities ( 4,504,468) ( 22,225,736) ( 5,889,785)
-------------- ------------ --------------
CASH FLOWS FROM FINANCING ACTIVITIES
Net (decrease) increase in demand deposits,
NOW accounts and savings accounts ( 8,959,417) 15,157,463 1,100,146
Net increase in time deposits 13,327,509 7,488,351 3,127,133
Net increase (decrease) in repurchase agreements 83,751 ( 130,695) 321,564
Decrease in capital lease obligations ( 38,910) ( 81,876) ( 66,815)
Proceeds from sales of preferred stock -0- 60,000 900,000
Stock issuance costs -0- -0- ( 25,903)
Dividends paid, net of reinvestment ( 40,486) ( 63,377) ( 35,038)
-------------- ------------ --------------
Net cash provided by financing activities 4,372,447 22,429,866 5,321,087
------------ ------------- ------------
Net (decrease) increase in cash and cash equivalents ( 270,194) 681,102 459,758
Cash and cash equivalents:
Beginning 2,013,670 1,332,568 872,810
------------ ------------- ------------
Ending $ 1,743,476 $ 2,013,670 $ 1,332,568
============ ============= ============
</TABLE>
(Continued)
The Notes to Consolidated Financial Statements are an integral part of these
statements.
<PAGE>
LANDMARK BANK AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
(CONTINUED)
<TABLE>
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash payments for:
Interest $2,859,592 $1,288,156 $ 969,697
---------- ---------- ---------
Income taxes 183,980 78,969 -0-
---------- ---------- ---------
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Increase in unrealized gain (loss) on securities
available-for-sale $ 192,769 ($ 35,888) ($ 9,841)
========== =========== ==========
Transfer of securities available-for-sale to securities
held-to-maturity (fair value) $ -0- $ 838,000 $ -0-
========== ========== =========
Conversion of 50 shares of preferred stock to
100 shares of common stock $ -0- $ -0- $ 1,000
========== ========== =========
</TABLE>
The Notes to Consolidated Financial Statements are an integral part of these
statements.
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES
The accounting policies of Landmark Bank and Subsidiaries (the Bank) are
in conformity with generally accepted accounting principles and general
practices within the banking industry. The following is a description of
the more significant policies.
BASIS OF CONSOLIDATION
The consolidated financial statements include the accounts of Landmark
Bank and its wholly owned subsidiaries, Landmarkbanc Realty Holdings
Corp. and Landmark Bank Mortgage Corporation. These subsidiaries were
established in 1995 for the purposes of holding the bank building and
opening a loan production office in Vermont. All significant
intercompany accounts and transactions have been eliminated.
NATURE OF OPERATIONS
The Bank provides a variety of financial services through its two
branch locations to individuals and corporate customers in the City of
Lebanon and the surrounding towns of Hanover, Enfield, and Plainfield,
New Hampshire, as well as the Vermont towns of Norwich and Hartford.
The Bank's primary deposit products are checking and savings accounts
and certificates-of-deposit. Its primary lending products are
commercial, real estate and consumer loans.
CONCENTRATION OF RISK
The Bank's operations are affected by various risk factors, including
interest rate risk, credit risk and risk from geographic concentration
of lending activities. Management attempts to manage interest rate
risk through various asset/liability management techniques designed to
match maturities of assets and liabilities. The Bank is a community
bank and, as such, is mandated by the Community Reinvestment Act and
other regulations to conduct most of its lending activities within the
geographic area where it is located. Although the Bank has a
diversified loan portfolio and economic conditions are stable, a
substantial portion of the loans are secured by real estate. As a
result, the Bank and its borrowers may be especially vulnerable to
changes in the local economy. Loan policies and administration are
designed to provide assurance that loans will only be granted to credit
worthy borrowers, although credit losses are expected to occur because
of factors beyond the control of the Bank.
EARNINGS PER SHARE
Earnings per share are computed based on the weighted average number of
common and common equivalent shares outstanding during the year.
<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES (Continued)
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ
from those estimates.
A material estimate that is particularly susceptible to significant
change relates to the determination of the allowance for losses on
loans. In connection with the determination of the allowances for
losses on loans, management obtains independent appraisals for
significant properties. Accordingly, the ultimate collectibility of a
substantial portion of the Bank's loan portfolio are susceptible to
changes in local market conditions.
While management uses available information to recognize losses on
loans, future additions to the allowance may be necessary based on
changes in local economic conditions. In addition, regulatory
agencies, as an integral part of their examination process,
periodically review the Bank's allowance for losses on loans. Such
agencies may require the Bank to recognize additions to the allowance
based on their judgments about information available to them at the
time of their examination.
PRESENTATION OF CASH FLOWS
For purposes of reporting cash flows, cash and cash equivalents
includes cash on hand, cash items in the process of clearing, and
amounts due from banks. The statements of cash flows for the years
ended December 31, 1994 and 1993 have been restated using the indirect
method to conform with the December 31, 1995 presentation.
INVESTMENT SECURITIES
In April, 1993, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards (SFAS) No. 115, Accounting
for Certain Investments in Debt and Equity Securities. SFAS No. 115
established new standards of accounting and reporting for debt
securities held as assets and for equity securities having readily
determinable fair values. SFAS Statement No. 115 is effective for
fiscal years beginning after December 15, 1993, with early adoption
permitted. The Bank elected to adopt SFAS 115 as of December 31, 1993.
Retroactive restatement of prior years' statements was not permitted.
<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES (Continued)
Debt securities that management has the ability and intent to hold to
maturity are classified as held-to-maturity and carried at cost,
adjusted for amortization of premium and accretion of discounts using
methods approximating the interest method. Other marketable securities
are classified as available-for-sale and are carried at fair value.
Unrealized gains and losses on securities available-for-sale are
recognized as direct increases or decreases in stockholders' equity,
net of tax. Cost of securities sold is recognized using the specific
identification method.
LOANS HELD FOR SALE
Loans originated and intended for sale are carried at the lower of cost
or estimated market value in the aggregate. Net unrealized losses are
recognized through a valuation allowance by charges to income.
LOANS
The Bank adopted Statement of Financial Accounting Standards No. 114
(as amended by SFAS No. 118), Accounting by Creditors for Impairment of
a Loan, effective January 1, 1995. This statement is considered the
primary source of authoritative guidance for determining allowances
relating to specific loans. The effect of adoption of this statement
was immaterial to the Bank's financial statements.
Loans are stated at the amount of unpaid principal, increased by
deferred costs and reduced by an allowance for possible loan losses and
deferred gains on loan sales.
Loan origination and commitment fees and certain direct loan
origination costs are being deferred and the net amount amortized as
an adjustment of the related loan's yield. The Bank is generally
amortizing these amounts over the contractual life.
The Bank periodically sells certain interests (for example, the
guaranteed portions) in U.S. Small Business Administration loans. At
the time the portion of the loan is sold, the Bank allocates its
recorded investment in the loan between the portion of the loan sold
and the portion retained, including any excess servicing, based on
their relative fair values. This allocation is used to determine the
gain or loss on the portion of the loan sold and the carrying amount of
the portion retained.
The excess servicing receivables and deferred loan gains resulting from
such sales are amortized over the estimated life using a method
approximating the interest method.
Loan interest income is accrued daily on the outstanding balances.
Accrual of interest is discontinued when a loan is specifically
determined to be impaired or management believes, after considering
collection efforts and other factors, that the borrower's financial
condition is such that collection of interest is doubtful.
<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES (Continued)
Any unpaid interest previously accrued on those loans is reversed from
income. Interest income generally is not recognized on specific
impaired loans unless the likelihood of further loss is remote.
Interest payments received on such loans are applied as a reduction of
the loan principal balance. Interest income on other nonaccrual loans
is recognized only to the extent of interest payments received.
ALLOWANCE FOR POSSIBLE LOAN LOSSES
The allowance for loan losses is maintained at a level which, in
management's judgment, is adequate to absorb credit losses inherent in
the loan portfolio. The amount of the allowance is based on
management's evaluation of the collectibility of the loan portfolio,
including the nature of the portfolio, credit concentrations, trends in
historical loss experience, specific impaired loans, and economic
conditions. Allowances for impaired loans are generally determined
based on collateral values or the present value of estimated cash
flows. The allowance is increased by a provision for loan losses,
which is charged to expense, and reduced by charge-offs, net of
recoveries.
PREMISES AND EQUIPMENT
Premises and equipment are stated at cost less accumulated
depreciation. The provision for depreciation is computed over the
estimated useful life of the related asset, principally by the
straight-line method. Improvements to leased property are amortized
over the lesser of the term of the lease or the life of the
improvements. The cost of assets sold or otherwise disposed of and the
related allowance for depreciation are eliminated from the accounts and
the resulting gains or losses are reflected in the income statement.
Maintenance and repairs are charged to current expenses as incurred and
the cost of major renewals and betterments are capitalized.
INVESTMENT IN REAL ESTATE
Investment in real estate consists of two residential properties
adjacent to the Bank's main office. The properties are carried at the
lower of cost or net realizable value and are currently for sale by the
Bank.
PENSION COSTS
Pension costs relating to the Bank's 401(k) plan are charged to
employee benefits expense and are funded as accrued.
ADVERTISING COSTS
The Bank expenses advertising costs as incurred.
<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES (Continued)
INCOME TAXES
The Bank recognizes income taxes under the asset and liability method.
Under this method, deferred tax assets and liabilities are established
for the temporary differences between the accounting basis and the tax
basis of the Bank's assets and liabilities at enacted tax rates
expected to be in effect when the amounts related to such temporary
differences are realized or settled. Adjustments to the Bank's
deferred tax assets are recognized as deferred income tax expense or
benefit based on management's judgments relating to the realizability
of such asset.
OFF-BALANCE-SHEET FINANCIAL INSTRUMENTS
In the ordinary course of business the Bank has executed off-balance-
sheet financial instruments consisting of commitments to extend credit,
commercial letters of credit, and standby letters of credit. Such
financial instruments are recorded in the financial statements when
they become payable.
FAIR VALUES OF FINANCIAL INSTRUMENTS
Statement of Financial Accounting Standards No. 107, Disclosures about
Fair Value of Financial Instruments, requires disclosure of fair value
information about financial instruments, whether or not recognized in
the statement of financial condition. SFAS No. 107 is effective for
the Bank beginning in 1995. In cases where quoted market prices are
not available, fair values are based on estimates using present value
or other valuation techniques. Those techniques are significantly
affected by the assumptions used, including the discount rate and
estimates of future cash flows. In that regard, the derived fair value
estimates cannot be substantiated by comparison to independent markets
and, in many cases, could not be realized in immediate settlement of
the instruments. SFAS No. 107 excludes certain financial instruments
and all nonfinancial instruments from its disclosure requirements.
Accordingly, the aggregate fair value amounts presented do not
represent the underlying value of the Bank.
The following methods and assumptions were used by the Bank in
estimating its fair value disclosures for financial instruments:
CASH AND DUE FROM BANKS AND FEDERAL FUNDS SOLD: The carrying amounts
reported in the balance sheet for cash and due from banks and federal
funds sold approximate those assets' fair values.
INVESTMENT SECURITIES: Fair values for securities available-for-sale
and held-to-maturity are based on quoted market prices, where
available. If quoted market prices are not available, fair values are
based on quoted market prices of comparable instruments. The carrying
amount of accrued interest receivable approximates its fair value.
<PAGE>
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES (Continued)
LOANS: For variable-rate loans that reprice frequently and with no
significant change in credit risk, fair values are based on carrying
amounts. The fair values for other loans (for example, fixed rate
commercial real estate and rental property mortgage loans and
commercial and industrial loans) are estimated using discounted cash
flow analysis, based on interest rates currently being offered for
loans with similar terms to borrowers of similar credit quality. Loan
fair value estimates include judgments regarding future expected loss
experience and risk characteristics. The carrying amount of accrued
interest receivable approximates its fair value.
DEPOSITS: The fair values disclosed for demand deposits (for example,
checking and savings accounts) are, by definition, equal to the amount
payable on demand at the reporting date (that is, their carrying
amounts). The fair values for certificates of deposit are estimated
using a discounted cash flow calculation that applies interest rates
currently being offered on certificates to a schedule of aggregated
contractual maturities on such time deposits. The carrying amount of
accrued interest payable approximates fair value.
REPURCHASE AGREEMENTS: The carrying amount reported in the balance
sheet for repurchase agreements approximates those liabilities' fair
values.
OTHER LIABILITIES: Commitments to extend credit were evaluated and
fair value was estimated using the fees currently charged to enter
into similar agreements, taking into account the remaining terms of
the agreements and the present creditworthiness of the counterparties.
For fixed-rate loan commitments, fair value also considers the
difference between current levels of interest rates and the committed
rates.
RECLASSIFICATIONS
Certain amounts in the 1994 and 1993 financial statements have been
reclassified to conform to the current year presentation. The
composition of net loans for 1995 and 1994 in Note 4 has been
reclassified to conform with regulatory call reporting requirements.
NOTE 2. RESTRICTIONS ON CASH AND DUE FROM BANKS
The Bank is required to maintain reserve balances in cash with the
Federal Reserve Bank. The total of those reserve balances was
approximately $98,000 and $50,000 at December 31, 1995 and 1994.
<PAGE>
NOTE 3. INVESTMENT SECURITIES
Securities available-for-sale (AFS) and held-to-maturity (HTM) consist of
the following at December 31, 1995, 1994 and 1993:
<TABLE>
<CAPTION>
Gross Gross
Amortized Unrealized Unrealized Fair
Cost Gains Losses Value
<S> <C> <C> <C> <C>
SECURITIES AFS:
December 31, 1995:
U.S. Treasury $1,999,279 $ 5,321 $ -0- $2,004,600
Mortgage-backed
securities 7,348,236 143,454 1,895 7,489,795
Collateralized
mortgage
obligations 28,714 160 -0- 28,874
---------- -------- -------- ----------
$9,376,229 $148,935 $ 1,895 $9,523,269
========== ======== ======== ==========
December 31, 1994:
U.S. Treasury $1,985,883 $ -0- $ 38,461 $1,947,422
Mortgage-backed
securities 421,297 2,706 9,123 414,880
Collateralized
mortgage
obligations 36,217 -0- 851 35,366
---------- -------- -------- ----------
$2,443,397 $ 2,706 $ 48,435 $2,397,668
========== ======== ======== ==========
SECURITIES HTM:
December 31, 1995:
U.S. Gov't.
agencies $ 812,357 $ 11,559 $ -0- $ 823,916
========== ======== ======== ==========
December 31, 1994:
U.S. Gov't.
agencies $ 808,093 $ -0- $ 92,996 $ 715,097
Mortgage-backed
securities 7,725,058 -0- 344,551 7,380,507
---------- -------- -------- ----------
$8,533,151 $ -0- $437,547 $8,095,604
========== ======== ======== ==========
</TABLE>
U.S. Gov't. agencies at December 31, 1995 and 1994 consist of two Federal
Home Loan Bank notes. The interest rates on these investments, which are
considered structured notes, fluctuate based on changes in the LIBOR
rate. These notes were transferred from the available-for-sale category
to the held-to-maturity category at fair value in 1994. The unrealized
loss of $163,750 (net of tax) at the time of the transfer is being
amortized using a method approximating the interest method.
<PAGE>
NOTE 3. INVESTMENT SECURITIES (Continued)
The Financial Accounting Standards Board issued an implementation guide
to SFAS No. 115 on Accounting for Certain Investments in Debt and Equity
Securities. This guide allows the one time transfer of securities in the
held-to-maturity classification to the available-for-sale classification
between the period November 15, 1995 and December 31, 1995. In December,
1995 the Bank transferred mortgage-backed securities with an approximate
amortized cost and fair value of $7,033,500 and $7,173,500, respectively
from the held-to-maturity classification to the available-for-sale
classification. Under the implementation guide, this one time transfer
does not call into question the intent of the Bank to hold other debt
securities to maturity in the future.
Proceeds from the sale of securities available-for-sale during 1995 and
1994 were $-0- and $119,776, respectively. Gross realized gains on sales
of securities available-for-sale were $-0- and $841 for the years ended
December 31, 1995 and 1994, respectively.
Proceeds from the sale of investment securities during 1993 (prior to the
adoption of SFAS No. 115) were $1,883,983. Gross realized gains and
losses on sales of securities during 1993 (prior to adoption of SFAS 115)
were:
Gross realized gains $ 5,198
Gross realized losses ( 1,463)
Net realized gains $ 3,735
==========
The maturities of investment securities at December 31, 1995 were as follows:
Amortized Fair
Cost Value
SECURITIES AFS:
Due in one year or less $ 999,513 $1,001,350
Due from one to five years 6,674,164 6,779,311
Due from five to ten years 1,474,632 1,509,854
Due after ten years 227,920 232,754
---------- ----------
$9,376,229 $9,523,269
========== ==========
SECURITIES HTM:
Due from one to five years $ 445,805 $ 455,000
Due after ten years 366,552 368,916
---------- ----------
$ 812,357 $ 823,916
========== ==========
Expected maturities will differ from contractual maturities on mortgage-
backed securities and collateralized mortgage obligations because
borrowers may have the right to call or prepay obligations without call
or prepayment penalties. The expected average lives of such securities
are substantially less than the contractual lives of the underlying
mortgage products.
<PAGE>
NOTE 3. INVESTMENT SECURITIES (Continued)
Investment securities with an amortized cost of $7,070,335 and
$7,638,287 and a fair value of $7,200,120 and $7,247,873 at December
31, 1995 and 1994, respectively, were pledged as collateral on public
deposits and for other purposes as required or permitted by law.
NOTE 4. LOANS
The composition of net loans (rounded to the nearest thousand) is as
follows:
<TABLE>
<CAPTION>
-------------December 31,------------
1995 1994
<S> <C> <C>
Commercial and commercial real estate $17,844,000 $16,500,000
Real estate 18,953,000 17,546,000
Construction loans 2,851,000 2,643,000
Consumer 3,868,000 4,272,000
----------- -----------
43,516,000 40,961,000
Allowance for loan losses ( 659,000) ( 465,000)
Net deferred loan costs 35,000 1,000
Deferred gains on loan sales ( 30,000) ( 32,000)
Loans, net $42,862,000 $40,465,000
=========== ===========
</TABLE>
The Bank had loans amounting to $302,393 (which approximates the average
balance of the loans) that were specifically classified as impaired at
December 31, 1995. These loans were subject to allowances for loan
losses of $167,635, which represented the total allowance for loan losses
related to impaired loans at December 31, 1995. There were no cash
receipts on impaired loans during 1995.
In addition, the Bank had other nonaccrual loans of approximately
$143,600 for which impairment had not been recognized. If interest on
these loans had been recognized at the original interest rates, interest
income would have increased approximately $5,793 for the year ended
December 31, 1995.
The Bank has no commitments to loan additional funds to borrowers with
impaired or nonaccrual loans.
<PAGE>
NOTE 5. ALLOWANCE FOR POSSIBLE LOAN LOSSES
Changes in the allowance for possible loan losses are as follows:
<TABLE>
<CAPTION>
--------------------December 31,------------------
1995 1994 1993
<S> <C> <C> <C>
Balance, beginning $ 465,000 $264,971 $ 141,656
Provision charged to
operating expense 205,483 203,013 145,500
Recoveries of amounts charged off 20 -0- -0-
---------- --------- ----------
670,503 467,984 287,156
Amounts charged off ( 11,076) ( 2,984) ( 22,185)
---------- --------- ----------
Balance, ending $ 659,427 $465,000 $ 264,971
========== ========= ==========
</TABLE>
NOTE 6. PREMISES AND EQUIPMENT
Premises and equipment at December 31, 1995 and 1994 were as follows:
<TABLE>
<CAPTION>
----------December 31,---------
1995 1994
<S> <C> <C>
Buildings $1,999,965 $ -0-
Building improvements 235,925 209,394
Furniture and equipment 945,494 715,019
---------- --------
3,181,384 924,413
Less accumulated depreciation 529,346 367,527
---------- --------
$2,652,038 $556,886
========== ========
</TABLE>
Depreciation included in occupancy and equipment expense amounted to
$162,261, $115,572 and $87,314 for the years ended December 31, 1995,
1994 and 1993 respectively, of which $152,969, $109,931 and $83,099,
respectively, represented equipment depreciation.
Included in furniture and equipment at December 31, 1994 are assets held
under capital leases of $338,075 (Note 12). Amortization of assets held
under capital leases is included in depreciation expense for 1994 and
1993; accumulated amortization for these assets amounted to $201,290 and
$156,453 as of December 31, 1994 and 1993, respectively.
<PAGE>
NOTE 7. DEPOSITS
The following is a maturity distribution of time certificates of deposit:
December 31,
1995
Maturing in one year or less $29,844,020
Maturing from one to five years 6,881,930
Maturing from five to ten years 53,913
-----------
$36,779,863
===========
Included in time deposits on the balance sheets at December 31, 1995 and
1994 are out-of-area certificates of deposit (brokered deposits) of
$2,179,420 and $14,506,440, respectively, which are considered volatile
liabilities. Interest rates on these deposits, typically one-half
percent higher than those offered in the normal course of business, range
from 5.5% to 6.6%. These certificates mature in one year or less.
NOTE 8. DEFINED CONTRIBUTION PLAN
The Bank has established a 401(k) profit sharing plan which covers all
employees who are at least 21 years of age and who have completed three
months of service. Eligible employees may contribute a percentage of
their annual compensation to the plan each year. The Bank matches a
certain portion of employee contributions. For the years ended December
31, 1995, 1994 and 1993, the Bank matched $5,948, $6,277 and 3,106,
respectively, of employee contributions under this plan.
The Bank may also make additional discretionary contributions to the
plan on behalf of employees who meet the eligibility requirements.
These contributions are allocated based on the annual salary of the
participants and amounted to $-0-, $-0-and $8,300 in 1995, 1994 and
1993, respectively.
All plan members become fully vested after five years of service.
NOTE 9. INCOME TAXES
The Bank prepares its federal income tax return on a consolidated basis
(Note 1). Federal income taxes are allocated to members of the
consolidated group based on taxable income. State income tax returns
are filed individually by each member of the consolidated group.
<PAGE>
NOTE 9. INCOME TAXES (Continued)
Income taxes for the years ended December 31, 1995 and 1994 were as
follows:
<TABLE>
<CAPTION>
------------------December 31,-----------------
1995 1994 1993
<S> <C> <C> <C>
Currently payable:
Federal $ 15,930 $103,932 $ -0-
State -0- 13,152 29,270
Deferred ( 10,615) 23,548 248,481
--------- -------- --------
$ 5,315 $140,632 $277,751
========= ======== ========
</TABLE>
Income tax expense included in the statements of income differs from that
computed at the statutory rate of 34% primarily because of expenses
deductible for financial reporting purposes that are not deductible for
tax purposes and the effect of the surtax exemption.
Temporary differences giving rise to deferred taxes consist primarily of
start-up costs capitalized for tax purposes but expensed for financial
reporting purposes and nondeductible provisions for loan losses.
At December 31, 1995 and 1994 gross deferred tax assets and gross
deferred tax liabilities were as follows:
<TABLE>
<CAPTION>
1995 1994
<S> <C> <C>
Gross deferred tax assets $288,650 $298,147
Less: Valuation allowance -0- -0-
-------- --------
288,650 298,147
Gross deferred tax liabilities 85,338 19,152
-------- --------
Net deferred tax asset $203,312 $278,995
======== ========
</TABLE>
There was no change in the deferred tax asset valuation allowance
during 1995 and 1994.
NOTE 10. RELATED PARTY TRANSACTIONS
The Bank has had, and may be expected to have in the future, banking
transactions in the ordinary course of business with directors,
principal officers, their immediate families and affiliated companies
in which they are principal stockholders (commonly referred to as
related parties), all of which have been, in the opinion of
management, on the same terms, including interest rates and
collateral, as those prevailing at the time for comparable
transactions with others.
<PAGE>
NOTE 10. RELATED PARTY TRANSACTIONS (Continued)
Aggregate loan transactions with related parties were as follows:
<TABLE>
<CAPTION>
---------December 31,----------
1995 1994
<S> <C> <C>
Balance, beginning $1,114,272 $ 392,497
New loans 665,716 808,647
Repayments ( 601,691) ( 86,872)
---------- ----------
Balance, ending $1,178,297 $1,114,272
========== ==========
</TABLE>
Deposit accounts with related parties approximated $316,000 at December
31, 1995.
The Bank formerly leased its offices from an affiliated corporation, of
which most of its stockholders were directors of the Bank (Note 12). In
August, 1995, the Bank's wholly owned subsidiary, Landmarkbanc Realty
Holdings Corp., purchased the building from the affiliated corporation
for $1,999,965, including closing costs.
NOTE 11. REPURCHASE AGREEMENTS
Repurchase agreements generally mature within one to four days from the
transaction date and are secured by securities in the Bank's investment
portfolio.
The maximum amount of repurchase agreements outstanding at any month-
end during 1995 was $392,200; the monthly average amount of repurchase
agreements outstanding during 1995 was $259,111.
All securities collateralizing repurchase agreements are held in the
Bank's name.
NOTE 12. LEASES
The Bank was the lessee of certain computer equipment under capital
leases which expired in 1995. The assets and liabilities under capital
leases are recorded at the lower of the present value of the minimum
lease payments or the fair value of the asset. The Bank purchased the
computer equipment upon expiration of the leases.
The Bank leased its main office space from a related party (Note 10)
under an operating lease until August, 1995. Subsequent to that date,
the Bank leases its main office space from Landmarkbanc Realty Holdings
Corp., a wholly- owned subsidiary. The lease has a term of fifteen
years. All costs and expenses relating to the leased property,
including taxes, insurance, and repairs and maintenance are paid by the
Bank.
<PAGE>
NOTE 12. LEASES (Continued)
The Bank also leases branch office facilities in West Lebanon, New
Hampshire. The lease has an initial term of ten years which commenced on
October 1, 1995, with two five year renewal periods. The Bank is
responsible for the payment of utilities and taxes relating to the leased
property.
Approximate minimum future lease payments as of December 31, 1995,
assuming no renewal options are exercised, for each of the next ten years
and in the aggregate are:
1996 $ 47,400
1997 47,400
1998 47,400
1999 47,400
2000 47,400
Subsequent to 2000 225,150
--------
$462,150
========
Rent expense paid in connection with these leases for the years ended
December 31, 1995, 1994 and 1993 amounted to $119,357, $123,185 and
81,989, respectively.
NOTE 13. FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK
The Bank is a party to financial instruments with off-balance-sheet
risk in the normal course of business to meet the financing needs of
its customers and to reduce its own exposure to fluctuations in
interest rates. These financial instruments include commitments to
extend credit, standby letters of credit and financial guarantees, and
interest rate caps and floors written on adjustable rate loans. Such
instruments involve, to varying degrees, elements of credit and
interest rate risk in excess of the amount recognized in the balance
sheet. The contract or notional amounts of those instruments reflect
the extent of involvement the Bank has in particular classes of
financial instruments.
The Bank's exposure to credit loss in the event of nonperformance by
the other party to the financial instrument for commitments to extend
credit, standby letters of credit and financial guarantees is
represented by the contractual amount of those instruments. The Bank
uses the same credit policies in making commitments and conditional
obligations as it does for on-balance-sheet instruments. For interest
rate caps and floors written on adjustable rate loans, the contractual
amounts or notional amounts do not represent exposure to credit loss.
The Bank controls the risk of interest rate cap agreements through
credit approvals, limits and monitoring procedures.
<PAGE>
NOTE 13. FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK (Continued)
Contractual or notional amounts of off-balance-sheet financial
instruments as of December 31 are as follows:
<TABLE>
<CAPTION>
1995 1994
<S> <C> <C>
Financial instruments whose contract
amounts represent credit risk:
Commitments to extend credit $8,529,323 $6,360,597
========== ==========
Standby letters of credit and
commercial letters of credit $ 152,741 $ 24,237
========== ==========
</TABLE>
Commitments to extend credit are agreements to lend to a customer as
long as there is no violation of any condition established in the
contract. Commitments generally have fixed expiration dates or other
termination clauses and may require payment of a fee.
Since many of the commitments are expected to expire without being
drawn upon, the total commitment amounts do not necessarily represent
future cash requirements. The Bank evaluates each customer's
creditworthiness on a case-by-case basis. The amount of collateral
obtained, if deemed necessary by the Bank upon extension of credit, is
based on management's credit evaluation of the counter-party.
Collateral held varies but may include accounts receivable, inventory,
property and equipment, residential real estate and income-producing
commercial properties.
Standby letters of credit and financial guarantees are conditional
commitments issued by the Bank to guarantee the performance of a
customer to a third party. Those guarantees are primarily issued to
support private borrowing arrangements. The credit risk involved in
issuing letters of credit is essentially the same as that involved in
extending loans to customers.
The Bank enters into a variety of interest rate contracts, including
interest rate caps and floors written on adjustable rate loans in
managing its interest rate exposure. Interest rate caps and floors on
loans written by the Bank enables customers to transfer, modify, or
reduce their interest rate risk.
NOTE 14. COMMITMENTS AND CONTINGENCIES
In the normal course of business, the Bank is involved in various legal
proceedings. In the opinion of management, after consulting with the
Bank's legal counsel, any liability resulting from such proceedings
would not have a material adverse effect on the Bank's financial
statements.
The Bank has executed an agreement allowing it to obtain credit from
the Federal Reserve Bank. Should the Bank utilize this credit, certain
portions of the investment and loan portfolios would be pledged as
collateral against the borrowings.
<PAGE>
NOTE 15. PREFERRED STOCK
During the period October, 1992 to January, 1994, the Bank offered for
sale 100,000 shares of Series A $20 convertible, noncumulative,
perpetual preferred stock, par value $1.00 per share, stated value $20
per share, in which a total of 55,500 shares were issued. Offering
costs of $99,276 were charged to the preferred stock account in
connection with the offerings.
At their option, holders of Series A preferred stock have the right to
convert any share of preferred stock into two fully-paid shares of
common stock. Noncumulative dividends may be paid quarterly on this
preferred stock, subject to declaration of the Board of Directors of
the Bank. Any dividends declared may be automatically reinvested at the
option of the holders of the preferred stock.
A total of 600,000 shares of preferred stock are authorized, with
100,000 shares reserved for the dividend reinvestment plan. The total
number of shares of preferred stock outstanding at December 31, 1995
and 1994, including shares issued pursuant to the dividend reinvestment
plan, was 59,664 and 57,955, respectively.
In the event of the liquidation, dissolution or winding up of the Bank,
the liquidation preference of the preferred stock shareholders, if any,
would be fixed by the Board of Directors in accordance with applicable
law and the terms of the resolution which established the Series A
preferred stock.
NOTE 16. WARRANTS
The Bank has issued and delivered warrants to purchase shares of common
stock to certain of its organizers and to the underwriter of its
initial public offering.
Transferable warrants to purchase an aggregate of 59,000 shares of
common stock at a purchase price of $10.00 per share were issued on
July 31, 1992 to certain organizers of the Bank, pursuant to a Warrant
Resolution adopted by the Board of Directors on June 13, 1991. Further,
pursuant to the terms of a Warrant Agreement dated March 28, 1991 among
the Bank and the underwriter, the Bank is obligated to issue and
deliver, upon payment of consideration of $100, transferable warrants
to purchase an aggregate of 2,620 shares of common stock at a purchase
price of $12.00 per share. The warrants expire in 1996.
<PAGE>
NOTE 17. FAIR VALUES OF FINANCIAL INSTRUMENTS
The estimated fair values of the Bank's financial instruments at December
31, 1995, are as follows:
<TABLE>
<CAPTION>
Estimated
Carrying Fair
Amount Value
<S> <C> <C>
Financial assets:
Cash and due from banks $ 1,743,476 $ 1,743,476
Federal funds sold 1,980,000 1,980,000
Securities available-for-sale 9,523,269 9,523,269
Securities held-to-maturity 812,357 823,916
Loans, net 42,861,602 42,630,482
Accrued interest receivable 341,795 341,795
Financial liabilities:
Deposits 56,358,995 56,751,657
Securities sold under
repurchase agreements 303,953 303,953
Accrued interest payable 25,125 25,125
</TABLE>
The estimated fair values of commitments to extend credit and letters
of credit were immaterial at December 31, 1995.
The carrying amounts in the preceding table are included in the balance
sheet under the applicable captions.
NOTE 18. REGULATORY MATTERS
In conjunction with the FDIC's approval of the Bank's application for
federal deposit insurance, the Bank agreed to maintain a total equity
capital and reserves to total assets ratio, as determined in accordance
with applicable FDIC policy and regulations, of at least 10 percent
during the first three years of its operations. After March 28, 1994,
the Bank became subject to the FDIC's risk-based capital standards.
These standards require the Bank to meet specific capital adequacy
guidelines that involve quantitative measures of the Bank's assets,
liabilities, and certain off-balance-sheet items as calculated under
regulatory accounting practices. The Bank's capital classification is
also subject to qualitative judgments by the regulators about
components, risk weightings, and other factors. According to these
guidelines, the Bank is considered well-capitalized at December 31,
1995.
New Hampshire law places restrictions on the Bank's ability to pay
dividends. The Board of Directors may declare and pay dividends only to
the extent that there is no impairment of the Bank's guaranty fund. The
Bank must maintain a guaranty fund equal to 3 percent of the amount of
all deposits in excess of $1,000,000. The guaranty fund consists of all
capital stock in excess of $100,000 plus such additional amounts,
transferred from net earnings, as may be necessary to make up the
required amount.
<PAGE>
NOTE 19. PRIOR PERIOD ADJUSTMENTS
The accompanying financial statements for 1993 have been restated to
correct errors in accounting for sales of loans and income recognition
on a structured note. The effect of the restatement was to decrease net
income for 1993 by $17,986, net of income tax of $6,519.
NOTE 20. SUBSEQUENT EVENTS
In January, 1996, the Bank sold the mortgage-backed securities in its
investment portfolio. The realized gain (before income taxes) on the
sale amounted to $135,306. The Bank purchased collateralized mortgage
obligations with the proceeds from the sale.
<PAGE>
APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF JULY 26, 1996
BY AND AMONG
LANDMARK BANK,
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
AND
LAKE SUNAPEE BANK, fsb
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS Page
----
ARTICLE 1.
CERTAIN DEFINITIONS
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF LANDMARK
<C> <S> <C>
2.1. Capital Structure of Landmark................................................... A-3
2.2. Organization, Standing and Authority of Landmark................................ A-4
2.3. Ownership of Landmark Subsidiaries; Capital Structure of Landmark Subsidiaries.. A-4
2.4. Organization, Standing and Authority of Landmark Subsidiaries................... A-4
2.5. Authorized and Effective Agreement.............................................. A-5
2.6. Regulatory Filings.............................................................. A-6
2.7. Financial Statements; Books and Records; Minute Books........................... A-6
2.8. Material Adverse Change......................................................... A-6
2.9. Absence of Undisclosed Liabilities.............................................. A-6
2.10. Properties...................................................................... A-6
2.11. Loans; Allowance for Loan Losses................................................ A-7
2.12. Tax Matters..................................................................... A-7
2.13. Employee Benefit Plans.......................................................... A-8
2.14. Certain Contracts............................................................... A-9
2.15. Legal Proceedings............................................................... A-9
2.16. Compliance with Laws............................................................ A-10
2.17. Labor Matters................................................................... A-10
2.18. Brokers and Finders............................................................. A-10
2.19. Insurance....................................................................... A-10
2.20. Environmental Liability......................................................... A-11
2.21. Administration of Trust Accounts................................................ A-11
2.22. Intellectual Property........................................................... A-11
2.23. Certain Information............................................................. A-11
2.24. Takeover Provisions............................................................. A-12
<CAPTION>
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF
NHTB AND BANK
<C> <S> <C>
3.1. Capital Structure of NHTB....................................................... A-12
3.2. Organization, Standing and Authority of NHTB.................................... A-13
3.3. Ownership of NHTB Subsidiaries; Capital Structure of NHTB Subsidiaries.......... A-13
3.4. Organization, Standing and Authority of NHTB Subsidiaries....................... A-13
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
3.5. Authorized and Effective Agreement.............................................. A-13
3.6. SEC Documents; Regulatory Filings............................................... A-14
3.7. Financial Statements............................................................ A-15
3.8. Material Adverse Change......................................................... A-15
3.9. Absence of Undisclosed Liabilities.............................................. A-15
3.10. Brokers and Finders............................................................. A-15
3.11. Certain Information............................................................. A-15
3.12. Legal Proceedings.............................................................. A-16
3.13. Compliance with Laws; Regulatory Examinations................................... A-16
3.14. Environmental Issues............................................................ A-16
<CAPTION>
ARTICLE 4.
COVENANTS
<C> <S> <C>
4.1. Shareholders' Meeting........................................................... A-17
4.2. Proxy Statement; Registration Statement......................................... A-17
4.3. Applications.................................................................... A-17
4.4. Best Efforts; Certain Notices and Information................................... A-18
4.5. Investigation and Confidentiality............................................... A-19
4.6. Press Releases.................................................................. A-19
4.7. Covenants of Landmark........................................................... A-19
4.8. Closing; Articles of............................................................ A-21
4.9. Affiliates...................................................................... A-22
4.10. Landmark Employees; Directors and Management; Indemnification................... A-22
<CAPTION>
ARTICLE 5.
CONDITIONS PRECEDENT
<S> <C> <C>
5.1. Conditions Precedent to the Obligations of NHTB, Bank and Landmark............. A-23
5.2. Conditions Precedent to the Obligations of Landmark............................ A-25
5.3. Conditions Precedent to the Obligations of NHTB and Bank....................... A-26
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE 6.
TERMINATION, WAIVER AND AMENDMENT
<C> <S> <C>
6.1. Termination...................................................................... A-27
6.2. Effect of Termination............................................................ A-28
6.3. Non-Survival of Representations, Warranties and Covenants........................ A-28
6.4. Waiver........................................................................... A-28
6.5. Amendment or Supplement.......................................................... A-28
<CAPTION>
ARTICLE 7.
MISCELLANEOUS
<C> <S> <C>
7.1. Expenses......................................................................... A-29
7.2. Entire Agreement................................................................. A-29
7.3. No Assignment.................................................................... A-29
7.4. Notices.......................................................................... A-29
7.5. Captions......................................................................... A-30
7.6. Counterparts..................................................................... A-30
7.7. Governing Law.................................................................... A-30
</TABLE>
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<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION ("Reorganization Agreement" or
"Agreement") dated as of July 26, 1996, by and among LANDMARK BANK ("Landmark"),
a New Hampshire state chartered bank, New Hampshire Thrift Bancshares, Inc.
("NHTB"), a Delaware corporation and Lake Sunapee Bank, fsb, a federally
chartered savings bank ("Bank").
WITNESSETH
WHEREAS, the parties hereto desire that Landmark shall be merged with and
into Bank ("Merger") pursuant to an Agreement and Plan of Merger in the form
attached hereto as Annex A ("Plan of Merger"); and
WHEREAS, the parties hereto desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto do hereby agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
1.1. "NHTB Financial Statements" shall mean (i) the consolidated balance
sheets of NHTB as of March 31, 1996 and as of December 31, 1995 and 1994 and the
related consolidated statements of income, cash flows and changes in
shareholders' equity (including related notes, if any) for the three months
ended March 31, 1996 and each of the three years ended December 31, 1995, 1994
and 1993 as filed by NHTB in SEC Documents and (ii) the consolidated balance
sheets of NHTB and related consolidated statements of income, cash flows and
changes in shareholders' equity (including related notes, if any) as filed by
NHTB in SEC Documents with respect to periods ended subsequent to March 31,
1996.
1.2. "Closing Date" shall mean the date specified pursuant to Section 4.8
hereof as the date on which the parties hereto shall close the transactions
contemplated herein.
1.3. "Code" shall mean the Internal Revenue Code of 1986.
1.4. "Commission" or "SEC" shall mean the Securities and Exchange
Commission.
1.5. "Effective Date" shall mean the date specified pursuant to Section 4.8
hereof as the effective date of the Merger.
<PAGE>
1.6. "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.7. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.8. "FDIA" shall mean the Federal Deposit Insurance Act.
1.9. "FDIC" shall mean the Federal Deposit Insurance Corporation.
1.10. "Intellectual Property" means domestic and foreign letters patent,
patents, patent applications, patent licenses, software licensed or owned, know-
how licenses, trade names, common law and other trademarks, service marks,
licenses of trademarks, trade names and/or service marks, trademark
registrations and applications, service mark registrations and applications and
copyright registrations and applications.
1.11. "Investment Company Act" means the Investment Company Act of 1940, as
amended.
1.12. "Material Adverse Effect" shall mean, with respect to Landmark or
NHTB, as the case may be, a material adverse effect on the business, results of
operations or financial condition of such party and, in the case of NHTB, its
subsidiaries taken as a whole; provided, however, that the following shall not
constitute or contribute to a Material Adverse Effect: (i) changes in the
financial condition, business, or results of operations of a party resulting
directly or indirectly from (1) changes in interest rates (provided that each
party is in compliance with its asset/liability management policy as disclosed
to the other party prior to the date of this Agreement, as Landmark's asset
liability management policy may be revised thereafter with NHTB's concurrence),
(2) changes in state and federal regulations or legislation affecting New
Hampshire banks or federally chartered savings banks or (3) assessments which
may be imposed on financial institutions whose deposits are insured by the
Savings Association Insurance Fund; (ii) or matters related to changes in
federal, state or local tax laws or changes in federal, state or local tax
status, characteristics, or attributes or the ability to use such attributes.
1.13. "Landmark Financial Statements" shall mean (i) the balance sheets of
Landmark as of March 31, 1996 and as of December 31, 1995, 1994 and 1993 and the
related statements of income, cash flows and changes in shareholders' equity
(including related notes, if any) for the three months ended March 31, 1996 and
each of the three years ended December 31, 1995, 1994 and 1993 and (ii) the
balance sheets of Landmark and related statements of income, cash flows and
changes in shareholders' equity (including related notes, if any) with respect
to quarterly periods ended subsequent to March 31, 1996.
1.14. "OTS" shall mean the Office of Thrift Supervision of the Department
of the Treasury.
1.15. "Previously Disclosed" shall mean disclosed prior to the execution
hereof in (i) an SEC Document filed with the SEC subsequent to January 1, 1995
and prior to the date hereof or (ii) a letter dated of even date herewith from
the party making such disclosure and delivered to the other party prior to the
execution hereof.
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<PAGE>
1.16. "Proxy Statement" shall mean the proxy statement/prospectus (or
similar documents) together with any supplements thereto sent to the
shareholders of NHTB or Landmark to solicit their votes in connection with this
Agreement and the Plan of Merger.
1.17. "Registration Statement" shall mean the registration statement with
respect to the NHTB Common Stock to be issued in connection with the Merger as
declared effective by the Commission under the Securities Act.
1.18. "Rights" shall mean warrants, options, rights, convertible securities
and other arrangements or commitments which obligate an entity to issue or
dispose of any of its capital stock, and stock appreciation rights, performance
units and other similar stock-based rights whether they obligate the issuer
thereof to issue stock or other securities or to pay cash.
1.19. "SEC Documents" shall mean all reports and registration statements
filed, or required to be filed, by a party hereto pursuant to the Securities
Laws.
1.20. "Securities Act" shall mean the Securities Act of 1933, as amended.
1.21. "Securities Laws" shall mean the Securities Act; the Exchange Act;
the Investment Company Act; the Investment Advisers Act of 1940, as amended; the
Trust Indenture Act of 1939, as amended; and the rules and regulations of the
Commission promulgated thereunder.
1.22. "Stock Option Agreement" shall mean the Stock Option Agreement dated
as of even date herewith by and between Landmark and NHTB pursuant to which
Landmark will grant NHTB the right to purchase certain shares of Landmark Common
Stock (as defined below).
1.23. "Tier 1 capital" shall mean the sum of (i) the par value of
outstanding Landmark Common Stock, (ii) surplus, (iii) the par value of
outstanding Landmark Preferred Stock, (iv) less cumulative dividends paid on
Landmark Preferred Stock, (v) plus or minus any gains/loss on held to maturity
and available for sale investments net of applicable tax adjustments, (vi) plus
or minus any retained earnings/deficit, determined in accordance with Generally
Accepted Accounting Principles.
Other terms used herein are defined in the preamble and the recitals to
this Reorganization Agreement and in Articles 2, 3 and 4 hereof.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF LANDMARK
Landmark hereby represents and warrants to NHTB and Bank as follows:
2.1. CAPITAL STRUCTURE OF LANDMARK
As of the date hereof, (i) the authorized capital stock of Landmark
consists of 865,658 shares of common stock, par value $1.00 per share ("Landmark
Common Stock"), of which not more than 354,138 shares are issued and outstanding
and 600,000 shares of preferred stock, par
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<PAGE>
value $1.00 per share ("Landmark Preferred Stock") of which not more than 59,667
shares are issued and outstanding and which upon conversion pursuant to Section
4.7(d) hereof will be converted into 119,334 shares of Landmark Common Stock.
No shares of Landmark Common Stock or Landmark Preferred Stock are held in its
treasury. No shares of Landmark Common Stock are reserved for issuance except
as Previously Disclosed and except for 94,221 shares of Landmark Common Stock
reserved for issuance under the Stock Option Agreement (as such number of shares
may be adjusted pursuant to the terms of the Stock Option Agreement). All
outstanding shares of Landmark Common Stock have been duly issued and are
validly outstanding, fully paid and nonassessable. Except as Previously
Disclosed and except for options to acquire shares of Landmark Common Stock
pursuant to the Stock Option Agreement, Landmark does not have and is not bound
by any Rights which are authorized, issued or outstanding with respect to the
capital stock of Landmark. None of the shares of Landmark's capital stock has
been issued in violation of the preemptive rights of any person.
2.2. ORGANIZATION, STANDING AND AUTHORITY OF LANDMARK
Landmark is a duly organized bank, validly existing and in good standing
under the laws of New Hampshire with full power and authority to own, lease and
operate its properties and to carry on its business as now conducted and is duly
licensed or qualified to do business in the states of the United States and
foreign jurisdictions where its ownership or leasing of property or the conduct
of its business requires such qualification, except where the failure to be so
licensed or qualified would not have a Material Adverse Effect on Landmark.
Except as Previously Disclosed, Landmark does not own, directly or indirectly,
five percent or more of the outstanding capital stock or other voting securities
of any corporation, bank or other organization.
2.3. OWNERSHIP OF LANDMARK SUBSIDIARIES; CAPITAL STRUCTURE OF LANDMARK
SUBSIDIARIES
Landmark does not own, directly or indirectly, 25 percent or more of the
outstanding capital stock or other voting securities of any corporation, bank or
other organization except as Previously Disclosed (collectively the "Landmark
Subsidiaries" and individually a "Landmark Subsidiary"). The outstanding shares
of capital stock or other equity interests of the Landmark Subsidiaries are
validly issued and outstanding, fully paid and nonassessable and all such shares
or interests are directly or indirectly owned by Landmark free and clear of all
liens, claims and encumbrances. No Landmark Subsidiary has or is bound by any
Rights which are authorized, issued or outstanding with respect to the capital
stock or other equity interests of any Landmark Subsidiary, and there are no
agreements, understandings or commitments relating to the right of Landmark to
vote or to dispose of said shares or interests. None of the shares of capital
stock or other equity interests of any Landmark Subsidiary has been issued in
violation of the preemptive rights of any person.
2.4. ORGANIZATION, STANDING AND AUTHORITY OF LANDMARK SUBSIDIARIES
Each Landmark Subsidiary is a duly organized corporation or banking
association, validly existing and in good standing under applicable laws. Each
Landmark Subsidiary (i) has full power and authority to carry on its business as
now conducted, and (ii) is duly licensed or qualified to do business in the
states of the United States and foreign jurisdictions where its
A-4
<PAGE>
ownership or leasing of property or the conduct of its business requires such
licensing or qualification and where failure to be licensed or qualified would
have a Material Adverse Effect on Landmark. Each Landmark Subsidiary has all
federal, state, local and foreign governmental authorizations necessary for it
to own or lease its properties and assets and to carry on its business as it is
now being conducted, except where the failure to be so authorized would not have
a Material Adverse Effect on Landmark.
2.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Landmark has all requisite corporate power and authority to enter into
and perform all its obligations under this Reorganization Agreement, the Plan of
Merger and the Stock Option Agreement. The execution and delivery of this
Reorganization Agreement, the Plan of Merger and the Stock Option Agreement and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary corporate action in respect thereof
on the part of Landmark, including without limitation the approval of a majority
of the disinterested directors of Landmark, except that the affirmative vote of
the holders of at least a majority of the shares of Landmark Common Stock is the
only shareholder vote required to approve the Plan of Merger pursuant to Chapter
393 of the New Hampshire Revised Statutes Annotated and Landmark's Amended
Articles of Agreement and Bylaws. The Board of Directors of Landmark has
directed that this Agreement and the Plan of Merger be submitted to Landmark's
stockholders for approval at an annual or special meeting to be held as soon as
practicable.
(b) Assuming the accuracy of the representation contained in Section 3.5(b)
hereof, this Reorganization Agreement and the Plan of Merger constitute legal,
valid and binding obligations of Landmark, enforceable against it in accordance
with their respective terms, subject as to enforceability, to bankruptcy,
insolvency and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(c) Neither the execution and delivery of this Reorganization Agreement,
the Plan of Merger or the Stock Option Agreement nor consummation of the
transactions contemplated hereby or thereby, nor compliance by Landmark with any
of the provisions hereof or thereof shall (i) conflict with or result in a
breach of any provision of the Amended Articles of Agreement or Bylaws of
Landmark, (ii) constitute or result in a breach of any term, condition or
provision of, or constitute a default under, or give rise to any right of
termination, cancellation or acceleration with respect to, or result in the
creation of any lien, pledge, security interest, charge or encumbrance upon any
property or asset of Landmark pursuant to, any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation, or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Landmark, except for such violations, rights, conflicts, breaches, creations or
defaults which, either individually or in the aggregate, will not have a
Material Adverse Effect on Landmark.
(d) Other than as contemplated by Sections 4.1 and 4.3 hereof and as
expressly referred to in this Reorganization Agreement, no consent, approval or
authorization of, or declaration, notice, filing or registration with, any
governmental or regulatory authority, or any other person, is required to be
made or obtained by Landmark on or prior to the Closing Date in connection with
the execution, delivery and performance of this Agreement and the Plan of
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<PAGE>
Merger or the consummation of the transactions contemplated hereby or thereby
other than the filing of a certificate or articles of merger or similar document
with the appropriate New Hampshire state authorities.
2.6. REGULATORY FILINGS
Landmark has filed all reports required by statute or regulation to be
filed with any federal or state bank regulatory agency, and such reports were
prepared in all material respects in accordance with the applicable statutes,
regulations and instructions in existence as of the date of filing of such
reports.
2.7. FINANCIAL STATEMENTS; BOOKS AND RECORDS; MINUTE BOOKS
The Landmark Financial Statements fairly present the financial position of
Landmark as of the dates indicated and the results of operations, changes in
shareholders' equity and cash flows of Landmark for the periods then ended in
conformity with generally accepted accounting principles applicable to financial
institutions applied on a consistent basis except as disclosed therein. The
books and records of Landmark fairly reflect in all material respects the
transactions to which it is a party or by which its properties are subject or
bound. Such books and records have been properly kept and maintained and are in
compliance in all material respects with all applicable legal and accounting
requirements. The minute books of Landmark contain records which are accurate in
all material respects of all corporate actions of its shareholders and Board of
Directors (including committees of its Board of Directors).
2.8. MATERIAL ADVERSE CHANGE
Except as Previously Disclosed, Landmark has not suffered any material
adverse change that would have a Material Adverse Effect on its financial
condition, results of operations or business since December 31, 1995.
2.9. ABSENCE OF UNDISCLOSED LIABILITIES
Landmark has no liability (contingent or otherwise), excluding
contractually assumed contingencies, that is material to Landmark, or that, when
combined with all similar liabilities, would be material to Landmark, except as
Previously Disclosed or as disclosed in the Landmark Financial Statements issued
prior to the date hereof and except for liabilities incurred in the ordinary
course of business consistent with past practice subsequent to December 31,
1995.
2.10. PROPERTIES
Landmark has good and marketable title free and clear of all liens,
encumbrances, charges, defaults or equitable interests to all of the properties
and assets, real and personal, which, individually or in the aggregate, are
material to the business of Landmark and which are reflected on the Landmark
Financial Statements as of December 31, 1995 or acquired after such date, except
(i) liens for taxes not yet due and payable, (ii) pledges to secure deposits and
other liens incurred in the ordinary course of banking business, (iii) such
imperfections of title, easements and encumbrances, if any, as are not material
in character, amount or extent and
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<PAGE>
(iv) dispositions and encumbrances for adequate consideration in the ordinary
course of business. All leases pursuant to which Landmark, as lessee, leases
real and personal property which, individually or in the aggregate, are material
to the business of Landmark are valid and enforceable in accordance with their
respective terms and Landmark is not in default or in violation of any such
lease.
2.11. LOANS; ALLOWANCE FOR LOAN LOSSES
(a) Except as Previously Disclosed, each loan reflected as an asset in the
Landmark Financial Statements (i) for all loans with an original principal
amount in excess of $50,000 represents a first lien position with respect to the
collateral securing the loan, (ii) is in all material respects evidenced by
notes, agreements or other evidences of indebtedness which are true, genuine and
what they purport to be, (iii) to the extent secured, has been secured by valid
liens and security interests which have been perfected, and (iv) is not subject
to any known material defenses, set-off or counterclaims except as may be
provided under bankruptcy, insolvency, fraudulent conveyance and other laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
(b) Except as Previously Disclosed, as of June 30, 1996, Landmark was not a
party to any loan, including any loan guaranty, with any director, executive
officer or 5% shareholder of Landmark or any person, corporation or enterprise
controlling, controlled by or under common control with any of the foregoing.
All loans and extensions of credit that have been made by Landmark and that are
subject to Section 22(h) of the Federal Reserve Act, as amended, comply
therewith.
(c) In Landmark's reasonable judgement, the allowance for possible losses
reflected in the Landmark's audited statement of condition at December 31, 1995
was, and the allowance for possible losses shown on the balance sheets for
periods ending after December 31, 1995 have been and will be, adequate, as of
the dates thereof, under generally accepted accounting principles consistently
applied.
2.12. TAX MATTERS
(a) All references to Landmark in this Section 2.12 shall include Landmark
and each Landmark Subsidiary, either individually or collectively, as the
context may require.
(b) Landmark has timely filed federal income tax returns for each year
through December 31, 1995 and has timely filed all other federal, state, local
and foreign tax returns (including, without limitation, estimated tax returns,
returns required under Sections 1441-1446 and 6031-6060 of the Code and the
regulations thereunder and any comparable state, foreign and local laws, any
other information returns, withholding tax returns, FICA and FUTA returns and
back-up withholding returns required under Section 3406 of the Code and any
comparable state, foreign and local laws) required to be filed with respect to
Landmark. All taxes due in respect of the periods covered by such tax returns
have been paid or adequate reserves have been established for the payment of
such taxes in accordance with generally accepted accounting principles. As of
the Closing Date, all taxes due in respect of any subsequent periods ending on
or prior to the Closing Date (or that portion of any period that is prior to the
Closing Date)
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<PAGE>
will have been paid or adequate reserves will have been established for the
payment thereof in accordance with generally accepted accounting principles.
Except as Previously Disclosed, no (i) audit examination, (ii) deficiency or
(iii) refund litigation with respect to any tax is pending. Landmark will not
have any material liability for any taxes in excess of amounts paid or reserves
or accruals established.
(c) All federal, state and local (and, if applicable, foreign) tax returns
filed by Landmark are complete and accurate in all material respects. Landmark
is not delinquent in the payment of any tax, assessment or governmental charge,
and has not requested any extension of time within which to file any tax returns
in respect of any fiscal year or portion thereof which have not since been
filed. No deficiencies for any tax, assessment or governmental charge have been
proposed, asserted or assessed (tentatively or otherwise) against Landmark which
have not been settled and paid. There are currently no agreements in effect with
respect to Landmark to extend the period of limitations for the assessment or
collection of any tax.
(d) Neither the transactions contemplated hereby nor the termination of the
employment of any employees of Landmark prior to or following consummation of
the transactions contemplated hereby could result in Landmark making or being
required to make any "excess parachute payment" as that term is defined in
Section 280G of the Code.
2.13. EMPLOYEE BENEFIT PLANS
(a) Prior to the Closing Date, Landmark will make available to NHTB true
and complete copies of (i) all qualified pension or profit-sharing plans, any
deferred compensation, consulting, bonus or group insurance contract or any
other incentive, welfare or employee benefit plan or agreement maintained for
the benefit of employees or former employees of Landmark, (ii) the most recent
actuarial and financial reports prepared with respect to any qualified plans,
(iii) the most recent annual reports filed with any government agency, and (iv)
all rulings and determination letters and any open requests for rulings or
letters that pertain to any qualified plan.
(b) Neither Landmark nor any pension plan maintained by Landmark has
incurred or reasonably expects to incur any material liability to the Pension
Benefit Guaranty Corporation or to the Internal Revenue Service with respect to
any pension plan qualified under Section 401 of the Code except liabilities to
the Pension Benefit Guaranty Corporation pursuant to Section 4007 of ERISA, all
of which have been fully paid. No reportable event under Section 4043(b) of
ERISA has occurred with respect to any such pension plan.
(c) Landmark does not participate in, and has not incurred any liability
under Section 4201 of ERISA for a complete or partial withdrawal from, a
multiemployer plan as such term is defined in ERISA.
(d) Except as Previously Disclosed, a favorable determination letter has
been issued by the Internal Revenue Service with respect to each "employee
pension plan" (as defined in Section 3(2) of ERISA) of Landmark which is
intended to be a qualified plan to the effect that such plan is qualified under
Section 401 of the Code and tax exempt under Section 501 of the Code. No such
letter has been revoked or threatened to be revoked and Landmark knows of no
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<PAGE>
reasonable ground on which such revocation may be based. Such plans have been
operated in all material respects in accordance with their terms and applicable
law.
(e) No prohibited transaction (which shall mean any transaction prohibited
by Section 406 of ERISA and not exempt under Section 408 of ERISA) has occurred
with respect to any "employee benefit plan" (as defined in Section 3(3) of
ERISA) maintained by Landmark which would result in the imposition, directly or
indirectly, of an excise tax under Section 4975 of the Code that would have,
individually or in the aggregate, a Material Adverse Effect on Landmark.
(f) The actuarial present value of accrued benefit obligations, whether or
not vested, under each "employee pension plan" maintained by Landmark did not
exceed as of the most recent actuarial valuation date the then current fair
market value of the assets of such plan and no material adverse change has
occurred with respect to the funded status of any such plan since such date.
2.14. CERTAIN CONTRACTS
(a) Except as Previously Disclosed, Landmark is not a party to, or bound
by, (i) any material contract, arrangement or commitment whether or not made in
the ordinary course of business (other than loans or loan commitments and
funding transactions in the ordinary course of Landmark's banking business) or
any agreement restricting the nature or geographic scope of its business
activities in any material respect, (ii) any agreement, indenture or other
instrument relating to the borrowing of money by Landmark or the guarantee by
Landmark of any such obligation, other than instruments relating to transactions
entered into in the customary course of business, (iii) any written or oral
agreement, arrangement or commitment relating to the employment of a consultant
or the employment, election, retention in office or severance of any present or
former director or officer, or (iv) any contract, agreement or understanding
with a labor union.
(b) Landmark is not in default in any material respect under any material
agreement, commitment, arrangement, lease, insurance policy or other instrument
whether entered into in the ordinary course of business or otherwise, and there
has not occurred any event that, with the lapse of time or giving of notice or
both, would constitute such a default.
2.15. LEGAL PROCEEDINGS
There are no actions, suits or proceedings instituted, pending or, to the
knowledge of Landmark, threatened (or unasserted but considered probable of
assertion and which if asserted would have at least a reasonable probability of
an unfavorable outcome) against Landmark or against any asset, interest or right
of Landmark that, if determined adversely to Landmark, would, individually or in
the aggregate, have a Material Adverse Effect on Landmark. To the knowledge of
Landmark, there are no actual or threatened actions, suits or proceedings which
present a claim to restrain or prohibit the transactions contemplated herein or
to impose any material liability in connection therewith. There are no actions,
suits or proceedings instituted, pending or, to the knowledge of Landmark,
threatened (or unasserted but considered probable of assertion and which if
asserted would be reasonably expected to have an unfavorable outcome) against
any present or former director or officer of Landmark, that might give rise to a
claim
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for indemnification and that, in the event of an unfavorable outcome, would,
individually or in the aggregate, have a Material Adverse Effect on Landmark
and, to the knowledge of Landmark, there is no reasonable basis for any such
action, suit or proceeding.
2.16. COMPLIANCE WITH LAWS
Except as Previously Disclosed, Landmark is in compliance in all material
respects with all statutes and regulations applicable to the conduct of its
business except for violations which, individually or in the aggregate, would
not have a Material Adverse Effect on Landmark, and Landmark has not received
notification from any agency or department of federal, state or local government
(i) asserting a material violation of any such statute or regulation, (ii)
threatening to revoke any license, franchise, permit or government authorization
or (iii) restricting or in any way limiting its operations. Landmark is not
subject to any regulatory or supervisory cease and desist order, agreement,
directive, memorandum of understanding or commitment, and has not received any
communication requesting that it enter into any of the foregoing.
2.17. LABOR MATTERS
With respect to its employees, Landmark is not a party to any labor
agreement with any labor organization, group or association and has not engaged
in any unfair labor practice as defined under applicable federal law. Since
January 1, 1996, Landmark has not experienced any attempt by organized labor or
its representatives to make Landmark conform to demands of organized labor
relating to their employees or to enter into a binding agreement with organized
labor that would cover the employees of Landmark. There is no unfair labor
practice charge or other complaint by any employee or former employee of
Landmark against it pending before any governmental agency arising out of
Landmark's activities; there is no labor strike or labor disturbance pending or,
to the knowledge of Landmark, threatened against it; and Landmark has not
experienced a work stoppage or other labor difficulty. Landmark is in
compliance with applicable laws regarding employment of employees and retention
of independent contractors, and is in compliance with applicable employment tax
laws.
2.18. BROKERS AND FINDERS
Neither Landmark nor any of its officers, directors or employees, has
employed any broker, finder or financial advisor or incurred any liability for
any fees or commissions in connection with the transactions contemplated herein
or the Plan of Merger, except that Landmark has engaged and will pay a fee to
McConnell, Budd & Downes, Inc. as Previously Disclosed.
2.19. INSURANCE
Landmark currently maintains insurance in amounts reasonably necessary for
its operations. Landmark has not received any notice of a premium increase or
cancellation with respect to any of its insurance policies or bonds, and within
the last three years, Landmark has not been refused any insurance coverage
sought or applied for, and Landmark has no reason to believe that existing
insurance coverage cannot be renewed as and when the same shall expire, upon
terms and conditions as favorable as those presently in effect, other than
possible increases
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in premiums or unavailability in coverage that have not resulted from any
extraordinary loss experience of Landmark. The deposits of Landmark are insured
by the Bank Insurance Fund of the FDIC in accordance with the FDIA, and Landmark
has paid all assessments and filed all reports required by the FDIA.
2.20. ENVIRONMENTAL LIABILITY
Landmark has not received any written notice of any legal, administrative,
arbitral or other proceeding, claim or action and, to the knowledge of Landmark,
there is no governmental investigation of any nature ongoing, in each case that
could reasonably be expected to result in the imposition, on Landmark of any
liability arising under any local, state or federal environmental statute,
regulation or ordinance including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
which liability would have a Material Adverse Effect on Landmark; there are no
facts or circumstances which could reasonably be expected to form the basis for
any such proceeding, claim, action or governmental investigation that would
impose any such liability; and Landmark is not subject to any agreement, order,
judgment, decree or memorandum by or with any court, governmental authority,
regulatory agency or third party imposing any such liability.
2.21. ADMINISTRATION OF TRUST ACCOUNTS
Except as Previously Disclosed, Landmark does not currently and has not
previously administered any accounts for which it acts as a fiduciary or agent,
including but not limited to accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator or investment advisor.
2.22. INTELLECTUAL PROPERTY
Landmark owns the entire right, title and interest in and to, or has valid
licenses with respect to, all the Intellectual Property necessary in all
material respects to conduct the business and operations of Landmark as
presently conducted, except where the failure to do so would not, individually
or in the aggregate, have a Material Adverse Effect on Landmark. None of such
Intellectual Property is subject to any outstanding order, decree, judgment,
stipulation, settlement, lien, charge, encumbrance or attachment, which order,
decree, judgment, stipulation, settlement, lien, charge, encumbrance or
attachment would have a Material Adverse Effect on Landmark.
2.23. CERTAIN INFORMATION
At all times subsequent to the effectiveness of the Registration Statement
or any post-effective amendment thereto and up to and including the time of the
Landmark shareholders' meeting to vote upon the Merger, and at all times
subsequent to the mailing of any Proxy Statement or any amendment thereto and up
to and including the time of the Landmark shareholders' meeting to vote upon the
Merger, such Registration Statement or Proxy Statement and all amendments or
supplements thereto, with respect to all information set forth therein furnished
by Landmark relating to Landmark shall (i) comply in all material respects with
the applicable provisions of the Securities Laws, and (ii) not contain any
untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading.
2.24. TAKEOVER PROVISIONS
The transactions contemplated by this Reorganization Agreement are exempt
from any applicable state takeover law.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF
NHTB AND BANK
NHTB and Bank hereby jointly and severally represent and warrant to
Landmark as follows:
3.1. CAPITAL STRUCTURE OF NHTB
(a) As of the date hereof, (i) the authorized capital stock of NHTB
consists solely of 5,000,000 shares of common stock ("NHTB Common Stock") and
2,500,000 shares of preferred stock ("NHTB Preferred Stock"), (ii) there are not
more than 1,689,503 shares of NHTB Common Stock issued and outstanding, 457,779
shares of NHTB Common Stock held in its treasury, and no shares of NHTB
Preferred Stock issued and outstanding, and (iii) 112,490 shares of NHTB Common
Stock are reserved for issuance under employee stock option plans ("NHTB Stock
Option Plans").
(b) As of the date hereof, except for shares of NHTB Common Stock subject
to options under the NHTB Stock Option Plans, NHTB is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the transfer, purchase or issuance of, or
representing the right to purchase, subscribe for or otherwise receive, any
shares of its capital stock or any securities convertible into or representing
the right to receive, purchase or subscribe for any such shares of NHTB. There
are no agreements or understandings to which NHTB is a party with respect to the
voting of any shares of NHTB Common Stock or which restrict the transfer of such
shares.
(c) All outstanding shares of NHTB Common Stock have been duly issued and
are validly outstanding, fully paid and nonassessable. None of the shares of
NHTB's capital stock has been issued in violation of the preemptive rights of
any person. The shares of NHTB Common Stock to be issued in connection with the
Merger have been duly authorized and, when issued in accordance with the terms
of this Reorganization Agreement and the Plan of Merger, will be validly issued,
fully paid, nonassessable and free and clear of any preemptive rights.
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3.2. ORGANIZATION, STANDING AND AUTHORITY OF NHTB
NHTB is a duly organized corporation, validly existing and in good standing
under the laws of Delaware, with full corporate power and authority to carry on
its business as now conducted and is duly licensed or qualified to do business
in the states of the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires such
qualification, except where the failure to be so licensed or qualified would not
have a Material Adverse Effect on NHTB. NHTB is registered as a savings and loan
holding company under the Savings and Loan Holding Company Act, as amended.
3.3. OWNERSHIP OF NHTB SUBSIDIARIES; CAPITAL STRUCTURE OF NHTB SUBSIDIARIES
NHTB does not own, directly or indirectly, 25 percent or more of the
outstanding capital stock or other voting securities of any corporation, bank or
other organization except as Previously Disclosed (collectively the "NHTB
Subsidiaries" and individually a "NHTB Subsidiary"). The outstanding shares of
capital stock or other equity interests of the NHTB Subsidiaries are validly
issued and outstanding, fully paid and nonassessable and all such shares or
interests are directly or indirectly owned by NHTB free and clear of all liens,
claims and encumbrances. No NHTB Subsidiary has or is bound by any Rights which
are authorized, issued or outstanding with respect to the capital stock or other
equity interests of any NHTB Subsidiary, and there are no agreements,
understandings or commitments relating to the right of NHTB to vote or to
dispose of said shares or interests. None of the shares of capital stock or
other equity interests of any NHTB Subsidiary has been issued in violation of
the preemptive rights of any person.
3.4. ORGANIZATION, STANDING AND AUTHORITY OF NHTB SUBSIDIARIES
Each NHTB Subsidiary is a duly organized corporation or banking
association, validly existing and in good standing under applicable laws. Each
NHTB Subsidiary (i) has full power and authority to carry on its business as now
conducted, and (ii) is duly licensed or qualified to do business in the states
of the United States and foreign jurisdictions where its ownership or leasing of
property or the conduct of its business requires such licensing or qualification
and where failure to be licensed or qualified would have a Material Adverse
Effect on NHTB. Each NHTB Subsidiary has all federal, state, local and foreign
governmental authorizations necessary for it to own or lease its properties and
assets and to carry on its business as it is now being conducted, except where
the failure to be so authorized would not have a Material Adverse Effect on
NHTB.
3.5. AUTHORIZED AND EFFECTIVE AGREEMENT
(a) Each of NHTB and Bank has all requisite corporate power and authority
to enter into and perform all of its obligations under this Reorganization
Agreement, the Plan of Merger and the Stock Option Agreement. The execution and
delivery of this Reorganization Agreement; the Plan of Merger and the Stock
Option Agreement and the consummation of the transactions contemplated hereby
and thereby have been duly and validly authorized by all necessary corporate
action in respect thereof on the part of NHTB and Bank, other than the
affirmative vote of the holders of a majority of the votes cast by the holders
of NHTB Common Stock
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eligible to vote thereon, which is required to authorize the issuance of NHTB
Common Stock pursuant to this Reorganization Agreement and the Plan of Merger in
accordance with National Association of Securities Dealers Automated Quotation
("NASDAQ") policy. The Board of Directors of NHTB has directed that this
Agreement and the Plan of Merger be submitted to NHTB's stockholders for
approval at an annual or special meeting to be held as soon as practicable.
(b) Assuming the accuracy of the representation contained in Section 2.5(b)
hereof, this Reorganization Agreement and the Plan of Merger constitute legal,
valid and binding obligations of NHTB and Bank, in each case enforceable against
it in accordance with their respective terms subject, as to enforceability, to
bankruptcy, insolvency and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity.
(c) Neither the execution and delivery of this Reorganization Agreement,
the Plan of Merger or the Stock Option Agreement nor consummation of the
transactions contemplated hereby or thereby, nor compliance by NHTB or Bank with
any of the provisions hereof or thereof shall (i) conflict with or result in a
breach of any provision of the articles or certificate of incorporation or
association, charter or bylaws of NHTB or any NHTB Subsidiary, (ii) constitute
or result in a breach of any term, condition or provision of, or constitute a
default under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any lien, charge or
encumbrance upon any property or asset of NHTB or any NHTB Subsidiary pursuant
to, any note, bond, mortgage, indenture, license, agreement or other instrument
or obligation, or (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to NHTB or any NHTB Subsidiary, except for such
violations, rights, conflicts, breaches, creations or defaults which, either
individually or in the aggregate, will not have a Material Adverse Effect on
NHTB.
(d) Except for approvals specified in Sections 4.1 and 4.3 hereof, and
except as expressly referred to in this Reorganization Agreement, no consent,
approval or authorization of, or declaration, notice, filing or registration
with, any governmental or regulatory authority, or any other person, is required
to be made or obtained by NHTB or Bank on or prior to the Closing Date in
connection with the execution, delivery and performance of this Agreement and
the Plan of Merger or the consummation of the transactions contemplated hereby
or thereby.
3.6. SEC DOCUMENTS; REGULATORY FILINGS
NHTB has filed all SEC Documents required by the Securities Laws and such
SEC Documents complied, as of their respective dates, in all material respects
with the Securities Laws. NHTB and each of the NHTB Subsidiaries has filed all
reports required by statute or regulation to be filed with any federal or state
bank regulatory agency, and such reports were prepared in accordance with the
applicable statutes, regulations and instructions in existence as of the date of
filing of such reports in all material respects.
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3.7. FINANCIAL STATEMENTS
The NHTB Financial Statements fairly present the consolidated financial
position of NHTB and the consolidated NHTB Subsidiaries as of the dates
indicated and the consolidated results of operations, changes in shareholders'
equity and cash flows of NHTB and the consolidated NHTB Subsidiaries for the
periods then ended in conformity with generally accepted accounting principles
applicable to financial institutions applied on a consistent basis except as
disclosed therein.
3.8. MATERIAL ADVERSE CHANGE
NHTB has not, on a consolidated basis, suffered any material adverse change
that would have a Material Adverse Effect on its financial condition, results of
operations or business since December 31, 1995.
3.9. ABSENCE OF UNDISCLOSED LIABILITIES
Neither NHTB nor any NHTB Subsidiary has any liability (contingent or
otherwise), excluding contractually assumed contingencies, that is material to
NHTB on a consolidated basis, or that, when combined with all similar
liabilities, would be material to NHTB on a consolidated basis, except as
Previously Disclosed, as disclosed in the NHTB Financial Statements filed with
the SEC prior to the date hereof and except for liabilities incurred in the
ordinary course of business subsequent to December 31, 1995.
3.10. BROKERS AND FINDERS
Neither NHTB nor any NHTB Subsidiary, nor any of their respective officers,
directors or employees, has employed any broker, finder or financial advisor or
incurred any liability for any fees or commissions in connection with the
transactions contemplated herein or the Plan of Merger, except that NHTB has
engaged and will pay a fee to HAS Associates, Inc.
3.11. CERTAIN INFORMATION
At all times subsequent to the effectiveness of the Registration Statement
or any post-effective amendment thereto and up to and including the time of the
NHTB shareholders' meeting to vote upon the Merger, and at all times subsequent
to the mailing of any Proxy Statement or any amendment thereto and up to and
including the time of the NHTB shareholders' meeting to vote upon the Merger,
such Registration Statement or Proxy Statement and all amendments or supplements
thereto, with respect to all information set forth therein furnished by NHTB
relating to NHTB and the NHTB Subsidiaries shall (i) comply in all material
respects with the applicable provisions of the Securities Laws, and (ii) not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading.
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3.12. LEGAL PROCEEDINGS
Except for matters which, individually or in the aggregate, would not have
a Material Adverse Effect on NHTB and the NHTB Subsidiaries, taken as a whole,
neither NHTB nor any of the NHTB Subsidiaries is a party to any, and there are
no pending or, to the best of NHTB's knowledge, threatened, legal,
administrative, arbitral or other proceedings, claims, actions or governmental
investigations of any nature by or against NHTB or any of the NHTB Subsidiaries;
and neither NHTB nor any of the NHTB Subsidiaries is a party to or subject to
any order, judgment or decree.
3.13. COMPLIANCE WITH LAWS; REGULATORY EXAMINATIONS
(a) NHTB and each of the NHTB Subsidiaries holds, and has at all times
held, all licenses, franchises, permits, approvals, consents, qualifications and
authorizations material for the lawful conduct of its business under and
pursuant to, and has complied with, and is not in default under, any applicable
law, statute, order, rule, regulation, policy, ordinance, reporting or filing
requirement and/or guideline of any federal, state or local governmental
authority relating to NHTB or any of the NHTB Subsidiaries, except for
violations which, either individually or in the aggregate, do not or would not
have a Material Adverse Effect on NHTB and the NHTB Subsidiaries taken as a
whole, and neither NHTB or any of the NHTB Subsidiaries has knowledge of any
violation of any of the above.
(b) Except for normal examinations conducted by a regulatory agency in the
regular course of the business of NHTB and the NHTB Subsidiaries, no regulatory
agency has initiated any proceeding or, to the best knowledge of NHTB,
investigation into the business or operations of NHTB or any of the NHTB
Subsidiaries since December 31, 1995. NHTB has not received any objection from
any regulatory agency to NHTB's response to any violation, criticism or
exception with respect to any report or statement relating to any examinations
of NHTB or any of the NHTB Subsidiaries.
3.14. ENVIRONMENTAL ISSUES
Except where such violation, liability or noncompliance would not have a
Material Adverse Effect on NHTB and the NHTB Subsidiaries, taken as a whole: (i)
neither NHTB nor any of the NHTB Subsidiaries has violated during the last five
years or is in violation of any federal, state or local environmental law; (ii)
none of the properties owned or leased by NHTB or any NHTB Subsidiary
(including, without limitation, soils and surface and ground waters) are
contaminated with any hazardous substance; (iii) neither NHTB nor any of the
NHTB Subsidiaries is liable for any off-site contamination; (iv) neither NHTB
nor any of the NHTB Subsidiaries is liable under any federal, state or local
environmental law; and (v) NHTB and each of the NHTB Subsidiaries is, and has
during the last five years been, in compliance with, all of their respective
permits, licenses and other authorizations referred to under any environmental
laws. For purposes of the foregoing, all references to "properties" include,
without limitation, any owned real property or leased real property.
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ARTICLE 4.
COVENANTS
4.1. SHAREHOLDERS' MEETING
NHTB and Landmark shall submit this Reorganization Agreement and the
Plan of Merger and, in the case of NHTB, the issuance of NHTB Common Stock
thereunder, to their respective shareholders for approval at annual or special
meetings to be held as soon as practicable. Subject to the fiduciary duties of
the respective boards of directors of Landmark and NHTB as determined by each
after consultation with such board's counsel, the boards of directors of NHTB
and Landmark shall recommend at the respective shareholders' meetings that the
shareholders vote in favor of such approval. The Boards of Directors of NHTB
and Landmark in discharging their respective fiduciary duties, may request and
take into consideration a letter from each of their respective financial
consultants to the effect that in such financial consultant's opinion, the
consideration to be received by holders of Landmark Common Stock in connection
with the Merger is fair to their respective shareholders from a financial point
of view.
4.2. PROXY STATEMENT; REGISTRATION STATEMENT
As promptly as practicable after the date hereof, NHTB and Landmark
shall cooperate in the preparation of a Proxy Statement to be mailed to the
shareholders of Landmark and NHTB in connection with the Merger and the
transactions contemplated thereby and to be filed by NHTB as part of the
Registration Statement. It is anticipated that NHTB and Landmark will present
the Merger to their respective shareholders pursuant to the Proxy Statement.
NHTB will advise Landmark, promptly after it receives notice thereof, of the
time when the Registration Statement or any post-effective amendment thereto has
become effective or any supplement or amendment has been filed, of the issuance
of any stop order, of the suspension of qualification of the NHTB Common Stock
issuable in connection with the Merger for offering or sale in any jurisdiction,
or the initiation or threat of any proceeding for any such purpose, or of any
request by the SEC for the amendment or supplement of the Registration Statement
or for additional information. NHTB shall take all actions necessary to register
or qualify the shares of NHTB Common Stock to be issued in the Merger pursuant
to all applicable state "blue sky" or securities laws and shall maintain such
registrations or qualifications in effect for all purposes hereof. NHTB shall
apply for approval to list the shares of NHTB Common Stock to be issued in the
Merger on the NASDAQ, subject to official notice of issuance, prior to the
Effective Date.
4.3. APPLICATIONS
As promptly as practicable after the date hereof, NHTB shall submit
any requisite applications or petitions for prior approval of the transactions
contemplated herein and in the Plan of Merger (i) to the OTS pursuant to the
Bank Merger Act and 12 C.F.R. (S) 563.22, and (ii) to the New Hampshire Bank
Commissioner pursuant to Chapter 393 or other applicable section of the New
Hampshire Revised Statutes Annotated, and the regulations promulgated
thereunder. Each of the parties hereto shall, and they shall cause their
respective subsidiaries to, submit any applications, notices or other filings to
any other state or federal government agency, department or body the approval of
which is required for consummation of the Merger.
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Landmark and NHTB each represents and warrants to the other that all information
concerning it and its directors, officers, shareholders and subsidiaries
included (or submitted for inclusion) in any such application and furnished by
it shall be true, correct and complete in all material respects.
4.4. BEST EFFORTS; CERTAIN NOTICES AND INFORMATION
(a) NHTB, Bank, and Landmark shall each use its best efforts in good
faith, and NHTB shall cause its subsidiaries to use their best efforts in good
faith, to (a) furnish such information as may be required in connection with the
preparation of the documents referred to in Sections 4.2 and 4.3 above, and (b)
take or cause to be taken all action necessary or desirable on its part so as to
permit consummation of the Merger at the earliest possible date, including,
without limitation, (i) obtaining the consent or approval of each individual,
partnership, corporation, association or other business or professional entity
whose consent or approval is required for consummation of the transactions
contemplated hereby, provided that Landmark shall not agree to make any payments
or modifications to agreements in connection therewith without the prior written
consent of NHTB, and (ii) requesting the delivery of appropriate opinions,
consents and letters from its counsel and independent auditors. No party hereto
shall take or fail to take, or cause or permit its subsidiaries to take or fail
to take, or to the best of its ability permit to be taken or omitted to be taken
by any third persons, any action that would substantially impair the prospects
of completing the Merger pursuant to this Reorganization Agreement and the Plan
of Merger. In the event that any party has taken any action, whether before, on
or after the date hereof, that would adversely affect such qualification, each
party shall take such action as the other party may reasonably request to cure
such effect to the extent curable without a Material Adverse Effect on any of
the parties.
(b) Landmark shall give prompt notice to NHTB, and NHTB shall give
prompt notice to Landmark, in each case within five (5) business days of (i) the
occurrence, or failure to occur, of any event which occurrence or failure would
be likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at any time from the date hereof
to the Closing Date, and (ii) any material failure of Landmark, NHTB or the
Bank, as the case may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder, and each party shall
use all reasonable efforts to remedy such failure.
(c) Landmark shall provide and shall request its auditors to provide
NHTB with such historical financial information regarding it (and related audit
reports and consents) as NHTB may reasonably request for securities disclosure
purposes.
(d) During the period from the date of this Agreement until the
earlier to occur of the Effective Date or the termination of this Agreement
pursuant to Section 6.1 hereof, NHTB shall, from time to time when deemed
appropriate by NHTB or when requested by Landmark, cause one or more of its
representatives to confer with representatives of Landmark and report any
relevant information relating to any material transactions outside of NHTB's
ordinary course of business.
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4.5. INVESTIGATION AND CONFIDENTIALITY
Landmark and NHTB each will keep the other advised of all material
developments relevant to its business and to consummation of the transactions
contemplated herein and in the Plan of Merger. NHTB and Landmark each may make
or cause to be made such investigation of the financial and legal condition of
the other as such party reasonably deems necessary or advisable in connection
with the transactions contemplated herein and in the Plan of Merger; provided,
however, that such investigation shall be reasonably related to such
transactions and shall not interfere unnecessarily with normal operations. NHTB
and Landmark agree to furnish the other and the other's advisors with such
financial data and other information with respect to its business and properties
as such other party shall from time to time reasonably request. No investigation
pursuant to this Section 4.5 shall affect or be deemed to modify any
representation or warranty made by, or the conditions to the obligations to
consummate the Merger of, any party hereto. Each party hereto shall hold all
information furnished by the other party or any of such party's subsidiaries or
representatives pursuant to Section 4.5 in confidence to the extent required by,
and in accordance with, the provisions of the confidentiality agreement dated
February 15, 1996 by and between Landmark and NHTB (the "Confidentiality
Agreement").
4.6. PRESS RELEASES
Landmark and NHTB shall agree with each other as to the form and
substance of any press release related to this Reorganization Agreement, the
Plan of Merger, the Stock Option Agreement or the transactions contemplated
hereby or thereby, and shall consult each other as to the form and substance of
other public disclosures related thereto; provided, however, that nothing
contained herein shall prohibit any party, following notification to the other
parties, from making any disclosure which its counsel deems necessary.
4.7. COVENANTS OF LANDMARK
(a) Prior to the Closing Date, and except as otherwise provided for by
this Reorganization Agreement, the Plan of Merger, the Stock Option Agreement or
consented to or approved by NHTB, Landmark shall use its best efforts to
preserve its properties, business and relationships with customers, employees
and other persons.
(b) Except with the prior written consent of NHTB or except as
Previously Disclosed or except as expressly contemplated or permitted by this
Reorganization Agreement, the Plan of Merger, or the Stock Option Agreement
Landmark shall not:
(1) carry on its business other than in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted;
(2) declare, set aside, make or pay any dividend or other distribution
in respect of its capital stock;
(3) issue any shares of its capital stock (except for the issuance of
the Landmark Common Stock pursuant to Section 4.7(d) hereof) or permit any
treasury shares to become outstanding other than pursuant to the Stock Option
Agreement;
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(4) incur any additional debt obligation or other obligation for
borrowed money other than in the ordinary course of business consistent with
past practice;
(5) issue, grant or authorize any Rights or effect any
recapitalization, reclassification, stock dividend, stock split or like change
in capitalization, or redeem, repurchase or otherwise acquire any shares of its
capital stock;
(6) amend its Articles of Agreement or bylaws;
(7) merge with any other corporation, savings association or bank or
permit any other corporation, savings association or bank to merge into it or
consolidate with any other corporation, savings association or bank; acquire
control over any other firm, bank, corporation, savings association or
organization or create any subsidiary;
(8) except in the ordinary course of business, waive or release any
material right or cancel or compromise any material debt or claim;
(9) fail to comply in any material respect with any laws, regulations,
ordinances or governmental actions applicable to it and to the conduct of its
business;
(10) enter into any material swap, hedge or other similar off-balance
sheet transaction;
(11) liquidate or sell or dispose of any material assets or acquire
any material assets; make any capital expenditure in excess of $25,000 in any
instance or in the aggregate; or, except as Previously Disclosed, establish new
branches or other similar facilities or enter into or modify any leases or other
contracts relating thereto that involve annual payments that exceed $10,000 in
any instance or $25,000 in the aggregate;
(12) increase the rate of compensation of, pay or agree to pay any
bonus to, or provide any other employee benefit or incentive to, any of its
directors, officers or employees;
(13) enter into, modify or extend any employment or severance
contracts with any of its present or former directors, officers or employees;
(14) enter into or substantially modify (except as may be required by
applicable law) any pension, retirement, stock option, stock purchase, stock
appreciation right, savings, profit sharing, deferred compensation, consulting,
bonus, group insurance or other employee benefit, incentive or welfare contract,
plan or arrangement, or any trust agreement related thereto, in respect of any
of its directors, officers or other employees;
(15) change its lending, investment, asset/liability management or
other material banking policies in any material respect except as may be
required by changes in applicable law;
(16) change its methods of accounting in effect at December 31, 1995,
except as required by changes in generally accepted accounting principles
concurred in by its independent certified public accountants, or change any of
its methods of reporting income and deductions
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for federal income tax purposes from those employed in the preparation of its
federal income tax returns for the year ended December 31, 1995, except as
required by law;
(17) solicit or initiate inquiries or proposals with respect to any
acquisition or purchase of all or a substantial portion of the assets of, or a
substantial equity interest in, Landmark or any business combination with
Landmark other than as contemplated by this Reorganization Agreement; or
authorize or permit any officer, director, agent or affiliate of it to do any of
the above; or fail to notify NHTB as soon as practicable if any such inquiries
or proposals are received by Landmark, or if Landmark or any officer, director,
agent or affiliate thereof is requested to or does furnish any confidential
information relating to, or participates in any negotiations or discussions
concerning, any transaction of a type described in this paragraph; or
(18) agree to do any of the foregoing.
(c) Landmark agrees to approve, execute and deliver any amendment to
this Reorganization Agreement and the Plan of Merger and any additional plans
and agreements requested by NHTB to modify the structure of, or to substitute
parties to, the transactions contemplated hereby; provided, however, that no
such change shall (i) alter or change the amount or kind of consideration to be
delivered to the shareholders of Landmark in connection with the Merger, (ii)
adversely affect the tax treatment to the shareholders of Landmark as a result
of receiving such merger consideration, or (iii) materially impede or delay
receipt of any approval referred to in Section 4.3 hereof or the consummation of
the transactions contemplated by this Reorganization Agreement and the Plan of
Merger.
(d) Prior to the Effective Date, Landmark agrees to take any and all
action necessary to cause all outstanding shares of Landmark Preferred Stock to
be converted into shares of Landmark Common Stock pursuant to the provisions of
the Statement of Designation adopted by the Board of Directors of Landmark on
October 14, 1992.
(e) Contemporaneous with the signing of this Agreement, the directors
of Landmark will enter into an agreement in the form attached hereto as Exhibit
A, whereby they will vote all shares of Landmark Common Stock held by them for
the approval of the Merger.
4.8. CLOSING; ARTICLES OF COMBINATION
The transactions contemplated by this Reorganization Agreement and the
Plan of Merger shall be consummated at a closing ("Closing") to be held at the
offices of New Hampshire Thrift Bancshares, 9 Main Street, Newport, New
Hampshire, at 10:00 a.m. on the first business day that is at least 10 calendar
days after the date on which the last of all required approvals for the Merger
has been obtained and the last of all required waiting periods under such
approvals has expired, or at such other place, date or time as NHTB and Landmark
may mutually agree upon, with the Merger to be consummated after such
intermediate steps as NHTB may specify. The Merger shall be effective at the
time and on the date specified in the articles of combination to be filed with
the Secretary of the Office of Thrift Supervision (the "Effective Date").
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4.9. AFFILIATES
Landmark and NHTB shall cooperate and use their best efforts to
identify those persons who may be deemed to be "affiliates" of Landmark within
the meaning of Rule 145 promulgated by the Commission under the Securities Act.
Landmark shall use its best efforts to cause each person so identified to
deliver to NHTB, no later than 30 days prior to the Effective Date, a written
agreement providing that such person will not dispose of any NHTB Common Stock
received in the Merger except in compliance with the Securities Act, the rules
and regulations promulgated thereunder.
4.10. LANDMARK EMPLOYEES; DIRECTORS AND MANAGEMENT; INDEMNIFICATION
(a) All employees of Landmark as of the Effective Date shall become
employees of NHTB or a NHTB Subsidiary as of the Effective Date. Nothing in this
Agreement shall give any employee of Landmark a right to continuing employment
with NHTB after the Effective Date. As soon as practicable after the Effective
Date, NHTB shall provide or cause to be provided to all employees of Landmark
who remain employed by NHTB or any NHTB Subsidiary after the Effective Date with
employee benefits which, in the aggregate, are no less favorable than those
generally afforded to other employees of NHTB or NHTB's Subsidiaries holding
similar positions, including without limitation employee benefits provided in
accordance with NHTB's severance policy, subject to the terms and conditions
under which those employee benefits are made available to such employees;
provided that, for purposes of determining eligibility for and vesting of such
employee benefits only (and not for pension benefit accrual purposes), service
with Landmark (including service with a predecessor corporation) prior to the
Effective Date shall be treated as service with an "employer" to the same extent
as if such persons had been employees of NHTB, and provided further that this
Section 4.10(a) shall not be construed to limit the ability of NHTB and its
affiliates to terminate the employment of any employee or to review employee
benefits programs from time to time and to make such changes as they deem
appropriate.
(1) In the event any employee of NHTB who was employed by Landmark at
the Effective Date is terminated from NHTB within one year after the Effective
Date, in addition to any severance payment, each such employee shall be
reimbursed for the costs they incur for COBRA coverage during such employee's
severance period (for purposes hereof, the term severance period shall mean that
period of time for which severance pay is paid), provided, however, that on or
prior to any payment by NHTB pursuant to this provision, each such employee
executes a release of claim in favor of NHTB in the form attached hereto as
Exhibit B.
(2) NHTB or Bank agrees to make a payment, in the amount Previously
Disclosed to Landmark, on the Effective Date to an employee of Landmark who is a
party to an employment agreement with Landmark. Such payment shall be made in
complete satisfaction of all liabilities and obligations of Landmark, NHTB and
Bank under such employment agreement; provided, however, that there shall have
been delivered to NHTB, at or prior to the Effective Date, a written
acknowledgment signed by such person that the payment to be made to him is in
full and complete satisfaction of all liabilities and obligations of Landmark,
NHTB and Bank, and each of their affiliates, officers, directors and agents
under such employment
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agreement and a release signed by such person of all such parties from further
liability in connection with the employment agreement and provided further, that
such payment shall not be in violation of 12 C.F.R. (S) 359.
(b) As Previously Disclosed, NHTB's Board of Directors shall take all
requisite action to appoint as directors of NHTB, effective as of the Effective
Date, one director for a three year term and a second director to a two year
term, and Bank's Board of Directors shall take all requisite action to elect as
directors of Bank, effective as of the Effective Date, one director for a three
year term, a second director for a two year term and a third director for a one
year term. Both NHTB's Board of Directors and Bank's Board of Directors shall,
prior to the expiration of each such person's initial appointed term, use their
respective reasonable efforts consistent with their fiduciary duties to nominate
such persons and seek such person's election to their respective Boards of
Directors for an additional term after each person's original term expires.
(c) From and after the Effective Date, Bank shall indemnify persons
who served as directors and officers of Landmark on or before the Effective Date
in accordance with and subject to the provisions of Landmark's Amended Articles
of Agreement and Bylaws as delivered to NHTB prior to the execution of this
reorganization Agreement. From and after the Effective Date, NHTB will cause
the persons who served as directors or officers of Landmark on or before the
Effective Date to be covered by Landmark's existing directors' and officers'
liability insurance policy (or policies of at least the same coverage and
amounts and containing terms and conditions which are not less advantageous than
such policy); provided that no such person shall be entitled to insurance
coverage more favorable than that provided to the person in such capacity at the
date hereof with respect to acts or omissions resulting from the person's
service as such on or prior to the Effective Date, and provided further that
NHTB shall not be required to expend in any year more than 150 percent of the
current per annum amount expended by Landmark to maintain or procure insurance
coverage pursuant hereto. Such insurance coverage shall commence on the
Effective Date and will be provided for a period of no less than 3 years after
the Effective Date.
ARTICLE 5.
CONDITIONS PRECEDENT
5.1. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF NHTB, BANK AND LANDMARK
The respective obligations of the parties to effect the Merger shall
be subject to satisfaction or waiver of the following conditions at or prior to
the Closing Date:
(a) All corporate action necessary to authorize the execution,
delivery and performance of this Reorganization Agreement and the Plan of Merger
and consummation of the transactions contemplated hereby and thereby shall have
been duly and validly taken;
(b) The parties hereto shall have received all regulatory approvals
required or mutually deemed necessary in connection with the transactions
contemplated by this Reorganization Agreement and the Plan of Merger, all notice
periods and waiting periods required after the granting of any such approvals
shall have passed and all conditions contained
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in any such approval required to have been satisfied prior to consummation of
such transactions shall have been satisfied, provided, however, that no such
approval shall have imposed any condition or requirement which, in the
reasonable good faith opinion of the Board of Directors of NHTB materially and
adversely affects the anticipated economic and business benefits to NHTB of the
transactions contemplated by this Agreement as to render consummation of such
transactions inadvisable;
(c) A Registration Statement (including any post-effective amendment
thereto) shall have been filed with the Commission and shall be effective under
the Securities Act, and no proceeding shall be pending or to the knowledge of
NHTB threatened by the Commission to suspend the effectiveness of such
Registration Statement;
(d) NHTB shall have received all state securities or "Blue Sky"
permits or other authorizations, or confirmations as to the availability of an
exemption from registration requirements as may be necessary;
(e) To the extent that any lease, license, loan, financing agreement
or other contract or agreement to which Landmark is a party requires the consent
of or waiver from the other party thereto as a result of the transactions
contemplated by this Agreement, such consent or waiver shall have been obtained,
unless the failure to obtain such consents or waivers, individually or in the
aggregate, would not have a Material Adverse Effect on Landmark;
(f) None of the parties hereto shall be subject to any order, decree
or injunction of a court or agency of competent jurisdiction which enjoins or
prohibits the consummation of the transactions contemplated by this
Reorganization Agreement and the Plan of Merger;
(g) The shares of NHTB Common Stock that may be issued in the Merger
shall have been approved for listing on the NASDAQ, subject to official notice
of issuance; and
(h) Landmark and NHTB shall have received opinions of their respective
counsels substantially to the effect that, on the basis of facts,
representations and assumptions set forth in such opinions which are consistent
with the state of facts existing on the Effective Date, for federal income tax
purposes:
(1) The Merger will constitute a reorganization within the meaning
of section 368(a) of the Code;
(2) No gain or loss will be recognized by Landmark on the transfer of
its assets to Bank pursuant to the Merger;
(3) No gain or loss will be recognized by NHTB or by Bank on the
issuance of shares of NHTB Common Stock to shareholders of Landmark pursuant to
the Merger;
(4) No gain or loss will be recognized by a shareholder of Landmark
who exchanges shares of Landmark stock for shares of NHTB Common Stock (except
with respect to cash received in lieu of a fractional share interest in NHTB
Common Stock);
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(5) The tax basis of the shares of NHTB Common Stock received by a
shareholder of Landmark who exchanges pursuant to the Merger shares of Landmark
stock for shares of NHTB Common Stock will be the same as the tax basis of the
shares of Landmark stock surrendered in exchange therefor (reduced by any amount
allocable to a fractional share interest for which cash is received); and
(6) The holding period of the shares of NHTB Common Stock to be
received by a shareholder of Landmark pursuant to the Merger will include the
period during which such shareholder held the shares of Landmark stock
surrendered in exchange therefor, provided that the shares of Landmark stock
surrendered is held as a capital asset as of the Effective Date.
5.2. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF LANDMARK
The obligations of Landmark to effect the Merger shall be subject to
satisfaction of the following additional conditions at or prior to the Closing
Date unless waived by Landmark pursuant to Section 6.4 hereof:
(a) The representations and warranties of NHTB and Bank set forth in
Article 3 hereof shall be true and correct in all material respects as of the
date of this Reorganization Agreement and as of the Closing Date as though made
on and as of the Closing Date (or on the date when made in the case of any
representation and warranty which specifically relates to an earlier date),
except as otherwise contemplated by this Reorganization Agreement or consented
to in writing by Landmark; provided, however, that the condition contained in
this paragraph (a) shall be deemed to be satisfied unless the failure of such
representations and warranties to be so true and correct constitute,
individually or in the aggregate, a Material Adverse Effect on NHTB;
(b) NHTB and Bank shall have in all material respects performed all
obligations and complied with all covenants required by this Reorganization
Agreement and the Plan of Merger prior to the Effective Date;
(c) NHTB and Bank each shall have delivered to Landmark a certificate,
dated the Closing Date and signed by its President or Chief Financial Officer to
the effect that the conditions set forth in paragraphs (a) and (b) of this
section have been satisfied;
(d) Landmark shall have received from Shatswell, MacLeod & Company a
"comfort letter" dated not more than five days prior to (i) the effective date
of the Registration Statement, if any, and, otherwise, the mailing date of the
Proxy Statement, and (ii) the Closing Date, with respect to certain financial
information regarding NHTB, in form and substance which is customary in
transactions of the nature contemplated by this Agreement; and
(e) Landmark shall have received an opinion of Thacher Proffitt &
Wood, counsel to NHTB, dated the Closing Date, as to such matters as Landmark
may reasonably request with respect to the transactions contemplated hereby.
(f) Landmark shall have received a letter from its financial
consultants, dated as of a date not more than five (5) days prior to the date
the Proxy Statement contemplated by Section
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<PAGE>
4.2 is mailed to stockholders, containing its opinion that the consideration to
be paid to holders of Landmark Common Stock in connection with the Merger is
fair to such shareholders from a financial point of view.
5.3. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF NHTB AND BANK
The respective obligations of NHTB and Bank to effect the Merger shall
be subject to satisfaction of the following additional conditions at or prior to
the Closing Date unless waived by NHTB pursuant to Section 6.4 hereof:
(a) The representations and warranties of Landmark set forth in
Article 2 hereof shall be true and correct in all material respects as of the
date of this Reorganization Agreement and as of the Closing Date as though made
on and as of the Closing Date (or on the date when made in the case of any
representation and warranty which specifically relates to an earlier date),
except as otherwise contemplated by this Reorganization Agreement or consented
to in writing by NHTB; provided, however, that the condition contained in this
paragraph (a) shall be deemed to be satisfied unless the failure of such
representations and warranties to be so true and correct constitute,
individually or in the aggregate, a Material Adverse Effect on Landmark;
(b) Landmark shall have, in all material respects, performed all
obligations and complied with all covenants required by this Reorganization
Agreement and the Plan of Merger;
(c) Landmark shall have delivered to NHTB and Bank a certificate,
dated the Closing Date and signed by its President and Chief Executive Officer
to the effect that the conditions set forth in paragraphs (a), (b) and (f) of
this section have been satisfied;
(d) NHTB shall have received from A.M. Peisch & Company a "comfort
letter" dated not more than five days prior to (i) the effective date of the
Registration Statement, if any, and, otherwise, the mailing date of the Proxy
Statement, and (ii) the Closing Date, with respect to certain financial
information regarding Landmark, in form and substance which is customary in
transactions of the nature contemplated by this Agreement; and
(e) NHTB and Bank shall have received an opinion of Gallagher,
Callahan & Gartrell, counsel to Landmark, dated the Closing Date, as to such
matters as NHTB and Bank may reasonably request with respect to the transactions
contemplated hereby.
(f) Landmark's allowance for loan losses on the balance sheet of
Landmark as of the last month immediately preceding the Effective Date shall be
at least $600,000 and Landmark's Tier 1 capital ratio (determined in accordance
with Generally Accepted Accounting Principles, including any adjustments
required under Statement of Financial Accounting Standards No. 115, "Accounting
for Certain Investments in Debt and Equity Securities") shall be at least 6%,
provided, however, that if such capital ratio is between 6% and 5.8%, NHTB shall
be obligated to consummate the Merger only upon the adjustments to the Exchange
Ratio and the Cash Election Price provided in Section 5.1(f) of the Plan of
Merger.
(g) Any Landmark shareholder who after the Closing Date would become
beneficial owner of more than 3% of the outstanding shares of NHTB Common Stock
has entered into an
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<PAGE>
agreement in the form of Exhibit C hereto that such stockholder, for a period of
2 years after the Closing Date, will not vote any shares beneficially owned by
him in excess of 3% of the outstanding shares of NHTB.
(h) NHTB shall have received a letter from its financial consultants,
dated as of a date not more than five (5) days prior to the date the Proxy
Statement contemplated by Section 4.2 is mailed to stockholders, confirming its
oral opinion delivered prior to the date of this Agreement, that the Merger is
fair to NHTB's shareholders from a financial point of view.
ARTICLE 6.
TERMINATION, WAIVER AND AMENDMENT
6.1. TERMINATION
This Reorganization Agreement and the Plan of Merger may be
terminated, either before or after approval by the shareholders of NHTB and
Landmark:
(a) At any time on or prior to the Effective Date, by the mutual
consent in writing of the parties hereto.
(b) At any time on or prior to the Closing Date, by NHTB in writing,
if Landmark has, or by Landmark in writing, if NHTB or Bank has, in any material
respect, breached (i) any covenant or agreement contained herein or in the Plan
of Merger, or (ii) any representation or warranty contained herein, and in
either case if such breach has not been cured by the earlier of 30 days after
the date on which written notice of such breach is given to the party committing
such breach or the Closing Date.
(c) At any time, by any party hereto in writing, if the applications
for prior approval or consents referred to in Section 4.3 hereof have been
denied, and the time period for appeals and requests for reconsideration has
run, or if any governmental entity of competent jurisdiction shall have issued a
final non-appealable order enjoining or otherwise prohibiting the Merger.
(d) At any time, by any party hereto in writing, if the shareholders
of NHTB or Landmark do not approve the transactions contemplated herein at the
annual or special meetings duly called for that purpose.
(e) By any party hereto in writing, if the Closing Date has not
occurred by the close of business on June 30, 1997, unless the failure of the
Closing to occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
set forth herein.
(f) By Landmark, if the NHTB price (as that term is defined in the
Plan of Merger) is less than $6.50 and Landmark provides written notice to NHTB
prior to the third business day immediately preceding the Closing Date of its
intent to terminate this Agreement pursuant to this Section 6.1(f) and NHTB does
not elect to increase the Exchange Ratio (as that term is defined in the Plan of
Merger), as agreed to by Landmark.
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6.2. EFFECT OF TERMINATION
In the event this Reorganization Agreement or the Plan of Merger is
terminated pursuant to Section 6.1 hereof, this Agreement and the Plan of Merger
shall become void and have no effect, except that (i) the provisions relating to
confidentiality, press releases and expenses set forth in Sections 4.5, 4.6, 7.1
and 7.7 hereof, respectively, shall survive any such termination and (ii) a
termination pursuant to Section 6.1(b)(i) shall not relieve the breaching party
from liability for an uncured willful breach of such covenant or agreement
giving rise to such termination.
6.3. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All representations, warranties and covenants in this Reorganization
Agreement and the Plan of Merger or in any instrument delivered pursuant hereto
or thereto shall expire on, and be terminated and extinguished at, the Effective
Date other than covenants that by their terms are to survive or be performed
after the Effective Date, provided that no such representations, warranties or
covenants shall be deemed to be terminated or extinguished so as to deprive
NHTB, Bank or Landmark (or any director, officer or controlling person thereof)
of any defense in law or equity which otherwise would be available against the
claims of any person, including, without limitation, any shareholder or former
shareholder of either NHTB or Landmark, the aforesaid representations,
warranties and covenants being material inducements to the consummation by NHTB,
Bank and Landmark of the transactions contemplated herein.
6.4. WAIVER
Except with respect to any required shareholder or regulatory
approval, NHTB and Landmark, respectively, by written instrument signed by an
executive officer of such party, may at any time (whether before or after
approval of this Reorganization Agreement and the Plan of Merger by the
shareholders of NHTB and Landmark) extend the time for the performance of any of
the obligations or other acts of Landmark, on the one hand, or NHTB or Bank, on
the other hand, and may waive (i) any inaccuracies of such parties in the
representations or warranties contained in this Agreement, the Plan of Merger or
any document delivered pursuant hereto or thereto, (ii) compliance with any of
the covenants, undertakings or agreements of such parties, or satisfaction of
any of the conditions precedent to its obligations, contained herein or in the
Plan of Merger, or (iii) the performance by such parties of any of its
obligations set out herein or therein; provided, however, that, after any such
approval by the shareholders of Landmark, no such modification shall (i) alter
or change the amount or kind of Merger consideration to be received by holders
of Landmark Common Stock as provided in the Plan of Merger, or (ii) adversely
affect the tax treatment to Landmark shareholders as a result of the receipt of
such Merger consideration.
6.5. AMENDMENT OR SUPPLEMENT
This Reorganization Agreement and the Plan of Merger may be amended or
supplemented at any time by mutual agreement of the parties hereto or thereto.
Any such amendment or supplement must be in writing and approved by their
respective boards of directors and/or officers authorized thereby and shall be
subject to the proviso in Section 6.4 hereof.
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ARTICLE 7.
MISCELLANEOUS
7.1. EXPENSES
Each party hereto shall bear and pay all costs and expenses incurred
by it in connection with the transactions contemplated in this Reorganization
Agreement, including fees and expenses of its own financial consultants,
accountants and counsel, except that NHTB and Landmark each shall bear and pay
50 percent of all printing and mailing costs and filing fees associated with the
Registration Statement and the Proxy Statement.
7.2. ENTIRE AGREEMENT
This Reorganization Agreement and the Plan of Merger contain the
entire agreement between the parties with respect to the transactions
contemplated hereunder and thereunder and supersede all prior arrangements or
understandings with respect thereto, written or oral, other than documents
referred to herein or therein and the Confidentiality Agreement. The terms and
conditions of this Reorganization Agreement and the Plan of Merger shall inure
to the benefit of and be binding upon the parties hereto and thereto and their
respective successors. Except as specifically set forth herein, or in the Plan
of Merger, nothing in this Reorganization Agreement or the Plan of Merger,
expressed or implied, is intended to confer upon any party, other than the
parties hereto and thereto, and their respective successors, any rights,
remedies, obligations or liabilities.
7.3. NO ASSIGNMENT
No party hereto may assign any of its rights or obligations under this
Reorganization Agreement to any other person.
7.4. NOTICES
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
facsimile transmission or overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
If to Landmark:
Landmark Bank
106 Hanover Street
Lebanon, New Hampshire 03766-1006
Attention: Paul P. Tierney
Facsimile No.: 603-448-8956
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With a copy to:
Gallagher, Callahan & Gartrell, P.A.
214 North Main Street
Concord, New Hampshire 03301
Attention: Denis Maloney, Esquire
Facsimile No.: 603-224-7588
If to NHTB or Bank:
New Hampshire Thrift Bancshares, Inc.
9 Main Street
Newport, New Hampshire 03773
Attention: Stephen W. Ensign
Facsimile No.: 603-863-5025
With a copy to:
Thacher Proffitt & Wood
1500 K Street, N.W.
Suite 200
Washington, D.C. 20005
Attention: Richard A. Schaberg, Esquire
Facsimile No.: (202) 347-5862 or (202) 347-6238
7.5. CAPTIONS
The captions contained in this Reorganization Agreement are for
reference purposes only and are not part of this Reorganization Agreement.
7.6. COUNTERPARTS
This Reorganization Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
7.7. GOVERNING LAW
This Reorganization Agreement shall be governed by and construed in
accordance with the laws of the State of New Hampshire applicable to agreements
made and entirely to be performed within such jurisdiction without regard to
conflicts of laws principles, except to the extent Delaware or federal law may
be applicable.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Reorganization Agreement to be executed in counterparts
by their duly authorized officers and their corporate seal to be hereunto
affixed and attested by their officers thereunto duly authorized, all as of the
day and year first above written.
LANDMARK BANK
By:
/s/ Paul P. Tierney
-------------------------------------------
Paul P. Tierney
President and Chief Executive Officer
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
By:
/s/ Stephen W. Ensign
-------------------------------------------
Stephen W. Ensign,
President and Chief Executive Officer
LAKE SUNAPEE BANK, fsb
By:
/s/ Stephen W. Ensign
-------------------------------------------
Stephen W. Ensign,
President and Chief Executive Officer
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<PAGE>
July 26, 1996
New Hampshire Thrift Bancshares, Inc.
9 Main Street
P. O. Box 29
Newport, NH 03773-0029
Dear Sirs:
The undersigned is a director of Landmark Bank ("Landmark") and is the
beneficial holder of shares of common stock of Landmark ("Landmark Common
Stock").
Landmark, New Hampshire Thrift Bancshares, Inc. ("NHTB") and Lake Sunapee
Bank, fsb ("Bank") are considering the execution of an Agreement and Plan of
Merger ("Merger Agreement") and an Agreement and Plan of Reorganization
("Reorganization Agreement") contemplating the merger of Landmark with and into
Bank ("Merger"), such execution being subject in the case of NHTB to the
execution and delivery of this letter agreement ("Agreement"). In consideration
of the substantial expenses that NHTB and the Bank will incur in connection with
the transactions contemplated by the Merger Agreement and the Reorganization
Agreement and in order to induce NHTB and Bank to execute the Merger Agreement
and the Reorganization Agreement and to proceed to incur such expenses, the
undersigned agrees and undertakes, in his/her capacity as a shareholder of
Landmark and not in his capacity as a director of Landmark, as follows:
1. The undersigned will vote or cause to be voted for approval of the
Merger Agreement and the Reorganization Agreement all of the shares of Landmark
Common Stock the undersigned is entitled to vote with respect thereto.
2. Except as NHTB may otherwise agree in its sole discretion, the
undersigned will not effect any transfer or other disposition of any of the
undersigned's shares of Landmark Common Stock until Landmark's shareholders have
voted to approve the Merger Agreement and the Reorganization Agreement or until
such agreements have been terminated pursuant to the terms thereof. In the case
of any transfer by operation of law or otherwise, this Agreement shall be
binding upon and inure to the benefit of the transferee. An transfer or other
disposition in violation of the terms of this paragraph 2 shall be null and
void.
3. The undersigned will not vote any of his or her shares of Landmark
Common Stock in favor of any other merger, sale of all or substantially all the
equity interests or assets of Landmark to any person other than NHTB or its
affiliates, or similar transaction until the earliest to occur of the Merger,
the termination of the Reorganization Agreement and the Merger Agreement, or the
abandonment of the Merger by mutual agreement of Landmark and NHTB.
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New Hampshire Thrift Bancshares, Inc.
Jul 26, 1996
Page 2.
4. The undersigned acknowledges and agrees that any remedy at law for
breach of the foregoing provisions shall be inadequate and that, in addition to
any other relief which may be available, NHTB shall be entitled to temporary and
permanent injunctive relief without the necessity of proving actual damages.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
date first above written.
Very truly yours,
________________________________
Accepted and agreed to as of
the date first above written:
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
By: ____________________________________________
Stephen W. Ensign
President and Chief Executive Officer
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<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Plan of Merger") dated as of July 26, 1996,
by and between LANDMARK BANK ("Landmark"), a New Hampshire state chartered bank,
and LAKE SUNAPEE BANK, fsb ("Bank"), a federally chartered savings bank, and
joined in by New Hampshire Thrift Bancshares, Inc. ("NHTB"), a Delaware
corporation.
WITNESSETH
WHEREAS, the respective Boards of Directors of Landmark, NHTB and Bank deem
the merger of Landmark with and into Bank, under and pursuant to the terms and
conditions herein set forth or referred to, desirable and in the best interests
of the respective corporations and their respective shareholders, and the
respective Boards of Directors of Landmark, NHTB and Bank have adopted
resolutions approving this Plan of Merger and an Agreement and Plan of
Reorganization dated of even date herewith ("Reorganization Agreement").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto do hereby agree as follows:
ARTICLE 1.
MERGER
Subject to the terms and conditions of this Plan of Merger, on the
Effective Date (as defined in Article 1. of the Reorganization Agreement),
Landmark shall be merged with and into Bank, pursuant to the provisions of, and
with the effect provided in, Title 35 of the New Hampshire Revised Statutes
Annotated (the "Merger") and the regulations of the Office of Thrift
Supervision. On the Effective Date, the separate existence of Landmark shall
cease and Bank, as the surviving entity, shall continue unaffected and
unimpaired by the Merger. (Bank, as existing on and after the Effective Date,
being hereinafter sometimes referred to as the "Surviving Bank.") The home and
other offices of the Surviving Bank shall be as listed in Exhibit A to this Plan
of Merger.
ARTICLE 2.
CHARTER AND BY-LAWS
The Amended Charter and the By-Laws of Bank in effect immediately prior to
the Effective Date shall be the Charter and the By-Laws of the Surviving Bank,
in each case until amended in accordance with applicable law.
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ARTICLE 3.
BOARD OF DIRECTORS
On the Effective Date, the Board of Directors of the Surviving Bank shall
consist of those persons serving as directors of Bank immediately prior to the
Effective Date together with three directors to be designated by Landmark
subject to the Bank's approval. The Directors of the Surviving Bank shall be
those persons listed in Exhibit B to this Plan of Merger. On the Effective
Date, the Board of Directors of NHTB shall consist of those persons serving as
directors of NHTB immediately prior to the Effective Date together with two
directors to be designated by Landmark subject to NHTB's approval and who are
listed in Exhibit C to this Plan of Merger.
ARTICLE 4.
CAPITAL
The shares of capital stock of the Surviving Bank issued and
outstanding immediately prior to the Effective Date shall, on the Effective
Date, continue to be issued and outstanding.
ARTICLE 5.
CONVERSION AND EXCHANGE OF LANDMARK SHARES;
FRACTIONAL SHARE INTERESTS
5.1. (a) On the Effective Date, each share of the common stock of
Landmark, par value $1.00 per share ("Landmark Common Stock"), outstanding
immediately prior to the Effective Date (except as provided in Paragraph 5.1(d)
of this Article) shall, by virtue of the Merger, be converted into an amount of
common stock, par value $0.01 per share, of NHTB ("NHTB Common Stock") or cash,
as set forth below.
(b) Subject to Section 5.1(f) hereof, each outstanding share of
Landmark Common Stock which under the terms of Article 5.2 is to be converted
into the right to receive NHTB Common Stock shall be converted into an amount of
NHTB Common Stock equal to one share multiplied by the Exchange Ratio.
For purposes of this Plan of Merger, the Exchange Ratio shall be:
(1) 1.221, if the NHTB Price is equal to or greater than $8.25 and is
no greater than $11.75;
(2) 14.00 / NHTB Price, if the NHTB Price is greater than $11.75; or
(3) 10.00 / NHTB Price, if the NHTB Price is less than $8.25.
As used herein, the term "NHTB Price" means the average bid price of
NHTB Common Stock on the NASDAQ (as reported by the National Association of
Securities Dealers Automatic Quotation System) for the thirty consecutive
trading days ending on the business day before the
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<PAGE>
date on which the last regulatory approval required to consummate the
transactions contemplated by this Plan of Merger and the Reorganization
Agreement is obtained.
(c) Subject to Section 5.1(f) hereof, each outstanding share of
Landmark Common Stock which under the terms of Article 5.2 is to be converted
into the right to receive cash shall be converted into the right to receive
$12.00 in cash (the "Cash Election Price").
-------------------
(d) On the Effective Date, all shares of Landmark Common Stock held
in the treasury of Landmark or owned beneficially by any subsidiary of Landmark
other than in a fiduciary capacity or in connection with a debt previously
contracted shall be canceled and no cash, stock or other property shall be
delivered in exchange therefor.
(e) Each outstanding share of Landmark Common Stock the holder of
which has perfected his right to dissent under applicable law and has not
effectively withdrawn or lost such right as of the Effective Date (the
"Dissenting Shares") shall not be converted into or represent a right to receive
shares of NHTB Common Stock or cash hereunder, and the holder thereof shall be
entitled only to such rights as are granted by applicable law. Landmark shall
give NHTB prompt notice upon receipt by Landmark of any such written demands for
payment of the fair value of such shares of Landmark Common Stock and of
withdrawals of such notice and any other instruments provided pursuant to
applicable law (any shareholder duly making such demand being hereinafter called
a "Dissenting Shareholder"). Any payments made in respect of Dissenting Shares
shall be made by NHTB.
(f) As referenced in Section 5.3(f) of the Reorganization Agreement,
in the event that Landmark's Tier 1 capital ratio (determined in accordance with
Generally Accepted Accounting Principles, including any adjustments required
under Statement of Financial Accounting Standards No. 115, "Accounting for
Certain Investments in Debt and Equity Securities") for the month immediately
prior to the Closing Date is (1) between 6.00% and 5.90%, the Exchange Ratio
provided in Section 5.1(b)(1) shall be adjusted to 1.208, the Exchange Ratio
provided in Section 5.1(b)(2) shall be determined by the quotient of 13.875
divided by NHTB Price and the Exchange Ratio provided in Section 5.1(b)(3) shall
be determined by the quotient of 9.875 divided by NHTB Price, and the Cash
Election Price provided in Section 5.1(c) shall be adjusted to $11.875 or (2)
between 5.89% and 5.80%, the Exchange Ratio provided in Section 5.1(b)(1) shall
be adjusted to 1.195, the Exchange Ratio provided in Section 5.1(b)(2) shall be
determined by the quotient of 13.75 divided by NHTB Price and the Exchange Ratio
provided in Section 5.1(b)(3) shall be determined by the quotient of 9.75
divided by NHTB Price, and the Cash Election Price provided in Section 5.1(c)
shall be adjusted to $11.75.
5.2(a). An election form and other appropriate transmittal materials
("Election Form") will be sent within 3 business days after the Effective Date
to each holder of record of Landmark Common Stock as of the Effective Date
permitting such holder (or in the case of nominee record holders, the beneficial
owner through proper instructions and documentation) (i) to elect to receive
NHTB Common Stock with respect to such holder's Landmark Common Stock as
hereinabove provided (the "Landmark Stock Election Shares"), (ii) to elect to
receive cash with respect to such holder's Landmark Common Stock as hereinabove
provided (the "Landmark Cash Election Shares"), or (iii) to indicate that such
holder makes no such election (the
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<PAGE>
"Landmark No-Election Shares"). Notwithstanding the foregoing, in order to
elect to receive NHTB Common Stock, the number of shares of Landmark Common
Stock a Landmark stockholder elects to convert must equal or exceed 100 shares.
Any shares of Landmark Common Stock with respect to which the holder thereof
shall not, as of the Election Deadline, have made such an election by submission
to an exchange agent appointed by NHTB (the "Exchange Agent"), of an effective,
properly completed Election Form shall be deemed to be Landmark No-Election
Shares. Any Dissenting Shares shall be deemed to be Landmark Cash Election
Shares, and with respect to such shares the holders thereof shall in no event be
classified as Stock Designees (as hereinafter defined).
The term "Election Deadline," as used herein, shall mean 5:00 p.m.,
Eastern Standard Time, on the 20th business day following but not including the
date of mailing of the Election Form or such other date as Landmark and NHTB
shall mutually agree upon.
Any election to receive NHTB Common Stock or cash shall have been
properly made only if the Exchange Agent shall have actually received a properly
completed Election Form by the Election Deadline. An Election Form will be
properly completed only if accompanied by certificates representing all shares
of Landmark Common Stock converted thereby. The Exchange Agent shall have
reasonable discretion to determine when any election, modification or revocation
is received and whether any such election, modification or revocation has been
properly made.
Within three business days after the Election Deadline, the Exchange
Agent shall effectuate the allocation among holders of Landmark Common Stock of
rights to receive NHTB Common Stock or cash in the Merger in accordance with the
Election Forms as follows:
(i) If the number of Landmark Stock Election Shares is less than
a number (the "Stock Conversion Number") equal to 60% of the number of
shares of Landmark Common Stock outstanding on the Effective Date of
the Merger (excluding such shares which are to be cancelled and
retired in accordance with Section 5.1(d)), then:
(1) all Landmark stock Election Shares will be converted
into the right to receive NHTB Common Stock,
(2) the Exchange Agent will select first from among the
holders of Landmark No-Election Shares and then (if necessary)
from among the holders of Landmark Cash Election Shares, by
random selection (as described below), a sufficient number of
such holders ("Stock Designees") such that the number of shares
of Landmark Common Stock held by the Stock Designees will, when
added to the number of Landmark Stock Election Shares, equal as
closely as practicable the Stock Conversion Number, and all
shares held by the Stock Designees will be converted into the
right to receive NHTB Common Stock, and
(3) the Landmark Cash Election Shares (subject to the
provisions of Section 5.1(e) with respect to any Dissenting
Shares) and the
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<PAGE>
Landmark No-Election Shares not held by Stock Designees will be
converted into the right to receive cash; or
(ii) If the number of Landmark Stock Election Shares is greater
than the Stock Conversion Number, then:
(1) all Landmark Cash Election Shares (subject to the
provisions of Section 5.1(e) with respect to any Dissenting
Shares) will be converted into the right to receive cash,
(2) the Exchange Agent will select first from among the
holders of Landmark No-Election Shares and then (if necessary)
from among the holders of Landmark Stock Election Shares, by
random selection (as described below), a sufficient number of
such holders ("Cash Designees") such that the number of shares of
Landmark Common Stock held by the Cash Designees will, when added
to the number of Landmark Cash Election Shares (including any
Dissenting Shares), equal as closely as practicable a number (the
"Cash Conversion Number") equal to 40.0% of the shares of
Landmark Common Stock outstanding on the Effective Date of the
Merger (excluding such shares which are to be cancelled and
retired in accordance with Section 5.1(d)) and all shares held by
the Cash Designees will be converted into the right to receive
cash, and
(3) the Landmark Stock Election Shares and Landmark No-
Election Shares not held by Cash Designees will be converted into
the right to receive NHTB Common Stock; or
(iii) If the number of Landmark Stock Election Shares is equal
or nearly equal (as determined by the Exchange Agent) to the Stock
Conversion Number, then subparagraphs (i) and (ii) above and
subparagraph (iv) below shall not apply and all Landmark Stock
Election Shares will be converted into the right to receive NHTB
Common Stock and all Landmark Cash Election Shares (subject to the
provisions of Section 5.1(e)) and Landmark No-Election Shares will be
converted into the right to receive cash; or
(iv) If the number of Landmark Cash Election Shares is equal or
nearly equal (as determined by the Exchange Agent) to the Cash
Conversion Number, then subparagraphs (i), (ii) and (iii) above shall
not apply and all Landmark Cash Election Shares (subject to the
provisions of Section 5.1(e)) will be converted into the right to
receive cash and all Landmark Stock Election Shares and Landmark No-
Election Shares will be converted into the right to receive NHTB
Common Stock.
5.2(b). In the event the Closing Date does not occur within one (1) month
after all required regulatory approvals are obtained, including the expiration
of any applicable waiting periods, NHTB shall increase the consideration to be
paid to holders of Landmark Common Stock by (1) accruing interest on the 40%
cash component of the consideration to be paid to
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<PAGE>
holders of Landmark Common Stock at a rate equal to the then current yield on
the Bank Treasury Account and (2) crediting the 60% stock component of the
consideration to be paid to holders of Landmark Common Stock with any and all
dividends declared on the NHTB Common Stock during such period.
5.3. The selection process to be used by the Exchange Agent shall consist
of such processes as shall be mutually determined by Landmark and NHTB, in a
manner designed to select shareholders on a fair and equitable basis, and as
shall be further described in the Election Form. On the Effective Date of the
Merger, NHTB shall issue to the Exchange Agent the number of shares of NHTB
Common Stock issuable and the amount of cash payable in the Merger. Upon
completion of the allocation procedure described above, NHTB shall, if
necessary, issue to the Exchange Agent any additional shares of NHTB Common
Stock in exchange for cash or issue to the Exchange Agent any additional cash in
exchange for NHTB Common Stock, as may be required to effect the conversion of
Landmark Common Stock as contemplated hereby and by Section 5.6. Within five
business days after the Election Deadline, the Exchange Agent shall distribute
NHTB Common Stock and cash as provided herein. The Exchange Agent shall not be
entitled to vote or exercise any rights of ownership with respect to the shares
of NHTB Common Stock held by it from time to time hereunder, except that it
shall receive and hold all dividends or other distributions paid or distributed
with respect to such shares for the account of the persons entitled thereto.
5.4. After the completion of the foregoing allocation, each holder of an
outstanding certificate or certificates which prior thereto represented shares
of Landmark Common Stock who surrender such certificates or certificates to the
Exchange agent will, upon acceptance thereof by the Exchange Agent, be entitled
to a certificate or certificates representing the number of full shares of NHTB
Common Stock or the amount of cash into which the aggregate number of shares of
Landmark Common Stock previously represented by such certificate or certificates
surrendered shall have been converted pursuant to this Agreement and, if such
holder's shares of Landmark Common Stock have been converted into NHTB Common
Stock, any other distribution theretofore paid with respect to the NHTB Common
Stock issuable in the Merger, in each case without interest. The Exchange Agent
shall accept such certificates upon compliance with such reasonable terms and
conditions as the Exchange Agent may impose to effect an orderly exchange
thereof in accordance with normal exchange practices. Each outstanding
certificate which prior to the Effective Date of the Merger represented Landmark
Common Stock and which is not surrendered to the Exchange Agent in accordance
with the procedures provided for herein shall, except as otherwise herein
provided, until duly surrendered to the Exchange Agent be deemed to evidence
ownership of the number of shares of NHTB Common Stock or the right to receive
the amount of cash into which such Landmark Common Stock shall have been
converted. After the Effective Date of the Merger, there shall be no further
transfer on the records of Landmark of certificates representing Landmark shares
and if such certificates are presented to Landmark for transfer, they shall be
cancelled against delivery of certificates for NHTB Common Stock or cash as
hereinabove provided. No dividends which have been declared will be remitted to
any person entitled to receive shares of NHTB Common Stock under Section 5.2
until such person surrenders the certificate or certificates representing
Landmark Common Stock, at which time such dividends shall be remitted to such
persons, without interest.
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<PAGE>
5.5. Certificates surrendered for exchange by any person who is an
"affiliate" of Landmark for purposes of Rule 145(c) under the Securities Act of
1933, as amended, shall not be exchanged for certificates representing shares of
NHTB Common Stock until NHTB has received the written agreement of such person
contemplated by Section 4.9 of the Reorganization Agreement. If any certificate
for shares of Landmark Common Stock is to be issued in a name other than that in
which a certificate surrendered for exchange is issued, the certificate so
surrendered shall be properly endorsed and otherwise in proper form for transfer
and the person requesting such exchange shall affix any requisite stock transfer
tax stamps to the certificate surrendered or provide funds for their purchase or
establish to the reasonable satisfaction of NHTB or its agent that such taxes
are not payable.
5.6. Notwithstanding any other provision hereof, each holder of shares who
would otherwise have been entitled to receive a fraction of a share of NHTB
Common Stock (after taking into account all Certificates delivered by such
holder) shall receive (by check from the Exchange Agent, mailed to the
shareholder with the certificate(s) for NHTB Common Stock for which such holder
is to receive pursuant to the Merger), in lieu thereof, cash in an amount equal
to such fractional part of a share of NHTB Common Stock multiplied by the
"market value" of such Common Stock. The "market value" of one share of NHTB
Common Stock shall be the bid price of NHTB Common Stock on the National
Association of Securities Dealers Automated Quotation System (as reported by the
National Association of Securities Dealers Automatic Quotation System) on the
last business day preceding the Effective Date. No such holder shall be entitled
to dividends, voting rights or any other shareholder right in respect of any
fractional share.
5.7 Neither the Exchange Agent nor any party to this Agreement shall be
liable to any holder of stock represented by any Certificate for any
consideration paid to a public official pursuant to applicable abandoned
property, escheat or similar laws. NHTB and the Exchange Agent shall be
entitled to rely upon the stock transfer books of Landmark to establish the
identity of those persons entitled to receive consideration specified in this
Agreement, which books shall be conclusive with respect thereto. In the event
of a dispute with respect to ownership of stock represented by any Certificate,
NHTB and the Exchange Agent shall be entitled to deposit any consideration
represented thereby in escrow with an independent third party and thereafter be
relieved with respect to any claims thereto.
ARTICLE 6.
EFFECTIVE DATE OF THE MERGER
Articles of combination evidencing the transactions contemplated herein
shall be delivered in accordance with applicable law. The Merger shall be
effective at the time and on the date specified in such articles of combination
(such date and time being herein referred to as the "Effective Date").
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<PAGE>
ARTICLE 7.
FURTHER ASSURANCES
If at any time the Surviving Bank shall consider or be advised that
any further assignments, conveyances or assurances are necessary or desirable to
vest, perfect or confirm in the Surviving Bank title to any property or rights
of Landmark, or otherwise carry out the provisions hereof, the proper officers
and directors of Landmark, as of the Effective Date, and thereafter the officers
of the Surviving Bank acting on behalf of Landmark, shall execute and deliver
any and all proper assignments, conveyances and assurances, and do all things
necessary or desirable to vest, perfect or confirm title to such property or
rights in the Surviving Bank and otherwise carry out the provisions hereof.
ARTICLE 8.
CONDITIONS PRECEDENT
The obligations of Bank, NHTB and Landmark to effect the Merger as
herein provided shall be subject to satisfaction, unless duly waived, of the
conditions set forth in the Reorganization Agreement.
ARTICLE 9.
TERMINATION
Anything contained in the Plan of Merger to the contrary
notwithstanding, and notwithstanding adoption hereof by the shareholders of
Landmark, this Plan of Merger may be terminated and the Merger abandoned as
provided in the Reorganization Agreement.
ARTICLE 10.
MISCELLANEOUS
10.1. This Plan of Merger may be amended or supplemented at any time
prior to its Effective Date by mutual agreement of NHTB, Bank and Landmark. Any
such amendment or supplement must be in writing and approved by their respective
Boards of Directors and/or by officers authorized thereby and shall be subject
to the proviso in Section 4.7(c) of the Reorganization Agreement.
10.2. Any notice or other communication required or permitted under
this Plan of Merger shall be given, and shall be effective, in accordance with
the provisions of the Reorganization Agreement.
10.3. The headings of the several Articles herein are inserted for
convenience of reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Plan of Merger.
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<PAGE>
10.4. This Plan of Merger shall be governed by and construed in
accordance with the laws of New Hampshire applicable to the internal affairs of
Landmark, NHTB and the Bank.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement and Plan of Merger to be executed in
counterparts by their duly authorized officers and their corporate seals to be
hereunto affixed and attested by their officers thereunto duly authorized, all
as of the day and year first above written.
LANDMARK BANK
By: /s/ Paul P. Tierney
------------------------------------------
Paul P. Tierney
President and Chief Executive Officer
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
By: /s/ Stephen W. Ensign
------------------------------------------
Stephen W. Ensign,
President and Chief Executive Officer
LAKE SUNAPEE BANK, fsb
By: /s/ Stephen W. Ensign
------------------------------------------
Stephen W. Ensign,
President and Chief Executive Officer
A-43
<PAGE>
Appendix B
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================================================================================
HAS ASSOCIATES, INC. [Letter Head]
_______ ___, 199_
Board of Directors
New Hampshire Thrift Bancshares, Inc.
Newport Road
New London, NH 03257
Attn: Stephen W. Ensign, President
Members of the Board:
You have requested our opinion as to the fairness to the stockholders of
New Hampshire Thrift Bancshares, Inc., New London, New Hampshire ("NHTB"), from
a financial point of view, of the terms of the Plan of Reorganization and the
Merger Agreement ("Agreements") dated July 26, 1996 which will ultimately
provide for the merger of Lake Sunapee Bank, fsb ("the Bank"), a subsidiary of
NHTB, and Landmark Bank, Lebanon, New Hampshire ("Landmark"). Stockholders of
Landmark are expected to receive consideration subject to certain adjustments as
provided in the Agreements.
In connection with its opinion, HAS Associates, Inc. ("HAS") reviewed,
analyzed and relied upon material relating to the financial and operating
conditions of NHTB and Landmark including, among other things, the following:
(i) the Agreements; (ii) the Joint Proxy Statement to NHTB and Landmark
Shareholders in draft form; (iii) Annual Reports to Landmark Stockholders for
the years ended December 31, 1994 and 1995, and years ended December 1993, 1994
and 1995 for NHTB; (iv) certain interim reports to NHTB and Landmark
stockholders and certain other communications from Landmark to its stockholders;
(v) other financial information concerning the business and operations of
Landmark furnished to HAS by Landmark for purposes of its analysis, including
certain internal financial analyses and forecasts for Landmark prepared by its
financial advisors; (vi) certain publicly available information concerning the
trading of, and the trading market for, the Common Stock of Landmark and NHTB;
(vii) corporate minutes of Landmark for three years; (viii) audit reports
certified by the independent accountants of Landmark and NHTB for three years;
(ix) regulatory filings of Landmark for three years; (x) all policies and
procedures of Landmark, certain loan files, and its investment portfolio; (xi)
certain required regulatory filings and records required to be made publicly
available by Landmark; and, (xii) certain publicly available information with
respect to banking companies and the nature and terms of certain other
transactions that HAS considered
<PAGE>
relevant to its inquiry. In addition, HAS reviewed certain market information
concerning Landmark, analyzed data concerning private and publicly owned banks
in New England, reviewed stock market data of other banks generally deemed
comparable whose securities are publicly traded, publicly available information
concerning certain recent business combinations, and such additional financial
and other information as HAS deemed necessary. Furthermore, HAS reviewed the
same type of public financial information available concerning NHTB. HAS also
held discussions with senior management of Landmark concerning their past and
current operations, financial condition and prospects, as well as the results of
regulatory examinations.
In conducting its review and arriving at its opinion, HAS relied upon and
assumed the accuracy and completeness of all of the financial and other
information provided to it or publicly available, and HAS did not attempt to
verify such information independently or undertake an independent appraisal of
the assets and liabilities of NHTB or Landmark. HAS relied upon the accuracy
and opinion of the audit reports prepared by A. M. Peisch & Company, the Bank's
independent accountants. HAS assumes no responsibility for the accuracy and
completeness of the financial and other information relied upon.
In reliance upon and subject to the foregoing, it is our opinion that, as
of the date hereof, the financial terms of the Agreements are fair, from a
financial point of view, to the current stockholders of NHTB.
This letter is furnished to you in connection with the Agreements.
Sincerely,
HAS Associates, Inc.
<PAGE>
APPENDIX C
THE TRANSFER OF THE OPTION GRANTED BY THIS AGREEMENT IS
SUBJECT TO RESALE RESTRICTIONS ARISING UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE RULES AND REGULATIONS OF
THE OFFICE OF THRIFT SUPERVISION.
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of the 26th day of July, 1996 (this
"Agreement"), between NEW HAMPSHIRE THRIFT BANCSHARES, INC., a Delaware
corporation ("Grantee"), and LANDMARK BANK, a New Hampshire state chartered
guarantee savings bank ("Issuer").
Grantee and Issuer have entered into an Agreement and Plan of
Reorganization, dated as of the 26th day of July, 1996 (the "Plan"), which was
executed by the parties hereto prior to the execution of this Agreement.
As a condition and inducement to Grantee's entering into the Plan and
in consideration therefor, Issuer has agreed to grant Grantee the Option (as
defined below).
In consideration of the foregoing and the mutual covenants and
agreements set forth herein and in the Plan, the parties hereto agree as
follows:
1. GRANT OF OPTION. Issuer hereby grants to Grantee an
unconditional, irrevocable option (the "Option") to purchase, subject to the
terms hereof, up to 19.9% of the fully paid and nonassessable shares of common
stock, par value $1.00 per share (the "Common Stock"), of Issuer at an exercise
price of $9.00 per share (the "Initial Price"); provided, however, that in the
event Issuer issues or agrees to issue (other than pursuant to options or other
agreements to issue Common Stock in effect as of the date hereof) any shares of
Common Stock at a price less than the Initial Price (as adjusted pursuant to
Section 5(b)), the Initial Price shall be deemed to be equal to the lowest price
at which any other shares are issued or agreed to be issued (such price, as
adjusted as hereinafter provided, the "Option Price"). The number of shares of
Common Stock that may be received upon the exercise of the Option and the Option
Price are subject to adjustment as herein set forth.
2. EXERCISE OF OPTION; TERM. (a) Grantee may exercise the Option, in
whole or part, at any time and from time to time following the occurrence of a
Purchase Event (as defined below); provided that the Option shall terminate and
be of no further force and effect upon the earliest to occur of:
(i) the time immediately prior to the Effective Time (as defined
in the Plan),
(ii) 12 months after the first occurrence of a Purchase Event,
(iii) 18 months after the termination of the Plan following the
occurrence of a Preliminary Purchase Event (as defined below),
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<PAGE>
(iv) termination of the Plan in accordance with the terms thereof
prior to the occurrence of a Purchase Event or a Preliminary Purchase Event
(other than a termination of the Plan by Grantee pursuant to Section
6.1(b)(ii) thereof), or
(v) 18 months after the termination of the Plan by Grantee
pursuant to Section 6.1(b)(ii) thereof.
The events described in clauses (i) - (v) in the preceding sentence are
hereinafter collectively referred to as an "Exercise Termination Event."
(b) The term "Preliminary Purchase Event" shall mean any of the
following events or transactions occurring after the date hereof:
(i) Issuer or any of its subsidiaries (each an "Issuer
Subsidiary") without having received Grantee's prior written consent, shall
have entered into an agreement to engage in an Acquisition Transaction (as
defined below) with any person (the term "person" for purposes of this
Agreement having the meaning assigned thereto in Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act"), and the rules and regulations thereunder) other
than Grantee or any of its subsidiaries (each a "Grantee Subsidiary") or
the Board of Directors of Issuer shall have recommended that the
shareholders of Issuer approve or accept any Acquisition Transaction with
any person other than Grantee or any Grantee Subsidiary. For purposes of
this Agreement, "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Issuer or any Issuer
Subsidiary, (y) a purchase, lease or other acquisition of all or
substantially all of the assets of Issuer or any Issuer Subsidiary or (z) a
purchase or other acquisition (including by way of merger, consolidation,
share exchange or otherwise) of securities representing 10% or more of the
voting power of Issuer or any Issuer Subsidiary; provided that the term
"Acquisition Transaction" does not include any internal merger or
consolidation involving only Issuer and/or Issuer Subsidiaries;
(ii) Any person (other than Grantee or any Grantee Subsidiary)
shall have acquired beneficial ownership or the right to acquire beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the
term "beneficial ownership" for purposes of this Agreement having the
meaning assigned thereto in Section 13(d) of the Securities Exchange Act,
and the rules and regulations thereunder);
(iii) Any person other than Grantee or any Grantee Subsidiary
shall have made a bona fide proposal to Issuer or its shareholders, by
public announcement or written communication that is or becomes the subject
of public disclosure, to engage in an Acquisition Transaction (including,
without limitation, any situation in which any person other than Grantee or
any subsidiary of Grantee (x) shall have commenced (as such term is defined
in Rule 14d-2 under the Securities Exchange Act), or (y) shall have filed a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act") with the Securities and Exchange Commission, with respect
to, a tender offer or exchange offer to purchase any shares of Common Stock
such that, upon consummation of such offer, such person would own or
control 10% or more of the then outstanding shares of Common Stock (such an
offer being referred to herein as a "Tender Offer" or an "Exchange Offer",
respectively)); or
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(iv) Any person other than Grantee or any Grantee Subsidiary, other
than in connection with a transaction to which Grantee has given its prior
written consent, shall have filed an application or notice with the Board
of Governors of the Federal Reserve System (the "Federal Reserve Board") or
any other federal or state governmental authority or regulatory or
administrative agency or commission (each, a "Governmental Authority") for
approval to engage in an Acquisition Transaction.
Notwithstanding the foregoing, the beneficial ownership by any current
stockholders of Issuer of greater than 10% of voting stock of Issuer as of the
date of this Agreement shall not constitute a Preliminary Purchase Event.
(c) The term "Purchase Event" shall mean either of the following
events or transactions occurring after the date hereof:
(i) The acquisition by any person other than Grantee or any
Grantee Subsidiary of beneficial ownership of 25% or more of the then
outstanding Common Stock; or
(ii) The occurrence of a Preliminary Purchase Event described in
Section 2(b)(i) except that the percentage referred to in clause (z)
thereof shall be 25%; or
(iii) After a proposal is made by a third party to Issuer or its
shareholders to engage in an Acquisition Transaction and after such
proposal any of the following events occurs:
(w) Issuer shall willfully have breached any covenant or
obligation contained in the Plan and such breach would
entitle Grantee to terminate the Plan;
(x) the holders of Common Stock shall not have approved the
Plan at the meeting of such shareholders held for the
purpose of voting on the Plan;
(y) the meeting of the shareholders held for the purpose of
voting on the Plan shall not have been held or shall
have been canceled prior to termination of the Plan; or
(z) Issuer's Board of Directors shall have withdrawn or
modified, in a manner adverse to Grantee, the
recommendation of Issuer's Board of Directors with
respect to the Plan.
(d) Issuer shall notify Grantee promptly in writing of the occurrence
of any Preliminary Purchase Event or Purchase Event; provided, however, that the
giving of such notice by Issuer to Grantee shall not be a condition to the right
of Grantee to exercise the Option.
(e) In the event that Grantee is entitled to and wishes to exercise
the Option, it shall send to Issuer a written notice (the "Option Notice" and
the date of which being
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hereinafter referred to as the "Notice Date") specifying (i) the total number of
shares of Common Stock it will purchase pursuant to such exercise and (ii) a
period of time (that shall not be less than three business days nor more than
thirty business days) running from the Notice Date (the "Closing Date") and a
place at which the closing of such purchase shall take place; provided, that, if
prior notification to or approval of the Federal Reserve Board or any other
Governmental Authority is required in connection with such purchase (each, a
"Notification" or an "Approval," as the case may be), (a) Grantee shall promptly
file the required notice or application for approval ("Notice/Application"), (b)
Grantee shall expeditiously process the Notice/Application and (c) for the
purpose of determining the Closing Date pursuant to clause (ii) of this
sentence, the period of time that otherwise would run from the Notice Date shall
instead run from the later of (x) in connection with any Notification, the date
on which any required notification periods have expired or been terminated and
(y) in connection with any Approval, the date on which such approval has been
obtained and any requisite waiting period or periods shall have expired. For
purposes of Section 2(a), any exercise of the Option shall be deemed to occur on
the Notice Date relating thereto. On or prior to the Closing Date, Grantee shall
have the right to revoke its exercise of the Option if the transaction
constituting a Purchase Event that gives rise to such right to exercise shall
not have been consummated.
(f) At the closing referred to in Section 2(e), Grantee shall pay to
Issuer the aggregate exercise price for the shares of Common Stock specified in
the Option Notice in immediately available funds by wire transfer to a bank
account designated by Issuer; provided, however, that failure or refusal of
Issuer to designate such a bank account shall not preclude Grantee from
exercising the Option.
(g) At such closing, simultaneously with the delivery of immediately
available funds as provided in Section 2(f), Issuer shall deliver to Grantee a
certificate or certificates representing the number of shares of Common Stock
specified in the Option Notice and, if the Option should be exercised in part
only, a new Option evidencing the rights of Grantee thereof to purchase the
balance of the shares of Common Stock purchasable hereunder.
(h) Certificates for Common Stock delivered at a closing hereunder
shall be endorsed with a restrictive legend substantially as follows:
The transfer of the shares represented by this certificate is subject
to resale restrictions arising under the Securities Act of 1933, as
amended, and to certain provisions of an agreement between New
Hampshire Thrift Bancshares, Inc. and Landmark Bank ("Issuer") dated
as of the ___th day of July, 1996. A copy of such agreement is on file
at the principal office of Issuer and will be provided to the holder
hereof without charge upon receipt by Issuer of a written request
therefor.
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the Securities and Exchange
Commission (the "SEC") or an opinion of counsel, in form and substance
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the Securities Act; (ii) the reference to the provisions of this
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been
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sold or transferred in compliance with the provisions of this Agreement and
under circumstances that do not require the retention of such reference; and
(iii) the legend shall be removed in its entirety if the conditions in the
preceding clauses (i) and (ii) are both satisfied. In addition, such
certificates shall bear any other legend as may be required by law.
(i) Upon the giving by Grantee to Issuer of an Option Notice and the
tender of the applicable purchase price in immediately available funds on the
Closing Date, Grantee shall be deemed to be the holder of record of the number
of shares of Common Stock specified in the Option Notice, notwithstanding that
the stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Common Stock shall not then actually be delivered to
Grantee. Issuer shall pay all expenses and any and all federal, state and local
taxes and other charges that may be payable in connection with the preparation,
issue and delivery of stock certificates under this Section 2 in the name of
Grantee.
3. CONDITIONS TO EXERCISE OF OPTION. Issuer agrees: (i) that it
shall at all times until the termination of this Agreement have reserved for
issuance upon the exercise of the Option that number of authorized and unissued
shares of Common Stock equal to the maximum number of shares of Common Stock at
any time and from time to time issuable hereunder, all of which shares will,
upon issuance pursuant hereto, be duly authorized, validly issued, fully paid,
nonassessable, and delivered free and clear of all claims, liens, encumbrances
and security interests and not subject to any preemptive rights; (ii) that it
will not, by amendment of its Amended Article of Agreement or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act, avoid or seek to avoid the observance or performance of any
of the covenants, stipulations or conditions to be observed or performed
hereunder by Issuer; (iii) promptly to take all action as may from time to time
be required (including (x) complying with all premerger notification, reporting
and waiting period requirements specified in the Federal Deposit Insurance Act,
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, and
regulations promulgated thereunder and (y) in the event, under the Bank Holding
Company Act of 1956, as amended ("BHC Act"), or the Change in Bank Control Act
of 1978, as amended, or any state banking law, prior approval of or notice to
the Federal Reserve Board or to any other Governmental Authority is necessary
before the Option may be exercised, cooperating with Grantee in preparing such
applications or notices and providing such information to each such Governmental
Authority as it may require) in order to permit Grantee to exercise the Option
and Issuer to issue shares of Common Stock duly and effectively pursuant hereto;
and (iv) to take all action provided herein to protect the rights of Grantee
against dilution.
4. AGREEMENT AND OPTION EXCHANGEABLE. This Agreement (and the Option
granted hereby) are exchangeable, without expense, at the option of Grantee,
upon presentation and surrender of this Agreement at the principal office of
Issuer, for other agreements providing for Options of different denominations
entitling the holder thereof to purchase, on the same terms and subject to the
same conditions as are set forth herein, in the aggregate the same number of
shares of Common Stock purchasable hereunder. The terms "Agreement" and "Option"
as used herein include any agreements and related options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft, destruction
or mutilation of this Agreement, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and cancellation
of this Agreement, if mutilated, Issuer will execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
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constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The number of shares
of Common Stock purchasable upon the exercise of the Option shall be subject to
adjustment from time to time as follows:
(a) If any change shall occur in the Common Stock by reason of stock
dividends, stock splits, mergers, recapitalizations, combinations, subdivisions,
conversions, exchanges of shares or the like, the type and number of shares of
Common Stock purchasable upon exercise hereof shall be appropriately adjusted
and proper provision shall be made so that, if any additional shares of Common
Stock are to be issued or otherwise to become outstanding as a result of any
such change (other than pursuant to an exercise of the Option), the number of
shares of Common Stock that remain subject to the Option shall be increased so
that, after such issuance and together with shares of Common Stock previously
issued pursuant to the exercise of the Option (as adjusted on account of any of
the foregoing changes in the Common Stock), it equals 19.9% of the number of
shares of Common Stock then issued and outstanding.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which shall be equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which shall be equal to the
number of shares of Common Stock purchasable after the adjustment.
6. REGISTRATION OF SHARES. (a) Upon the occurrence of a Purchase
Event that occurs prior to an Exercise Termination Event, Issuer shall, at the
request of Grantee (whether on its own behalf or on behalf of any subsequent
holder or holders of the Option (or parts thereof) or any of the shares of
Common Stock issued pursuant hereto), promptly prepare and file a registration
statement under the Securities Act or offering circular under the rules and
regulations of the Federal Deposit Insurance Corporation ("FDIC"), as
applicable, covering any shares issued and issuable pursuant to the Option and
shall use its best efforts to cause such registration statement or offering
circular to become effective, and to remain current and effective for a period
not in excess of 180 days from the day such registration statement or offering
circular first becomes effective, in order to permit the sale or other
disposition of any shares of Common Stock issued upon total or partial exercise
of the Option ("Option Shares") in accordance with any plan of disposition
requested by Grantee; provided, however, that Issuer may postpone filing a
registration statement or offering circular relating to a registration request
by Grantee under this Section 6 for a period of time (not in excess of 30 days)
if in its judgment such filing would require the disclosure of material
information that Issuer has a bona fide business purpose for preserving as
confidential. Grantee shall have the right to demand [one] such registration.
The foregoing notwithstanding, if, at the time of any request by Grantee for
registration of Option Shares as provided above, Issuer is in the process of
registration with respect to an underwritten public offering of shares of Common
Stock, and if in the good faith judgment of the managing underwriter or managing
underwriters, or, if none, the sole underwriter or underwriters, of such
offering the offering or inclusion of the Option Shares would interfere
materially with the successful marketing of the shares of Common Stock offered
by Issuer, the number of Option Shares otherwise to be covered in the
registration statement or offering circular contemplated hereby may be reduced;
provided, however, that after any such required reduction, the number of Option
Shares to be included in such offering for the account
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of Grantee shall constitute at least 33 1/3% of the total number of shares
covered in such registration statement; provided further, however, that if such
reduction occurs, then Issuer shall file a registration statement or offering
circular for the balance as promptly as practicable thereafter as to which no
reduction pursuant to this Section 6(a) shall be permitted or occur and the
Grantee shall thereafter be entitled to one additional registration statement or
offering circular. Grantee shall provide all information reasonably requested
by Issuer for inclusion in any registration statement or offering circular to be
filed hereunder. In connection with any such registration, Issuer and Grantee
shall provide each other with representations, warranties, indemnities and other
agreements customarily given in connection with such registrations. If requested
by Grantee in connection with such registration, Issuer and Grantee shall become
a party to any underwriting agreement relating to the sale of such shares, but
only to the extent of obligating themselves in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements. Notwithstanding the foregoing, if Grantee revokes any
exercise notice or fails to exercise any Option with respect to any exercise
notice pursuant to Section 2(e), Issuer shall not be obligated to continue any
registration process with respect to the sale of Option Shares issuable upon the
exercise of such Option and Grantee shall not be deemed to have demanded
registration of Option Shares.
(b) If at any time, and from time to time, the Issuer proposes to
prepare a registration statement or offering circular, the Issuer will give
prompt written notice to the Grantee of its intention to do so. Upon the
written request of the Grantee made within thirty (30) days after the receipt of
any such notice, the Issuer will include in the registration statement or
offering circular relating to such offering all securities that the Issuer has
been requested to include by the Grantee; provided, that if at any time after
giving written notice under this paragraph the Issuer shall determine for any
reason not to proceed with the proposed offering, the Issuer may, at its
election, give written notice of such determination to the Grantee and thereupon
shall be relieved of its obligations to the Grantee with respect to such
proposed offering under this paragraph (but not from its obligation to pay the
registration expenses in connection therewith). The Grantee shall be entitled
to withdraw its request for the inclusion of securities in an offering and
withdraw from the offering at any time before the time that the registration
statement is declared effective and the offering has commenced. The Grantee
shall have the right to request that its securities be included in the Issuer's
registration statement on four occasions.
(c) If Grantee requests Issuer to file a registration statement or
offering circular following the failure to obtain any approval required to
exercise the Option as described in Section 9, the closing of the sale or other
disposition of the Common Stock or other securities pursuant to such
registration statement or offering circular shall occur substantially
simultaneously with the exercise of the Option.
7. MERGER, CONSOLIDATION, ETC. (a) In the event that prior to an
Exercise Termination Event, Issuer shall enter into an agreement (i) to
consolidate or merge with any person, other than Grantee or a Grantee
Subsidiary, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any person, other than Grantee or a
Grantee Subsidiary, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then outstanding
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other person or cash or any other property or the then
outstanding shares of Common Stock shall after such merger represent less than
50% of the outstanding shares and share equivalents of the merged company,
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or (iii) to sell or otherwise transfer all or substantially all of its or any
Issuer Subsidiary's assets to any person, other than Grantee or a Grantee
Subsidiary, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of Grantee, of either (x) the Acquiring Corporation
(as defined below) or (y) any person that controls the Acquiring Corporation
(the Acquiring Corporation and any such controlling person being hereinafter
referred to as the "Substitute Option Issuer").
(b) The Substitute Option shall be exercisable for such number of
shares of the Substitute Common Stock (as is hereinafter defined) as is equal to
the Market/Offer Price (as defined below) multiplied by the number of shares of
the Issuer Common Stock for which the Option was theretofore exercisable,
divided by the Average Price (as is hereinafter defined). The exercise price of
the Substitute Option per share of the Substitute Common Stock (the "Substitute
Purchase Price") shall then be equal to the Option Price multiplied by a
fraction in which the numerator is the number of shares of the Issuer Common
Stock for which the Option was theretofore exercisable and the denominator is
the number of shares for which the Substitute Option is exercisable.
(c) The Substitute Option shall otherwise have the same terms as the
Option, provided that if the terms of the Substitute Option cannot, in the
written opinion of counsel for Substitute Option Issuer which shall be
reasonably acceptable to the Grantee, be the same as the Option, such terms
shall be as similar as possible and in no event less advantageous to Grantee.
(d) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing or
surviving corporation of any consolidation or merger with Issuer (if other
than Issuer), (ii) Issuer in a merger in which Issuer is the continuing or
surviving person, and (iii) the transferee of all or any substantial part
of the Issuer's assets (or the assets of a material Issuer Subsidiary).
(ii) "Substitute Common Stock" shall mean the common stock issued
by the Substitute Option Issuer upon exercise of the Substitute Option.
(iii) "Average Price" shall mean the average daily closing price
of a share of the Substitute Common Stock for the one year period
immediately preceding the consolidation, merger or sale in question, but in
no event higher than the closing price of the shares of the Substitute
Common Stock on the day preceding such consolidation, merger or sale;
provided that if Issuer is the issuer of the Substitute Option, the Average
Price shall be computed by reference to a share of common stock issued by
Issuer, the person merging into Issuer or by any company which controls or
is controlled by such merging person, as Grantee may elect.
(iv) "Market/Offer Price" shall mean the highest of (i) the
price per share of Common Stock at which a tender offer or exchange offer
therefor has been made after the date hereof, (ii) the price per share of
Common Stock paid or to be paid by any third party pursuant to an agreement
with Issuer (whether by way of a merger, consolidation or otherwise), (iii)
the highest last sale price for shares of Common Stock
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within the 360 day period ending on the date on which a tender offer or
exchange offer has been made, as the case may be, (iv) in the event of a
sale of all or substantially all of Issuer's assets, the sum of the price
paid in such sale for such assets and the current market value of the
remaining assets of Issuer as determined by a nationally recognized
independent investment banking firm selected by Grantee or the Owner, as
the case may be, divided by the number of shares of Common Stock of Issuer
outstanding at the time of such sale. In determining the Market/Offer
Price, the value of consideration other than cash shall be the value
determined by a nationally recognized independent investment banking firm
selected by Grantee or the Owner, as the case may be, whose determination
shall be conclusive and binding on all parties.
(e) In no event, pursuant to any of the foregoing paragraphs, shall
the Substitute Option be exercisable for more than 19.9% of the aggregate of the
shares of the Substitute Common Stock outstanding immediately prior to the
issuance of the Substitute Option. In the event that the Substitute Option would
be exercisable for more than 19.9% of the aggregate of the shares of Substitute
Common Stock but for this clause (e), the Substitute Option Issuer shall make a
cash payment to Grantee equal to the excess of (i) the value of the Substitute
Option without giving effect to the limitation in this clause (e) over (ii) the
value of the Substitute Option after giving effect to the limitation in the
clause (e). This difference in value shall be determined by a nationally
recognized investment banking firm selected by Grantee and reasonably acceptable
to the Substitute Option Issuer.
8. EXTENSION OF EXERCISE PERIOD. Notwithstanding Sections 2 and 6,
if Grantee has given the notice referred to in one or more of such Sections, the
exercise of the rights specified in any such Section shall be extended (a) if
the exercise of such rights requires obtaining regulatory approvals (including
any required waiting periods) to the extent necessary to obtain all regulatory
approvals for the exercise of such rights, and (b) to the extent necessary to
avoid any liability under Section 16(b) of the Securities Exchange Act by reason
of such exercise; provided that in no event shall any Closing Date occur more
than 2 months after the related Notice Date, and, if a Closing Date shall not
have occurred within such period due to the failure to obtain any required
approval by the Federal Reserve Board or any other Governmental Authority
despite the best efforts of Issuer or the Substitute Option Issuer, as the case
may be, to obtain such approvals, the exercise of the Option shall be deemed to
have been rescinded as of the related Notice Date. In the event (a) Grantee
receives official notice that an approval of the Federal Reserve Board or any
other Governmental Authority required for the purchase and sale of the Option
Shares will not be issued or granted or (b) a Closing Date has not occurred
within 12 months after the related Notice Date due to the failure to obtain any
such required approval, Grantee shall be entitled to exercise the Option in
connection with the resale of the Option Shares pursuant to a registration
statement as provided in Section 6. Nothing contained in this Agreement shall
restrict Grantee from specifying alternative means of exercising rights pursuant
to Sections 2 and 6 hereof in the event that the exercising of any such rights
shall not have occurred due to the failure to obtain any required approval
referred to in this Section 8.
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9. REPRESENTATIONS AND WARRANTIES. Issuer hereby represents and
warrants to Grantee as follows:
(a) Issuer has the requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly approved by the Board of
Directors of Issuer and no other corporate proceedings on the part of Issuer are
necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and delivered by, and
constitutes a valid and binding obligation of, Issuer, enforceable against
Issuer in accordance with its terms.
(b) Issuer has sufficient authorized but unissued shares available for
the exercise of the Option provided for herein and taken all necessary corporate
action to authorize, reserve and to permit it to issue, and at all times from
the date hereof through the termination of this Agreement in accordance with its
terms will have reserved for issuance upon the exercise of the Option, that
number of shares of Common Stock equal to the maximum number of shares of Common
Stock at any time and from time to time issuable hereunder, and all such shares,
upon issuance pursuant hereto, will be duly authorized, validly issued, fully
paid, non-assessable, and will be delivered free and clear of all claims, liens,
encumbrances and security interests and not subject to any preemptive rights.
10. ASSIGNMENT. (a) Neither of the parties hereto may assign any of
its rights or delegate any of its obligations under this Agreement or the Option
created hereunder to any other person without the express written consent of the
other party, except that Grantee may assign this Agreement to a wholly owned
subsidiary of Grantee and Grantee may assign its rights hereunder in whole or in
part after the occurrence of a Preliminary Purchase Event set forth in Section
2(b)(i) or a Purchase Event; provided, however, that until the date 30 days
following the date at which the Federal Reserve Board or other Governmental
Authority have approved an application by Grantee under the BHC Act or other
applicable law, to acquire the shares of Common Stock subject to the Option,
Grantee may not assign its rights under the Option except in (i) a widely
dispersed public distribution, (ii) a private placement in which no one party
acquires the right to purchase in excess of 2% of the voting shares of Issuer,
(iii) an assignment to a single party (e.g., a broker or investment banker) for
----
the purpose of conducting a widely dispersed public distribution on Grantee's
behalf, or (iv) any other manner approved by the Federal Reserve Board or other
Governmental Authority. The term "Grantee" as used in this Agreement shall also
be deemed to refer to Grantee's assigns as permitted by this Section 10.
(b) Any assignment of rights of Grantee to any permitted assignee of
Grantee hereunder shall bear the restrictive legend at the beginning thereof
substantially as follows:
The transfer of the option represented by this assignment and the
related option agreement is subject to resale restrictions arising
under the Securities Act of 1933, as amended, or the rules and
regulations of the OTS, as applicable, and to certain provisions of an
agreement between New Hampshire Thrift Bancshares, Inc. and Landmark
Bank ("Issuer"), dated as of the 26th day of July, 1996. A copy of
such agreement is on file at the principal office of
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Issuer and will be provided to any permitted assignee of the Option
without charge upon receipt by Issuer of a written request therefor.
It is understood and agreed that (i) the reference to the resale restrictions of
the Securities Act in the above legend shall be removed by delivery of
substitute assignments without such reference if Grantee shall have delivered to
Issuer a copy of a letter from the staff of the SEC, or an opinion of counsel,
in form and substance satisfactory to Issuer, to the effect that such legend is
not required for purposes of the Securities Act; (ii) the reference to the
provisions of this Agreement in the above legend shall be removed by delivery of
substitute assignments without such reference if the Option has been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) are both satisfied. In addition, such assignments shall
bear any other legend as may be required by law.
11. REASONABLE EFFORTS. Each of Grantee and Issuer will use its
reasonable efforts to make all filings with, and to obtain consents of, all
third parties and Governmental Authorities necessary to the consummation of the
transactions contemplated by this Agreement, including, without limitation,
making application, if necessary, for listing of the shares of Common Stock
issuable hereunder on the Nasdaq Stock Market and applying to the Federal
Reserve Board under the BHC Act or other Governmental Authority and to state
banking authorities for approval to acquire the shares issuable hereunder.
12. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this Agreement by either
party hereto and that the obligations of the parties hereto shall be enforceable
by either party hereto through injunctive or other equitable relief. Both
parties further agree to waive any requirement for the securing or posting of
any bond in connection with the obtaining of any such equitable relief and that
this provision is without prejudice to any other rights that the parties hereto
may have for any failure to perform this Agreement.
13. VALIDITY. If any term, provision, covenant or restriction
contained in this Agreement is held by a court or a federal or state regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants and restrictions contained in
this Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If for any reason such court or regulatory
agency determines that Grantee is not permitted to acquire, the full number of
shares of Common Stock provided in Section 1(a) (as adjusted pursuant hereto),
it is the express intention of Issuer to allow Grantee to acquire or to require
Issuer to repurchase such lesser number of shares as may be permissible, without
any amendment or modification hereof.
14. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by cable, telegram, facsimile or telex, or by registered or certified
mail (postage prepaid, return receipt requested) at the respective addresses of
the parties set forth in the Plan.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Hampshire without regard to
conflicts of laws principles.
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16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement and shall be effective at the time
of execution.
17. EXPENSES. Except as otherwise expressly provided herein, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
18. ENTIRE AGREEMENT. Except as otherwise expressly provided herein
or in the Plan, this Agreement contains the entire agreement between the parties
with respect to the transactions contemplated hereunder and supersedes all prior
arrangements or understandings with respect thereof, written or oral. The terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
party, other than the parties hereto, and their respective successors except as
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except as expressly provided herein.
19. CAPITALIZED TERMS. Capitalized terms used in this Agreement and
not defined herein but defined in the Plan shall have the meanings assigned
thereto in the Plan.
20. DESCRIPTIVE HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
21. NO BREACH OF PLAN. Nothing contained in this Agreement shall be
deemed to authorize Issuer or Grantee to breach any provision of the Plan.
22. SELECTION BY GRANTEE OR OWNER. In the event that any selection
or determination is to be made by Grantee or the Owner hereunder and at the time
of such selection or determination there is more than one Grantee or Owner, such
selection shall be made by a majority in interest of such Grantees or Owners.
23. FURTHER ASSURANCES. In the event of any exercise of the option
by Grantee, Issuer and such Grantee shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
24. NO SHAREHOLDER RIGHTS. Except to the extent Grantee exercises
the Option, Grantee shall have no rights to vote or receive dividends or have
any other rights as a shareholder with respect to shares of Common Stock covered
hereby.
C-12
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Stock Option
Agreement to be executed on its behalf by their officers thereunto duly
authorized, all as of the date first above written.
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
By: /s/ Stephen W. Ensign
---------------------
Stephen W. Ensign
President and Chief Executive Officer
LANDMARK BANK
By: /s/ Paul P. Tierney
-------------------
Paul P. Tierney
President and Chief Executive Officer
C-13
<PAGE>
APPENDIX D
APPENDIX D
REGULATIONS OF THE COMPTROLLER OF THE CURRENCY
U.S. DEPARTMENT OF THE TREASURY
12 C.F.R. (S) 5.33(h)(3)(ii) (1996)
(h) Merger or consolidation of a national bank into a state-chartered
bank as defined in 12 U.S.C. 214(a) or into a Federal savings association--
* * *
(3) Special procedures for merger of consolidation with a Federal
savings association.
* * *
(ii) Rights of dissenting stockholders. A shareholder of a national
banking association who votes against the merger or consolidation, or who has
given notice in writing to the bank at or prior to such meeting that he or she
dissents from the plan, shall be entitled to receive in cash the value of the
shares he or she holds, if and when the merger or consolidation is consummated,
upon written request made to the resulting Federal savings association at any
time before thirty days after the date of consummation of such merger or
consolidation, accompanied by the surrender of his or her stock certificates.
The value of such shares shall be determined as of the date on which the
shareholders' meeting was held authorizing the merger or consolidation, by a
committee or three persons, one to be selected by majority vote of the
dissenting shareholders entitled to receive the value of their shares, one by
the directors of the resulting Federal savings association, and the third by the
two so chosen. The valuation agreed upon by any two of three appraisers thus
chosen shall govern; but, if the value so fixed shall not be satisfactory to any
dissenting shareholder who has requested payment as provided herein, such
shareholder may within five days after being notified of the appraised value of
his or her shares appeal to the Office, which shall cause a reappraisal to be
made if the parties agree that such reappraisal shall be final and binding on
all parties as to the value of the shares of the appellant and also agree on how
the full expenses of the Office in making the reappraisal shall be divided among
the parties and paid to the Office. If, within ninety days from the date of
consummation of the merger or consolidation, for any reason one or more of the
appraisers is not selected as herein provided, or the appraisers fail to
determine the value of such shares, the Office shall upon written request of any
interested party, cause an appraisal to be made provided that the parties agree
that such appraisal shall be final and binding on all parties as to the value of
the shares of the appellant and also agree on how the full expenses of the
Office in making the appraisal shall be divided among the parties and paid to
the Office. The plan of merger or consolidation shall provide, consistent with
the requirements of the Office of Thrift Supervision, the manner of disposing of
the shares of the resulting Federal savings association not taken by the
dissenting shareholders of the national banking association.
D-1
<PAGE>
Appendix E-1
[ART]
ANNUAL REPORT 1995
=====================================
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
<PAGE>
New Hampshire Thrift Bancshares, Inc.
is the parent company for Lake Sunapee Bank,
fsb, a federal stock savings bank providing
financial services throughout central and
western New Hampshire.
The Bank encourages and supports the
personal and professional development of its
employees, dedicates itself to consistent
service of the highest level for all
customers, and recognizes its responsibility
to be an active participant in, and advocate
for, community growth and prosperity.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Selected Financial Highlights......... 3
Report to Shareholders................ 4
Management's Discussion and Analysis.. 7
Report of Independent Accountants..... 23
Financial Statements.................. 24
Notes to Financial Statements......... 28
Form 10-K............................. 47
Officers and Managers................. 60
Board of Directors.................... 60
Information on Common Stock........... 61
Shareholder Information............... 61
</TABLE>
2
<PAGE>
=============================
Selected Financial Highlights
<TABLE>
<CAPTION>
For the Periods Ended December 31, 1995 1994 1993
- -----------------------------------------------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C>
Net Income $ 1,245 $ 1,582 $ 1,525
Earnings Per Share (1) $ .73 $ .93 $ .88
Dividends Declared $ .50 $ .50 $ .375
Dividend Payout Ratio 68.49% 53.76% 42.61%
Return on Average Assets .54% .71% .74%
Return on Average Equity 6.95% 8.76% 8.43%
<CAPTION>
As of December 31, 1995 1994 1993
- -----------------------------------------------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C>
Total Assets $ 258,216 $ 233,363 $ 207,105
Total Deposits $ 199,971 $ 194,533 $ 176,716
Total Securities $ 28,415 $ 20,363 $ 17,998
Net Loans $ 208,169 $ 193,810 $ 172,834
Federal Home Loan Bank Advances $ 26,936 $ 15,211 $ 5,441
Shareholders' Equity (2) $ 19,544 $ 18,253 $ 18,387
Book Value of Shares Outstanding $ 11.57 $ 10.92 $ 11.01
Average Equity to Average Assets 7.72% 8.15% 8.76%
Shares Outstanding 1,689,503 1,670,986 1,669,303
Number of Branch Locations 10 10 8
</TABLE>
(1) See Note 1 to Consolidated Financial Statements regarding earnings per
share.
(2) See Note 14 to Consolidated Financial Statements regarding the issuance of
common stock.
3
<PAGE>
REPORT TO SHAREHOLDERS
The underlying
- --------------------
culture of the Bank
- --------------------
has been, and
- --------------------
continues to be,
- --------------------
deeply rooted in the
- --------------------
ongoing development
- --------------------
of our employees.
- --------------------
Nineteen ninety-five represented a year of strategic implementation as
we moved to fully support our geographically enhanced banking franchise and to
expand upon the early successes of the developing loan origination network.
Continuing to identify areas of opportunity for future growth, we have remained
committed to developing a long-term plan that will provide for an even greater
level of customer satisfaction through the nurturing of relationship banking.
Consolidated net income at year-end 1995 was $1,244,823, or $0.73 per
share. This compares to $1,582,250, or $0.93 per share, for the most previous
year-end. This change in earnings reflects both the transfer of more than one
million dollars to the loan loss provision and the anticipated impact associated
with the opening of two new offices at the end of 1994. Net interest income
continued to rise, increasing by nearly $400,000 over the prior twelve-month
period. As detailed within the Management Discussion and Analysis section
following this report, positive changes were experienced in a number of areas.
Total assets on December 31, 1995 stood at $258,216,077, up more than
10.00% over the 1994 year-end of $233,362,786. Shareholders' equity stood at
$19,544,055, or 7.57% of total assets, resulting in a year-end book value of
$11.57 per share. In all cases, the Company continues to be considered well
capitalized by any applicable standard.
During 1995, the Company built and sold the last of 11 units at the
Highland Ridge condominium development that was taken over from the original
developer in 1990. Additionally, a continuing effort was made to liquidate other
properties from our real estate owned portfolio, ending the year with total non-
performing assets of just over $2,400,000, down more than $800,000 over year-end
1994.
With our name change behind us, two new offices fully operational and
four loan originators on-the-road, your Company entered 1995 ready to begin the
next step of building upon both new and existing customer relationships. The
underlying culture of the Bank has been, and continues to be, deeply rooted in
the ongoing development of our employees. While the myriad of products and
services available from banks can become almost mind-boggling, it is the
individuals working in the Bank that bring 'added-value' to a customer
relationship and help to distinguish one financial institution from another.
This, then, is the basis for a strategic planning process that will see us move
firmly into the next century. Customers must be able to identify with the bank
and its personnel and respond positively to a level of personal service that
will not only complement, but
4
<PAGE>
expand upon, the technological efficiencies of the future.
Commitment continues for the support and development of our Total
Quality Banking program which is now integrated into the daily activities of the
Bank. This past year, each department within the Bank has worked to develop
their own 'mission statement', which is now being followed by an internal
'service guarantee' program to ensure that the principles behind quality service
become second-nature to our already dedicated staff. Further to this, numerous
educational seminars and self-development programs were planned and conducted
throughout the year that included such topics as business writing, financial
statement analysis, time management and computer training for Windows, Word and
Excel. When coupled with the opening of a new Education Center located in the
Main Office in Newport, these efforts have proven to be both well attended and
well received. As individuals recognize that teamwork is the essence of working
together towards a common goal, then increases in efficiency and profitability
will be the natural by-product.
A lingering issue, still yet to be resolved at this writing, is the
anticipated special deposit insurance assessment by the Federal Deposit
Insurance Corporation to fully re-capitalize the Savings Association Insurance
Fund. While it was hoped by all involved that this assessment of up to 85 basis
points on deposits would have been imposed during the last quarter of 1995, it
was made part of the passage of the federal budget and, as such, has been
delayed. This will be handled as a direct charge to earnings in 1996, but the
corresponding decrease in annual deposit insurance premiums will clearly enhance
earnings on a prospective basis.
As in previous years, asset quality remains of utmost concern to the
Company. The weekly monitoring of both existing credits, as well as the new
loans coming into the portfolio, has proven to be a valuable tool in the
management of risk and resulted, once again, in an acknowledgment of these
efforts by the Office of Thrift Supervision during their most recent annual
examination. During 1995, both a Safety & Soundness and a Compliance Examination
were conducted and we are pleased to report to you that the Bank continues to
receive its high-quality rating.
With an eye to the future, a technology committee now meets regularly to
assess not only the strengths and weaknesses of our existing in-house, on-line
data processing system, but more importantly to initiate the development of a
longer-term planning process that will lead us to the integration of the much
wider variety of products and services now being talked and written about in
almost every media source. We feel that the more traditional branching structure
It is the individuals
- ---------------------
working in the Bank
- ---------------------
that bring 'added-
- ---------------------
value' to a customer
- ---------------------
relationship.
- ---------------------
5
<PAGE>
We will remain open
- ----------------------
to seeking out those
- ----------------------
opportunities and
- ----------------------
avenues that will
- ----------------------
provide greater
- ----------------------
returns over time
- ----------------------
and reflect positively
- ----------------------
in your return on
- ----------------------
investment and
- ----------------------
increase in
- ----------------------
shareholder value.
- ----------------------
need not be at odds with the looming wave of technological advances. Our
current branch network, ten offices in all, serves as a valuable link in the
development and maintenance of complete customer relationships and the offering
of personalized services. It is clear that many day-to-day transactions can be
more quickly and efficiently managed within the impersonal world of the
computer, ATM machines and so-called 'Smart-Cards', but it is also realized
that, as part of a comprehensive delivery system for products and services, our
branching network will continue to be the backbone of a profitable and
successful franchise.
The strategic planning process focuses on the elements of the inter-
relationship between customers, employees, products, delivery systems, equipment
and capital. To weave these threads together within the framework of our own
corporate culture requires the full commitment of both the Board and Management.
As we continue our efforts to build upon our strengths, we also want to
recognize you, the shareholder, as an important part of the process and pledge
to you that we will remain open to seeking out those opportunities and avenues
that will provide greater returns over time and reflect positively in your
return on investment and increase in shareholder value.
We wish to acknowledge the hard work and commitment of both our
employees and directors and to express our sincere appreciation for the support
and confidence shown by both our customers and shareholders.
John J. Kiernan
John J. Kiernan
Chairman of the Board
Stephen W. Ensign
Stephen W. Ensign
President and
Chief Executive Officer
Stephen R. Theroux
Stephen R. Theroux
Executive Vice President and
Chief Financial Officer
6
<PAGE>
======================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATION
GENERAL
The Company's profitability is derived from its only subsidiary, Lake
Sunapee Bank, fsb (the "Bank"). The Bank's earnings in turn are generated from
the difference between the yield on its loan and investment portfolios and the
cost of its deposit accounts and borrowings. These core earnings are
supplemented by loan origination fees, retail banking service fees, and gains on
security transactions.
In 1995, the Company earned $1,244,823, or $.73 per share, compared to
$1,582,250, or $.93 per share in 1994. Earnings declined because the Bank added
to the allowance for loan losses in an effort to rebuild the allowance in the
wake of several unexpected loan write-offs. As a result, the Bank needed to add
$1,170,395 to the allowance for loan losses. The Bank also took on in excess of
$300,000 in new overhead in order to cover the expansion program implemented
during the fourth quarter of 1994. The Bank opened two branches and expanded its
outside loan origination team. The Bank expects the growth in assets experienced
during 1995 to generate the earnings needed to cover the increased expenditures.
During January 1996, the Bank entered into a purchase and sale agreement
to sell a piece of land adjacent to the New London branch. Although the sale is
subject to the town of New London's Planning Board's approval for a sub-division
and certain other contingencies, the Bank is confident the sale will be
completed during the second quarter of 1996. The Bank expects to realize an
after-tax gain of approximately $200,000.
As mentioned on page five in the "Report to Shareholders," the United
States Congress is currently debating the Federal budget for 1996. This has
delayed passage of the resolution of the Savings Association Insurance Fund.
When passed, the Bank expects to incur a one-time after-tax expense in the range
of $800,000 to $1,100,000.
FINANCIAL CONDITION
Total assets increased by $24,853,291, or 10.65% from $233,362,786 to
$258,216,077. This increase was fueled by an increase of $11,900,293, or 5.99%
in total loans from $198,776,032 to $210,676,325. The table on page 54
illustrates the maturities of the loan portfolio at December 31, 1995. Real
estate loans increased by $10,109,807, or 6.09% from $166,043,664 to
$176,153,471. The Bank also increased the level of loans sold into the secondary
market by approximately $18,000,000 due to the increased origination of fixed
rate mortgage loans. At December 31, 1995, the Bank had $43,433,158 in its
servicing portfolio. As a result of the sale of fixed rate loans, the percentage
of loans to assets dropped to 81.59% from 85.18%. The Bank expects to continue
to sell fixed rate loans into the secondary market under the current favorable
interest rate environment.
Investments increased by $6,799,146, or 31.67% to $28,266,003 from
$21,466,857 (at amortized cost). The Bank's U.S. Treasury Bond portfolio
accounted for 73.14% of the increase. U.S. Treasuries amounted to $11,994,795 at
December 31, 1995 compared to $7,022,116 at December 31, 1994. The Bank's net
unrealized gain of $148,596 at December 31, 1995, compares to last year's net
unrealized loss of $1,104,067, and reflects the year-long drop in interest rates
and the resultant rise in bond values.
Real estate owned and property acquired in settlement of loans decreased
by $520,695, or 34.60% to $984,185. This total includes $765,408, which
represents the value for the remaining eight lots at Blye Hill Landing in
Newbury, NH. During 1995, seven properties totaling $1,065,166, were sold. This
includes the last unit at Highland Ridge, a real-estate development in New
London, NH.
Deposits increased by $5,437,855, or 2.80% to $199,970,921 from
$194,533,066. Customers continued to place funds in Certificates of Deposit with
46.6% of total CD versus 40.2% last year. Repurchase agreements increased
$5,954,918 to $9,552,825, as commercial customers utilized the Bank's sweep
account in an effort to maximize their return on overnight deposits. Competition
continues to be intense from mutual funds as a record number of funds flowed
into the mutual fund market.
Advances from the Federal Home Loan Bank (FHLB) increased by $11,725,374,
or 77.09% to $26,936,168 from $15,210,794. The Bank utilized the FHLB's lower
costing Community Investment Program to fund approximately $15,000,000 of
qualifying loans.
7
<PAGE>
======================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
These funds were applied retroactively to loans made from January 1, 1994.
LIQUIDITY AND CAPITAL RESOURCES
The Bank is required to maintain a 5% ratio of liquid assets to net
withdrawable funds. At year-end 1995, the Bank's ratio of 11.92% exceeded
regulatory requirements for long-term liquidity.
The Bank's source of funds comes primarily from net deposit inflows, loan
amortizations, principal pay downs from loans, sold loan proceeds, and advances
from the FHLB. At December 31, 1995, the Bank had approximately $51,000,000 in
additional borrowing capacity from the FHLB.
At December 31, 1995, the Company's shareholders' equity totaled
$19,544,005, or 7.57% of total assets, compared to $18,252,874 or 7.82% of total
assets at year-end 1994. The increase of $1,291,131 reflects net income of
$1,244,823, the payment of $839,413 in common stock dividends, the repurchase of
14,968 shares of stock at a cost of $144,015, the exercise of 33,485 of stock
options in the amount of $146,497, a gain of $56,978 on the sale of treasury
stock, and the recording of $97,594 in net unrealized gains on securities
classified as available for sale. As interest rates moved downward throughout
1995, the Bank's bond portfolio increased in value. Although the Bank normally
intends to hold these bonds to maturity, past practice has been to sell bonds
under certain circumstances. Accordingly, the bonds are classified as available
for sale. These bonds are "marked-to-market" causing the unrealized gain to be
recorded, net of the effect of income taxes, in shareholders' equity.
On January 24, 1996, the Bank received authorization from the Office of
Thrift Supervision to dividend $1,000,000 to the Company. As a result of this
transaction, approximately $17.5 million in capital remains at the Bank level,
and $2.1 million at the Company. During 1995, $1,000,000 was paid from the Bank
to the Company.
Net cash provided by operating activities was $1,243,025 in 1995 versus
$2,650,704 in 1994. This change is attributable to a receivable of approximately
$1.2 million from the disposition of available for sale securities as of
December 31, 1995. Proceeds were received January 2, 1996.
Net cash flows from investing activities amounted to negative $20,810,142
in 1996 compared to negative $26,903,386 in 1994. The majority of the change was
due to a change of $6,154,999 in loans made to customers.
In 1995, net cash provided by financing activities was $22,306,826
compared to $25,676,716 in 1994. As mentioned above, the Bank utilized the
FHLB's advance program and an increase in customer deposits to finance the
Bank's investing activities.
The Bank expects to be able to fund loan demand and other investing
activities during 1996 by continuing to use the FHLB's advance program, as well
as funds provided from customer deposits. Management is not aware of any trends,
events, or uncertainties that will have or that are reasonably likely to have a
material effect in the Company's liquidity, capital resources or results of
operations.
As part of the Financial Institution Reform, Recovery, and Enforcement Act
of 1989 (FIRREA), banks are required to maintain core capital, leverage ratio,
and total risk based capital of 4.00%, 4.00%, and 8.00%, respectively. As of
December 31, 1995, the Bank's ratios were 7.08%, 7.08%, and 11.88%,
respectively, well in excess of the regulators' requirements.
Book value per share was $11.57 at December 31, 1995 versus $10.92 per
share at December 31, 1994. The recognition of the unrealized gain on the Bank's
bond portfolio accounted for $.49 of the increase.
IMPACT OF INFLATION
The financial statements and related data are prepared in accordance with
generally accepted accounting principles which require the measurement of
financial position and operating results in terms of historical dollars and
current market value, for certain loans and investments, without considering
changes in the relative purchasing power of money over time due to inflation.
Unlike other companies, virtually all of the assets and liabilities of a
bank are monetary in nature. As a result, interest rates have a far more
significant impact on a bank's performance than the effects of the general level
of inflation. Interest rates do not necessarily move in the same direction or
with the same magnitude as the price of goods and services, since such prices
are affected by inflation. In the
8
<PAGE>
======================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
current interest rate environment, liquidity and the maturity structure of the
Bank's assets and liabilities are important to the maintenance of acceptable
performance levels.
INTEREST RATE SENSITIVITY
Management has continued to utilize asset/liability management as a
strategy in monitoring the interest rate risk. The strategy of matching
rate-sensitive assets with similar liabilities stabilizes profitability during
periods of interest rate fluctuations.
The Bank's one-year Gap at December 31, 1995 was -6.69%, compared to the
December 31, 1994 Gap position of -7.57%. The Bank continues to offer adjustable
rate mortgages which reprice at one, three, and five year intervals. In
addition, from time to time, the Bank sells fixed-rate mortgages into the
secondary market in order to minimize interest rate risk.
The Bank's Gap, of approximately negative seven percent at December 31,
1995, means net interest income would increase if interest rates trended
downward. The opposite would occur if interest rates were to rise. Management
feels that maintaining the Gap within ten points of the parity line provides
adequate protection against severe interest rate swings. In an effort to
maintain the Gap within ten points of parity, the Bank utilizes the Federal Home
Loan Bank advance program to control the repricing of a segment of liabilities.
At December 31, 1995, the Bank's interest earning assets scheduled to
reprice within one year or less totaled $128.8 million, or 53.55% of earning
assets compared to $109.9 million, or 50.03% of earning assets at December 31,
1994. At December 31, 1995, interest bearing liabilities, which were scheduled
to reprice within one year, amounted to $144.9 million, or 64.25% of interest
bearing liabilities as compared to $126.5 million, or 61.66% of interest bearing
liabilities as of December 31, 1994.
NET INTEREST INCOME
Net interest income for the year ended December 31, 1995 increased by
$371,956, or 4.96%, to $7,867,986. The increase can be attributed to the
increased volume of the Bank's loan portfolio. Total interest income increased
by $2,923,897, or 20.11%, with 56.29% attributed to the increase in volume, and
43.71% related to the change in interest rates.
Total interest expense increased $2,551,941, or 36.22%, with 52.66.%
attributed to the increased volume of both deposits and FHLB advances, and
47.34% related to interest rates. Despite the drop in interest rates, the Bank's
cost of funds increased to 4.50% during 1995 from 3.67% in 1994, because of the
Bank's lag in increasing rates paid on deposit accounts during 1994. As a
result, the Bank's spread decreased to 3.08% at December 31, 1995 compared to
3.33% at December 31, 1994. The Bank does not anticipate further erosion of its
spread.
The following table sets forth the average yield on loans and investments, the
average interest rate paid on deposits and borrowings, the net interest rate
margin, and the net yield on interest earning assets for the periods indicated:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
--------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Yield on loans 7.71% 7.10% 7.49% 8.68% 10.15%
Yield on investment securities 6.53% 6.14% 5.68% 6.65% 7.46%
Combined yield on loans and
investments 7.58% 7.00% 7.28% 8.42% 9.85%
Cost of deposits 4.27% 3.63% 3.81% 4.76% 6.53%
Cost of borrowings 6.42% 4.29% 4.55% 8.00% 8.08%
Combined cost of deposits and
borrowings 4.50% 3.67% 3.83% 4.88% 6.64%
Interest rate spread 3.08% 3.33% 3.45% 3.54% 3.21%
Net interest margin 3.42% 3.61% 3.75% 3.79% 3.48%
</TABLE>
9
<PAGE>
======================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
The following table shows the Bank's interest rate sensitivity table at December
31, 1995:
<TABLE>
<CAPTION>
0-3 3-6 6 MONTHS- 1-3 BEYOND
MONTHS MONTHS 1 YEAR YEARS 3 YEARS TOTAL
--------------------------------------------------------------------
($ in thousands)
<S> <C> <C> <C> <C> <C> <C>
Interest earning
assets:
Loans $ 32,449 $ 20,811 $ 60,267 $ 51,157 $ 44,169 $ 208,846
Investments 9,559 2,168 3,560 9,977 6,450 31,714
--------------------------------------------------------------------
Total $ 42,008 $ 22,979 $ 63,827 $ 61,134 $ 50,619 $ 240,560
--------------------------------------------------------------------
Interest bearing
liabilities:
Deposits $ 69,828 $ 22,696 $ 31,033 $ 34,907 $ 30,572 $ 189,036
Repurchase
agreements 9,553 - - - - 9,553
Borrowings 4,400 7,400 - 14,706 430 26,936
--------------------------------------------------------------------
Total $ 83,781 $ 30,096 $ 31,033 $ 49,613 $ 31,002 $ 225,525
--------------------------------------------------------------------
Period sensitivity
gap $ (41,773) $ (7,117) $ 32,794 $ 11,521 $ 19,617 $ 15,035
Cumulative
sensitivity $ (41,773) $ (48,890) $ (16,096) $ (4,575) $ 15,035 $ 15,035
Cumulative
sensitivity
gap as a percent of
earning assets -17.36% -20.32% -6.69% -1.90% 6.25% 6.25%
</TABLE>
Note: The Bank has used industry decay formulae in establishing repricing
periods for savings and NOW accounts.
10
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
The following table presents, for the periods indicated, the total dollar amount
of interest income from earning assets and the resultant yields as well as the
interest paid on interest bearing liabilities, and the resultant costs:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1995 1994 1993
------------------------------------------------------------------------
AVERAGE (1) YIELD/ AVERAGE (1) YIELD/ AVERAGE (1) YIELD/
BALANCE INTEREST COST BALANCE INTEREST COST BALANCE INTEREST COST
------------------------------------------------------------------------
($ in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning
assets:
Loans (2) $205,548 $ 15,846 7.71% $186,651 $ 13,251 7.10% $171,739 $ 12,855 7.49%
Investment
securities and
other (3) 24,790 1,620 6.53% 21,033 1,292 6.14% 21,729 1,234 5.68%
----------------- ------------------ ------------------
Total interest
earning
assets 230,338 17,466 7.58% 207,684 14,543 7.00% 193,468 14,089 7.28%
----------------- ------------------ ------------------
Non-interest
earning assets:
Cash 5,976 5,782 4,972
Other
non-interest earning
assets (4) 8,285 7,512 7,801
-------- -------- --------
Total
non-interest earning
assets 14,261 13,294 12,773
-------- -------- --------
Total $244,599 $220,978 $206,241
======== ======== ========
Liabilities and
Shareholders'
Equity:
Interest bearing
liabilities:
Savings deposits $ 96,698 $ 2,855 2.95% $107,592 $ 2,996 2.78% $102,397 $ 2,964 2.89%
Time deposits 88,310 5,065 5.74% 68,250 3,344 4.90% 67,804 3,526 5.20%
Repurchase 4,702 177 3.76% 2,218 115 5.18% 2,882 96 3.33%
agreements
Other borrowed
funds 23,388 1,501 6.42% 13,815 592 4.29% 5,498 250 4.55%
----------------- ------------------ ------------------
Total interest
bearing
liabilities 213,098 9,598 4.50% 191,875 7,047 3.67% 178,581 6,836 3.83%
----------------- ------------------ ------------------
Non-interest bearing
liabilities:
Demand deposits 7,050 7,005 5,865
Other 5,570 4,028 3,724
-------- -------- --------
12,620 11,033 9,589
Shareholders' Equity 18,881 18,070 18,071
-------- -------- --------
Total $244,599 $220,978 $206,241
======== ======== ========
Net interest
income/interest
rate spread $ 7,868 3.08% $ 7,496 3.33% $ 7,253 3.45%
================ ================ ================
Net earning
balance/net yield
on earning
assets $ 17,240 3.42% $ 15,809 3.61% $ 14,887 3.75%
======================== ========================== ==========================
</TABLE>
(1) Monthly average balances have been used for all periods. Management does not
believe that the use of month-end balances instead of daily average balances
caused any material difference in the information presented.
(2) Loans include 90 day delinquent loans which have been placed on a
non-accruing status. Management does not believe that including the 90 day
delinquent loans in loans caused any material difference in the information
presented.
(3) Investment securities and other includes tax -exempt investment securities.
Management does not believe that including tax exempt investment securities in
investments securities and other caused any material difference in the
information presented.
(4) Other non-interest earning assets includes non-earning assets and real
estate owned.
11
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
The following table sets forth, for the periods indicated, a summary of the
changes in interest earned and interest paid resulting from changes in volume
and rates. The net change attributable to changes in both volume and rate, which
cannot be segregated, has been allocated proportionately to the change due to
volume and the change due to the rate.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1995 VS. 1994
INCREASE (DECREASE)
DUE TO
VOLUME RATE TOTAL
---------------------------
($ in thousands)
<S> <C> <C> <C>
Interest income on loans $ 1,404 $ 1,192 $ 2,596
Interest income on investments 242 86 328
-------------------------------
Total interest income 1,646 1,278 2,924
-------------------------------
Interest expense on savings deposits (356) 215 (141)
Interest expense on time deposits 1,087 634 1,721
Interest expense on repurchase agreements 83 (20) 63
Interest expense on borrowings 530 379 909
-------------------------------
Total interest expense 1,344 1,208 2,552
-------------------------------
Net interest income $ 302 $ 70 $ 372
===============================
<CAPTION>
YEAR ENDED DECEMBER 31, 1994 VS. 1993
INCREASE (DECREASE)
DUE TO
VOLUME RATE TOTAL
----------------------------
($ in thousands)
<S> <C> <C> <C>
Interest income on loans $ 990 $ (594) $ 396
Interest income on investments (39) 97 58
-------------------------------
Total interest income 951 (497) 454
-------------------------------
Interest expense on savings deposits 130 (98) 32
Interest expense on time deposits 23 (205) (182)
Interest expense on repurchase agreements (13) 32 19
Interest expense on borrowings 355 (13) 342
-------------------------------
Total interest expense 495 (284) 211
-------------------------------
Net interest income $ 456 $ (213) $ 243
===============================
</TABLE>
12
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
PROVISION FOR LOAN LOSSES
The Bank considers many factors in determining the allowance for loan
losses. These include the risk and size characteristics of loans, the prior
years' loss experience, the levels of delinquencies, the prevailing economic
conditions, the number of foreclosures, unemployment rates, interest rates, and
the value of collateral securing the loans. No changes were made to the Bank's
procedures with respect to maintaining the loan loss allowances as a result of
any regulatory examinations. Additionally, the Bank's commercial loan officers
review the financial condition of commercial loan customers on a monthly basis
and perform visual inspections of facilities and inventories. The Bank also has
an internal audit and compliance program. Results of the audit and compliance
programs are reported directly to the Audit Committee of the Bank's Board of
Directors.
The allowance for loan loss at December 31, 1995 was $1,828,060, compared
to $2,752,885 at year-end 1994. The allowance in 1995 includes $628,060 in
specific reserves for loans classified as loss, and $1,200,000 in general
reserves as compared to $1,045,301 and $1,707,584 in 1994, respectively. As a
result of charge-offs in 1995, the Bank expensed to the provision for loan
losses $1,163,710 in 1995, compared to $761,555 in 1994. Included in the 1995
charge-offs were three loans, amounting to approximately $1 million which were
not previously reserved for. The allowance represented 0.87% of total loans at
year-end 1995 versus 1.38% at year-end 1994. The allowance for loan losses as a
percentage of non-performing assets was 75.36% at December 31, 1995 compared to
85.46% at December 31, 1994. The allowance for loan losses as a percentage of
non-performing assets (less real estate owned) and troubled debt restructured
was 96.88% at December 31, 1995 compared to 67.91% at December 31, 1994. Please
refer to Note 4 "Loans receivable", in the Consolidated Financial Statements for
information regarding SFAS 114 and 118.
Loans classified for regulatory purposes as loss, doubtful, substandard,
or special mention do not result from trends or uncertainties which the Bank
reasonably expects will materially impact future operating results, liquidity,
or capital resources.
As of December 31, 1995, there were no other loans not included in the
table or discussed above where known information about the possible credit
problems of borrowers caused management to have doubts as to the ability of the
borrower to comply with present loan repayment terms and which may result in
disclosure of such loans in the future.
Total classified loans, excluding special mention, as of December 31, 1995
and 1994 were $6,049,066 and $9,183,751 respectively. Of this amount, $2,425,650
and $3,221,313 are included in non-performing assets for the respective years.
Loans classified as 90 day delinquent increased to $1,144,293, which includes
$1,132,475 of conventional real estate loans, at December 31, 1995 compared to
$23,825 at December 31, 1994. Since the bulk of delinquents are comprised of
well-secured loans, the Bank does not anticipate material losses in the event
these loans were to result in foreclosure. Further, given the fact that loans
classified as special mention decreased by 34% and total non-performers
decreased by 25%, the Bank's loan loss reserves are considered adequate despite
the decrease in the reserve total. The local economy has remained stable and
there are no known trends or uncertainties which would negatively impact the
local region. However, the Bank intends to maintain a conservative posture in
funding reserves and expects to expense approximately $825,000, to the provision
for loan losses during 1996.
13
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
The following table sets forth the breakdown of non-performing loans:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
-----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
90 Day delinquent loans (1) $ 1,144,293 $ 23,825 $ 288,663 $ 152,692 $ 1,205,120
Non-earning assets (2) 297,172 1,692,608 501,408 1,388,864 1,380,392
Real estate owned 984,185 1,504,880 1,854,047 2,736,845 4,875,540
------------------------------------------------------------
Total non-performing assets $ 2,425,650 $3,221,313 $2,644,118 $4,278,401 $ 7,461,052
============================================================
Troubled debt restructured $ 445,417 $2,337,058 $3,466,820 $4,391,549 $ 4,023,903
============================================================
</TABLE>
(1) All loans 90 days or more delinquent are placed on a non-accruing status.
(2) Loans considered to be uncollectible, pending foreclosure, or in bankruptcy
proceeding, are placed on a non-earning status.
The following table sets forth 90 day delinquent loans by category:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
---------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Real estate loans -
Conventional $ 1,132,475 $ - $ 288,663 $ 152,692 $ 839,159
Construction - 23,825 - - 241,323
Consumer loans 3,983 - - - -
Commercial and municipal loans 7,835 - - - 124,638
Other loans - - - - -
-------------------------------------------------------------
Total $ 1,144,293 $ 23,825 $ 288,663 $ 152,692 $1,205,120
=============================================================
</TABLE>
The following table sets forth the allocation of the loan loss valuation
allowance and the percentage of loans in each category to total loans as of
December 31:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Real estate
loans -
Conventional $ 687,547 83% $ 726,959 81% $ 853,710 79% $ 1,258,635 79% $ 699,678 80%
Construction 201,257 1,598,266 2% 1,245,382 2% 670,378 1% 1,316,247 1%
Collateral and
consumer
loans 8,067 12% 5,464 12% 22,907 14% 10,684 15% 50,141 16%
Commercial and
municipal
loans 276,526 4% 422,196 4% 252,002 5% 155,234 4% 223,457 2%
Impaired loans 654,663 1% N/A N/A N/A N/A
Other - - 1% - - 1% - 1%
----------------------------------------------------------------------------------------
Valuation
allowance $1,828,060 100% $2,752,885 100% $ 2,374,001 100% $ 2,094,931 100% $2,289,523 100%
========================================================================================
Valuation
allowance
as a percentage
of total
loans .87% 1.38% 1.35% 1.22% 1.38%
========================================================================================
</TABLE>
14
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
OTHER INCOME AND EXPENSE
Total non-interest income decreased by $121,676, or 7.81% to $1,435,556.
Customer service fees increased by $202,541, or 23.65% to $1,058,868. Loan
origination fees decreased by $205,541 due to the effect of a one-time
adjustment to loan fees made in 1994 as a result of a computer conversion.
Total non-interest expense increased $304,552, or 5.09% to $6,291,009. The
Bank's opening of two branches and the expansion of its loan origination network
during the second half of 1994 created a full year of expenditures for these
items and resulted in the increase.
FAS 109-ACCOUNTING FOR INCOME TAXES
Effective December 31, 1993, the Bank adopted FAS No. 109, "Accounting for
Income Taxes," which requires that deferred tax assets and liabilities be
measured based on the enacted tax rates. Statement No. 109 also requires that
deferred tax assets be reduced by a valuation allowance if it is more likely
than not that some portion or all of the deferred tax assets will not be
realized. As a result of adopting FAS 109, there is no effect on the
consolidated financial statements as of December 31, 1993, and no allowance is
required against the deferred tax debit. The provision for income taxes for the
years ended December 31, 1995, 1994 and 1993 includes net deferred income tax
expense of $324,909, $75,000, and $64,391, respectively. These amounts were
determined by the deferred method in accordance with generally accepted
accounting principles for each year.
The Bank has provided deferred income taxes on the difference between the
provision for loan losses permitted for income tax purposes and the provision
recorded for financial reporting purposes.
COMPARISON OF YEARS ENDED DECEMBER 31, 1994 AND 1993
NET INTEREST INCOME
Net interest income for the year ended December 31, 1994 was $7,496,030,
compared to $7,254,098 for 1993, an increase of $241,932, or 3.34%. The increase
was the result of increased volume of the Bank's loan portfolio.
Total interest income increased $453,044, or 3.22%, with over 200% of the
increase attributed to the change in volume.
Interest expense increased $211,112, or 3.09%, with over 230% attributed
to increased balances on customer deposits and FHLB advances.
PROVISION FOR LOAN LOSSES
The allowance for loan losses was $2,752,885 for the year ended December
31, 1994, compared to $2,374,001 at year-end 1993. Charge-offs were $396,116 for
1994, and $1,119,720 for 1993. The allowance as a percentage of total loans was
1.38% at year-end 1994 versus 1.35% from 1993. Non-performing assets increased
to $3,221,313, or 1.38% of total assets for 1994 compared to $2,644,118, or
1.28% of total assets for year-end 1993.
OTHER INCOME AND EXPENSE
Total non-interest income decreased by $349,835, or 18.34% to $1,557,232.
Most significant was the decrease of $463,359 in the net gain on the sale of
investment securities. As interest rates fell during 1993, the value of the
Bank's bond portfolio grew, creating opportunities for capital gains.
Total operating expenses increased $458,946 to $5,986,457, reflecting the
Bank's opening of two branches and expansion of the loan origination team.
15
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
CONSOLIDATED QUARTERLY AVERAGE BALANCES (1) AND INTEREST RATES
<TABLE>
<CAPTION>
1995
-----------------------------------------------------------------
4TH QUARTER 3RD QUARTER 2ND QUARTER 1ST QUARTER
AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/
BALANCE COST BALANCE COST BALANCE COST BALANCE COST
-------------- -------------- -------------- ----------------
($ in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning
assets:
Loans (2) $205,548 8.05% $201,858 8.17% $197,074 7.91% $ 191,928 7.69%
Investment
securities and
other (3) 24,790 7.83% 22,548 6.59% 22,382 7.25% 21,418 6.67%
-------- -------- -------- ---------
Total interest
earning
assets 230,338 8.03% 224,406 8.01% 219,456 7.85% 213,346 7.58%
-------- -------- -------- ---------
Non-interest
earning assets:
Cash 5,976 5,994 5,744 5,795
Other non-
interest earning
assets (4) 8,285 8,271 7,970 7,792
-------- -------- -------- ---------
Total non-
interest earning
assets 14,261 14,265 13,714 13,587
======== ======== ======== =========
Total $244,599 $238,671 $233,170 $ 226,933
======== ======== ======== =========
Liabilities and
Shareholders'
Equity:
Interest bearing
liabilities:
Savings deposits $ 96,698 2.89% $ 99,712 2.78% $104,243 2.74% $ 106,558 1.65%
Time deposits 88,310 6.26% 83,762 6.27% 78,496 6.38% 73,114 4.88%
Repurchase
agreements 4,702 5.28% 3,815 6.32% 2,521 4.69% 2,149 .05%
Other borrowed
funds 23,388 7.34% 20,931 7.01% 18,295 9.12% 16,068 7.14%
-------- -------- -------- ---------
Total interest
bearing
liabilities 213,098 4.83% 208,220 4.68% 203,555 4.74% 197,889 4.40%
-------- -------- -------- ---------
Non-interest bearing
liabilities:
Demand deposits 7,050 6,846 6,913 6,892
Other 5,570 5,016 4,364 4,010
-------- -------- -------- ---------
12,620 11,862 11,277 10,902
Shareholders' Equity 18,881 18,589 18,338 18,142
======== ======== ======== =========
Total $244,599 $238,671 $233,170 $ 226,933
======== ======== ======== =========
Net interest
income/interest
rate spread 3.20% 3.33% 3.11% 3.18%
===== ===== ===== =====
Net earning
balance/net yield
on earning
assets $ 17,240 3.56% $ 16,186 3.67% $ 15,901 3.45% $ 15,457 3.51%
================ =============== ============== =================
</TABLE>
(1) Monthly average balances have been used for all periods. Management does not
believe that the use of month-end balances instead of daily average balances
caused any material difference in the information presented.
(2) Loans include 90 day delinquent loans which have been placed on a
non-accruing status. Management does not believe that including the 90 day
delinquent loans in loans caused any material difference in the information
presented.
(3) Investment securities and other includes tax -exempt investment securities.
Management does not believe that including tax exempt investment securities in
investments securities and other caused any material difference in the
information presented.
(4) Other non-interest earning assets includes non-earning assets and real
estate owned.
16
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
CONSOLIDATED QUARTERLY AVERAGE BALANCES (1) AND INTEREST RATES
<TABLE>
<CAPTION>
1994
-----------------------------------------------------------------
4TH QUARTER 3RD QUARTER 2ND QUARTER 1ST QUARTER
AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/
BALANCE COST BALANCE COST BALANCE COST BALANCE COST
---------------- ------------------------------------------------
($ in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning
assets:
Loans (2) $186,651 7.64% $181,722 7.46% $177,058 7.29% $173,946 7.06%
Investment
securities and
other (3) 21,033 6.94% 20,582 6.98% 20,397 6.84% 20,302 5.33%
-------- -------- -------- --------
Total interest
earning
assets 207,684 7.57% 202,304 7.41% 197,455 7.14% 194,248 6.88%
-------- -------- -------- --------
Non-interest
earning assets:
Cash 5,782 5,662 5,743 5,321
Other non-interest
earning assets (4) 7,512 7,328 7,380 7,381
-------- -------- -------- --------
Total non-interest
earning assets 13,294 12,990 13,123 12,712
-------- -------- -------- --------
Total $220,978 $215,294 $210,578 $206,950
======== ======== ======== ========
Liabilities and
Shareholders'
Equity:
Interest bearing
liabilities:
Savings deposits $107,592 2.95% $107,027 3.12% $104,702 2.71% $103,914 2.52%
Time deposits 68,250 5.53% 65,324 5.11% 64,118 5.00% 64,740 4.71%
Repurchase
agreements 2,218 5.39% 2,604 4.06% 3,029 2.66% 2,905 3.18%
Other borrowed
funds 13,815 5.51% 11,679 4.17% 10,051 7.22% 7,145 5.40%
-------- -------- -------- --------
Total interest
bearing
liabilities 191,875 4.08% 186,634 3.90% 181,900 3.77% 178,704 3.44%
-------- -------- -------- --------
Non-interest bearing
liabilities:
Demand deposits 7,005 6,817 6,587 6,169
Other 4,028 3,759 3,996 3,942
-------- -------- -------- --------
11,033 10,576 10,583 10,111
Shareholders'
Equity 18,070 18,084 18,095 18,135
-------- -------- -------- --------
Total $220,978 $215,294 $210,578 $206,950
======== ======== ======== ========
Net interest
income/interest
rate spread 3.49% 3.51% 3.37% 3.43%
====== ====== ====== ======
Net earning
balance/net yield
on earning
assets $ 15,809 3.80% $ 15,670 3.82% $ 15,555 3.67% $ 15,544 3.71%
=============== =============== =============== ===============
</TABLE>
(1) Monthly average balances have been used for all periods. Management does not
believe that the use of month-end balances instead of daily average balances
caused any material difference in the information presented.
(2) Loans include 90 day delinquent loans which have been placed on a
non-accruing status. Management does not believe that including the 90 day
delinquent loans in loans caused any material difference in the information
presented.
(3) Investment securities and other includes tax -exempt investment securities.
Management does not believe that including tax exempt investment securities in
investments securities and other caused any material difference in the
information presented.
(4) Other non-interest earning assets includes non-earning assets and real
estate owned.
17
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
CONSOLIDATED QUARTERLY AVERAGE BALANCES (1) AND INTEREST RATES
<TABLE>
<CAPTION>
1993
---------------------------------------------------------------
4TH QUARTER 3RD QUARTER 2ND QUARTER 1ST QUARTER
AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/ AVERAGE YIELD/
BALANCE COST BALANCE COST BALANCE COST BALANCE COST
-------------- -------------- -------------- --------------
($ in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Assets:
Interest earning
assets:
Loans (2) $171,739 7.23% $170,310 7.37% $169,853 7.75% $168,842 7.86%
Investment
securities and
other (3) 21,729 5.22% 23,282 5.23% 24,088 4.83% 24,616 5.77%
-------- -------- -------- --------
Total interest
earning
assets 193,468 7.01% 193,592 7.12% 193,941 7.39% 193,458 7.60%
-------- -------- -------- --------
Non-interest
earning assets:
Cash 4,972 4,706 4,313 4,093
Other
non-interest earning
assets (4) 7,801 8,588 9,277 9,999
-------- -------- -------- --------
Total
non-interest earning
assets 12,773 13,294 13,590 14,092
-------- -------- -------- --------
Total $206,241 $206,886 $207,531 $207,550
======== ======== ======== ========
Liabilities and
Shareholders'
Equity:
Interest bearing
liabilities:
Savings deposits $102,397 2.70% $100,844 3.01% $ 98,812 3.05% $ 96,895 3.15%
Time deposits 67,804 4.62% 71,017 4.50% 74,300 4.95% 76,397 5.39%
Repurchase
agreements 2,882 5.11% 2,627 4.01% 2,443 1.95% 2,249 3.61%
Other borrowed
funds 5,498 5.47% 5,104 5.12% 5,216 2.66% 6,071 4.74%
-------- -------- -------- --------
Total interest
bearing
liabilities 178,581 3.55% 179,592 3.67% 180,771 3.81% 181,612 4.15%
-------- -------- -------- --------
Non-interest bearing
liabilities:
Demand deposits 5,865 5,624 5,380 5,151
Other 3,724 3,642 3,379 2,819
-------- -------- -------- --------
9,589 9,266 8,759 7,970
Shareholders' Equity 18,071 18,028 18,001 17,968
-------- -------- -------- --------
Total $206,241 $206,886 $207,531 $207,550
======== ======== ======== ========
Net interest
income/interest
rate spread 3.46% 3.45% 3.58% 3.45%
====== ====== ====== ======
Net earning
balance/net yield
on earning
assets $14,887 3.73% $ 14,000 3.71% $ 13,170 3.84% $ 11,846 3.70%
=============== =============== =============== ===============
</TABLE>
(1) Monthly average balances have been used for all periods. Management does not
believe that the use of month-end balances instead of daily average balances
caused any material difference in the information presented.
(2) Loans include 90 day delinquent loans which have been placed on a
non-accruing status. Management does not believe that including the 90 day
delinquent loans in loans caused any material difference in the information
presented.
(3) Investment securities and other includes tax -exempt investment securities.
Management does not believe that including tax exempt investment securities in
investments securities and other caused any material difference in the
information presented.
(4) Other non-interest earning assets includes non-earning assets and real
estate owned.
18
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
BALANCE SHEET DATA:
AS OF DECEMBER 31, 1995 1994 1993 1992 1991
-----------------------------------------------------------
($ in thousands)
<S> <C> <C> <C> <C> <C>
Total assets $ 258,216 $ 233,363 $ 207,105 $ 208,981 $ 203,229
Net loans 208,169 193,810 172,834 166,967 162,053
Total securities 28,415 20,363 17,998 23,680 22,450
Deposits 199,971 194,533 176,716 182,404 172,671
Advances from Federal Home
Loan Bank 26,936 15,211 5,441 3,000 8,000
Shareholders' equity 19,544 18,253 18,387 18,036 17,645
<CAPTION>
OPERATING DATA:
YEAR ENDED DECEMBER 31, 1995 1994 1993 1992 1991
------------------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Interest income:
Interest on loans $ 15,846 $ 13,251 $ 12,855 $ 14,530 $ 17,060
Interest on
investments 1,620 1,291 1,234 1,659 1,577
-------------------------------------------------------------
Total interest
income 17,466 14,542 14,089 16,189 18,637
Interest expense: 9,598 7,046 6,835 8,902 12,057
-------------------------------------------------------------
Net interest
income 7,868 7,496 7,254 7,287 6,580
Provision for loan losses,
net 1,164 762 1,373 2,165 895
Other income:
Gain (loss) on sale of
investments (89) 36 499 960 150
Other income 1,525 1,521 1,408 1,272 1,108
-------------------------------------------------------------
Total other income 1,436 1,557 1,907 2,232 1,258
Other expense:
Salaries and benefits 2,917 2,861 2,404 2,334 2,529
Occupancy expense 1,196 1,101 1,083 1,180 963
Other expenses 2,178 2,024 2,040 2,004 2,219
-------------------------------------------------------------
Total other
expense 6,291 5,986 5,527 5,518 5,711
-------------------------------------------------------------
Income before income taxes 1,849 2,305 2,261 1,836 1,232
Applicable income taxes 604 723 736 642 397
-------------------------------------------------------------
Net income $ 1,245 $ 1,582 $ 1,525 $ 1,194 $ 835
=============================================================
PER SHARE DATA:
Earnings per common
share $ .73 $ .93 $ .88 $ .68 $ .45
Cash dividends
declared on
common stock $ .50 $ .50 $ .375 $ .35 $ .14
Weighted average
number of
common shares
outstanding 1,699,536 1,693,259 1,731,185 1,762,966 1,836,154
FINANCIAL RATIOS:
Return on average
assets .54% .71% .74% .58% .40%
Return on average
shareholders'
equity 6.95% 8.76% 8.43% 6.56% 4.59%
Dividend payout ratio 68.49% 53.76% 42.61% 51.47% 31.11%
Average equity to
average assets 7.72% 8.15% 8.76% 8.69% 8.80%
</TABLE>
19
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
1995 QUARTERLY DATA
<TABLE>
<CAPTION>
-------------------------------------------------
FOURTH THIRD SECOND FIRST
QUARTER QUARTER QUARTER QUARTER
-------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C> <C>
Interest income:
Interest on loans $ 4,137 $ 4,122 $ 3,899 $ 3,688
Interest and dividends on
investments 486 371 406 357
-------------------------------------------------
Total interest income 4,623 4,493 4,305 4,045
Interest expense:
Interest on deposits 2,160 2,084 1,990 1,863
Interest on borrowed
funds 432 370 416 283
-------------------------------------------------
Total interest
expense 2,592 2,454 2,406 2,146
-------------------------------------------------
Net interest income 2,031 2,039 1,899 1,899
Provision for loan losses, net 336 248 280 300
-------------------------------------------------
Net interest income
after provision
for loan losses 1,695 1,791 1,619 1,599
Other income:
Net gain (loss) on sale of
investments (57) (53) 15 6
Other income 496 338 314 377
-------------------------------------------------
Total other income 439 285 329 383
Other expense 1,506 1,522 1,565 1,698
-------------------------------------------------
Income before income taxes 628 554 383 284
Provision for income taxes 201 183 126 94
-------------------------------------------------
Net income $ 427 $ 371 $ 257 $ 190
=================================================
Earnings per common share (1) $ .25 $ .22 $ .15 $ .11
Annualized returns (2)
Return on average assets .54% .49% .38% .33%
Return on average
shareholders'
equity 6.95% 6.35% 4.87% 4.17%
</TABLE>
(1) Earnings per common share are calculated by dividing net earnings by the
average common shares outstanding for each quarter. Therefore, the sum of
earnings per common share may not equal total earnings per share for the year.
(2) Returns are based on annualized net earnings.
20
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
1994 QUARTERLY DATA
<TABLE>
<CAPTION>
-------------------------------------------------
FOURTH THIRD SECOND FIRST
QUARTER QUARTER QUARTER QUARTER
-------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C> <C>
Interest income:
Interest on loans $ 3,564 $ 3,389 $ 3,228 $ 3,069
Interest and dividends on
investments 365 359 298 270
-------------------------------------------------
Total interest income 3,929 3,748 3,526 3,339
Interest expense:
Interest on deposits 1,780 1,709 1,528 1,437
Interest on borrowed
funds 192 123 181 96
-------------------------------------------------
Total interest
expense 1,972 1,832 1,709 1,533
-------------------------------------------------
Net interest income 1,957 1,916 1,817 1,806
Provision for loan losses, net 149 373 166 74
-------------------------------------------------
Net interest income
after provision
for loan losses 1,808 1,543 1,651 1,732
Other income:
Net gain (loss) on sale of
investments 2 68 6 (40)
Other income 336 517 343 325
-------------------------------------------------
Total other income 338 585 349 285
Other expense 1,616 1,534 1,427 1,409
-------------------------------------------------
Income before income taxes 530 594 573 608
Provision for income taxes 137 196 189 201
-------------------------------------------------
Net income $ 393 $ 398 $ 384 $ 407
=================================================
Earnings per common share (1) $ .23 $ .23 $ .23 $ .24
Annualized returns (2)
Return on average assets .71% .73% .75% .79%
Return on average
shareholders' equity 8.76% 8.77% 8.75% 9.00%
</TABLE>
(1) Earnings per common share are calculated by dividing net earnings by the
average common shares outstanding for each quarter. Therefore, the sum of
earnings per common share may not equal total earnings per share for the year.
(2) Returns are based on annualized net earnings.
21
<PAGE>
========================================================
MANAGEMENT'S DISCUSSION AND ANALYSIS (continued)
1993 QUARTERLY DATA
<TABLE>
<CAPTION>
-------------------------------------------------
FOURTH THIRD SECOND FIRST
QUARTER QUARTER QUARTER QUARTER
-------------------------------------------------
($ in thousands, except per share data)
<S> <C> <C> <C> <C>
Interest income:
Interest on loans $ 3,106 $ 3,139 $ 3,291 $ 3,319
Interest and dividends on
investments 283 305 291 355
-------------------------------------------------
Total interest income 3,389 3,444 3,582 3,674
Interest expense:
Interest on deposits 1,522 1,597 1,679 1,787
Interest on borrowed
funds 76 66 37 71
-------------------------------------------------
Total interest
expense 1,598 1,663 1,716 1,858
-------------------------------------------------
Net interest income 1,791 1,781 1,866 1,816
Provision for loan losses, net 68 404 421 480
-------------------------------------------------
Net interest income
after provision
for loan losses 1,723 1,377 1,445 1,336
Other income:
Net gain (loss) on sale of
investments (43) 148 106 288
Other income 326 344 420 318
-------------------------------------------------
Total other income 283 492 526 606
Other expense 1,429 1,287 1,394 1,418
-------------------------------------------------
Income before income taxes 577 582 577 524
Provision for income taxes 163 181 214 178
=================================================
Net income $ 414 $ 401 $ 363 $ 346
=================================================
Earnings per common share (1) $ .24 $ .23 $ .21 $ .20
Annualized returns (2)
Return on average assets .74% .74% .68% .66%
Return on average
shareholders'
equity 8.43% 8.46% 7.88% 7.68%
</TABLE>
(1) Earnings per common share are calculated by dividing net earnings by the
average common shares outstanding for each quarter. Therefore, the sum of
earnings per common share may not equal total earnings per share for the year.
(2) Returns are based on annualized net earnings.
22
<PAGE>
[LETTERHEAD OF BERRY, DUNN, MCNEIL & PARKER]
INDEPENDENT AUDITORS' REPORT
The Board of Directors
New Hampshire Thrift Bancshares, Inc. and subsidiaries
We have audited the accompanying consolidated statement of financial condition
of New Hampshire Thrift Bancshares, Inc. and subsidiaries as of December 31,
1995, and the related consolidated statements of income, changes in
shareholders' equity and cash flows for the year ended December 31, 1995. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audit. The consolidated statement of financial
condition of New Hampshire Thrift Bancshares, Inc. and subsidiaries as of
December 31, 1994 and the consolidated statements of income, changes in
stockholders' equity, and cash flows for the two years then ended were audited
by Smith, Batchelder & Rugg whose report, dated January 24, 1995, expressed an
unqualified opinion on those statements. Included in Notes 3 and 4 to the
financial statements is information included in New Hampshire Thrift Bancshares,
Inc. and subsidiaries financial statements as of December 31, 1993, 1992 and
1991, upon which Smith, Batchelder & Rugg issued their unqualified opinions
dated January 21, 1994 and January 22, 1993.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the consolidated financial statements.
An audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall consolidated
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of New
Hampshire Thrift Bancshares, Inc. and subsidiaries as of December 31, 1995, and
the results of their operations and their cash flows for the year ended December
31, 1995, in conformity with generally accepted accounting principles.
/s/ Berry, Dunn, McNeil & Parker
Lebanon, New Hampshire
January 19, 1996
23
<PAGE>
[LETTERHEAD OF SMITH, BATCHELDER & RUGG]
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors of
New Hampshire Thrift Bancshares, Inc. and subsidiaries:
We have audited the accompanying consolidated statements of financial condition
of New Hampshire Thrift Bancshares, Inc. and subsidiaries as of December 31,
1994 and 1993, and the related consolidated statements of income, changes in
shareholders' equity and cash flows for the years ended December 31, 1994, 1993
and 1992. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the consolidated financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the consolidated financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
consolidated financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of New
Hampshire Thrift Bancshares, Inc. and subsidiaries as of December 31, 1994 and
1993, and the results of their operations and their cash flows for the years
ended December 31, 1994, 1993 and 1992, in conformity with generally accepted
accounting principles.
/s/ Smith, Batchelder & Rugg
Lebanon, New Hampshire
January 24, 1995
24
<PAGE>
==================================================
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1995 1994
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Cash and due from banks $ 7,544,297 $ 7,197,588
Federal funds sold 3,449,000 1,056,000
Securities available for sale 25,718,260 18,518,562
Securities held to maturity 393,054 445,832
Other investments 2,303,285 1,398,396
Loans held for sale 3,095,971 3,753,657
Loans receivable, net 205,073,080 190,056,444
Accrued interest receivable 1,433,882 1,058,442
Bank premises and equipment, net 5,955,394 5,944,349
Real estate owned and property acquired in
settlement of loans 984,185 1,504,880
Non-earning assets 297,172 1,692,608
Other assets 1,968,497 736,028
-----------------------------------
Total assets $ 258,216,077 $ 233,362,786
===================================
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Deposits $ 199,970,921 $ 194,533,066
Repurchase agreements 9,552,825 3,597,907
Advances from Federal Home Loan Bank 26,936,168 15,210,794
Accrued expense and other liabilities 2,212,158 1,768,145
-----------------------------------
Total liabilities 238,672,072 215,109,912
-----------------------------------
COMMITMENTS AND CONTINGENCIES (Note 12)
SHAREHOLDERS' EQUITY
Preferred stock, $.01 par value - -
Common stock, $.01 par value, 1,689,503 shares
outstanding as of December 31, 1995 and 1,670,986
as of December 31, 1994 21,473 21,473
Paid-in capital 13,160,382 13,103,404
Retained earnings 8,673,504 8,268,094
Unrealized gain (loss) on securities available for
sale, net of $51,000 of deferred taxes in 1995,
and $375,400 of deferred tax benefit in 1994 97,594 (728,667)
-----------------------------------
21,952,953 20,664,304
Treasury stock, at cost, 457,779 shares as of
December 31, 1995 and 476,296 shares as of
December 31, 1994 (2,408,948) (2,411,430)
-----------------------------------
Total shareholders' equity 19,544,005 18,252,874
-----------------------------------
Total liabilities and shareholders' equity $ 258,216,077 $ 233,362,786
===================================
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these statements.
25
<PAGE>
=====================================
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31, 1995 1994 1993
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C>
INTEREST INCOME
Interest on loans $ 15,846,308 $ 13,250,592 $ 12,855,492
Interest and dividends on investments 1,620,025 1,291,844 1,233,900
-------------------------------------------
Total interest income 17,466,333 14,542,436 14,089,392
-------------------------------------------
INTEREST EXPENSE
Interest on deposits 8,096,851 6,454,599 6,585,255
Interest on advances and other borrowed
money 1,501,496 591,807 250,039
-------------------------------------------
Total interest expense 9,598,347 7,046,406 6,835,294
-------------------------------------------
Net interest income 7,867,986 7,496,030 7,254,098
PROVISION FOR LOAN LOSSES, net 1,163,710 761,555 1,372,674
-------------------------------------------
Net interest income after
provision for loan losses 6,704,276 6,734,475 5,881,424
-------------------------------------------
OTHER INCOME
Loan origination fees 89,632 295,173 279,030
Customer service fees 1,058,868 856,327 729,042
Net gain (loss) on sale of securities
and bank property (88,827) 35,706 499,065
Rental income 227,885 220,460 207,661
Brokerage service income 110,705 149,566 174,452
Other income 37,293 - 17,817
-------------------------------------------
Total other income 1,435,556 1,557,232 1,907,067
-------------------------------------------
OTHER EXPENSES
Salaries and employee benefits 2,917,180 2,861,435 2,403,985
Occupancy expenses 1,195,834 1,101,198 1,082,501
Advertising and promotion 162,745 154,382 169,189
Depositors' insurance 440,439 406,630 409,687
Outside services 333,361 350,812 403,858
Other expenses 1,241,450 1,112,000 1,058,291
-------------------------------------------
Total other expenses 6,291,009 5,986,457 5,527,511
-------------------------------------------
INCOME BEFORE PROVISION FOR
INCOME TAXES 1,848,823 2,305,250 2,260,980
PROVISION FOR INCOME TAXES 604,000 723,000 736,000
-------------------------------------------
NET INCOME $ 1,244,823 $ 1,582,250 $ 1,524,980
===========================================
Earnings per common share $ .73 $ .93 $ .88
===========================================
Dividends declared per common share $ .50 $ .50 $ .375
===========================================
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these statements.
26
<PAGE>
==============================================================
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31, 1995 1994 1993
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
COMMON STOCK
Balance, beginning and end of year $ 21,473 $ 21,473 $ 21,473
========================================
PAID-IN CAPITAL
Balance, beginning of year $ 13,103,404 $ 13,069,785 $ 13,010,657
Gain on sale of treasury stock, at cost 56,978 33,619 59,128
----------------------------------------
Balance, end of year $ 13,160,382 $ 13,103,404 $ 13,069,785
=======================================
RETAINED EARNINGS
Balance, beginning of year $ 8,268,094 $ 7,516,147 $ 6,621,200
Net income 1,244,823 1,582,250 1,524,980
Cash dividends paid (839,413) (830,303) (630,033)
---------------------------------------
Balance, end of year $ 8,673,504 $ 8,268,094 $ 7,516,147
=======================================
UNREALIZED GAIN (LOSS) ON SECURITIES
AVAILABLE FOR SALE
Balance, beginning of year $ (728,667)$ 95,857 $ 131,136
Adjustment to fair value 1,252,661 (1,199,924) (35,279)
Effect of change in deferred taxes (426,400) 375,400 -
---------------------------------------
Balance, end of year $ 97,594 $ (728,667)$ 95,857
=======================================
TREASURY STOCK
Balance, beginning of year $ (2,411,430)$ (2,316,293)$ (1,607,383)
Shares repurchased, (14,968 shares in 1995,
20,900 shares in 1994, and 103,366
shares in 1993) (144,015) (193,938) (884,712)
Exercise of stock options, (33,485 shares in
1995 and 22,583 shares in 1994, and
40,269 shares in 1993) 146,497 98,801 175,802
---------------------------------------
Balance, end of year $ (2,408,948)$ (2,411,430)$ (2,316,293)
=======================================
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these statements.
27
<PAGE>
=========================================
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31, 1995 1994 1993
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 1,244,823 $ 1,582,250 $ 1,524,980
Adjustments to reconcile net income to net
cash provided by operating activities -
Depreciation and amortization 435,467 435,124 476,166
Loans originated for sale (18,911,177) (7,431,617) (21,482,025)
Proceeds from sale of loans 18,874,886 7,355,527 21,502,025
(Gain) loss from sale of loans 36,291 76,090 (20,000)
(Gain) loss from sale of premises and
equipment 14,603 (2,955) (58,840)
(Gain) loss from sale of debt securities
available for sale 3,957 (1,760) (310,275)
(Gain) loss from sale of equity securities
available for sale 33,975 (65,499) (33,948)
Gain from sale of other real estate owned - (41,581) (76,001)
Provision for loan losses 1,163,710 761,555 1,372,674
Provision for deferred taxes 324,909 75,000 64,391
(Increase) decrease in accrued interest and
other assets (1,718,404) 96,149 873,737
Increase (decrease) in deferred loan fees (138,396) (198,762) 24,217
Increase (decrease) in accrued expenses and
other liabilities (121,619) 11,183 353,693
-----------------------------------------
Net cash provided by operating
activities 1,243,025 2,650,704 4,210,794
-----------------------------------------
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from sale of premises and
equipment 84,400 31,119 193,408
Capital expenditures (545,515) (952,379) (421,562)
Proceeds from sale of debt securities
available for sale 3,723,564 999,609 15,092,502
Proceeds from sale of equity securities
available for sale 794,170 713,223 232,603
Principal reduction on securities held to
maturity 52,778 51,389 50,000
Purchase of securities available for sale (13,211,517) (9,006,732) (12,552,286)
Purchase of other investments (385,289) - -
(Purchase) sale of Federal Home Loan Bank
stock (519,600) (124,900) 110,300
Maturities of securities available for sale 2,665,000 3,725,000 3,200,000
Net increase in loans to customers (15,384,264) (21,539,263) (7,262,640)
(Increase) decrease in non-earning assets 1,395,436 (1,191,200) 887,456
Decrease in real estate owned 520,695 390,748 957,953
-----------------------------------------
Net cash provided by (used in)
investing activities (20,810,142) (26,903,386) 487,734
-----------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES
Net increase (decrease) in deposits and
repurchase agreements 11,392,773 16,829,556 (4,920,536)
Increase in advances from Federal Home
Loan Bank 11,725,374 9,770,015 2,440,779
Net change in other borrowed money (31,368) (31,034) (29,773)
Payments to acquire treasury stock (144,015) (193,938) (884,712)
Dividends paid (839,413) (830,303) (630,033)
Proceeds from exercise of stock options 203,475 132,420 234,930
-----------------------------------------
Net cash provided by (used in)
financing activities 22,306,826 25,676,716 (3,789,345)
-----------------------------------------
NET INCREASE IN CASH AND CASH
EQUIVALENTS 2,739,709 1,424,034 909,183
-----------------------------------------
CASH AND CASH EQUIVALENTS, beginning
of year 8,253,588 6,829,554 5,920,371
-----------------------------------------
CASH AND CASH EQUIVALENTS, end of year $ 10,993,297 $ 8,253,588 $ 6,829,554
=========================================
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION Cash paid during the period for:
Interest on deposit accounts $ 8,677,030 $ 6,343,205 $ 6,726,349
Interest on advances and other borrowed
money 1,418,043 553,577 239,772
-----------------------------------------
Total interest paid $ 10,095,073 $ 6,896,782 $ 6,966,121
=========================================
Income taxes $ 363,879 $ 701,986 $ 232,860
=========================================
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Transfers from loans to real estate acquired
through foreclosure $ 320,000 $ 305,717 $ 620,532
=========================================
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these statements.
28
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
NATURE OF OPERATIONS - The Bank operates ten branches primarily in
Grafton, Sullivan, and Merrimack Counties in west central New Hampshire.
Although the Bank has a diversified portfolio, a substantial portion of its
debtors' abilities to honor their contracts is dependent on the economic health
of the region. Its primary source of revenue is providing loans to customers who
are predominately small and middle-market businesses and middle-income
individuals.
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements
include the accounts of New Hampshire Thrift Bancshares, Inc. (NHTB, a unitary
holding company), Lake Sunapee Bank, fsb (LSB, a federal stock savings bank),
Lake Sunapee Group, Inc. (LSGI), and Lake Sunapee Financial Services Corp.
(LSFSC). LSB is owned by the holding company and the other entities are
wholly-owned subsidiaries of LSB. All significant intercompany accounts and
transactions have been eliminated in consolidation.
CASH AND CASH EQUIVALENTS - For purposes of reporting cash flows, the
Bank considers federal funds sold and due from banks to be cash equivalents.
SECURITIES HELD TO MATURITY - Bonds, notes, and debentures which the
Bank has the positive intent and ability to hold to maturity are reported at
cost, adjusted for premiums and discounts recognized in interest income using
the interest method over the period to maturity. Declines that are other than
temporary in the fair value of individual held to maturity securities below
their cost result in write-downs of the individual securities to their fair
value. No write-downs have occurred for securities held to maturity.
SECURITIES AVAILABLE FOR SALE - Available for sale securities consist
of bonds, notes, debentures, and certain equity securities. Unrealized holding
gains and losses, net of tax, on available for sale securities are reported as a
net amount in a separate component of shareholders' equity until realized. Gains
and losses on the sale of available for sale securities are determined using the
specific-identification method. Declines that are other than temporary in the
fair value of individual available for sale securities below their cost have
resulted in write-downs of the individual securities to their fair value. The
related write-downs of $76,590 have been included in earnings as realized losses
for the year ended 1995. There were no related write-downs for the years 1994
and 1993.
OTHER INVESTMENTS - Other investments are investments which do not have
readily determinable fair values. These types of investments are reported at
cost and are evaluated for other than a temporary decline in value. Other than
temporary declines in value result in write-downs of the individual security. No
write-downs have occurred for securities which are classified as other
investments.
LOANS RECEIVABLE - Loans receivable that management has the intent and
ability to hold for the foreseeable future or until maturity or pay-off are
reported at their outstanding principal adjusted for any charge-offs, the
allowance for loan losses, and any deferred fees or costs on originated loans.
Loan origination fees and certain direct origination costs are capitalized and
recognized as an adjustment to the yield of the related loan. The accrual of
interest on impaired loans is discontinued when a loan becomes more than 90 days
delinquent. When the interest accrual is discontinued, all unpaid accrued
interest is reversed. Interest income is subsequently recognized only to the
extent cash payments are received. The allowance for loan losses is increased by
charges to income and decreased by charge-offs (net of recoveries). Management's
periodic evaluation of the adequacy of the allowance is an estimate based on the
Bank's past loan loss experience, known and inherent risks in the portfolio,
adverse situations that may affect the borrower's ability to repay, the
estimated value of any underlying collateral, and current economic conditions.
This material estimate and the estimate of real estate acquired in connection
with foreclosures are particularly susceptible to significant change in the near
term. In connection with the determination of the allowance for loan losses and
the carrying value of real estate owned, management obtains independent
appraisals for significant properties to arrive at its evaluation. For
impairment recognized in accordance with Financial Accounting Standards Board
(FASB) Statement of Financial Accounting Standards No. 114, "Accounting by
Creditors for Impairment of a Loan," the entire change in present value of
expected cash flows is reported as bad debt expense in the same manner in which
impairment initially was recognized or as a reduction in the amount of bad debt
expense that otherwise would be reported.
29
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued):
LOANS HELD FOR SALE - Mortgage loans originated and intended for sale
in the secondary market are carried at the lower of cost or estimated market
value in the aggregate. Net unrealized losses are recognized through a valuation
allowance by charges to income. No losses have been recorded.
REAL ESTATE OWNED AND PROPERTY ACQUIRED IN SETTLEMENT OF LOANS - At the
time of foreclosure, the Bank records the repossessed property at the lower of
fair value minus estimated costs to sell or the outstanding balance of the loan.
All properties are periodically reviewed and declines in the value of the
property are charged against income.
BANK PREMISES AND EQUIPMENT - Bank premises and equipment are stated at
cost, less accumulated depreciation. Depreciation is computed using
straight-line and accelerated methods over the estimated useful lives of the
assets. Expenditures for replacements or major improvements are capitalized;
expenditures for normal maintenance and repairs are charged to expense as
incurred. Upon the sale or retirement of bank premises and equipment, the cost
and accumulated depreciation are removed from the respective accounts and any
gain or loss is included in income.
EARNINGS PER SHARE - Earnings per share are calculated using the
weighted average number of shares outstanding at the end of the year plus common
stock equivalents, as appropriate, resulting from the granting of incentive
stock options (Notes 10 and 14). Common stock equivalents are determined using
the treasury method. Common stock equivalents are not included in the
computation of earnings per share if they have an antidilutive effect. The
number of shares used in computing earnings per share was 1,699,536, 1,693,259,
and 1,731,185 for the years ended December 31, 1995, 1994 and 1993,
respectively.
INCOME TAXES - Deferred income taxes are provided in amounts sufficient
to give effect to temporary differences between financial and tax reporting for
deferred loan origination fees, unrealized loss on securities available for
sale, provision for loan losses and depreciation.
APPLE COMPUTER PROGRAM - During 1988, the Bank offered depositors an
Apple computer as an inducement to open a certificate of deposit. The cost of
acquiring these computers has been treated as a prepayment of interest and is
being amortized over the period to maturity of the deposit accounts. In the
event of early withdrawal, the prorated value of the prepayment will be deducted
from unpaid interest and principal at the time of withdrawal. As of December 31,
1995 and 1994, other assets include $115,431 and $169,237, respectively, of
unamortized computer costs.
FAIR VALUE OF FINANCIAL INSTRUMENTS - The following methods and
assumptions were used by the Bank in estimating fair values of financial
instruments as disclosed herein:
Cash and short-term instruments - The carrying amounts of cash and
short-term instruments approximate their fair value.
Available for sale and held to maturity securities - Fair values for
available for sale securities, are based on quoted market prices. The
carrying values of held to maturity and other investments approximate
fair values.
Loans receivable - For variable-rate loans that reprice frequently and
have no significant change in credit risk, fair values are based on
carrying values. Fair values for all other loans are estimated using
discounted cash flow analyses, using interest rates currently being
offered for loans with similar terms to borrowers of similar credit
quality. Fair values for impaired loans are estimated using discounted
cash flow analyses or underlying collateral values, where applicable.
Deposit liabilities - The fair values disclosed for demand deposits
are, by definition, equal to the amount payable on demand at the
reporting date (that is, their carrying amounts). The carrying amounts
of variable-rate, fixed term money-market accounts and certificates of
deposits (CD's) approximate their fair values at the reporting date.
Fair values for fixed-rate CD's are estimated using a discounted cash
flow calculation that applies interest rates currently being offered on
certificates to a schedule of aggregated expected monthly maturities on
time deposits.
Borrowings - The carrying amounts of federal funds purchased, and other
borrowings maturing within 90 days approximate their fair values. Fair
values of other borrowings are estimated using discounted cash flow
analyses based on the Bank's current incremental borrowing rates for
similar types of borrowing arrangements.
Accrued interest - The carrying amounts of accrued interest approximate
their fair values.
Off-balance sheet instruments - Fair values for loan commitments have
not been presented as the future revenue derived from such financial
instruments is not significant.
30
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (continued):
USE OF ESTIMATES IN THE PREPARATION OF FINANCIAL STATEMENTS - The
preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
RECLASSIFICATIONS - Certain amounts in the 1994 and 1993 consolidated
financial statements have been reclassified to conform to the current year's
presentation.
NOTE 2. DEFERRED LOAN ORIGINATION FEES:
The Bank follows the provisions of Statement of Financial Accounting
Standards (FAS) No. 91, "Accounting for Non-refundable Fees and Costs Associated
with Originating or Acquiring Loans and Initial Direct Costs of Leases." As of
December 31, 1995 and 1994, the Bank has deferred net loan fees of $382,042 and
$520,438, respectively, which will be recognized as an adjustment to yield over
the life of the related loans.
31
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 3. SECURITIES:
The amortized cost and approximate market value of securities are summarized as
follows:
<TABLE>
<CAPTION>
DECEMBER 31, 1995
--------------------------------------------------------
GROSS GROSS
FAIR UNREALIZED UNREALIZED AMORTIZED
VALUE GAIN LOSS COST
--------------------------------------------------------
<S> <C> <C> <C> <C>
Held to maturity:
Bonds and notes -
Municipal bonds $ 393,054 $ - $ $ 393,054
--------------------------------------------------------
Total held to maturity 393,054 - - 393,054
--------------------------------------------------------
Available for sale:
Bonds and notes -
U. S. Treasury Notes 12,139,529 147,900 3,166 11,994,795
U. S. Government, including
agencies 2,724,130 33,249 40 2,690,921
Other bonds and debentures 9,352,476 104,119 38,416 9,286,773
--------------------------------------------------------
24,216,135 285,268 41,622 23,972,489
Equity securities 1,502,125 11,750 106,800 1,597,175
--------------------------------------------------------
Total available for sale 25,718,260 297,018 148,422 25,569,664
--------------------------------------------------------
Other investments:
Federal Home Loan Bank
stock 1,861,000 - - 1,861,000
Other securities 442,285 - - 442,285
--------------------------------------------------------
Total other investments 2,303,285 - - 2,303,285
--------------------------------------------------------
Total securities $ 28,414,599 $ 297,018 $ 148,422 $ 28,266,003
========================================================
<CAPTION>
DECEMBER 31, 1994
--------------------------------------------------------
GROSS GROSS
FAIR UNREALIZED UNREALIZED AMORTIZED
VALUE GAIN LOSS COST
--------------------------------------------------------
<S>
Held to maturity:
Bonds and notes -
Municipal bonds $ 445,832 $ - $ - $ 445,832
--------------------------------------------------------
Total held to maturity 445,832 - - 445,832
--------------------------------------------------------
Available for sale:
Bonds and notes -
U. S. Treasury Notes 6,687,185 - 334,931 7,022,116
U. S. Government, including
agencies 1,127,404 - 39,893 1,167,297
Other bonds and debentures 8,725,898 3,573 379,355 9,101,680
--------------------------------------------------------
16,540,487 3,573 754,179 17,291,093
Equity securities 1,978,075 5,425 358,886 2,331,536
--------------------------------------------------------
Total available for sale 18,518,562 8,998 1,113,065 19,622,629
--------------------------------------------------------
Other investments:
Federal Home Loan Bank
stock 1,341,400 - - 1,341,400
Other securities 56,996 - - 56,996
--------------------------------------------------------
Total other investments 1,398,396 - - 1,398,396
--------------------------------------------------------
Total securities $ 20,362,790 $ 8,998 $ 1,113,065 $ 21,466,857
========================================================
</TABLE>
32
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 3. SECURITIES (continued):
<TABLE>
<CAPTION>
DECEMBER 31, 1993
--------------------------------------------------------
GROSS GROSS
FAIR UNREALIZED UNREALIZED AMORTIZED
VALUE GAIN LOSS COST
--------------------------------------------------------
<S> <C> <C> <C> <C>
Held to maturity:
Bonds and notes -
Municipal bonds $ 497,221 $ - $ - $ 497,221
--------------------------------------------------------
Total held to maturity 497,221 - - 497,221
--------------------------------------------------------
Available for sale:
Bonds and notes -
U. S. Treasury Notes 7,234,374 77,997 - 7,156,377
U. S. Government, including
agencies 259,468 - 3,687 263,155
Other bonds and debentures 6,333,221 74,367 39,460 6,298,314
--------------------------------------------------------
13,827,063 152,364 43,147 13,717,846
Equity securities 2,399,750 53,120 66,480 2,413,110
--------------------------------------------------------
Total available for sale 16,226,813 205,484 109,627 16,130,956
--------------------------------------------------------
Other investments:
Federal Home Loan Bank
stock 1,216,500 - - 1,216,500
Other securities 56,996 - - 56,996
--------------------------------------------------------
Total other investments 1,273,496 - - 1,273,496
--------------------------------------------------------
Total securities $ 17,997,530 $ 205,484 $ 109,627 $ 17,901,673
========================================================
</TABLE>
Gross gains of $3,425, $3,536, and $320,714, and gross losses of $7,382, $1,776,
and $10,439 were realized during 1995, 1994, and 1993, respectively, on debt
securities.
Included in other assets is approximately $1,220,000 of a receivable from the
disposition of available for sale securities as of December 31, 1995.
Maturities of debt securities are as follows as of December 31, 1995:
<TABLE>
<CAPTION>
WEIGHTED
AMORTIZED FAIR AVERAGE
AVAILABLE FOR SALE: bonds and notes - COST VALUE YIELD
------------------------------------------
<S> <C> <C> <C>
U. S. Treasury Notes 1,992,034 1,996,249 5.85%
U. S. Government, including agencies 1,627,068 1,633,866 6.56%
Other bonds and debentures 3,666,928 3,662,598 6.40%
----------------------------
Total due in one year or less 7,286,030 7,292,713 6.29%
----------------------------
U. S. Treasury Notes 10,002,761 10,143,280 5.79%
U. S. Government, including agencies 563,853 581,358 6.48%
Other bonds and debentures 5,277,884 5,346,362 6.39%
----------------------------
Total due after one year through five years 15,844,498 16,071,000 6.01%
----------------------------
U. S. Government, including agencies 500,000 508,906 6.80%
Other bonds and debentures 251,961 253,516 7.46%
----------------------------
Total due after five years through ten years 751,961 762,422 7.02%
----------------------------
Other bonds and debentures 90,000 90,000 5.84%
----------------------------
Total due after ten years 90,000 90,000 5.84%
----------------------------
$ 23,972,489 $ 24,216,135 6.30%
============================
</TABLE>
A security which has a call date earlier than the maturity date is considered to
mature at the call date.
HELD TO MATURITY: Included in the caption bonds and notes are two municipal
bonds classified as held to maturity. The securities are New Hampshire Higher
Educational and Health Facilities bonds purchased by the Bank with coupon rates
and maturity dates of 7.35%, 12/16/2003 and 6.48%, 6/1/2000. There is no
established trading market for these securities and accordingly, the carrying
amount of these securities has also been reflected as their fair value. The Bank
anticipates no losses on these securities and expects to hold them until their
maturity.
33
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4. LOANS RECEIVABLE:
Loans receivable consisted of the following as of December 31:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Real estate loans -
Conventional $175,130,966 $161,091,563 $139,580,597 $ 135,252,277 $133,549,080
Construction 2,456,763 7,793,601 4,301,243 3,478,459 3,388,459
-------------------------------------------------------------------
177,587,729 168,885,164 143,881,840 138,730,736 136,937,539
Less - Unadvanced
portion 1,434,258 2,841,500 1,222,932 955,860 924,241
-------------------------------------------------------------------
176,153,471 166,043,664 142,658,908 137,774,876 136,013,298
Collateral loans 19,524,706 18,776,523 19,584,411 19,768,631 21,172,074
Consumer loans 5,025,818 5,264,449 5,158,271 5,796,200 6,035,546
Commercial and municipal
loans 9,301,028 8,066,390 8,049,016 7,132,313 2,565,744
Other loans 671,302 625,006 977,633 673,793 579,498
-------------------------------------------------------------------
Total loans 210,676,325 198,776,032 176,428,239 171,145,813 166,366,160
Less - Reserve for loan
losses 1,828,060 2,752,885 2,374,001 2,094,931 2,289,523
- Deferred loan
origination fees 382,042 520,438 719,200 694,983 642,917
- Non-earning assets 297,172 1,692,608 501,408 1,388,864 1,380,392
-------------------------------------------------------------------
Net loans $208,169,051 $193,810,101 $172,833,630 $ 166,967,035 $162,053,328
===================================================================
</TABLE>
When, in the opinion of management, a loan becomes delinquent and/or
uncollectible, it is reclassified as a non-earning asset on which interest is
not accrued. These loans are categorized as possible foreclosures. In addition
to non-earning assets, $1,144,293 and $23,825 of delinquent loans were
classified as non-accrual loans as of December 31, 1995 and 1994, respectively.
The following is a summary of activity in the reserve for loan loss account for
the years ended December 31:
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
---------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
BALANCE, beginning of
year $ 2,752,885 $ 2,374,001 $2,094,931 $ 2,289,523 $ 2,000,000
---------------------------------------------------------------
Loans charged-off:
Real estate loans -
Conventional 141,541 252,258 723,131 475,096 387,592
Construction 1,014,670 2,871 333,581 1,666,932 124,042
Collateral and consumer
loans 25,568 612 5,289 5,869 15,644
Commercial and municipal
loans 913,441 140,375 57,719 291,695 88,199
---------------------------------------------------------------
Total charged-off loans 2,095,220 396,116 1,119,720 2,439,592 615,477
---------------------------------------------------------------
Recoveries on loans:
Real estate loans -
Conventional 3,300 11,666 24,532 63,045 10,338
Collateral and consumer
loans 2,099 1,779 1,584 969 -
Commercial and municipal
loans 1,286 - - 15,551 -
---------------------------------------------------------------
Total recoveries 6,685 13,445 26,116 79,565 10,338
---------------------------------------------------------------
Net charged-off loans: 2,088,535 382,671 1,093,604 2,360,027 605,139
---------------------------------------------------------------
Provision for loan losses
charged to income: 1,163,710 761,555 1,372,674 2,165,435 894,662
---------------------------------------------------------------
BALANCE, end of year $ 1,828,060 $ 2,752,885 $2,374,001 $ 2,094,931 $ 2,289,523
===============================================================
Ratios of net charged-off
loans during the period
to average loans outstanding
during the period 1.02% .20% .64% 1.41% .36%
===============================================================
</TABLE>
34
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4. LOANS RECEIVABLE (continued):
Non-earning assets as of December 31, 1995 and 1994 were $297,172 and
$1,692,608, respectively. The Company's interest income for the years 1995 and
1994 could have increased by $55,864 and $131,903, respectively, if all
non-earning assets held during the respective periods had continued earning
interest at the interest rates in effect prior to the change in accrual status.
The amount of interest income on non-earning assets as of December 31, 1995 and
1994 that was included in net income was $13,553 in 1995 and $18,613 in 1994.
The company had no extensions of credit to related parties in excess of
5% of shareholders' equity at any time during the year ended December 31, 1995
and 1994.
The Company had troubled debt restructured of $445,417 as of December
31, 1995. Since all restructured loans had an interest rate at or above
prevailing market rates during the twelve months ended December 31, 1995, these
loans had no adverse impact on earnings for the years ended December 31, 1995 or
1994.
During 1995 and 1994, LSB sold properties out of real estate owned.
According to FAS No. 66, "Accounting for Sales of Real Estate," a minimum down
payment must be made by the buyer in order for a sale and a new loan to be
recorded. Until the down payment requirement is met, the loan remains classified
as real estate owned and interest income is not recorded. The effect of FAS No.
66 would be to reclassify $370,672 and $550,500 from loans to real estate owned
and reduce interest income by $23,063 and $30,500 for the years ended December
31, 1995 and 1994, respectively.
Effective January 1, 1995, the Company adopted SFAS No. 114,
"Accounting by Creditors for Impairment of a Loan". The FAS as amended SFAS No.
118 requires that impaired loans be measured based on the present value of
expected future cash flows discounted at the loan's effective interest rate or,
as a practical expedient, at the loan's observable market price or the fair
value of the collateral, if the loan is collateral dependent. The adoption of
the new accounting standard did not have a material effect on the Company's
financial position or results of operation.
Interest income on impaired loans is recognized on an accrual basis
when the impaired loan is less than 90 days past due and has not been
reclassified to non-accrual status. Interest income on impaired loans over 90
days past due, and on loans placed on non-accrual status, is recognized using a
cash basis accounting method. Cash receipts on impaired loans are recorded as
both interest income and a reduction in the impaired loan balance consistent
with the terms of the underlying contractual agreements.
The balance of impaired loans is determined by aggregating the fair
value or present value of expected cash flows on individual loans identified as
impaired. Homogeneous groups of loans such as consumer installment loans and
residential mortgage loans are not considered impaired.
A loan becomes impaired when it appears probable the Company will be
unable to collect all amounts due, including principal and interest, under the
contractual terms of the loan agreement. A loan is placed on non-accrual status
when it appears likely interest income will not be received. Non-accrual loans
are reviewed for possible impairment.
Impaired loans are written-down or charged-off when it has been
determined the asset has such little value that it no longer warrants remaining
on the books. The decision to charge-off is made on a case-by-case basis.
<TABLE>
<CAPTION>
IMPAIRED LOANS AS OF DECEMBER 31, 1995
- -------------------------------------------------------------------------------------------
<S> <C>
Average recorded investment in impaired loans $ 934,829
Recorded investment in impaired loans at December 31 $ 1,452,049
Portion of valuation allowance allocated to impaired loans $ 654,663
Net balance of impaired loans $ 797,386
Interest income recognized on impaired loans $ 102,449
Interest income on impaired loans on cash basis $ 97,401
</TABLE>
There are no impaired loans which do not have a valuation allowance assigned to
them.
35
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 4. LOANS RECEIVABLE (continued) :
In addition to total loans previously shown, the Company services loans
for other financial institutions. Participation loans are loans originated by
the Company for a group of banks. Sold loans are loans originated by the Company
and sold to the secondary market. The Company services these loans and remits
the payments received to the buyer. The Company specifically originates
long-term, fixed-rate loans to sell.
The amount of loans sold and participated out which are serviced by the Company
are as follows as of December 31:
<TABLE>
<CAPTION>
1995 1994
-----------------------------
<S> <C> <C>
Sold loans $ 43,433,158 $ 27,180,332
=============================
Participation loans $ 2,763,715 $ 2,251,414
=============================
</TABLE>
The Company has issued letters of credit and has approved line of
credit loans to specific individuals and companies.
The unused portions as of December 31, are as follows:
<TABLE>
<CAPTION>
1995 1994
-----------------------------
<S> <C> <C>
Letters of credit $ 448,150 $ 562,314
=============================
Lines of credit $ 11,139,725 $ 12,311,669
=============================
</TABLE>
NOTE 5. BANK PREMISES AND EQUIPMENT:
Bank premises and equipment are shown on the consolidated statements of
financial condition at cost, net of accumulated depreciation, as follows as of
December 31:
<TABLE>
<CAPTION>
1995 1994
----------------------------
<S> <C> <C>
Land $ 899,722 $ 894,613
Buildings and premises 5,641,700 5,355,837
Furniture, fixtures and equipment 3,464,598 3,322,334
----------------------------
10,006,020 9,572,784
Less - Accumulated depreciation 4,050,626 3,628,435
----------------------------
$ 5,955,394 $ 5,944,349
============================
</TABLE>
The ranges of estimated useful lives used for depreciation purposes are:
Years
------------
Buildings and premises 5 - 40
Furniture, fixtures and equipment 3 - 33
Depreciation expense was $435,467, $421,374, and $443,162 for the years
ended December 31, 1995, 1994 and 1993, respectively.
36
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 6. REAL ESTATE OWNED AND PROPERTY ACQUIRED:
As of December 31, 1995 and 1994, the Bank owned property acquired by
foreclosure. The balances consisted of the following:
<TABLE>
<CAPTION>
1995 1994
----------------------------
<S> <C> <C>
Residential real estate $ 34,970 $ 97,970
Commercial real estate 949,215 1,406,910
===========================
$ 984,185 $1,504,880
===========================
</TABLE>
As of December 31, 1995 and 1994, real estate owned includes $831,215
and $1,406,910, respectively, for two real estate development projects. The
properties have been developed and are ready for individual lots to be sold.
Four lots were sold during 1995.
It is the policy of the Bank and/or its subsidiaries, upon the
acquisition of real estate by foreclosure, to evaluate the condition of the
property, make any appropriate or necessary structural and/or cosmetic
improvements and place the property as an open listing with all area real estate
agents. Bank employees are also encouraged to participate in the selling of
these properties.
For 1995, 1994 and 1993, $112,544, $17,629 and $4,662, respectively, of
net cost of other real estate is included in net income.
NOTE 7. DEPOSITS:
Deposits consisted of the following as of December 31:
<TABLE>
<CAPTION>
1995 1994
-------------------------------------------------
<S> <C> <C> <C> <C>
Checking accounts (non-interest-bearing) $ 10,934,512 5.5% $ 11,194,290 5.8%
NOW accounts 26,014,007 13.0% 24,390,457 12.5%
Ever-Ready Money Market 13,971,617 7.0% 19,684,667 10.1%
Regular savings accounts 11,363,366 5.7% 15,668,317 8.1%
Treasury savings accounts 44,388,408 22.2% 45,344,151 23.3%
Club deposits 87,779 - 86,048 -
-------------------------------------------------
106,759,689 53.4% 116,367,930 59.8%
-------------------------------------------------
Time deposits -
2.00% - 2.99% 251,318 .1% 352,143 .2%
3.00% - 3.99% - - 4,374,368 2.2%
4.00% - 4.99% 6,140,501 3.1% 20,925,037 10.8%
5.00% - 5.99% 41,959,447 21.0% 32,719,302 16.8%
6.00% - 6.99% 31,152,885 15.6% 10,425,862 5.4%
7.00% - 7.99% 10,889,340 5.4% 6,243,723 3.2%
8.00% - 8.99% 2,817,741 1.4% 3,124,701 1.6%
-------------------------------------------------
93,211,232 46.6% 78,165,136 40.2%
=================================================
$ 199,970,921 100.0% $ 194,533,066 100.0%
=================================================
</TABLE>
37
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 7. DEPOSITS (continued):
The following is a summary of maturities of time deposits as of December 31,
1995:
1996 $ 61,528,121
1997 9,261,760
1998 11,042,716
Thereafter 11,378,635
---------------
$ 93,211,232
===============
As of December 31, 1995, time deposits include $11,924,585 of certificates of
deposit with a minimum balance of $100,000. Maturities of these certificates are
as follows:
Less than 3 months $ 3,656,593
Over 3 months and less than 6 months 2,569,525
Over 6 months and less than 12 months 3,631,156
Over 12 months 2,067,311
---------------
$ 11,924,585
===============
REPURCHASE AGREEMENTS - As of December 31, 1995, sixteen repurchase
agreements were outstanding. The repurchase agreements are secured by U.S.
Treasury Notes with a fair value of $12,139,529 held by a third party in
safekeeping. The maturity dates of the repurchase agreements are from January
27, 1996 to December 29, 1996 on the anniversary date of the repurchase
agreement.
NOTE 8. ADVANCES FROM FEDERAL HOME LOAN BANK:
Advances from the Federal Home Loan Bank consisted of loans, at various interest
rates ranging from 4.33% to 7.37%, maturing as follows:
1995 1994
--------------------------
1995 (4.33% - 6.39%) $ - $ 7,242,001
1996 (4.87% - 6.78%) 6,762,143 5,254,411
1997 (4.87% - 7.32%) 7,927,707 268,064
1998 (4.87% - 7.37%) 7,166,033 2,166,033
1999 and after (5.74% - 5.80%) 5,080,285 280,285
--------------------------
$ 26,936,168 $ 15,210,794
==========================
These advances are secured by Federal Home Loan Bank stock (Note 3) and
unspecified first mortgage loans. The Bank is able to borrow up to an additional
$51,000,000 of Federal Home Loan Bank advances.
In addition to the above advances, the Bank has credit available up to
$4,672,000 under a revolving loan agreement with the Federal Home Loan Bank. No
amounts were borrowed against the line of credit as of December 31, 1995 and
1994. Interest is payable monthly as funds are borrowed.
38
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 9. INCOME TAXES:
The holding company, LSB and its wholly-owned subsidiaries file a
consolidated federal income tax return. Applicable income taxes amounted to
$604,000 in 1995, $723,000 in 1994 and $736,000 in 1993. These amounts differ
from the amounts computed by applying the statutory tax rates to income before
provision for income taxes.
The reasons for these differences are as follows:
<TABLE>
<CAPTION> 1995 1994 1993
----------------------------------------
<S> <C> <C> <C>
Tax on income at statutory tax rates $ 628,600 $ 783,785 $ 773,833
Tax effect of dividends received deduction (35,714) (39,270) (20,959)
Tax effect of tax exempt interest, net (19,289) (22,246) (35,539)
Tax effect of unallowable amortization - 3,292 7,903
Other, net 30,403 (2,561) 10,762
----------------------------------------
Tax at effective rate $ 604,000 $ 723,000 $ 736,000
========================================
<CAPTION>
Income tax expense is made up of the following components:
1995 1994 1993
----------------------------------------
<S> <C> <C> <C>
Current tax expense $ 279,091 $ 648,000 $ 671,609
Deferred tax expense 324,909 75,000 64,391
----------------------------------------
$ 604,000 $ 723,000 $ 736,000
========================================
</TABLE>
Deferred taxes result from temporary differences in the recognition of revenue
and expense for tax and financial statement purposes. The source of these
differences were as follows:
<TABLE>
<CAPTION>
1995 1994
---------------------------
<S> <C> <C>
Difference between book and tax depreciation $ 11,533 $ 23,391
Deferred loan origination fees included in taxable income 47,055 67,579
Bad debts deducted for taxable income not for book income 174,852 39,711
Unrealized gain (loss) on securities available for sale 426,400 (375,400)
Other, net 91,469 (55,681)
---------------------------
$ 751,309 $ (300,400)
===========================
<CAPTION>
The components of the deferred taxes on the consolidated balance sheet are as
follows as of December 31:
1995 1994
---------------------------
<S> <C> <C>
Deferred tax liability $ 728,422 $ 398,021
Deferred tax asset (131,422) (552,330)
---------------------------
$ 597,000 $ (154,309)
===========================
</TABLE>
39
<PAGE>
==================================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 10. STOCK OPTIONS:
Prior to the conversion discussed in Note 14, LSB's Board of
Directors adopted an Incentive Stock Option Plan (the 1986 plan). This plan was
approved by the shareholders. Under the terms of the 1986 plan, options were
granted for 106,753 shares to a group of eligible employees. All options were
granted at $11.50 per share, the initial offering price of LSB's common stock.
The number of stock options was adjusted to 213,506 shares to reflect the 2 for
1 stock split in the form of a dividend paid on June 19, 1987. On August 12,
1994, NHTB initiated a stock option redemption program whereby holders of 1986
plan options could elect to relinquish one-sixth of outstanding options. On
January 3, 1995, 30,000 options were granted from previously forfeited shares of
the 1986 plan at an exercise price of $9.00 per share, the fair market value on
that date. As of December 31, 1995, 57,880 of previously forfeited shares
remained available for grant and options to purchase 30,000 shares were
available for exercise.
At the Annual Meeting on April 15, 1987, the shareholders
approved the adoption of the "1987 Stock Option Plan" (the 1987 plan). On
November 12, 1987, 106,753 options were authorized to be granted. At that time,
options for 69,897 shares were granted with an exercise price of $7.50, the fair
market value on that date. As of December 31, 1995, 27,666 of previously
forfeited shares remained available for grant and options to purchase 32,590
shares were available for exercise. On January 2, 1996, 49,900 options were
granted and made available from previously ungranted and forfeited shares of the
1987 plan at an exercise price of $10.125 per share, the fair market value on
that date.
The following is a summary of options outstanding as of December 31, 1995:
OPTION OPTIONS
PRICE OUTSTANDING
----------------------------
1986 Stock Option Plan $ 5.75 -
1986 Stock Option Plan $ 9.00 30,000
1987 Stock Option Plan $ 7.50 32,590
1987 Stock Option Plan $ 10.125 49,900
---------------
112,490
===============
NOTE 11. EMPLOYEE BENEFIT PLANS:
DEFINED BENEFIT PENSION PLAN - NHTB and its subsidiaries have a defined
benefit pension plan covering substantially all full-time employees who have
attained age 21 and have completed one year of service. Annual contributions to
the plan are based on actuarial estimates.
Net pension cost for the Bank's defined benefit pension plan consisted of the
following components as of December 31:
<TABLE>
<CAPTION>
1995 1994 1993
---------------------------------------------
<S> <C> <C> <C>
Service cost $ 88,168 $ 77,370 $ 74,726
Interest cost on projected benefit obligation 104,325 100,515 87,680
Actual return on plan assets (143,671) 55,611 (74,471)
Net amortization and deferral 85,790 (125,230) 12,001
---------------------------------------------
$ 134,612 $ 108,266 $ 99,936
=============================================
</TABLE>
40
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 11. EMPLOYEE BENEFIT PLANS (continued):
The following table sets forth the plan's funded status and amounts recognized
in the accompanying consolidated balance sheets as of December 31:
<TABLE>
<CAPTION>
1995 1994
------------------------------
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligation $ 1,250,767 $ 1,165,997
==============================
Accumulated benefit obligation $ 1,273,735 $ 1,240,939
==============================
Projected benefit obligation $ 1,477,750 $ 1,402,188
Plan assets at fair value 1,395,207 1,191,905
------------------------------
Projected benefit obligation in excess of plan assets (82,543) (210,283)
Unrecognized net loss 374,051 460,904
Unrecognized prior service cost (35,351) (38,044)
------------------------------
Amount included in other assets $ 256,157 $ 212,577
=============================
</TABLE>
Assumptions used by the Bank in the determination of pension plan information
consisted of the following as of December 31:
1995 1994
-------------------
Discount rate 7.00% 7.00%
Rate of increase in compensation levels 3.00% 3.00%
Expected long-term rate of return on plan assets 7.00% 7.00%
PROFIT SHARING - STOCK OWNERSHIP PLAN - Lake Sunapee Bank, fsb, adopted
a Profit Sharing - Stock Ownership Plan which became effective January 1, 1987.
The purpose of the Plan is to reward eligible employees for long and loyal
service by providing them with retirement benefits. The Plan is a qualified
defined contribution plan designed to meet the requirements of ERISA and to
conform to Section 401(k) of the Internal Revenue Code. All employees of Lake
Sunapee Bank, fsb, and its subsidiaries who have attained age 21 and have
completed one year of service are eligible to participate in the Plan.
Participation is not required. Eligible employees electing to participate may
contribute between 2% and 15% of their salary to the Plan up to $9,240 for 1995.
Participants will not be subject to federal income taxation on such
contributions which constitute salary reductions at the time such contributions
are made. Lake Sunapee Bank, fsb may elect, but is not required, to make
discretionary and/or matching contributions to the Plan.
Discretionary and matching contributions to the Plan will be invested
primarily in company stock. Benefits under the Profit Sharing - Stock Ownership
Plan will be payable upon retirement, death or other separation from service.
The assets of the Profit Sharing - Stock Ownership Plan are held
pursuant to an Investment Management Agreement with Charter Trust Company as
Agent. The assets are invested as directed by participating employees and the
Bank.
For 1995, 1994 and 1993, participating employees' contributions totaled
$96,452, $88,682 and $84,305, respectively. The Bank made a matching
contribution of $9,500 for 1995. No matching contributions were made for 1994
and 1993. A participant's retirement benefit will depend on the amount of the
contributions to the Plan together with the gains or losses on the investments.
41
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 12. COMMITMENTS AND CONTINGENCIES:
In the normal course of business, the Bank has outstanding various
commitments and contingent liabilities, such as legal claims, which are not
reflected in the consolidated financial statements. Management does not
anticipate any material loss as a result of these transactions. As of December
31, 1995, the Bank had entered into commitments to fund loans totaling
$4,409,993. The majority of these loans will have adjustable rates.
The following is a schedule, by interest rate, of loan commitments outstanding
as of December 31:
1995 1994
-----------------------------
5.00% - 5.99% $ - $ 279,000
6.00% - 6.99% 594,250 1,064,350
7.00% - 7.99% 3,070,875 1,705,650
8.00% - 8.99% 445,118 203,682
9.00% - 9.99% 264,750 360,000
10.00% - 10.99% 35,000 -
-----------------------------
$ 4,409,993 $ 3,612,682
=============================
There are two employment agreements in effect for executive officers.
NOTE 13. INTEREST ON DEPOSITS:
The Bank records interest on depositors' accounts monthly. Interest is added to
the account balance. The following is a schedule of interest expense by deposit
account type for the year ended December 31:
1995 1994 1993
----------------------------------------
NOW accounts $ 126,403 $ 141,120 $ 280,543
Ever-Ready Money Market 551,302 844,831 1,144,493
Savings and Clubs 2,354,563 2,116,729 1,634,513
Time deposits 5,064,583 3,351,919 3,525,706
----------------------------------------
$ 8,096,851 $ 6,454,599 $ 6,585,255
========================================
NOTE 14. SHAREHOLDERS' EQUITY:
LIQUIDATION ACCOUNT - On May 22, 1986, Lake Sunapee Bank, fsb received
approval from the Federal Home Loan Bank Board and converted from a
federally-chartered mutual savings bank to a federally-chartered stock savings
bank. At the time of conversion, the Bank established a liquidation account in
an amount of $4,292,510 (equal to the Bank's net worth as of the date of the
latest financial statement included in the final offering circular used in
connection with the conversion). The liquidation account will be maintained for
the benefit of eligible account holders who maintain their deposit accounts in
the Bank after conversion. In the event of a complete liquidation of the Bank
subsequent to conversion (and only in such event), each eligible account holder
will be entitled to receive a liquidation distribution from the liquidation
account before any liquidation distribution may be made with respect to capital
stock. The amount of the liquidation account is reduced to the extent that the
balances of eligible deposit accounts are reduced on any year-end closing date
subsequent to the conversion.
42
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 14. SHAREHOLDERS' EQUITY (continued):
DIVIDENDS - The Bank may not declare or pay a cash dividend on or
purchase any of its stock if the effect would be to reduce the net worth of the
Bank below either the amount of the liquidation account or the net worth
requirements of the banking regulators. The Board of Directors, at their January
1996 meeting, declared a cash dividend of $.125 per share payable January 29,
1996.
Since the formation of the holding company in 1989, the Bank has paid
dividends to the holding company totaling $7,170,500. The dividends paid to the
holding company have been used to pay cash dividends to shareholders and to
repurchase NHTB stock to hold as treasury stock. The unexpended balance of the
dividends has been advanced to LSB.
TREASURY STOCK - On April 3, 1990, NHTB announced a Stock Repurchase
Program to buy back, on the open market, up to a total of 5% of its outstanding
common stock or 107,364 shares. On July 11, 1990, NHTB completed its Stock
Repurchase Program whereby 107,364 shares were repurchased at an average price
of $4.37 per share. On August 9, 1990, NHTB announced a second buy back program
to buy back, on the open market, up to 10% or 203,992 shares of its total
outstanding common stock. On June 11, 1991, a third buy back program was
announced to cover an additional 10% of the then outstanding stock or 183,592
shares. On July 15, 1993, NHTB announced another buy back program whereby the
Company intends to repurchase, on the open market, 10% of its currently
outstanding common stock. As of December 31, 1995, NHTB had repurchased a total
of 539,148 shares at an average price of $4.98 for all programs while 121,033
shares remained to be purchased from the 1993 buy back program.
Treasury stock is recorded at cost, as purchased. Treasury stock sold
is accounted for on a first-in, first-out basis.
SPECIAL BAD DEBTS DEDUCTION - The Bank has been allowed a special bad
debts deduction for tax purposes limited generally to 8% of otherwise taxable
income and subject to certain limitations based on aggregate loans and savings
account balances at the end of the year. If the amounts that qualify as
deductions for federal income tax purposes are later used for purposes other
than for bad debt losses, the portion that was deducted for tax purposes after
1987 will be subject to federal income tax at the then current rate. Retained
earnings as of December 31, 1995, 1994 and 1993 include approximately $2,044,958
for which federal income tax has not been provided, almost all of which is from
years prior to 1988.
REGULATORY CAPITAL - As part of the Financial Institutions' Reform,
Recovery and Enforcement Act of 1989 (FIRREA), banks are required to maintain
total risk-based capital of 8.00% of total risk-adjusted assets effective as of
December 31, 1992. As of December 31, 1995, the Bank's total risk-based capital
was 11.88%, well above the requirement of 8.00%.
43
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 14. SHAREHOLDERS' EQUITY (continued):
The following is a reconciliation of shareholders' equity and net income as
reported in the accompanying consolidated financial statements and as reflected
in reports filed with the Office of Thrift Supervision (OTS):
<TABLE>
<CAPTION>
SHAREHOLDERS' EQUITY NET INCOME (LOSS)
1995 1994 1995 1994 1993
-----------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Balance reported to OTS $ 18,456,000 $17,372,000 $ 1,258,000 $ 1,605,000 $1,578,000
Parent company -
Net loss (12,830) (20,960) (12,830) (20,960) (54,207)
- -
Dividends from LSB to
NHTB 1,000,000 500,000 - - -
Stock options
exercised 570,825 367,350 - - -
Cash dividends paid to
shareholders of NHTB (839,413) (830,303) - - -
Retained earnings 3,199,564 3,550,827 - - -
Treasury stock
purchased (2,830,048) (2,686,033) - - -
Other, net (93) (7) (347) (1,790) 1,187
-----------------------------------------------------------------
Balance per consolidated
financial statements $ 19,544,005 $18,252,874 $ 1,244,823 $ 1,582,250 $1,524,980
=================================================================
</TABLE>
AUTHORIZED SHARES OF STOCK - The authorized, issued and outstanding stock was as
follows as of December 31:
1995 1994
---------------------
Preferred stock -
Authorized shares 2,500,000 2,500,000
Issued shares - -
Outstanding shares - -
Common stock -
Authorized shares 5,000,000 5,000,000
Issued shares 2,147,282 2,147,282
Outstanding shares 1,689,503 1,670,986
44
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 15. FAIR VALUE OF FINANCIAL INSTRUMENTS:
The estimated fair values of the Company's financial instruments were
as follows as of December 31:
<TABLE>
<CAPTION>
1995 1994
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Financial assets:
Cash and cash equivalents $ 10,993,297 $ 10,993,297 $ 8,253,588 $ 8,253,588
Securities available for
sale 25,569,664 25,718,260 19,622,629 18,518,562
Securities held to maturity 393,054 393,054 445,832 445,832
Other investments 2,303,285 2,303,285 1,398,396 1,398,396
Loans 210,676,324 211,342,000 198,776,032 196,857,000
Impaired loans 1,452,049 797,386 - -
Accrued interest receivable 1,433,882 1,433,882 1,058,442 1,058,442
Financial liabilities:
Regular savings, NOW, demand
and money market deposits 106,759,689 106,759,689 116,367,930 116,367,930
Time deposits 93,211,231 93,677,261 78,165,136 77,273,920
Repurchase agreements 9,552,825 9,552,825 3,597,907 3,597,907
Advances from Federal
Home Loan Bank 26,936,168 27,016,696 15,210,794 15,069,177
</TABLE>
45
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 16. HOLDING COMPANY OPERATIONS:
The following are condensed statements of financial condition, income, retained
earnings and cash flows for NHTB for the years ended December 31:
CONDENSED STATEMENTS OF FINANCIAL CONDITION
1995 1994
-----------------------------
ASSETS
Investment in subsidiary $ 18,358,314 $ 18,100,661
Advances to affiliates (LSB) 1,088,097 880,880
-----------------------------
Total assets $ 19,446,411 $ 18,981,541
=============================
LIABILITIES AND SHAREHOLDERS' EQUITY
SHAREHOLDERS' EQUITY
Common stock $ 21,473 $ 21,473
Paid-in capital 13,160,382 13,103,404
Retained earnings 8,673,504 8,268,094
Treasury stock (2,408,948) (2,411,430)
-----------------------------
$ 19,446,411 $ 18,981,541
=============================
CONDENSED STATEMENTS OF INCOME AND RETAINED EARNINGS
<TABLE>
<CAPTION>
1995 1994 1993
--------------------------------------
<S> <C> <C> <C>
Operating expenses $ 12,830 $ 20,960 $ 54,207
--------------------------------------
Loss before equity in earnings of subsidiary (12,830) (20,960) (54,207)
Equity in earnings of subsidiary 1,257,653 1,603,210 1,579,187
--------------------------------------
Net income $ 1,244,823 $ 1,582,250 $1,524,980
======================================
Retained earnings, beginning of year $ 8,268,094 $ 7,516,147 $ 6,621,200
Net income 1,244,823 1,582,250 1,524,980
Dividends paid (839,413) (830,303) (630,033)
--------------------------------------
Retained earnings, end of year $ 8,673,504 $ 8,268,094 $ 7,516,147
======================================
</TABLE>
46
<PAGE>
==============================================
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 16. HOLDING COMPANY OPERATIONS (continued):
CONDENSED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
1995 1994 1993
----------------------------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 1,244,823 $ 1,582,250 $ 1,524,980
Adjustments to reconcile net income
to net cash provided by operating
activities -
Equity in earnings of subsidiary (LSB) (1,257,653) (1,603,210) (1,579,187)
Amortization - 13,752 33,005
Increase (decrease) in dividends payable - - (121,268)
----------------------------------------
Net cash provided by (used in)
operating activities (12,830) (7,208) (142,470)
----------------------------------------
Cash flows from investing activities:
Dividends received from subsidiary (LSB) 1,000,000 500,000 500,000
Advances from subsidiary (207,217) 399,029 922,285
----------------------------------------
Net cash provided by investing
activities 792,783 899,029 1,422,285
----------------------------------------
Cash flows from financing activities:
Proceeds from stock options exercised 203,475 132,420 234,930
Dividends paid (839,413) (830,303) (630,033)
Acquisition of treasury stock (144,015) (193,938) (884,712)
----------------------------------------
Net cash used in financing activities (779,953) (891,821) (1,279,815)
----------------------------------------
Net increase in cash - - -
Cash, beginning of year - - -
----------------------------------------
Cash, end of year $ - $ $ -
========================================
</TABLE>
NOTE 17. SUBSEQUENT EVENTS:
Statement of Financial Accounting Standards number 121, 122, and 123,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to
be Disposed of, Accounting for Mortgage Servicing Rights and Accounting for
Stock-Based Compensation," respectively, will be adopted. FAS 121 and 122 will
be adopted with financial statements beginning January 1, 1996. FAS 123 will be
adopted for transactions entered into after December 15, 1995. There were no
such transactions in 1995. Management believes the adoption of these standards
will not have a material impact on the financial statements. Management has
decided to continue to apply APB 25 for its accounting of stock-based employee
compensation arrangements and thereby only make disclosure of such arrangements.
As of December 31, 1995, there is Federal legislation pending which, if
enacted, will impact Bank operations in 1996. One of the pending items is a
one-time deposit insurance assessment. If the legislation is passed as written,
the Bank will record a charge in the range of $800,000 to $1,100,000 after
income tax effect. The other pending item is a charge for taxes not previously
assessed. The affect of this other legislation has been accounted for in
deferred taxes.
47
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
SEC Commission Number 17859
For the fiscal year ended:
DECEMBER 31, 1995
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 02-0430695
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
THE CARRIAGE HOUSE
NEW LONDON, NEW HAMPSHIRE 03257
(ADDRESS) (ZIP CODE)
Registrant's telephone number, including area code: (603) 526-2116
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
Title of Class
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No _____
---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. X
---
The aggregate market value of the voting stock held by non-affiliates of the
registrant is between $13,611,298 and $13,489,164 based on a $10.253 average bid
and a $10.161 average asked price, respectively, as of December 31, 1995.
Number of shares of Common Stock Outstanding as of February 12, 1996: 1,689,503
48
<PAGE>
-------------------------------------
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
INDEX
<TABLE>
<CAPTION>
PART I
<S> <C> <C>
Item 1. Business............................................................................. 49
Item 2. Properties........................................................................... 55
Item 3. Legal Proceedings.................................................................... 55
Item 4. Submission of Matters to a Vote of Security Holders.................................. 56
PART II
Item 5. Market for the Registrant's Common Stock and Related Stockholder Matters............. 56
Item 6. Selected Financial Data.............................................................. 56
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations 56
Item 8. Financial Statements and Supplementary Information
Report of Independent Accountants.................................................... 56
Consolidated Statements of Financial Condition....................................... 56
Consolidated Statements of Income.................................................... 56
Consolidated Statements of Changes in Shareholders' Equity........................... 56
Consolidated Statements of Cash Flows................................................ 56
Notes to Consolidated Financial Statements........................................... 56
Item 9. Disagreements on Accounting and Financial Disclosure................................. 57
PART III
Item 10. Directors and Executive Officers of the Registrant................................... 57
Item 11. Executive Compensation............................................................... 57
Item 12. Security Ownership of Certain Beneficial Owners and Management....................... 57
Item 13. Certain Relationships and Related Transactions....................................... 57
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
Financial Statements................................................................. 58
Supplementary Financial Statements................................................... 58
Listing of Exhibits.................................................................. 58
Reports on Form 8-K.................................................................. 58
Exhibits............................................................................. 58
Financial Statement Schedules........................................................ 58
Signatures........................................................................... 58
</TABLE>
49
<PAGE>
PART I.
ITEM 1. BUSINESS
GENERAL
ORGANIZATION
New Hampshire Thrift Bancshares, Inc. (NHTB), a Delaware holding
company organized on July 5, 1989, is the parent company of Lake Sunapee Bank,
fsb (LSB), a federally chartered savings bank. The Bank was originally
chartered by the State of New Hampshire in 1868 as the Newport Savings Bank.
The Bank became a member of the Federal Deposit Insurance Corporation (FDIC) in
1959 and a member of the Federal Home Loan Bank of Boston in 1978. On December
1, 1980, the Bank was the first bank in the United States to convert from a
state-chartered mutual savings bank to a federally-chartered mutual savings bank
and its deposits became insured by the Federal Savings and Loan Insurance
Corporation (FSLIC). In 1981, the Bank changed its name to "Lake Sunapee
Savings Bank, fsb" and in 1994, refined its name to "Lake Sunapee Bank, fsb."
In 1989, as a result of the Financial Institution Reform, Recovery, and
Enforcement Act (FIRREA), the Bank's deposits were insured by the Savings
Association Insurance Fund (SAIF). During 1994, the Bank opened two new
branches. A "mini-branch" was opened in Cricenti's Market in Hillsboro and a
branch opened in West Lebanon. The Bank's operations are conducted from its home
office located in Newport, New Hampshire and its branch offices located in
Sunapee, New London, Bradford, Grantham, Guild, Lebanon, West Lebanon,
Hillsboro, and Andover, New Hampshire. The Bank, with assets of approximately
$258 million as of December 31, 1995, has never been involved in any mergers or
acquisitions.
Lake Sunapee Bank, fsb is a thrift institution established for the
purposes of providing the public with a convenient and safe place to invest
funds, for the financing of housing, consumer-oriented products and commercial
loans, and for providing a variety of other consumer-oriented financial
services. The Bank is a full-service community institution promoting the ideals
of thrift, security, home ownership and financial independence for its
customers.
Through its subsidiary, Lake Sunapee Financial Services Corporation
(LSFSC), the Bank offers brokerage services to its customers.
The Bank offers trust and investment management services to its
customers through its affiliate, Charter Trust Company, of which the Bank is a
one-sixth owner. Charter Trust Company was formed in 1984 and services thirteen
community banks. As of December 31, 1995, Charter Trust Company had
approximately $650 million under investment and custodial management. The Bank
accounts for its investment in Charter Trust Company at cost.
MARKET AREA
The Bank's market area consists of west-central New Hampshire in the
counties of Merrimack, Sullivan, Hillsboro, and Grafton. This area is best
known for its recreational facilities and its resort/retirement environment.
Within the market area are two major ski areas, several lakes, retirement
communities, a four-season recreational development center designed to support
3,500 families, Colby Sawyer, New England, and Dartmouth Colleges and several
industrial manufacturing employers.
In addition to the year-round regional population, the Upper Valley-
Kearsarge-Lake Sunapee area has a sizable number of seasonal residents. In
1990, a total of over 3,600 seasonal dwellings were listed by the Census Bureau.
Based on an occupancy rate of five persons per seasonal unit, the regional
seasonal population can be estimated to be over 18,000 persons.
LENDING ACTIVITIES
The Bank's loan portfolio totaled $210,676,325, including $3,095,971
of loans held for sale at December 31, 1995, representing approximately 82% of
total assets. As of December 31, 1995, approximately 80% of the mortgage loan
portfolio had adjustable rates. As of December 31, 1995, the Bank had sold
$43,433,158 in fixed rate mortgage loans in an effort to meet customer demands
for fixed rate loans, minimize interest rate risk, and build a servicing
portfolio.
RESIDENTIAL LOANS. The Bank's loan origination team solicits
residential mortgage loans in the local real estate marketplace. Residential
borrowers are frequently referred to the Bank by its existing customers or real
estate agents. Generally, the Bank makes conventional mortgage loans (loans of
80% of value or less that are neither insured nor partially
50
<PAGE>
guaranteed by government agencies) on one- to four-family owner occupied
dwellings. The Bank also makes residential loans up to 95% of the appraised
value if the top 20% of the loan is covered by private mortgage insurance.
Residential mortgage loans typically have terms up to 30 years and are amortized
on a monthly basis with principal and interest due each month. Currently, the
Bank offers one-year, three-year and five-year adjustable-rate mortgage loans
and long-term fixed rate loans. Borrowers may prepay loans at their option or
refinance their loans on terms agreeable to the Bank. The Bank's management
believes that due to prepayments in connection with refinancings and sales of
property, the average length of the Bank's long-term residential loans is
approximately nine years.
Since the middle of the 1960's, the terms of conventional residential
mortgage loans granted by the Bank have contained a "due-on-sale" clause which
permits the Bank to accelerate the indebtedness of a loan upon the sale or other
disposition of the mortgaged property. Due-on-sale clauses are an important
means of increasing the turnover of mortgage loans in the Bank's portfolio.
CONSUMER LOANS. The Bank makes various types of secured and unsecured
consumer loans, including home improvement loans. The Bank offers loans secured
by automobiles, boats and other recreational vehicles. The Bank believes that
the shorter terms and the normally higher interest rates available on various
types of consumer loans is helpful in maintaining a more profitable spread
between the Bank's average loan yield and its cost of funds.
COMMERCIAL LOANS. The Bank's commercial loans are made at rates of
interest indexed to the Bank of Boston Prime Rate and are most commonly adjusted
on a quarterly basis. While various forms of collateral are acceptable on
commercial loans, a majority of the Bank's commercial loans are secured by real
estate located within its primary lending area in New Hampshire.
Generally, the interest rates charged to commercial customers by the
Bank are a reflection of both the prevailing market conditions and the
assessment of risk associated with each individual borrower. Terms of repayment
may vary from loan to loan in relationship to the needs of the borrower. Since
1991, the Bank has increased its commercial lending division by hiring two
seasoned commercial lenders. The Bank expects its commercial loan portfolio to
trend toward the regulatory maximum amount of ten per cent of assets or $24
million from its current base of approximately $9 million.
MUNICIPAL LOANS. The Bank's activity in the municipal lending market
is limited to those towns and school districts located within our primary
lending area and such loans are extended for the purposes of either tax
anticipation, building improvements or other capital spending requirements.
Municipal lending is considered to be an area of accommodation and part of the
Bank's continuing involvement with the communities it serves.
HOME EQUITY LOANS. The Bank provides Home Equity Loans secured by
liens on residential real estate located within the Bank's market area. These
include loans with regularly scheduled principal and interest payments as well
as revolving credit agreements. The interest rate on these loans is adjusted
quarterly and tied to the movement of the Prime Rate.
ORIGINATION, PURCHASE AND SALE OF LOANS
The primary lending activity of the Bank is the origination of
conventional loans (i.e., loans that are neither insured nor guaranteed in whole
or in part by governmental agencies) secured by first mortgage liens on
residential properties, principally single-family residences, substantially all
of which are located in the west-central area of New Hampshire.
The Bank appraises the security for each new loan made. Appraisals
are made for the Bank by qualified sub-contracted appraisers. The appraisal of
the real property upon which the Bank makes a mortgage loan is of particular
significance to the Bank in the event that the loan is foreclosed, since an
improper appraisal may contribute to a loss by or other financial detriment to
the Bank in the disposition of the loan.
Detailed applications for mortgage loans are verified through the use
of credit reports, financial statements and confirmations. Depending upon the
size of the loan involved, a varying number of senior officers of the Bank must
approve the application before the loan can be granted. At times, the Executive
Committee of the Bank is called together to review particularly large loans.
The Bank requires title certification on all first mortgage loans and
the borrower is required to maintain hazard insurance on the security property.
51
<PAGE>
SERVICE CORPORATIONS
The Bank has an expanded service corporation authority because of its
conversion from a state-chartered mutual savings bank to a federal institution
in 1980. This authority, grandfathered in that conversion, permits the Bank to
invest 15% of its deposits, plus an amount of approximately $825,000, in service
corporation activities permitted by New Hampshire law. However, the first 3% of
these activities is subject to federal regulation and the remainder is subject
to state law. This permits a 3% investment in activities not permitted by state
law.
The Bank currently has two service corporations, the Lake Sunapee
Group, Inc., and the Lake Sunapee Financial Services Corporation. The Lake
Sunapee Group owns and maintains the Bank's buildings and investment properties.
COMPETITION
The Bank faces strong competition in the attraction of deposits. Its
most direct competition for deposits comes from the other thrifts and commercial
banks located in its primary market area. The Bank faces additional significant
competition for investors' funds from mutual funds and other corporate and
government securities.
The Bank competes for deposits principally by offering depositors a
wide variety of savings programs, a market rate of return, tax-deferred
retirement programs and other related services. The Bank does not rely upon any
individual, group or entity for a material portion of its deposits.
The Bank's competition for real estate loans comes from mortgage
banking companies, other thrift institutions and commercial banks. The Bank
competes for loan originations primarily through the interest rates and loan
fees it charges and the efficiency and quality of services it provides
borrowers, real estate brokers and builders. The Bank's competition for loans
varies from time to time depending upon the general availability of lendable
funds and credit, general and local economic conditions, current interest rate
levels, volatility in the mortgage markets and other factors which are not
readily predictable. During 1994, the Bank increased its outside origination
staff to four loan officers. These officers call on real estate agents, follow
leads, and are available seven days a week to service the mortgage loan market.
REGULATION
INSURANCE OF ACCOUNTS
The Bank's deposits are insured by the Federal Deposit Insurance
Corporation (FDIC) to a maximum of $100,000 for each qualifying depositor of the
Bank. The insurance of deposits obtained from the FDIC requires the Bank to pay
the FDIC premiums, and subjects the Bank to extensive supervision and regulation
by the Office of Thrift Supervision (OTS). In addition, the Bank is audited
annually by an independent certified public accountant.
Insurance of accounts may be terminated by the FDIC after notice and
hearing, upon a finding by the FDIC that the Bank has violated its duty as an
insured institution or is engaging or has engaged in an unsafe or unsound
practice, or is in an unsafe or unsound condition to continue operating, or has
violated any applicable law, rule, regulation or order of or condition imposed
by the FDIC. In the event of termination, funds then on deposit would continue
to be insured for two years, and due notice of termination would be provided to
the depositors. Termination of insurance, however, has been extremely rare. The
FDIC has, and more often uses, alternative methods to secure compliance with
sound practice and with duly issued regulatory requirements. The Bank knows of
no practice, condition, or violation that might lead to termination of its
deposit insurance.
The Bank pays the FDIC annual premium charges for insurance of
accounts based on a percentage of the total amount of an institution's deposits.
During 1995, the Bank paid $440,439 in deposit insurance premiums. For
information regarding the resolution of the Savings Association Insurance Fund,
refer to page five of the "Report to Shareholders".
The Bank is required to maintain, through appropriations of current
income or retained income, certain reserve accounts which may be used only to
absorb losses, and to maintain its net worth at or above certain specified
minimum levels. Under such regulations, the Bank was required to have a core
capital as derived in applicable regulations on December 31, 1995, of 3% of
total assets. The Bank is in compliance with that requirement.
52
<PAGE>
If any insured institution fails to meet or maintain its net worth
requirements, the OTS may require decreased interest rates on such institution's
deposit account, impose limitations upon the opening of new accounts, lending
activities and operational expenditures and/or impose other limitations upon
such institution's business. In cases of flagrant violation, the OTS may take
steps toward termination of insurance.
REGULATORY AUTHORITY
The Bank is a member of the Federal Home Loan Bank System (FHLB),
which functions in a reserve credit capacity for certain home financing
institutions. Twelve regional Federal Home Loan Banks are contained within the
system. Each member institution is required by the Federal Home Loan Bank Act to
acquire and hold shares of capital stock in its respective district Federal Home
Loan Bank in an amount equal to at least 1% of the aggregate of the unpaid
principal of its home mortgage loans, home purchase contracts and similar
obligations at the beginning of the year. At December 31, 1995, the Bank owned
18,610 shares totaling $1,861,000 of capital stock in the Federal Home Loan Bank
of Boston which is in compliance with regulatory requirements.
The Office of Thrift Supervision regulations require, among other
things, that member institutions maintain liquid assets equal to a prescribed
percentage of the aggregate of net withdrawable deposit accounts and borrowings
payable in one year or less. At December 31, 1995, the liquid asset long-term
and short-term ratio requirements were 5% and 1%, respectively. The ratio is
divided into short-term liquidity (i.e., cash, time deposits, loans of federal
funds, banker's acceptances, and short-term, i.e., one year or less, treasury
obligations) and long-term liquid assets (i.e., treasury obligations of more
than one year and less than five years, state agency obligations having a term
of 18 months or less, etc.) in accordance with regulations. The liquidity
requirement is varied from time to time depending upon economic conditions and
the flow of money to member institutions. Penalties may be imposed upon member
institutions which are in violation of the liquidity requirements. The Bank is
presently in compliance with the liquidity regulations. For December 31, 1995,
its long-term and short-term liquid asset ratios were 11.92% and 7.54%.
TAXATION
Under applicable provisions of the Internal Revenue Code, (the
"Code"), thrift institutions that meet certain definitional tests relating
primarily to the composition of their assets and the sources of their income are
permitted to establish reserves for bad debts and to make annual reasonable
additions thereto which qualify as deductions from taxable income. A qualifying
institution may elect annually one of the following three methods to compute its
allowable additions to bad debt reserves on qualifying real property loans (i)
the percentage of taxable income method, (ii) the actual experience method, or
(iii) the percentage of eligible loans method. Since the year ended December 31,
1990, the Bank has used the actual experience method to compute its bad debt
deduction. As a result, there have been no additions to the tax bad debt
reserve. For the years ended December 31, 1986, through 1989, the Bank computed
its addition to the tax bad debt reserves using the percentage of taxable income
method to obtain the maximum, allowable deduction.
The reserve addition under the percentage of taxable income method
for stock savings banks is scaled downward in the event that less than 60% of
the stock savings bank's total assets consist of certain specified qualifying
assets (generally, loans secured by residential real estate or deposits,
educational loans, cash, government obligations and certificates of deposit).
Accumulations of additional non-qualifying assets by the Bank could reduce the
amount of the bad debt reserve deduction available. The bad debt reserve
deduction for reasonable additions is available only to the extent that the
amounts accumulated in total reserves for qualifying real estate loans do not
exceed 6% of such loans at year end. In addition, the annual reserve addition is
further limited to the amount by which 12% of total deposits for withdrawable
accounts of depositors at year end exceeds the sum of surplus, undivided profits
and reserves at the beginning of the year.
A thrift institution organized in stock form which utilizes the bad
debt reserve method described above will be subject to certain recapture taxes
on such reserves in the event it makes certain types of distributions to its
stockholders. Dividends may be paid out of appropriated retained income without
the imposition of any tax on an institution to the extent that the amounts paid
as dividends do not exceed such current and accumulated earnings and profits as
calculated for federal income tax purposes. Stock redemptions, dividends paid in
excess of an institution's current and accumulated earnings and profits as
calculated for tax purposes, and partial or complete liquidation distributions
made with respect to an institution's stock, however, are deemed under
applicable provisions of the Code to be made from the institution's bad debt
reserve, to the extent that such reserve exceeds the amount that could have been
accumulated under the actual experience method. In the event a thrift
institution makes a distribution that is treated as having been made from the
tax bad debt reserve, the distribution is treated as an after tax distribution
and the institution will be liable for tax on the gross amount before tax at the
then current
53
<PAGE>
tax rate. Amounts added to the bad debt reserves for federal income tax purposes
are also used by the Bank to meet the OTS reserve requirements described under
"Regulation-Insurance of Accounts."
At December 31, 1995, the Bank's retained earnings included
approximately $2,044,958 for which no provision for federal income taxes has
been made. If such amounts are used for any purpose other than to absorb loan
losses, the Bank will incur a tax liability at the current federal income tax
rate. At this time, the Bank does not anticipate that such amount will be made
available for payment of dividends or for any other purpose that would result in
the payment of federal income taxes.
The Bank's tax returns have been audited and accepted through
December 31, 1991 by the Internal Revenue Service.
STATE INCOME TAX
The Bank is subject to an annual Business Profits Tax (BPT) imposed
by the State of New Hampshire at the rate of 7.00% of the total amount of
federal taxable income, less deductions for interest earned on United States
government securities. During 1993, the State of New Hampshire instituted a
Business Enterprise Tax (BET), which places a tax on certain expense items.
Interest, dividends, wages, benefits and pensions are taxed at a rate of 0.25%.
Business Enterprise Taxes are allowed as a credit against the Business Profits
Tax.
Upon conversion to a holding company, NHTB became subject to a state
franchise tax imposed by Delaware. For the year ended 1995, the tax amounted to
$12,830.
54
<PAGE>
The following sets forth the maturities of the loan portfolio at December 31.
1995:
<TABLE>
<CAPTION>
One year One thru Over
Maturities: or less five years five years Total
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Real Estate Loans - $ 7,456,239 $26,734 216 $141,963,016 $ 176,153,471
---------------------------------------------------------
Real Estate Loans with:
Predetermined interest rates 1,393,001 6,394,695 17,804,965 25,592,661
Adjustable interest rates 6,063,238 20,339,521 124,158,051 150,560,810
---------------------------------------------------------
7 456,239 26,734,216 141,963,016 176,153,471
---------------------------------------------------------
Collateral Loans - 8,500,073 6,866,387 4,158,246 19,524,706
---------------------------------------------------------
Collateral Loans with:
Predetermined interest rates 7,803,880 4,150,938 844,015 12,798,833
Adjustable interest rates 696,193 2,715,449 3,314,231 6,725,873
---------------------------------------------------------
8,500,073 6,866,387 4,158,246 19,524,706
Consumer Loans - 5,000,039 25,779 - 5,025,818
---------------------------------------------------------
Consumer Loans with:
Predetermined interest rates 119,964 25,779 - 145,743
Adjustable interest rates 4,880,075 - - 4,880,075
---------------------------------------------------------
5,000,039 25,779 - 5,025,818
---------------------------------------------------------
Commercial/Municipal Loans- 1,818,188 5,135,300 2,347,540 9,301,028
---------------------------------------------------------
Commercial/Municipal Loans
Predetermined interest rates 923,134 1,366,265 137,394 2,426,793
Adjustable interest rates 895,054 3,769,035 2,210,146 6,874,235
---------------------------------------------------------
1,818,188 5,135,300 2,347,540 9,301,028
---------------------------------------------------------
Other Loans - 225,840 407,918 37,544 671,302
---------------------------------------------------------
Other Loans with:
Predetermined interest rates 164,438 322,417 15,065 501,920
Adjustable interest rates 61,402 85,501 22,479 169,382
---------------------------------------------------------
225,840 407,918 37,544 671,302
---------------------------------------------------------
TOTALS $23,000,379 $39,169,600 $148,506,346 $ 210,676,325
=========================================================
</TABLE>
The preceding schedule includes $297,172 of non-earning assets categorized
within the respective loan types.
55
<PAGE>
Item 2. Properties
The following table sets forth the location of the LSB offices and certain
additional information relating to these offices at December 31, 1995:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
YEAR NET BOOK VALUE EXPIRATION LEASE RENEWAL
LOCATION OPENED LEASED OWNED DATE OF LEASE OPTION
- -------------------------------------------------------------------------------------------------------
Corporate Office
9 Main Street
Newport, NH 1868 $ 1,398,082
Guild Office
Guild Road
Newport, NH 1978 $ 59,463
Bradford Office
Main Street
Bradford, NH 1975 $ 56,963
Grantham Office
Route 10
Grantham, NH 1980 $ 248,991
Lebanon Office
Heater Road
Lebanon, NH 1986 $ 470,312
New London Office
Route 11
New London, NH 1981 $ 201,494
Sunapee Office
Route 11
Sunapee, NH 1965 $ 82,722
Andover Office (l)
Jet Rte 4A and 11
Andover, NH 1987 $ 35,941 1997
Hillsboro Office
15 Antrim Road
Hillsboro, NH 1994 $ 18,563 1997 7 Years
West Lebanon Office (1)
83 Main Street
West Lebanon, NH 1994 $ 162,346 1999 15 Years
</TABLE>
(1) Operating lease, value of improvements.
Employees: At December 31, 1995, LSB had a total of 82 full-time employees and
22 part-time employees. These employees are not represented by collective
bargaining agents. LSB believes that its relationship with its employees is
good.
Item 3. Legal Proceedings
There is no material litigation pending in which the Company is a party or which
the property of the Company is subject.
56
<PAGE>
PART II.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Market for the Registrant's Common Stock and Related Stockholder Matters
The following table shows the market range for the Company's Common Stock based
on reported sales prices on the NASDAQ Market System. New Hampshire Thrift
Bancshares, Inc. is traded under the symbol NHTB.
<TABLE>
<CAPTION>
PERIOD HIGH LOW
------------- ------- -------
<S> <C> <C> <C>
1995 First Quarter $ 10 $8 7/8
Second Quarter 10 1/4 8 3/4
Third Quarter 11 9 1/2
Fourth Quarter 11 9 3/4
1994 First Quarter $ 9 1/2 $8 3/4
Second Quarter 10 3/4 8 7/8
Third Quarter 10 1/2 9 1/2
Fourth Quarter 10 1/4 8 1/2
</TABLE>
The bid quotations set forth above represent prices between dealers and do not
include retail mark-ups, mark-downs or commissions and may not represent actual
transactions. As of December 31, 1995, New Hampshire Thrift Bancshares, Inc. had
approximately 792 stockholders of record. The number of stockholders does not
reflect the number of persons or entities who held their stock in nominee or
"street" name through various brokerage firms.
The following table sets forth certain information regarding per share
dividends declared on the Company's Common Stock:
<TABLE>
<CAPTION>
1995 1994
---- ----
<S> <C> <C>
First Quarter $.125 $.125
Second Quarter .125 .125
Third Quarter .125 .125
Fourth Quarter .125 .125
</TABLE>
For information regarding limitations of the declaration and payment of
dividends by New Hampshire Thrift Bancshares, Inc., see Note 14 of the Notes to
Consolidated Financial Statements.
ITEM 6. SELECTED FINANCIAL DATA
The information called for by this item is contained on pages 16 through 22 of
this document.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
OPERATING RESULTS
The information called for by this item is contained on pages 7 through 22 of
this document.
ITEM 8. FINANCIAL STATEMENTS
The report of independent accountants and the financial information called for
by this item are contained on pages 23 through 46 of this document.
57
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
PART III.
Item 10. Directors and Executive Officers of the Registrant
Certain information relating to directors and executive officers of the Company,
executive compensation, security ownership of certain beneficial owners and
management, and certain relationships and related transactions is incorporated
by reference herein from the Company's definitive proxy statement in connection
with its Annual Meeting of Shareholders to be held on April 10, 1996, which
proxy statement will be filed with the Securities and Exchange Commission not
later than 120 days after the close of the fiscal year.
Item 11. Executive Compensation
Certain information relating to directors and executive officers of the Company,
executive compensation, security ownership of certain beneficial owners and
management, and certain relationships and related transactions is incorporated
by reference herein from the Company's definitive proxy statement in connection
with its Annual Meeting of Shareholders to be held on April 10, 1996, which
proxy statement will be filed with the Securities and Exchange Commission not
later than 120 days after the close of the fiscal year.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Certain information relating to directors and executive officers of the Company,
executive compensation, security ownership of certain beneficial owners and
management, and certain relationships and related transactions is incorporated
by reference herein from the Company's definitive proxy statement in connection
with its Annual Meeting of Shareholders to be held on April 10, 1996, which
proxy statement will be filed with the Securities and Exchange Commission not
later than 120 days after the close of the fiscal year.
Item 13. Certain Relationships and Related Transactions
Certain information relating to directors and executive officers of the Company,
executive compensation, security ownership of certain beneficial owners and
management, and certain relationships and related transactions is incorporated
by reference herein from the Company's definitive proxy statement in connection
with its Annual Meeting of Shareholders to be held on April 10, 1996, which
proxy statement will be filed with the Securities and Exchange Commission not
later than 120 days after the close of the fiscal year.
58
<PAGE>
PART IV.
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) 1. Financial Statements
The following consolidated financial statements are included in Item
8:
Consolidated Statements of Financial Condition for December 31, 1995
and 1994.
Consolidated Statements of Income for Years ended December 31, 1995,
1994 and 1993.
Consolidated Statements of Changes in Shareholders' Equity for Years
ended December 31, 1995, 1994 and 1993.
Consolidated Statements of Cash Flows for Years ended December 31,
1995, 1994 and 1993.
Notes to Consolidated Financial Statements.
(a) 2. Supplementary Financial Statements
None.
(a) 3. Listing of Exhibits
Exhibits have been filed separately with the Securities and Exchange
Commission in connection with this annual report on Form 10-KSB or have been
incorporated into the report by reference.
(b) Reports on Form 8-K
There have been no 8-K filings during the three months ended December
31, 1995.
(c) Exhibits
None.
(d) Financial Statement Schedules
Schedules other than those listed above have been omitted since they
are either not required or the information is otherwise included.
59
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
New Hampshire Thrift Bancshares, Inc. Date March 8, 1996
By: /s/ John J. Kiernan Chairman of the Board
------------------
(John J. Kiernan)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ John J. Kiernan Chairman of the Board March 8, 1996
- ---------------------------
(John J. Kiernan)
/s/ Stephen W. Ensign Director, President and March 8, 1996
- ---------------------------
(Stephen W. Ensign) Chief Executive Officer
/s/ Ralph B. Fifield, Jr. Director March 8, 1996
- ---------------------------
(Ralph B. Fifield, Jr.)
/s/ John E. Johannessen Director March 8, 1996
- ---------------------------
(John E. Johannessen)
/s/ John A. Kelley, Jr. Director March 8, 1996
- ---------------------------
(John A. Kelley, Jr.)
/s/ Dennis A. Morrow Director March 8, 1996
- ---------------------------
(Dennis A. Morrow)
/s/ Priscilla W. Ohler Director March 8, 1996
- ---------------------------
(Priscilla W. Ohler)
/s/ Perry R. Smith, Jr. Director March 8, 1996
- ---------------------------
(Perry R. Smith, Jr.)
/s/ Stephen R. Theroux Director, Executive Vice President and March 8, 1996
- ---------------------------
(Stephen R. Theroux) Chief Financial Officer
/s/ Kenneth D. Weed Director March 8, 1996
- ---------------------------
(Kenneth D. Weed)
</TABLE>
60
<PAGE>
DIRECTORS AND OFFICERS OF NEW HAMPSHIRE THRIFT BANCSHARES, INC.
DIRECTORS
- ---------
John J. Kiernan
Chairman of the Board
Stephen W. Ensign
President and
Chief Executive Officer
Stephen R. Theroux
Executive Vice President and Chief Financial Officer
Ralph B. Fifield, Jr.
Executive Vice President
Lending and Commercial Finance
John E. Johannessen
Retired Executive
Mobil Corporation
John A. Kelley, Jr.
Real Estate Developer
Dennis A. Morrow
Sales Manager
Cote & Reney Lumber Company
Priscilla W. Ohler
Community Representative
Perry R. Smith, Jr., Retired
Co-owner Lake Sunapee
Realty Company, Inc.
Kenneth D. Weed, Partner
L.E. Weed and Son
Everett R. Reney (Emeritus)
Retired Partner
Cote & Reney Lumber Company
OFFICERS
- --------
John J. Kiernan
Chairman of the Board
Stephen W. Ensign
President and
Chief Executive Officer
Stephen R. Theroux
Executive Vice President and Chief Financial Officer
Linda L. Oldham
Senior Vice President
and Secretary
Sandra M. Blackington
Assistant Secretary
DIRECTORS AND OFFICERS OF LAKE SUNAPEE BANK, FSB
DIRECTORS
- ---------
John J. Kiernan
Chairman of the Board
Stephen W. Ensign
President and
Chief Executive Officer
Stephen R. Theroux
Executive Vice President and Chief Financial Officer
Ralph B. Fifield, Jr.
Executive Vice President
Lending and Commercial Finance
John E. Johannessen
Retired Executive
Mobil Corporation
John A. Kelley, Jr.
Real Estate Developer
Dennis A. Morrow
Sales Manager
Cote & Reney Lumber Company
Priscilla W. Ohler
Community Representative
Perry R. Smith, Jr., Retired
Co-owner Lake Sunapee Realty Company, Inc.
Kenneth D. Weed, Partner
L.E. Weed and Son
Everett R. Reney
(Emeritus)
Retired Partner
Cote & Reney Lumber Company
OFFICERS
- --------
John J. Kiernan
Chairman of the Board
Stephen W. Ensign
President and
Chief Executive Officer
Stephen R. Theroux
Executive Vice President and Chief Financial Officer
Ralph B. Fifield, Jr.
Executive Vice President
Lending and Commercial Finance
ACCOUNTING AND ADMINISTRATION
Daryl J. Cady
Vice President and
Controller
Sandra M. Blackington
Assistant Secretary
BUSINESS DEVELOPMENT
Peter R. Lovely
Senior Vice President
COMPLIANCE AND INTERNAL AUDIT
H. Bliss Dayton
Vice President
Linda M. Basher
Assistant Vice President
Arthur W. Phillips
Assistant Vice President and Certified Real Estate Appraiser
EDUCATION AND HUMAN RESOURCES
Betty H. Ramspott
Vice President
LENDING
W. Grant MacEwan
Senior Vice President
Commercial Lending
Sharon L. Whitaker
Vice President
LOAN ORIGINATION
Robert C. O'Brien
Senior Vice President
Colin S. Campbell
Vice President
Elizabeth C. Crockford
Assistant Vice President
Stephen B. Ellis
Assistant Vice President
Peter N. Jennings
Loan Officer
OPERATIONS
Robert S. Simpson
Vice President
Sandra J. Luckury
Assistant Vice President
Gail A. Fraser
Assistant Vice President
Francetta Raymond
Assistant Vice President
SHAREHOLDER RELATIONS AND SECRETARY
Linda L. Oldham
Senior Vice President
RETAIL OFFICES
HOME OFFICE
9 Main Street
Newport, NH 03773
(603) 863-5772
(800) 281-5772
Terri G. Spanos
Assistant Vice President
Junction Route 4A and 11
Andover, NH 03216
(603) 735-5772
Sue-Anne C. Bourbeau Supervisor
Main Street
Bradford, NH 03221
(603) 938-2277
Nancy E. Desmarais Supervisor
Route 10
Grantham, NH 03753
(603) 863-5600
Anita G. Sanborn
Manager
15 Antrim Road
Hillsboro, NH 03244
(603) 464-4820
Virginia S. Landers
Supervisor
Heater Road
Lebanon, NH 03766
(603) 448-2566
Erik C. Cinquemani
Assistant Vice President
Newport Road
New London, NH 03257
(603) 526-6933
Heather K. Melson
Assistant Vice President
Maxine B. Wiggins
Customer Service Officer
Guild Road
Newport, NH 03773
(603) 863-1428
Sherri A. Cummings
Supervisor
Route 11
Sunapee, NH 03782
(603) 763-2511
Heide Hubert Menard
Supervisor
83 Main Street
West Lebanon, NH 03784
(603) 298-7500
Raymond G. Morin
Supervisor
AFFILIATED COMPANY
Charter Trust Company
90 North Main Street
Concord, NH 03302
(603) 224-1350
(800) 639-5903
<PAGE>
=================
BOARD OF ADVISORS
Philip D. Allen /(1)/
Prunella O. Anastos
Benjamin K. Barton
Kenneth O. Barton
George O. Binzel
William A. Bittinger
Paul R. Boucher
James F. Briggs
Robert S. Burgess
Walton W. Chadwick
Earle W. Chandler
F. Read Clarke
Jacqueline C. Cote
Robert J. Cricenti
Richard F. Curtis
Ernest G. Dennis, Jr.
Terri C. Dudley
William J. Faccone, Sr.
Gordon B. Flint, Sr.
John W. Flynn, Jr.
John W. Flynn, Sr.
Charles E. Goyette, Jr.
Sam N. Hale
Sheffield J. Halsey
Louise K. Hastings
Howard T. Heintz
Douglas J. Homan
Rita M. Hurd
Lisa S. Hustis
Alf E. Jacobson
Robert B. Jennings
Michael D. Johnson
John J. Kiernan, Jr.
Jeffrey A. Lantz
Victor W. Laro
Paul J. Linehan
Robert A. MacNeil
Elizabeth W. Maiola
Raymond A. Manning
John J. Marcotte
Jerry N. Mathis
David W. McClintic
Denise A. McClintic
Thomas F. McCormick
J. David McCrillis
John C. McCrillis
Paul S. Olsen
Daniel P. O'Neill
David N. Reney
Genelle M. Richards
J. Barrie Sellers
Edwin G. Sielewicz
Fredric M. Smith
Herbert N. Smith
Fred F. Stockwell
Earl F. Strout
James R. Therrien
Janis H. Wallace
James P. Wheeler
Bradford C. White
John W. Wiggins, Sr.
Peter Wittman
Thomas B. Woodger
Michael J. Work
/(1)/ Honorary
=======================
SHAREHOLDER INFORMATION
CORPORATE HEADQUARTERS
New Hampshire Thrift Bancshares, Inc.
The Carriage House
PO Box 37
New London, New Hampshire 03257-0037
TRANSFER AGENT
Chemical Mellon Shareholder Services, L.L.C.
Overpeck Centre
85 Challenger Road
Ridgefield Park, NJ 07660
Tel: 1-800-851-9677
INDEPENDENT ACCOUNTANTS
Berry, Dunn, McNeil & Parker
Rivermill Complex, Suite 400
85 Mechanic Street
Lebanon, New Hampshire 03766
===========================
INFORMATION ON COMMON STOCK
The common stock is traded over-the-counter and quoted on the NASDAQ National
Market System under the symbol NHTB. There were approximately 792 shareholders
of record on December 31, 1995.
The following table sets forth the Company's high and low prices for the common
stock as reported by NASDAQ for the periods indicated:
1995 HIGH LOW
- -------------------------------------
First Quarter $ 10 $ 8 7/8
Second Quarter 10 1/4 8 3/4
Third Quarter 11 9 1/2
Forth Quarter 11 9 3/4
62
<PAGE>
=====
NOTES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
=====
NOTES
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
PO BOX 37, NEW LONDON, NEW HAMPSHIRE 03257-0037
(603) 526-2116
<PAGE>
Appendix E-2
FORM 10-QSB
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For The Quarter Ended June 30, 1996
-------------
Commission File Number 0-17859
-------
NEW HAMPSHIRE THRIFT
BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
State of Delaware 02-0430695
(State of Incorporation) (IRS Employer I.D. Number)
New London, New Hampshire 03257
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 603-526-2116
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
The number of shares outstanding of each of the issuer's classes of common
stock, $.01 par value per share, as of July 11, 1996 was 1,691,803.
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
INDEX TO FORM 10-Q
PART I. FINANCIAL INFORMATION PAGE
Item 1 Financial Statements:
Consolidated Statements of Financial Condition - 1
June 30, 1996 and December 31, 1995
Consolidated Statements of Income - 2
For the Three Months Ended June 30, 1996 and 1995 and
the Six Months Ended June 30, 1996 and 1995
Consolidated Statements of Changes In Shareholders' Equity - 3
For the Three Months Ended June 30, 1996 and 1995 and the
Six Months Ended June 30, 1996 and 1995
Consolidated Statements of Cash Flows - 4
For the Six Months Ended June 30, 1996 and 1995
Notes To Consolidated Financial Statements - 5
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations - 13
PART II. OTHER INFORMATION 18
Item 1 Legal Proceedings 18
Item 2 Changes in Securities 18
Item 3 Defaults Upon Senior Securities 18
Item 4 Submission of Matters to a Vote of Common Shareholders 18
Item 5 Other Information 18
Item 6 Exhibits and Reports on Form 8-K 18
Signatures 19
<PAGE>
Part 1. Item 1.
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIAR1ES
CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION
June 30, 1996 and December 31, 1995
(Unaudited)
<TABLE>
<CAPTION>
<S> <C> <C>
June 30, 1996 December 31, 1995
ASSETS ------------- -----------------
Cash and due from banks 7,660,216 7,544,297
Federal funds sold - 3,449,000
Securities held to maturity 368,054 393,054
Securities available for sale 25,234,393 25,718,260
Other investments 2,307,557 2,303,285
Loans held for sale 1,000,855 3,095,971
Loans receivable, net 211,438,852 205,073,080
Accrued interest receivable 1,550,660 1,433,882
Bank premises and equipment, net 5,794,351 5,955,394
Real estate owned and property acquired in settlement of loans 819,679 984,185
Non-earning assets 1,444,239 297,172
Other assets 907,269 1,968,497
------------- -------------
Total assets $ 258,526,125 $ 258,216,077
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Deposits $ 200,303,248 $ 199,970,921
Repurchase agreements 4,201,001 9,552,825
Federal funds purchased 1,143,000 -
Advances from Federal Home Loan Bank 31,27O,344 26,936,168
Accrued expense and other liabilities 2,133,405 2,212,158
----------- -----------
Total liabilities 239,050,998 238,672,072
----------- -----------
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY
Preferred stock, $.01 par value - -
Common stock, $.01 par value 1,691,803 shares outstanding
as of June 30, 1996 and 1,689,503 as of December 31, 1995 21,473 21,473
Paid-in capital 13,167,570 13,167,382
Retained earnings 9,079,266 8,673,504
Unrealized gain (loss) on securities available for sale (394,297) 97,594
----------- -----------
21,874,012 21,952,953
Treasury stock, at cost, 455,479 shares as of
June 30, 1996 and 457,779 as of December 31, 1995 (2,398,885) (2,408,948)
----------- -----------
Total shareholders' equity 19,475,127 19,544,005
----------- -----------
Total liabilities and shareholders' equity $ 258,526,125 $ 258,216,077
=========== ===========
</TABLE>
The accompanying notes to consolidated financial statements are an integral
part of these statements.
1
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
For the Three Months Ended June 30, 1996 and 1995
For the Six Months Ended June 30, 1996 and 1995
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Month Ended June 30,
1996 1995 1996 1995
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Interest income
Income of loans $ 4,176,389 $ 3,899,303 $ 8,243,982 $ 7,587,163
Interest and dividends on investments 463,931 405,773 953,543 763,011
----------- ----------- ----------- -----------
Total interest income 4,640,320 4,305,076 9,197,525 8,350,174
----------- ----------- ----------- -----------
Interest expense
Interest paid to depositors 2,066,025 1,990,734 4,198,985 3,853,261
Interest on advances and other borrowed
money 455,074 415,781 855,820 698,806
----------- ----------- ----------- -----------
Total interest expense 2,521,099 2,406,515 5,054,805 4,552,067
----------- ----------- ----------- -----------
Net interest income 2,119,221 1,898,561 4,142,720 3,798,107
Provision for loan losses, net 522,554 280,000 744,191 580,000
----------- ----------- ----------- -----------
Net interest income after provision for
loan losses 1,596,667 1,618,561 3,398,529 3,218,107
----------- ----------- ----------- -----------
Non-interest income
Customer service fees 327,429 210,118 563,762 471,493
Loan origination fees 23,623 15,914 42,062 32,066
Net gain on sale of securities and bank
property 262,427 15,087 259,873 21,577
Rental income 55,393 55,049 111,392 110,854
Brokerage service income 40,924 32,548 107,638 59,477
Other income 671 595 1,966 16,235
----------- ----------- ----------- -----------
Total other operating income 710,467 329,311 1,086,693 711,702
----------- ----------- ----------- -----------
Other operating expenses
Salaries and employee benefits 734,965 696,344 1,558,905 1,525,916
Occupancy expenses 327,313 293,518 655,002 603,466
Advertising and promotion 50,648 41,519 64,745 99,916
Depositors insurance 114,747 109,883 227,775 219,765
Outside services 92,759 80,380 182,381 161,442
Other expenses 271,621 343,052 560,184 652,203
----------- ----------- ----------- -----------
Total other operating expenses 1,592,053 1,564,696 3,248,992 3,262,708
----------- ----------- ----------- -----------
Income before provision for income
taxes 715,081 383,176 1,236,230 667,101
Provision for income taxes 235,700 126,000 408,000 220,000
----------- ----------- ----------- -----------
Net income $ 479,381 $ 257,176 $ 828,230 $ 447,101
=========== =========== =========== ===========
Earnings per common share $ .28 $ .15 $ .49 $ .26
=========== =========== =========== ===========
Dividends declared per common share $ .125 $ .125 $ .25 $ .25
=========== =========== =========== ===========
</TABLE>
The accompanying notes to consolidated financial statements are an
integral part of these statements.
2
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
For the Three Months Ended June 30, 1996 and 1995
and the Six Months Ended June 30, 1996 and 1995
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
1996 1995 1996 1995
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
COMMON STOCK
Balance, beginning and end of period $ 21,473 $ 21,743 $ 21,473 $ 21,473
============ ============ ============ ============
PAID-IN CAPITAL
Balance, beginning of period $ 13,160,382 $ 13,103,404 $ 13,160,382 $ 13,103,404
Change during the period 7,188 1,900 7,188 1,900
------------ ------------ ------------ ------------
Balance, end of period $ 13,167,570 $ 13,105,304 $ 13,167,570 $ 13,105,304
============ ============ ============ ============
RETAINED EARNINGS
Balance, beginning of period $ 8,811,185 $ 8,249,145 $ 8,673,504 $ 8,268,094
Net income 479,381 257,176 828,230 447,101
Cash dividends paid (211,280) (208,949) (422,468) (417,823)
------------ ------------ ------------ ------------
Balance, end of period $ 9,079,266 $ 8,297,372 $ 9,079,266 $ 8,297,372
============ ============ ============ ============
UNREALIZED GAIN (LOSS) ON SECURITIES
AVAILABLE FOR SALE
Balance, beginning of period $ (167,398) $ (437,252) $ 97,594 $ (728,667)
Adjustment to fair value (343,899) 144,461 (745,891) 192,876
Effect of change in deferred taxes 117,000 151,000 254,000 394,000
------------ ------------ ------------ ------------
Balance, end of period $ (394,297) $ (141,791) $ (394,297) $ (141,791)
============ ============ ============ ============
TREASURY STOCK
Balance, beginning of period $ (2,408,948) $ (2,411,430) $ (2,408,948) $ (2,411,430)
Exercise of stock options (2,300 shares at
June 30, 1996 and 608 shares at June
30, 1995) 10,063 2,660 10,063 2,660
------------ ------------ ------------ ------------
Balance, end of period $ (2,398,885) $ (2,408,770) $ (2,398,885) $ (2,408,770)
============ ============ ============ ============
</TABLE>
The accompanying note to consolidated financial statements are an integral
part of these statements.
3
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Six Months Ended June 30, 1996 and 1995
(Unaudited)
<TABLE>
<CAPTION>
June 30, June 30,
1996 1995
---------------- ---------------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income $ 828,230 $ 447,101
------------------ ---------------
Adjustments to reconcile net income to net
cash provided by operating activites-
Depreciation and amortization 235,558 216,418
Loans originated for sale (6,301,226) (4,931,893)
Proceeds from sale of loans 6,309,540 4,936,030
Gain from sale of loans (8,314) (4,137)
Loss from sale of debt securities available for sale 731 4,199
Gain from sale of equity securities available for sale - (21,639)
Gain from sale of bank premises and equipment (253,497) -
Provision for loan losses 744,191 580,000
Provision for deferred taxes - (64,200)
(Increase) decrease in accrued interest and other assets 970,411 (395,420)
Decrease in deferred loan fees (42,005) (74,163)
Increase in accrued expenses and other liabilities 184,324 1,668,991
------------------ ---------------
Net cash provided by operating activities 2,667,943 2,361,287
------------------ ---------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (151,018) (269,028)
Proceeds from sale of bank premises and equipment 330,000 -
Proceeds from sale of debt securities available for sale 951,471 1,384,091
Proceeds from sale of equity securities available for sale 200,000 448,414
Principal reductions on securities held to maturity 25,000 25,000
Purchase of securities available for sale (3,842,459) (3,934,770)
Purchase of Federal Home Loan Bank Stock - (247,000)
Maturities of securities available for sale 2,398,000 100,000
Net increase in loans to customers (4,972,842) (10,242,845)
(Increase) decrease in non-earning assets (1,147,067) 520,154
Decrease in real estate owned 164,506 223,331
------------------ ---------------
Net cash used in investing activities (6,044,409) (11,992,653)
------------------ ---------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net increase (decrease) in deposits and repurchase agreements (5,019,497) 3,188,726
Increase in advances from Federal Home Loan Bank 5,477,176 7,763,778
Net change in other borrowed money (9,077) (5,658)
Dividends paid (422,468) (417,822)
Exercise of stock options 17,251 4,560
------------------ ---------------
Net cash provided by financing activities 43,385 10,533,584
------------------ ---------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (3,333,081) 902,218
CASH AND CASH EQUIVALENTS, beginning of period 10,993,297 8,253,588
------------------ ---------------
CASH AND CASH EQUIVALENTS, end of period $ 7,660,216 $ 9,155,806
================== ===============
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest on deposit accounts $ 4,215,158 $ 3,818,906
Interest on advances and other borrowed money $ 853,362 $ 631,555
------------------ ---------------
Total interest paid $ 5,068,520 $ 4,450,461
================== ===============
Income taxes, net $ 190,619 $ 139,252
================== ===============
Supplemental disclosure of noncash investing and financing activities:
Transfers from loans to real estate acquired through foreclosure $ - $ 40,000
================== ===============
</TABLE>
The accompanying notes to consolidated financial statements are an integral
part of these statements.
4
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1996 and December 31, 1995
1. Summary of significant accounting policies:
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include the
accounts of New Hampshire Thrift Bancshares, Inc. (NHTB or Company, a unitary
holding company), Lake Sunapee Bank fsb (LSB), Lake Sunapee Group, Inc. (LSGI),
and Lake Sunapee Financial Services Corp. (LSFSC). LSB is owned by the holding
company and the other entities are wholly-owned subsidiaries of LSB. All
significant intercompany accounts and transactions have been eliminated. The
financial statements include all adjustments (consisting of normal recurring
accruals) necessary for a fair presentation of the results of operations for the
three months and the six months ended June 30, 1996 and 1995.
EARNINGS PER SHARE - Earnings per share are calculated using the weighted
average number of shares outstanding at the end of the period plus common stock
equivalents, as appropriate, resulting from the granting of incentive stock
options. Common stock equivalents are determined using the treasury method.
Common stock equivalents are included in the computation of earnings per share
if they nave a dilutive effect. As of June 30, 1996 and 1995, there was a
dilutive effect from stock options. The number of shares used in computing
earnings per share was 1,695,931 and 1,694,095 for the periods ended June 30,
1996 and 1995, respectively.
CASH AND CASH EQUIVALENTS - For purposes of reporting cash flows, the Bank
considers federal funds sold and due from banks to be cash equivalents.
TREASURY STOCK - Treasury Stock is accounted for at cost when purchased. Sales
of Treasury Stock are on a first in first out basis at cost. Any gain on the
sale of Treasury Stock is recorded to Paid-in Capital.
MORTGAGE SERVICING RIGHTS - Effective January 1, 1996, Lake Sunapee Bank, fsb
recorded as a separate asset the rights to service mortgage loans for others
according to FAS No. 122 "Accounting for Mortgage Servicing Rights." The
accounting standard is effective for loans sold after December 31, 1995. The
mortgage servicing rights (MSR's) are valued at the lower of cost or market on
an aggregate basis. The MSR's are amortized on a straight-line basis over the
anticipated life of the related loans.
5
<PAGE>
NEW HAMPSHIRE THRIFT BALNCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
June 30, 1996 and December 31, 1995
2. Securities
The amortized cost and appropriate market value of securities are summarized
as follows:
<TABLE>
<CAPTION>
June 30, 1996
----------------------------------------------------------------
Gross Gross
Fair Unrealized Unrealized Amortized
Value Gain Loss Cost
----------------------------------------------------------------
<S> <C> <C> <C> <C>
Held to Maturity:
Bonds and notes-
Municipal bonds $ 368,054 $ - $ - $ 368,054
----------------------------------------------------------------
Total held to maturity 368,054 - - 368,054
----------------------------------------------------------------
Available for Sale:
Bonds and notes -
U.S. Treasury Notes 12,746,404 3,990 209,440 12,951,854
U.S Government, including
agencies 2,484,811 7,040 82,824 2,560,595
Other bonds and debentures 8,658,928 18,617 199,080 8,839,392
----------------------------------------------------------------
23,890,143 29,648 491,344 24,351,840
Equity securities 1,344,250 18,575 154,175 1,479,850
----------------------------------------------------------------
Total available for sale 25,234,393 48,223 645,519 25,831,690
----------------------------------------------------------------
Investments at cost:
Federal Home Loan Bank Stock 1,861,000 - - 1,861,000
Other securities 446,557 - - 446,557
----------------------------------------------------------------
Total investments at cost 2,307,557 2,307,557
----------------------------------------------------------------
Total securities $ 27,910,004 $ 48,223 $ 645,519 $ 28,507,301
================================================================
<CAPTION>
December 31, 1995
----------------------------------------------------------------
Gross Gross
Fair Unrealized Unrealized Amortized
Value Gain Loss Cost
----------------------------------------------------------------
<S> <C> <C> <C> <C>
Held to Maturity:
Bonds and notes-
Municipal bonds $ 393,054 $ - $ - $ 393,054
---------------------------------------------------------------
Total held to maturity 393,054 - - 393,054
---------------------------------------------------------------
Available for Sale:
Bonds and notes -
U.S. Treasury Notes 12,139,529 147,900 3,166 11,994,795
U.S Government, including
agencies 2,724,130 33,249 40 2,690,921
Other bonds and debentures 9,352,476 104,119 38,416 9,286,773
---------------------------------------------------------------
24,216,135 285,268 41,622 23,972,489
Equity securities 1,502,125 11,750 106,800 1,597,175
---------------------------------------------------------------
Total available for sale 25,718,260 297,018 148,422 25,569,664
---------------------------------------------------------------
Investments at cost:
Federal Home Loan Bank Stock 1,861,000 - - 1,861,000
Other securities 442,285 - - 442,285
---------------------------------------------------------------
Total invesment at cost 2,303,285 2,303,285
---------------------------------------------------------------
Total securities $ 28,414,599 $ 297,018 $ 148,422 $ 28,266,003
===============================================================
</TABLE>
6
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(continued)
June 30, 1996 and December 31, 1995
<TABLE>
<CAPTION>
3. Loans
Loans consisted of the following as of: June 30, December 31,
1996 1995
-------------- ---------------
<S> <C> <C>
Real estate loans -
Conventional $ 180,898,716 $ 175,130,966
Construction 693,630 2,456,763
-------------- ---------------
181,592,346 177,587,729
Less: Unadvanced portion 321,596 1,434,258
-------------- ---------------
Total real estate loans 181,270,750 176,153,471
Collateral loans 21,620,233 19,524,706
Consumer loans 4,753,166 5,025,818
Commercial and municipal loans 7,998,711 9,301,028
Other loans 88,536 671,302
-------------- ---------------
Total loans 215,731,396 210,676,325
Less: Reserve for loan losses 1,507,413 1,828,060
Deferred loan origination fees 340,037 382,042
Non-earning assets 1,444,239 297,172
-------------- ---------------
Net loans $ 212,439,707 $ 208,169,051
============== ===============
A summary of activity in the reserve for loan loss account consisted of the
following as of:
<CAPTION>
June 30, December 31,
1996 1995
-------------- ---------------
<S> <C> <C>
BALANCE, beginning of period $ 1,828,060 $ 2,752,885
----------- ---------------
Loans charged-off:
Real estate loans -
Conventional 329,300 141,541
Construction 649,274 1,014,670
Collateral and consumer loans 15,199 25,568
Commercial and municipal loans 75,424 913,441
----------- ---------------
Total charged-off loans 1,069,197 2,095,220
----------- ---------------
Recoveries:
Real estate loans -
Conventional 3,963 3,300
Collateral and consumer loans 396 2,099
Commercial and municipal loans - 1,286
----------- ---------------
Total recoveries 4,359 6,685
----------- ---------------
Charged-off loans, net of recoveries 1,064,838 2,088,535
----------- ---------------
Provision for loan losses charged to income 744,191 1,163,710
----------- ---------------
BALANCE, end of period $ 1,507,413 $ 1,828,060
=========== ===============
Ratio of net charged-off loans during the period
to average loans outstanding during the period 0.50% 1.02%
=========== ===============
</TABLE>
7
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLDIATED FINANCIAL STATEMENTS - (continued)
June 30, 1996 and December 31, 1995
<TABLE>
<CAPTION>
3. Loans (continued):
June 30, December 31,
1996 1995
-------- ------------
<S> <C> <C>
Non-earning assets $1,444,239 $ 297,172
Amount of interest income which would have been earned 61,426 55,864
Amount of interest income that was included in net income 23,001 13,553
Troubled debt restructured 524,338 445,417
In addition to non-earning assets, non-accrual
loans included the following amount of delinquent loans 856,135 1,144,293
EFFECT OF FASB NO. 66:
Loans reclassified to real estate owned $ 366,316 $ 370,672
Interest income reduced by 12,734 23,063
IMPAIRED LOANS:
Average recorded investment in impaired loans $ 810,596 $ 934,829
Investment in impaired loans, end of period 493,645 1,452,049
Portion of valuation allowance allocated to impaired loans 52,412 654,663
Net balance of impaired loans 441,232 797,386
Interest income recognized on impaired loans 17,345 102,449
Interest income on impaired loans on cash basis 14,454 97,401
</TABLE>
There are no impaired loans which do not have a valuation allowance assigned to
them.
Interest income on impaired loans is recognized using the accrual basis
accounting method when the impaired loan is less than 90 days past due and has
not been reclassified to non-accrual status. Interest income on impaired loans
over 90 days past due and on loans placed on non-accrual status is recognized on
the cash basis method. Cash receipts on impaired loans are recorded as both
interest income and a reduction in the impaired loan balance consistent with the
terms of the underlying contractual agreement. The net balance of impaired loans
represents the aggregate fair value or present value of expected cash flows on
individual loans identified as impaired. A loan becomes impaired when it is
probable all amounts due on the loan will not be received. A loan is placed on
non-accrual status when it is likely interest income will not be received. Non-
accrual loans are reviewed for possible impairment. Impaired loans are written-
down or charged-off when it has been determined the asset has such little value
that it no longer warrants remaining on the books. The decision to charge-off is
made on a case-by-case basis.
The Bank had no extensions of credit to affiliated parties in excess of 5% of
shareholders' equity at any time during the six months ended June 30, 1996.
MORTGAGE SERVICING RIGHTS - As of June 30, 1996, the fair value of MSR's was
$48,963. The significant assumptions used to estimate fair value included a
prepayment risk based on current market pricing information, a discount rate of
1% above the U. S. Treasury bond rate, and industry averages for other
significant assumptions. MSR's capitalized were reduced by S2,448 of
amortization during the quarter. For purposes of evaluating and measuring
impairment of MSR's, the Company stratifies the underlying loans by maturity and
by interest rate. As of June 30, 1996, the Company stratified its loans by
maturity into 15 and 30 year loans and stratified loans in each of the maturity
categories by every one-half percent change in interest rates. There is no
impairment to the value of the MSR's recorded during the quarter ended June 30,
1996.
8
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (continued)
4. Deposits:
Deposit accounts consisted of the following as of:
June 30, December 31,
1996 1995
----------- --------------
Checking Accounts (non-interest bearing) $ 9,403,790 $ 10,934,512
NOW Accounts 25,951,723 26,014,007
Ever-Ready Money Market 12,241,216 13,971,617
Regular Savings Accounts 10,252,895 11,363,366
Treasury Savings Accounts 45,878,940 44,388,408
Club Deposits 327,829 87,779
Time Deposits:
$100,000 and over 12,302,412 11,924,585
Other Time Deposits 83,944,443 81,286,647
------------ ------------
$200,303,248 $199,970,921
============ ============
REPURCHASE AGREEMENTS - As of June 30, 1996, fifteen repurchase agreements were
outstanding. Repurchase agreements are secured by U.S. Treasury Notes held by a
third party in safekeeping with a fair value of $12,746,404. The maturities of
the repurchase agreements are from July 13, 1996 to June 30, 1997 on the
anniversary date of the repurchase agreement.
5. Advances from Federal Home Loan Bank:
Advances from the Federal Home Loan Bank consisted of loans, at various
interest rates ranging from 4.87% to 7.32%, maturing as follows:
June 30, December 31,
1996 1995
----------- --------------
1996 (4.87% - 6.78%) $ 11,096,320 $ 6,762,143
1997 (4.87% - 7.32%) 7,927,707 7,927,707
1998 (4.87% - 5.82%) 7,166,033 7,166,033
1999 (5.78%) 56.084 56,085
2000 and after (5.74% - 5.82%) 5,024,200 5,024,200
------------ ------------
$ 31,270,344 $ 26,936,168
============ ============
These advances are secured by Federal Home Loan Bank Stock (Note 2) and
unspecified first mortgage loans. The Bank is able to borrow up to an additional
$46,000,000 of Federal Home Loan Bank advances.
In addition to the above advances, the Bank has credited available up to
$5,167,000 under a revolving loan agreement with the Federal Home Loan Bank. As
of June 30, 1996, $1,143,000 had been borrowed against this line of credit.
Interest is payable monthly as funds are borrowed.
9
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (continued)
June 30, 1996 and December 31, 1995
6. Shareholders' Equity:
On May 22, 1986, Lake Sunapee Bank fsb received approval from the Federal
Home Loan Bank Board and converted from a federally-chartered mutual savings
bank to a federally-chartered stock savings bank. Net proceeds of the
conversion (after deducting applicable costs of conversion) were
$11,889,397.
At the time of conversion, the Bank established a liquidation account in an
amount of $4,292,510 (equal to the Bank's net worth as of the date of the
latest financial statement included in the final offering circular used in
connection with the conversion). The liquidation account will be maintained
for the benefit of eligible account holders who maintain their deposit
accounts in the Bank after conversion. In the event of a complete
liquidation of the Bank subsequent to conversion (and only in such event),
each eligible account holder will be entitled to receive a liquidation
distribution from the liquidation account before any liquidation
distribution may be made with respect to capital stock. The amount of the
liquidation account is reduced to the extent that the balance of eligible
deposit accounts are reduced on any year-end closing date subsequent to the
conversion.
The Bank may not declare or pay a cash dividend on or purchase any of its
stock if the effect would be to reduce the net worth of the Bank below
either the amount of the liquidation account or the net worth requirements
of the Office of Thrift Supervision.
DIVIDENDS - The Board of Directors, at their July meeting, declared a cash
---------
dividend of $0.125 per share payable July 29, 1996
7. Stock Options:
On January 3, 1995, 30,000 options were granted from previously forfeited
shares of the 1986 plan at an exercise price of $9.00 per share, the fair
market value on that date. As of June 30, 1996, 57,880 of previously
forfeited shares remained available for grant and options to purchase
30,000 shares were available for exercise under the 1986 plan. At the Annual
Meeting held on April 15, 1987, the shareholders approved the adoption of
the "1987 Stock Option Plan." As of June 30, 1996, 27,666 of previously
forfeited shares remained available for grant and options to purchase 30,290
shares were available for exercise under the 1987 plan. On January 2, 1996,
49,900 options were granted and made available from previously ungranted and
forfeited shares of the 1987 plan at an exercise price of $10.125 per share,
the fair market value on that date. As of June 30, 1996, none of these
options had been exercised. At the Annual meeting held on April 10, 1996,
the shareholders approved the adoption of the "1996 Stock Option Plan."
Under this plan, an amount equal to 10% of the issued and outstanding common
stock of the Company has been reserved for future issuance. No options were
granted in the three month period ended June 30, 1996 and 1995.
10
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (continued)
June 30, 1996 and December 31, 1995
7. Stock Options (continued): A summary of the Company's stock option plans as
of June 30, 1996 and 1995 and changes during the six months ended is presented
below:
<TABLE>
<CAPTION>
1996 1995
------------------- -----------------
Weighted Weighted
Number Average Number Average
of Exercise of Exercise
Options Price Options Price
------- -------- ------- --------
<S> <C> <C> <C> <C>
Outstanding, beginning of year 62,590 $ 8.22 32,590 $7.50
Granted 49,900 10.125 30,000 9.00
Exercised 0 0 0 0
Forfeited 0 0 0 0
Expired 0 0 0 0
------- ------- ------ -----
Outstanding, end of period 112,490 $ 9.06 62,590 $8.22
======= ======= ====== =====
Exercisable, end of period 112,490 62,590
======= ======
</TABLE>
The exercise price of each option equals the market price of the Company's
stock on the date of grant, and an option's maximum term is 10 years. The range
of exercise prices is $7.50 to $10.125 and $7.50 to $9.00 as of June 30, 1996
and 1995, respectively.
The weighted-average fair value of the options granted during the six months
ended June 30, 1996 and 1995 was $2.93 and $2.56, respectively.
The Company applies APB Opinion 25 and related Interpretations in accounting
for its stock option plans. Accordingly, no compensation cost has been
recognized for its stock options. Had compensation cost for the Company plans
been determined based on the fair value at the grant dates consistent with the
method of FASB Statement 123, the Company's net income and earnings per share
would have been reduced to the proforma amounts indicated below:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
1996 1995 1996 1995
---------------------------------------
<S> <C> <C> <C> <C> <C>
Net income: As reported $479,381 $257,176 $828,230 $447,101
Pro forma $479,381 $257,176 $738,907 $400,301
Primary earnings per share: As reported $ 0.28 $ 0.15 $ 0.49 $ 0.27
Pro forma $ 0.28 $ 0.15 $ 0.44 $ 0.24
Fully diluted earnings per share: As reported $ 0.28 $ 0.15 $ 0.49 $ 0.26
Pro forma $ 0.28 $ 0.15 $ 0.44 $ 0.24
</TABLE>
The fair value of each option is estimated on the date of grant using the Black-
Scholes option pricing model using the following weighted-average assumptions:
<TABLE>
<CAPTION>
June 30, 1996 June 30, 1995
-------------- ----------------
<S> <C> <C>
Weighted risk-free interest rate 6.71% 6.67%
Weighted expected life 9.25 years 8.75 years
Weighted expected volatility 17.33% 17.33%
Weighted expected dividend yield 5.0% per year 5.0% per year
</TABLE>
No modifications have been made to the terms of the option agreements.
11
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (continued)
June 30, 1996 and December 31, 1995
8. Commitments and Contingencies:
In the normal course of business, LSB has outstanding various commitments
and contingent liabilities, such as legal claims, which are not reflected in
the financial statements. Management does not anticipate any material loss
as a result of these transactions.
As of June 30, 1996, LSB has entered into commitments to fund loans totaling
approximately $5 million. The majority of these loans will have adjustable
rates.
9. Treasury Stock:
On April 3, 1990, NHTB announced a Stock Repurchase Program to buy back, on
the open market, up to a total of 5% of its outstanding common stock or
107,364 shares. On July 11, 1990, NHTB completed its Stock Repurchase
Program whereby 107,364 shares were repurchased at an average price of
$4.37 per share. On August 9, 1990, NHTB announced a second buy back program
to buy back, on the open market, up to 10%, or 203,992 shares of its total
outstanding common stock. On June 11, 1991, a third buy back was announced
to cover an additional 10% of the then outstanding stock or 183,592 shares.
On July 15, 1993, NHTB announced another buy back program whereby the
company intends to repurchase, on the open market, 10%, or 165,233 shares of
its outstanding common stock. As of June 30, 1996, NHTB had repurchased a
total of 539,148 shares at an average price of $4.98 for all programs while
121,033 shares remained to be purchased from the 1993 buy back program.
10. Authorized Shares of Stock:
The authorized, issued and outstanding stock was as follows:
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
-------- ------------
<S> <C> <C>
Preferred stock:
Authorized shares 2,500,000 2,500,000
Issued shares - -
Outstanding shares - -
Common stock:
Authorized shares 5,000,000 5,000,000
Issued shares 2,147,282 2,147,282
Outstanding shares 1,691,803 1,689,503
</TABLE>
12
<PAGE>
PART 1. ITEM II.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
New Hampshire Thrift Bancshares, Inc. (The Company), a Delaware holding
company organized on July 5, 1989, is the parent company of Lake Sunapee Bank,
fsb (The Bank), a federally chartered savings bank. The Bank was originally
chartered by the State of New Hampshire in 1868 as the Newport Savings Bank. On
December 1, 1980, the Bank became the first bank in the United States to convert
from a state chartered mutual savings bank to a federally-chartered mutual
savings bank. In 1981, the Bank changed its name to Lake Sunapee Savings Bank
fsb, and in 1994, changed its name to Lake Sunapee Bank fsb. The Bank is a
member of the Federal Deposit Insurance Corporation (FDIC) and its deposits are
insured through the Savings Association Insurance Fund (SAIF). The Bank is
regulated by the Office of Thrift Supervision (OTS).
The Company's profitability is derived from its only subsidiary, Lake
Sunapee Bank, fsb. The Bank's earnings in turn are generated from the net income
from the yield on its loan and investment portfolios less the cost of its
deposit accounts and borrowings. These core revenues are supplemented by loan
origination fees, retail banking service fees, gains on the sale of investment
securities, and brokerage fees. The Bank passes its earnings to the Company to
the extent allowed by OTS regulations. Current regulations enable the Bank to
pay to the Company the higher of an amount equal to seventy-five per cent of the
Bank's prior four quarter earnings or up to fifty per cent of excess capital
plus total current year earnings. As of June 30, 1996, the Company had capital
of $ 1,674,446 which the Company plans to use to continue its annual dividend
payout of $0.50 per share. The Bank's core capital position of $17,800,681
results in core capital of 6.89%.
The United States Congress continues to debate various methods for the
recapitalization of the Savings Association Insurance Fund (SAIF), to
which the Bank pays deposit insurance assessments. As currently proposed, this
legislation will require the Bank to incur a one-time, after-tax expense in the
range of $800,000 to $1,100,000 in order to cover its portion of a one-time
contribution to the SAIF fund. This will be offset by expected, annual, after-
tax expense savings in deposit insurance of approximately $200,000.
Proposed legislation also provided for the merger of the BIF and SAIF on
January 1, 1998, with such merger being conditioned upon the prior elimination
of the thrift charter. Congressional leaders had also agreed that Congress
should consider and act upon separate legislation to eliminate the thrift
charter as early as possible in 1996. If adopted, such legislation would require
that the Bank as a federal savings association, convert to a bank charter. Such
a requirement to convert to a bank charter could cause the Bank to lose the
favorable tax treatment for its bad debt reserves that it currently enjoys
under section 593 of the Internal Revenue Code and to have all or part of its
existing bad debt reserves recaptured into income.
On July 29, 1996, the Company announced that the Bank had entered into
a definitive agreement to acquire Landmark Bank located in Lebanon, NH. This
agreement provides that Landmark Bank shareholders may elect to receive $12.00
in cash per share, or to exchange their shares for New Hampshire Thrift
Bancshares, Inc. shares, with a total consideration of sixty per cent in stock
and forty per cent in cash. The total transaction value is $5,676,000.
The combined banking operation as of June 30, 1996, reflected total
assets of $316 million, deposits of $254 million, capital of $22.5 million, and
a total of 12 branches located in Sullivan, Merrimack, Grafton, and
Hillsborough counties. This transaction is expected to be accretive to earnings
in 1997.
13
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
This acquisition is subject to shareholder approval by both New
Hampshire Thrift Bancshares and Landmark Bank. Approval of applicable
regulatory authorities and the satisfaction of certain other customary
conditions will be required.
FINANCIAL CONDITION
During the first six months of 1996, total assets increased slightly by
$310,048 or .12% to $258.5 million. The decrease in federal funds sold and loans
held for sale was offset by an increase in loans held in portfolio. In addition,
the decrease in the Bank's deposits held under repurchase agreements was offset
by an increase in advances from the Federal Home Loan Bank.
Total investments (at fair value) increased by $241,297, or .85% as
sales and maturities of approximately $3.6 million were offset by purchases of
approximately $3.8 million.
Real estate loans held in portfolio increased 2.90% from year-end.
Proceeds from the sales of loans increased $1,829,369 from March 31, 1996 to
approximately $46 million at June 30, 1996. The Bank from time-to-time sells
fixed-rate loans into the secondary market and retains the servicing on these
loans in order to build fee income. The selling of fixed-rate loans reduces
interest rate risk and creates liquidity.
Real estate owned totaled $819,679 and accounted for 26.28% of non-
performing assets at June 30, 1996 compared to $984,185, or 40.58% at year-end
1995. Continuing to be included in the real estate owned amount is a real estate
development loan, Blye Hill Landing in Newbury, NH, with a book value of
$615,902 at June 30, 1996. At June 30, 1996, the Bank had recorded no properties
as in-substance foreclosures.
Non-performing assets amounted to $3,120,133, or 1.21% of assets at June
30, 1996, compared to $2,425,647, or .94% at year-end 1995. The Bank includes
all loans 90 days past due, all real estate owned, and non-earning assets as
non-performing assets. The increase in non-performing assets resulted from the
transfer of a loan from classified or impaired to a non-performing status.
Impaired loans totaled $440,539 and $807,867 at June 30, 1996 and December 31,
1995, respectively. As of June 30, 1996, the Bank charged-off $1,069,197 of
loans which had been previously reserved for.
Deposits increased $332,327 for the first six months of 1996, after a
decline of $1.5 million in the first quarter, as customers shifted deposits into
longer-term instruments. Certificates of deposits increased as the Bank priced
its one-year certificates comparable to the one-year Treasury. In addition to
deposits, the Bank funded the growth in loans with advances from the Federal
Home Loan Bank of Boston (FHLBB). As stated above, advances increased $4,334,176
million to $31,270,344 during the six months ended June 30, 1996.
LIQUIDITY AND CAPITAL RESOURCES
The Bank is required to maintain a 5.00% ratio of long-term liquid
assets to net withdrawable funds. At June 30, 1996, the Bank's percentage of
10.49% exceeded regulatory requirements.
The Bank's sources of funds come from net deposit inflows, loan
amortizations, and advances from the FHLBB. At June 30, 1996, the Bank had
approximately $46 million in additional borrowing capacity available from the
FHLBB. The Bank expects to be able to fund loan commitments of approximately $5
million by utilizing the FHLBB advance program, in the event deposit inflows are
not sufficient to cover funding needs.
14
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
As of June 30, 1996, net cash inflows from operating activities amounted
to $2,667,943 compared to $2,361,287 for the same period in 1995. Net cash
inflows from financing activities were $43,385 compared to $10,533,584 for 1995.
This change was primarily due to the $8,208,223 decrease in deposits and
repurchase agreements. The net cash inflows from operating activities, when
added to the net cash inflows from financing activities were not sufficient, by
$3,333,081, to cover the investing cash outflow needs of $6,044,409. The Bank
utilized its beginning cash position to cover the balance of its investing
activity needs. Cash and cash equivalents, therefore, declined to $7,660,216 as
of June 30, 1996. Investing activity needs included the purchase of $3,842.459
of securities available for sale and a net increase in loans to customers of
$4,972,842.
At June 30, 1996, the Company's capital amounted to $19,475,127, or
7.53% of total assets, compared to $19,544,005, or 7.57% of total assets at
year-end 1995. The change of $68,878 is attributed to retaining income of
$405,762, a change in the unrealized loss on securities available for sale of
$491,891, and a change of $17,251 in paid-in capital and treasury stock due to
the exercise of stock options. An increase in interest rates during the first
six months of 1996 resulted in a drop in bond values. This increased the
unrealized loss on securities available for sale.
As part of the Financial Institution Reform, Recovery, and Enforcement
Act of 1989 (FIRREA), banks are required to maintain core, leverage, and risk-
based capital of 3.00%, 3.00%, and 8.00%, respectively. As of June 30, 1996, the
Bank's core, leverage and risk-based capital ratios were 6.98%, 6.98%, and
12.57%, respectively, well in excess of the regulators' requirements.
The Company's book value per share was $11.51 at June 30, 1996, versus
$11.57 at December 31, 1995. The decrease was attributable to the change in the
unrealized loss on securities available for sale.
INTEREST RATE SENSITIVITY
The Bank's one-year interest sensitive gap at June 30, 1996, was
approximately negative eight percent, compared to the December 31, 1995, gap
position of approximately negative seven percent. The Bank continues to offer
adjustable rate mortgages which reprice at one, three, and five year intervals.
In addition, from time-to-time, the Bank sells fixed rate mortgages into the
secondary market in order to minimize interest rate risk. As of June 30,
1996, adjustable rate mortgages amounted to approximately 83% of total loans.
The strategy of matching rate-sensitive assets with similar
liabilities stabilizes profitability during periods of interest rate
fluctuations. The Bank's gap, of approximately negative eight percent at June
30, 1996, means earnings would increase if interest rates trended downward. The
opposite would occur if interest rates were to rise. Management feels that
maintaining the gap within ten points of the parity line provides adequate
protection against severe interest rate swings. In an effort to maintain the gap
within ten points of parity, the Bank utilizes the Federal Home Loan Bank
advance program to control the repricing of liabilities.
NET INCOME FOR THE THREE MONTHS ENDED JUNE 30, 1996
AS COMPARED TO THE THREE MONTHS ENDED JUNE 30, 1995
Net income for the second quarter in 1996 was $479,381, or $0.28 per
share as compared to $257,176, or $0.15 per share for the same period in 1995,
an increase of $222,205, or 86%. Net interest income increased by $220,660, or
32.79% due to an increase in loan volume and upward adjustments to the Bank's
variable rate loans.
Total non-interest income increased $381,156, or 115.74%. Two factors
accounted for this increase. As mentioned in the March 31, 1996, 10-QSB, the
Bank expected to realize an after-tax gain of
15
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
approximately $200,000 from the sale of a piece of land adjacent to the Bank's
New London branch. The sale occurred in June. Fees from customer and brokerage
services increased $125,687 during the three months ended June 30, 1996.
Operating expenses remained flat, increasing slightly by $27,357, or
1.75%. The Bank expects future operating expenses to increase at approximately
the rate of inflation.
NET INCOME FOR THE SIX MONTHS ENDED JUNE 30, 1996
AS COMPARED TO THE SIX MONTHS ENDED JUNE 30, 1995
Net income for the six months ended June 30, 1996 increased $381,129 to
$828,230, or $0.49 per share compared to $447,101, or $0.26 per share at June
30, 1995. The reasons for the increase are explained above.
RESERVE FOR LOAN LOSSES
The Bank considers many factors in determining the level of loan loss
reserves. These factors include the risk and size characteristics of loans,
prior years' loss experience, the levels of delinquencies, the prevailing
economic conditions, the number of foreclosures, unemployment rates, interest
rates, and the value of collateral securing loans. Additionally, the Bank's
commercial loan officers review the financial condition of commercial loan
facilities and inventories. The Bank also has an internal audit and compliance
program whereby all loans are reviewed and classified to determine appropriate
loan loss reserve levels. Results of the audit and compliance programs are
reported directly to the Audit Committee of the Company's Board of Directors.
The reserve for loan losses at June 30, 1996, was $1,507,413 including
$7,411 in specific reserves for loans classified as loss, compared to
$1,828,060, including $628,060 in specific reserves, at year-end 1995. The
reserve for loan loss allowance represented 0.70% of total loans at June 30,
1996, compared to 0.87% at December 31, 1995. The allowance for loan losses as a
percentage of non-performing assets was 48.31% at June 30, 1996, compared to
75.36% at December 31, 1995.
Loans classified for regulatory purposes as loss, doubtful, substandard,
or special mention do not result from trends or uncertainties which the Bank
expects will materially impact future operating results, liquidity, or capital
resources.
Total classified loans, excluding special mention, as of June 30, 1996,
were $6,739,969 compared to $6,049,066 at December 31, 1995. Of these amounts,
$3,120,133 and $2,425,647, respectively, are included in non-performing
assets.
16
<PAGE>
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
PART II. OTHER 1NFORMATION
Item 1. Legal Proceedings
-----------------
There is no material litigation pending in which the Company or its
subsidiaries is a party or which the property of the Company or its
subsidiaries is subject.
Item 2. Changes in Securities
---------------------
None
Item 3. Defaults Upon Senior Securities
-------------------------------
None
Item 4. Submission of Matters to a Vote of Common Shareholders
------------------------------------------------------
Item 5. Other Information
-----------------
None
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
A.) Exhibits:
None
B.) Reports on Form 8-K:
(i) Form 8-K regarding change of independent auditors dated July 10,
1996
(ii) Form 8-K reporting announcement of agreement to acquire
Landmark Bank dated July 26, 1996
17
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NEW HAMPSHIRE THRIFT BANCSHARES. INC.
-------------------------------------
(Registrant)
Date: August 14, 1996 /s/ Stephen W. Ensign
--------------- ---------------------
Stephen W. Ensign
President and Chief Executive Officer
Date: August 14, 1996 /s/ Stephen R. Theroux
--------------- ----------------------
Stephen R. Theroux
Executive Vice President and
Chief Financial Officer
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL"), inter
alia, empowers a Delaware corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such person against expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only
as authorized in each specific case upon a determination by the stockholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
Article IX of the Certificate of Bylaws of New Hampshire Thrift
Bancshares, Inc. ("NHTB" or the "Registrant") provides, among other things, that
NHTB shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
and any appeal therein, whether civil, criminal, administrative, arbitrative or
investigate (other than an action by or in the right of NHTB) by reason of the
fact that he or she is or was a director, officer, trustee, employee or agent of
NHTB, or is or was serving at the request of NHTB as a director, officer,
trustee, employee or agent of another corporation, association, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
and any appeal therein, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of NHTB, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
NHTB shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, and any appeal therein, and against amounts paid in settlement by or
in the right of NHTB to procure a judgment in its favor by reason of the fact he
is or was a director, officer, trustee, employee or agent of NHTB, or is or was
serving at the request of NHTB as a director, officer, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action,
suit, or proceeding, and any appeal therein, and against amounts paid in
settlement if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of NHTB; provided, however, that no
indemnification shall be made against expenses in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to NHTB or against
amounts paid in settlement unless and only to the extent that there is a
determination that despite the adjudication of liability or the settlement,
II-1
<PAGE>
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses or amounts paid in
settlement.
Article IX also empowers NHTB to purchase and maintain insurance to
protect itself and its directors and officers, among other things, against any
liability, regardless of whether or not NHTB would have the power to indemnify
those persons against such liability under the law or the provisions set forth
in the Bylaws.
II-2
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The exhibits filed as a part of this Registration Statement are as follows:
(a). LIST OF EXHIBITS. (Filed herewith unless otherwise noted.)
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1 Agreement as Plan of Reorganization, dated as of July 26, 1996, by and
among New Hampshire Thrift Bancshares, Inc. ("NHTB"), Lake Sunapee
Bank, fsb (the "Bank") and Landmark Bank ("Landmark"), including Annex
A, Agreement and Plan of Merger, dated as of July 26, 1996, by and
between Landmark and the Bank, and joined in by NHTB (included as
Appendix A to the Joint Proxy Statement-Prospectus) (The Plan of
Reorganization filed herewith does not included Exhibits B and C
thereto, releases of NHTB and Landmark to be executed by certain
employees and officers of Landmark upon termination of their
employment, and form of voting agreement with certain Landmark
shareholders, respectively. Exhibits B and C to the Plan of
Reorganization will be furnished to the Commission on request.)
3.1 Amended and Restated Certificate of Incorporation of NHTB (previously
filed).
3.2 Amended and Restated Bylaws of NHTB (previously filed).
4.1 Stock Certificate of New Hampshire Thrift Bancshares, Inc. (previously
filed as an exhibit to the Registrant's Form S-4 (file No. 33-27192)
filed with the Commission on March 1, 1989).
5.1 Opinion of Thacher Proffitt & Wood regarding legality of the
securities being registered.
8.1 Draft opinion of Thacher Proffitt & Wood regarding certain federal
income tax matters.
8.2 Draft opinion of Gallagher, Callahan & Gartrell, P.A. regarding certain
federal income tax matters.
10.1 Profit Sharing-Stock Ownership Plan of Lake Sunapee Bank, fsb.
10.2 New Hampshire Thrift Bancshares, Inc. 1996 Stock Option Plan.
10.3 Lake Sunapee Bank, fsb 1987 Incentive Stock Option Plan
(previously filed as an exhibit to the Registrant's Form S-4 (file No.
33-27192), filed with the Commission on March 1, 1989).
10.4 Lake Sunapee Bank, fsb 1986 Incentive Stock Option Plan (previously
filed as an exhibit to the Registrant's Form S-4 (file No. 33-27192),
filed with the Commission on March 1, 1989).
10.5 Employment Agreement between NHTB, the Bank and Stephen W. Ensign.
II-3
<PAGE>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.6 Employment Agreement between NHTB, the Bank and Stephen R. Theroux.
10.7 Stock Option Agreement, dated as of July 26, 1996, between NHTB
and Landmark, (included as Appendix C to the Joint Proxy Statement-
Prospectus).
13.1 Annual Report to Shareholders and Annual Report on Form 10-KSB of
NHTB for the year ended December 31, 1995 (included as Appendix E to
the Joint Proxy Statement-Prospectus)
13.2 Quarterly Report on Form 10-QSB of NHTB for the quarter ended March 31,
1996 (previously filed).
13.3 Quarterly Report on Form 10-QSB of NHTB for the quarter ended June 30,
1996 (included as Appendix E to the Joint Proxy Statement-Prospectus)
16.1 Letter on Change in Certifying Accountant (previously filed as an
exhibit to the Registrant's Current Report on Form 8-K dated July 10,
1996).
21.1 Subsidiaries of the Registrant (previously filed).
23.1 Consent of Berry, Dunn, MacNeil & Parker (previously filed).
23.2 Consent of A.M. Peisch & Company (previously filed).
23.3 Consent of Thacher Proffitt & Wood (included on Exhibits 5.1 and
8.1)
23.4 Consent of Gallagher, Callahan & Gatrell, P.A. (included in
Exhibit 8.2)
23.5 Consent of HAS Associates, Inc. (previously filed).
23.6 Consent of McConnell, Budd & Downes, Inc. (previously filed).
23.7 Consent of Smith, Batchelder & Rugg (previously filed).
24.1 Powers of Attorney (previously filed).
27.1 Financial Data Schedule (previously filed).
99.1 Form of Proxy of New Hampshire Thrift Bancshares, Inc. (previously
filed).
99.2 Current Report on Form 8-K of NHTB, dated July 10, 1996 (previously
filed).
99.3 Current Report on Form 8-K of NHTB, dated August 7, 1996 (previously
filed).
(B). FINANCIAL STATEMENT SCHEDULES.
All schedules have been omitted as not applicable or not required.
II-4
<PAGE>
ITEM 22. UNDERTAKINGS.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Proxy Statement-
Prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in this Registration Statement when it became effective.
II-5
<PAGE>
CONFORMED SIGNATURES
- ---------
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Amendment No. 1 to the Registration
Statement No. 333-12645 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Newport, State of New Hampshire, on November 5,
1996.
New Hampshire Thrift Bancshares, Inc.
By: /s/ Stephen W. Ensign
---------------------
Stephen W. Ensign
Director, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, and any rules and regulations promulgated thereunder, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* Chairman of the Board November 5, 1996
- ---------------------------
John J. Kiernan
/s/ Stephen W. Ensign Director, President and Chief November 5, 1996
- --------------------------- Executive Officer
Stephen W. Ensign (principal executive officer)
* Director November 5, 1996
- ---------------------------
Ralph B. Fifield, Jr.
* Director November 5, 1996
- ---------------------------
John A. Kelley, Jr.
* Director November 5, 1996
- ---------------------------
Dennis A. Morrow
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
* Director November 5, 1996
- ---------------------------
Priscilla W. Ohler
* Director November 5, 1996
- ---------------------------
Perry R. Smith, Jr.
* Director, Executive Vice President November 5, 1996
- --------------------------- and Chief Financial Officer
Stephen R. Theroux (principal financial officer)
(principal accounting officer)
* Director November 5, 1996
- ---------------------------
Kenneth D. Weed
</TABLE>
* By /s/ Stephen W. Ensign (Stephen W. Ensign) as attorney-in-fact pursuant
----------------------
to Power of Attorney filed on September 25, 1996, included in Part II of the
Registration Statement.
<PAGE>
Registration No. 333-12645
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
EXHIBITS
TO
PRE-EFFECTIVE AMENDMENT NO. 1
TO THE REGISTRATION STATEMENT
ON FORM S-4
NEW HAMPSHIRE
THRIFT BANCSHARES, INC.
<PAGE>
EXHIBIT LIST
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1 Agreement as Plan of Reorganization, dated as of July 26, 1996, by
and among New Hampshire Thrift Bancshares, Inc. ("NHTB"), Lake
Sunapee Bank, fsb (the "Bank") and Landmark Bank ("Landmark"),
including Annex A, Agreement and Plan of Merger, dated as of July
26, 1996, by and between Landmark and the Bank, and joined in by
NHTB (included as Appendix A to the Joint Proxy Statement-
Prospectus) (The Plan of Reorganization filed herewith does not
included Exhibits B and C thereto, releases of NHTB and Landmark to
be executed by certain employees and officers of Landmark upon
termination of their employment, and form of voting agreement with
certain Landmark shareholders, respectively. Exhibits B and C to the
Plan of Reorganization will be furnished to the Commission on
request.)
3.1 Amended and Restated Certificate of Incorporation of NHTB
(previously filed).
3.2 Amended and Restated Bylaws of NHTB (previously filed).
4.1 Stock Certificate of New Hampshire Thrift Bancshares, Inc.
(previously filed as an exhibit to the Registrant's Form S-4 (file
No. 33-27192) filed with the Commission on March 1, 1989).
5.1 Opinion of Thacher Proffitt & Wood regarding legality of the
securities being registered.
8.1 Draft opinion of Thacher Proffitt & Wood regarding certain federal
income tax matters.
8.2 Draft opinion of Gallagher, Callahan & Gartrell, P.A. regarding
certain federal income tax matters.
10.1 Profit Sharing-Stock Ownership Plan of Lake Sunapee Bank, fsb.
10.2 New Hampshire Thrift Bancshares, Inc. 1996 Stock Option Plan.
10.3 Lake Sunapee Bank, fsb 1987 Incentive Stock Option Plan (previously
filed as an exhibit to the Registrant's Form S-4 (file No. 33-
27192), filed with the Commission on March 1, 1989).
10.4 Lake Sunapee Bank, fsb 1986 Incentive Stock Option Plan (previously
filed as an exhibit to the Registrant's Form S-4 (file No. 33-
27192), filed with the Commission on March 1, 1989).
<PAGE>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.5 Employment Agreement between NHTB, the Bank and Stephen W. Ensign.
10.6 Employment Agreement between NHTB the Bank and Stephen R. Theroux.
10.7 Stock Option Agreement, dated as of July 26, 1996, between NHTB and
Landmark, (included as Appendix C to the Joint Proxy Statement-
Prospectus).
13.1 Annual Report to Shareholders and Annual Report on Form 10-KSB of
NHTB for the year ended December 31, 1995 (included as Appendix E to
the Joint Proxy Statement-Prospectus)
13.2 Quarterly Report on Form 10-QSB of NHTB for the quarter ended
March 31, 1996 (previously filed).
13.3 Quarterly Report on Form 10-QSB of NHTB for the quarter ended
June 30, 1996 (included as Appendix E to the Joint Proxy Statement-
Prospectus).
16.1 Letter on Change in Certifying Accountant (previously filed as an
exhibit to the Registrant's Current Report on Form 8-K dated July
10, 1996)
21.1 Subsidiaries of the Registrant (previously filed).
23.1 Consent of Berry, Dunn, MacNeil & Parker (previously filed).
23.2 Consent of A.M. Peisch & Company (previously filed).
23.3 Consent of Thacher Proffitt & Wood (included on Exhibits 5.1 and
8.1)
23.4 Consent of Gallagher, Callahan & Gatrell, P.A. (included in
Exhibit 8.2)
23.5 Consent of HAS Associates, Inc. (previously filed).
23.6 Consent of McConnell, Budd & Downes, Inc. (previously filed).
23.7 Consent of Smith, Batchelder & Rugg (previously filed).
24.1 Powers of Attorney (previously filed).
<PAGE>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
27.1 Financial Data Schedule (previously filed).
99.1 Form of Proxy of New Hampshire Thrift Bancshares, Inc. (previously
filed).
99.2 Current Report on Form 8-K of NHTB, dated July 10, 1996 (previously
filed).
99.3 Current Report on Form 8-K of NHTB, dated August 7, 1996 (previously
filed).
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF THACHER PROFFITT & WOOD]
November 5, 1996
New Hampshire Thrift Bancshares, Inc.
The Carriage House
P.O. Box 37
New London, New Hampshire 03257
Ladies and Gentlemen:
We have acted as special counsel for New Hampshire Thrift Bancshares,
Inc., a Delaware corporation ("NHTB"), in connection with the issuance of and
registration under the Securities Act of 1933, as amended, by NHTB of, an
aggregate of 364,210 shares of NHTB common stock, par value $.01 per share (the
"Merger Shares"), into which certain shares of common stock of Landmark Bank
("Landmark"), par value $1.00 per share, will be converted in accordance with
the terms of the Agreement and Plan of Reorganization (the "Plan of
Reorganization"), dated as of July 26, 1996, by and among NHTB, its wholly-owned
subsidiary Lake Sunapee Bank, fsb (the "Bank"), and Landmark, and the Agreement
and Plan of Merger (the "Merger Agreement," together with the Plan of
Reorganization, the "Agreements"), dated as of July 26, 1996, by and between the
Bank and Landmark, and joined in by NHTB, and the related preparation and filing
by NHTB with the Securities and Exchange Commission of a Registration Statement
on Form S-4 (the "Registration Statement"). In rendering the opinions set forth
below, we do not express any opinion concerning law other than the federal law
of the United States and the corporate law of the State of Delaware.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records and other instruments,
and have examined such matters of law, as we have deemed necessary or advisable
for purposes of rendering the opinions set forth below. As to matters of fact,
we have examined and relied upon the representations of NHTB, the Bank and
Landmark contained in the Agreements and the Registration Statement and, where
we have deemed appropriate, representations or certificates of officers of NHTB,
the Bank or Landmark or public officials. We have assumed the authenticity of
all documents submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the originals of all
documents submitted to us as copies. In making our examination of any
documents, we have assumed that all parties, other than NHTB and the Bank, had
the corporate power and authority to enter into and perform all obligations
thereunder, and, as to such parties, we have also assumed the due
<PAGE>
authorization by all requisite action, the due execution and delivery of such
documents and the validity and binding effect and enforceability thereof.
Based on the foregoing, we are of the opinion that, upon effectiveness
of the Registration Statement and the approval of the issuance of the Merger
Shares by the NHTB shareholders, the issuance of the Merger Shares in accordance
with the terms of the Agreements will have been duly authorized and, when the
Merger Shares are issued in accordance with the terms of the Agreements and the
Registration Statement, the Merger Shares will be validly issued, fully paid and
non-assessable.
In rendering the opinions set forth above, we have not passed upon and
do not purport to pass upon the application of "doing business" or securities or
"blue-sky" laws of any jurisdiction (except federal securities laws).
This opinion is given solely for the benefit of NHTB and Landmark and
the shareholders of Landmark who exchange shares of Landmark common stock for
the Merger Shares pursuant to the Registration Statement, and may not be relied
upon by any other person or entity, nor quoted in whole or in part, or otherwise
referred to in any document without our express written consent.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the headings "THE
MERGER -- Background of the Merger" and "Legal Matters" in the Joint Proxy
Statement - Prospectus which is part of such Registration Statement.
Very truly yours,
THACHER PROFFITT & WOOD
By /s/ Richard A. Schaberg
Richard A. Schaberg
<PAGE>
Exhibit 8.1
[LETTERHEAD OF THACHER PROFFITT & WOOD]
(212) 912-7633 ,1996
New Hampshire Thrift Bancshares, Inc.
9 Main Street
Newport, New Hampshire 03773
Re: Merger of Landmark Bank into Lake Sunapee Bank, fsb
---------------------------------------------------
Dear Sirs:
You have requested our opinion regarding certain federal income tax
consequences of the merger (the "Merger") of Landmark Bank ("Landmark"), a New
Hampshire state chartered bank, into Lake Sunapee Bank, fsb (the "Bank"), a
federally chartered savings bank and wholly-owned subsidiary of New Hampshire
Thrift Bancshares, Inc. ("NHTB"), a Delaware corporation. The Merger will be
effected pursuant to the Agreement and Plan of Reorganization dated as of July
26, 1996 by and among Landmark, NHTB and the Bank (the "Reorganization
Agreement") and the Agreement and Plan of Merger dated as of July 26, 1996
between Landmark and the Bank and joined in by NHTB (the "Plan of Merger"). The
Merger and related transactions are described in the Reorganization Agreement,
the Plan of Merger and in the Joint Proxy Statement-Prospectus (the "Proxy
Statement") included in NHTB's Registration Statement on Form S-4 filed with the
Securities and Exchange Commission in connection with the Merger (the
"Registration Statement"). All capitalize terms used but not defined in this
letter shall have the meanings set forth in the Reorganization Agreement, the
Plan of Merger or in the Proxy Statement.
In connection with the opinions expressed below, we have examined and relied
on originals, or copies certified or otherwise identified to our satisfaction,
of the Reorganization Agreement and the Plan of Merger and of such corporate
records of Landmark, the Bank and NHTB as we have deemed appropriate. We have
also relied, without independent verification, upon the 1996 letters of the
Landmark, the Bank and NHTB to Thacher Proffitt & Wood and Gallagher, Callahan &
Gartrell, P.A. containing certain tax representations. We have assumed that the
parties will act, and that the Merger will be effected, in accordance with the
Reorganization Agreement and Plan of Merger, and that the representations made
by Landmark, the Bank and NHTB in the foregoing letters are true. In
<PAGE>
New Hampshire Thrift Bancshares, Inc.
,1996 Page 2.
addition, we have made such investigations of law as we have deemed appropriate
to form a basis for the opinions expressed below.
Based on and subject to the foregoing, it is our opinion that, for
Federal income tax purposes, under current law:
(1) The Merger will constitute a reorganization within the meaning of
section 368(a) of the Code;
(2) No gain or loss will be recognized by Landmark on the transfer of its
assets to the Bank pursuant to the Merger;
(3) No gain or loss will be recognized by NHTB or by the Bank on the
issuance of shares of NHTB Common Stock to shareholders of Landmark
pursuant to the Merger;
(4) No gain or loss will be recognized by a shareholder of Landmark who
exchanges pursuant to the Merger all of such shareholder's shares of
Landmark stock solely for shares of NHTB Common Stock, except with
respect to cash received in lieu of a fractional share interest in NHTB
Common Stock;
(5) The aggregate tax basis of the shares of NHTB Common Stock received
by a shareholder of Landmark who exchanges pursuant to the Merger all of
such shareholder's shares of Landmark stock solely for shares of NHTB
Common Stock will be the same as the aggregate tax basis of the shares of
Landmark stock surrendered in exchange therefor (reduced by any amount
allocable to a fractional share interest in NHTB Common Stock for which
cash is received);
(6) The aggregate tax basis of the shares of NHTB Common Stock received
by a shareholder of Landmark who exchanges pursuant to the Merger all of
such shareholder's shares of Landmark stock for shares of NHTB Common
Stock and cash will be the same as the aggregate tax basis of the shares
of Landmark stock surrendered in exchange therefor (reduced by any amount
allocable to a fractional share interest in NHTB Common Stock for which
cash is received), decreased by the amount of cash received (other than
cash received in lieu of a fractional share interest) and increased by
the amount of gain, if any, recognized by such shareholder in the Merger
(including any portion of such gain that is treated as a dividend); and
(7) The holding period of the shares of NHTB Common Stock to be received
by a shareholder of Landmark pursuant to the Merger will include the
period during which such shareholder held the shares of Landmark stock
surrendered in exchange therefor, provided that the shares of Landmark
stock surrendered is held as a capital asset as of the Effective Time.
<PAGE>
New Hampshire Thrift Bancshares, Inc.
,1996 Page 3
Except as set forth above, we express no opinion to any party as to the tax
consequences, whether federal, state, local or foreign, of the Merger or of any
transaction related thereto or contemplated by the Reorganization Agreement or
the Plan of Merger. This opinion is given solely for the benefit of Landmark and
its shareholders, the Bank and NHTB, and may not be relied upon by any other
party or entity or otherwise referred to in any document without our express
written consent. We consent to the filing of this opinion as an exhibit to the
Proxy Statement and to the reference thereto under the heading "The Merger--
Material Federal Income Tax Consequences" and "Legal Matters" in the Proxy
Statement which is a part of the Registration Statement.
Very truly yours,
DRAFT
By:
<PAGE>
[LETTERHEAD OF GALLAGHER, CALLAHAN & GARTRELL]
________________ 1996
Board of Directors
Landmark Bank
106 Hanover Street
Lebanon, NH 03766-1006
Re: Merger of Landmark Bank into Lake Sunapee Bank, fsb
---------------------------------------------------
Lady and Gentlemen:
You have requested our opinion regarding certain federal income tax
consequences of the merger (the "Merger") of Landmark Bank ("Landmark"), a New
Hampshire state-chartered bank, into Lake Sunapee Bank, fsb (the "Bank"), a
federally-chartered savings bank and wholly-owned subsidiary of New Hampshire
Thrift Bancshares, Inc. ("NHTB") a bank holding company and Delaware
corporation. The Merger will be effected pursuant to the Agreement and Plan of
Reorganization dated as of 26 July 1996 by and among Landmark, NHTB and the Bank
(the "Reorganization Agreement") and the Agreement and Plan of Merger dated as
of 26 July 1996 between Landmark and the Bank and joined in by NHTB (the "Plan
of Merger"). The Merger and related transactions are described in the
Reorganization Agreement, the Plan of Merger and the Joint Proxy Statement-
Prospectus (the "Proxy Statement") included in NHTB's Registration Statement on
Form S-4 filed with the Securities and Exchange Commission in connection with
the Merger (the "Registration Statement"). All capitalized terms used but not
defined in this letter shall have the meaning set forth in the Reorganization
Agreement, the Plan of Merger or in the Proxy Statement.
In connection with the opinions expressed below we have examined and relied
upon originals, or copies certified or otherwise identified to our satisfaction,
of the Reorganization Agreement, the Plan of Merger and such corporate records
of Landmark, the Bank and NHTB as we have deemed appropriate. We have also
relied, without independent verification, upon the _____________ 1996 letters of
Landmark, the Bank and NHTB to Thacher, Proffitt & Wood and Gallagher, Callahan
& Gartrell, P.A. containing certain factual representations. For purposes of
this
<PAGE>
Board of Directors
___________ 1996
Page 2
opinion, we have assumed that the parties will act, and that the Merger will be
effected, in accordance with the Reorganization Agreement and Plan of Merger;
that the representations made by Landmark, the Bank and NHTB in the foregoing
letter are true. In addition, we have made such investigations of law as we
have deemed appropriate to form a basis for the opinions expressed hereinbelow.
Based on, and subject to, the foregoing, it is our opinion that for federal
income tax purposes, under current law:
1. The Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code;
2. No gain or loss will be recognized by Landmark on the transfer of its
assets to the Bank pursuant to the Merger;
3. No gain or loss will be recognized by a shareholder of Landmark who
exchanges, pursuant to the Merger, all of such shareholder's shares of Landmark
stock solely for shares of NHTB Common Stock, except with respect to cash
received in lieu of a fractional share interest in NHTB Common Stock;
4. The aggregate tax basis of the shares of NHTB Common Stock received by
a Landmark shareholder who exchanges, pursuant to the Merger, all of such
shareholder's Landmark stock solely for shares of NHTB Common Stock will be the
same as the aggregate tax basis of the shares of Landmark stock surrendered in
exchange therefor (reduced by any amount allocable to a fractional share
interest in NHTB Common Stock for which cash is received);
5. The aggregate tax basis of NHTB Common Stock received by a Landmark
shareholder, who exchanges pursuant to the Merger all of such shareholder's
Landmark stock for shares of NHTB Common Stock and cash, will be the same as the
aggregate tax basis of the shares of Landmark stock surrendered in exchange
therefor (reduced by any amount allocable to a fractional share of NHTB Common
Stock for which cash is received), decreased by the amount of cash received
(other than cash received in lieu of a fractional share interest) and increased
by the amount of gain, if any, recognized by such shareholder in the Merger
(including any portion of such gain that is treated as a dividend); and
6. The holding period for the shares of NHTB Common Stock to be received
by a Landmark shareholder pursuant to the Merger will include the period during
which such shareholder held the shares of Landmark stock surrendered in exchange
therefor, provided, that the Landmark stock surrendered is held as a capital
asset as of the Effective Time.
<PAGE>
Board of Directors
___________ 1996
Page 3
Except as provided hereinabove, we express no opinion to any party as to
the tax consequences, whether federal, state, local or foreign, of the Merger or
of any transaction related thereto or contemplated by the Reorganization
Agreement or the Plan of Merger. This opinion is given solely for the benefit
of Landmark and its shareholders and may not be relied upon by any other party
or entity or otherwise referred to in any document without our express written
consent. We consent to the filing of this opinion as a exhibit to the
Registration Statement and to the reference to our firm under the headings "THE
MERGER - Background of the Merger," "THE MERGER - Material Federal Income Tax
Consequences" and "LEGAL MATTERS" in the Proxy Statement which is a part of such
Registration Statement.
Respectfully,
Gallagher, Callahan & Gartrell,
Professional Association
<PAGE>
EXHIBIT 10.1
LAKE SUNAPEE SAVINGS BANK
PROFIT SHARING-STOCK OWNERSHIP PLAN
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS........................ 1
1.1 "Act"............................................. 1
1.2 "Administrator"................................... 1
1.3 "Affiliated Employer"............................. 1
1.4 "Aggregate Account"............................... 2
1.5 "Anniversary Date"................................ 2
1.6 "Beneficiary"..................................... 2
1.7 "Code"............................................ 2
1.8 "Company Stock"................................... 2
1.9 "Company Stock Account"........................... 2
1.10 "Compensation".................................... 2
1.11 "Contract" or "Policy"............................ 4
1.12 "Deferred Compensation"........................... 4
1.13 "Early Retirement Date"........................... 4
1.14 "Elective Contribution"........................... 4
1.15 "Eligible Employee"............................... 4
1.16 "Employee"........................................ 5
1.17 "Employer"........................................ 5
1.18 "Excess Aggregate Contributions".................. 5
1.19 "Excess Contributions"............................ 5
1.20 "Excess Deferred Compensation".................... 5
1.21 "ESOP"............................................ 5
1.22 "Family Member"................................... 5
1.23 "Fiduciary"....................................... 5
1.24 "Fiscal Year"..................................... 6
1.25 "Forfeiture"...................................... 6
1.26 "Former Participant".............................. 6
1.27 "415 Compensation"................................ 6
1.28 "414(s) Compensation"............................. 7
1.29 "Highly Compensated Employee"..................... 7
1.30 "Highly Compensated Former Employee".............. 9
1.31 "Highly Compensated Participant".................. 9
1.32 "Hour of Service"................................. 9
1.33 "Income".......................................... 10
1.34 "Investment Manager".............................. 10
1.35 "Key Employee".................................... 10
1.36 "Late Retirement Date"............................ 11
1.37 "Leased Employee"................................. 11
1.38 "Non-Elective Contribution"....................... 12
1.39 "Non-Highly Compensated Participant".............. 12
1.40 "Non-Key Employee"................................ 12
1.41 "Normal Retirement Age"........................... 12
1.42 "Normal Retirement Date".......................... 12
<PAGE>
1.43 "1-Year Break in Service"......................... 12
1.44 "Other Investments Account"....................... 13
1.45 "Participant"..................................... 13
1.46 "Participant's Account"........................... 13
1.47 "Participant's Combined Account".................. 13
1.48 "Participant's Elective Account".................. 13
1.49 "Plan"............................................ 13
1.50 "Plan Year"....................................... 13
1.51 "Qualified Non-Elective Contribution"............. 13
1.52 "Regulation"...................................... 13
1.53 "Retired Participant"............................. 14
1.54 "Retirement Date"................................. 14
1.55 "Super Top Heavy Plan"............................ 14
1.56 "Terminated Participant".......................... 14
1.57 "Top Heavy Plan".................................. 14
1.58 "Top Heavy Plan Year"............................. 14
1.59 "Top Paid Group".................................. 14
1.60 "Total and Permanent Disability".................. 15
1.61 "Trustee"......................................... 15
1.62 "Trust Fund"...................................... 15
1.63 "Vested".......................................... 15
1.64 "Year of Service"................................. 15
ARTICLE II
TOP HEAVY AND ADMINISTRATION................ 16
2.1 TOP HEAVY PLAN REQUIREMENTS....................... 16
2.2 DETERMINATION OF TOP HEAVY STATUS................. 16
2.3 POWERS AND RESPONSIBILITIES OF THE EMPLOYER....... 19
2.4 DESIGNATION OF ADMINISTRATIVE AUTHORITY........... 19
2.5 ALLOCATION AND DELEGATION OF RESPONSIBILITIES..... 20
2.6 POWERS AND DUTIES OF THE ADMINISTRATOR............ 20
2.7 RECORDS AND REPORTS............................... 21
2.8 APPOINTMENT OF ADVISERS........................... 21
2.9 INFORMATION FROM EMPLOYER......................... 22
2.10 PAYMENT OF EXPENSES............................... 22
2.11 MAJORITY ACTIONS.................................. 22
2.12 CLAIMS PROCEDURE.................................. 22
2.13 CLAIMS REVIEW PROCEDURE........................... 22
ARTICLE III
ELIGIBILITY............................ 23
3.1 CONDITIONS OF ELIGIBILITY......................... 23
3.2 APPLICATION FOR PARTICIPATION..................... 23
3.3 EFFECTIVE DATE OF PARTICIPATION................... 23
3.4 DETERMINATION OF ELIGIBILITY...................... 24
3.5 TERMINATION OF ELIGIBILITY........................ 24
3.6 OMISSION OF ELIGIBLE EMPLOYEE..................... 24
<PAGE>
3.7 INCLUSION OF INELIGIBLE EMPLOYEE.................. 24
3.8 ELECTION NOT TO PARTICIPATE....................... 25
ARTICLE IV
CONTRIBUTION AND ALLOCATION................ 25
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION... 25
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION........... 25
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION........ 29
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND
EARNINGS.......................................... 29
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS.................. 34
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS.... 36
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS.............. 38
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE
TESTS............................................. 40
4.9 MAXIMUM ANNUAL ADDITIONS.......................... 42
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS......... 46
4.11 TRANSFERS FROM QUALIFIED PLANS.................... 47
4.12 DIRECTED INVESTMENT ACCOUNT....................... 48
ARTICLE V
FUNDING AND INVESTMENT POLICY............... 50
5.1 INVESTMENT POLICY................................. 50
5.2 TRANSACTIONS INVOLVING COMPANY STOCK.............. 50
ARTICLE VI
VALUATIONS......................... 52
6.1 VALUATION OF THE TRUST FUND....................... 52
6.2 METHOD OF VALUATION............................... 52
ARTICLE VII
DETERMINATION AND DISTRIBUTION OF BENEFITS......... 52
7.1 DETERMINATION OF BENEFITS UPON RETIREMENT......... 52
7.2 DETERMINATION OF BENEFITS UPON DEATH.............. 52
7.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY.. 54
7.4 DETERMINATION OF BENEFITS UPON TERMINATION........ 54
7.5 DISTRIBUTION OF BENEFITS.......................... 57
7.6 HOW PLAN BENEFIT WILL BE DISTRIBUTED.............. 61
7.7 DISTRIBUTION FOR MINOR BENEFICIARY................ 62
7.8 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN.... 62
7.9 ADVANCE DISTRIBUTION FOR HARDSHIP................. 62
7.10 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION... 64
ARTICLE VIII
TRUSTEE.......................... 64
8.1 BASIC RESPONSIBILITIES OF THE TRUSTEE............. 64
8.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE....... 65
<PAGE>
8.3 OTHER POWERS OF THE TRUSTEE....................... 65
8.4 LOANS TO PARTICIPANTS............................. 68
8.5 VOTING COMPANY STOCK.............................. 70
8.6 DUTIES OF THE TRUSTEE REGARDING PAYMENTS.......... 70
8.7 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES..... 71
8.8 ANNUAL REPORT OF THE TRUSTEE...................... 71
8.9 AUDIT............................................. 72
8.10 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE.... 72
8.11 TRANSFER OF INTEREST.............................. 73
ARTICLE IX
AMENDMENT, TERMINATION AND MERGERS............. 74
9.1 AMENDMENT......................................... 74
9.2 TERMINATION....................................... 75
9.3 MERGER OR CONSOLIDATION........................... 75
ARTICLE X
MISCELLANEOUS....................... 75
10.1 PARTICIPANT'S RIGHTS.............................. 75
10.2 ALIENATION........................................ 75
10.3 CONSTRUCTION OF PLAN.............................. 76
10.4 GENDER AND NUMBER................................. 76
10.5 LEGAL ACTION...................................... 77
10.6 PROHIBITION AGAINST DIVERSION OF FUNDS............ 77
10.7 BONDING........................................... 77
10.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE........ 77
10.9 INSURER'S PROTECTIVE CLAUSE....................... 78
10.10 RECEIPT AND RELEASE FOR PAYMENTS.................. 78
10.11 ACTION BY THE EMPLOYER............................ 78
10.12 NAMED FIDUCIARIES AND ALLOCATION OF
RESPONSIBILITY.................................... 78
10.13 HEADINGS.......................................... 79
10.14 APPROVAL BY INTERNAL REVENUE SERVICE.............. 79
10.15 UNIFORMITY........................................ 79
10.16 SECURITIES AND EXCHANGE COMMISSION APPROVAL....... 79
FUNDING POLICY AND METHOD............................................ 81
<PAGE>
LAKE SUNAPEE SAVINGS BANK
PROFIT SHARING-STOCK OWNERSHIP PLAN
THIS AGREEMENT, hereby made and entered into this _______ day of
__________________ 19__, by and between Lake Sunapee Savings Bank (herein
referred to as the "Employer") and Charter Trust Company (herein referred to as
the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer heretofore established an Employee Stock
Ownership Plan and Trust effective January 1, 1987 (hereinafter called the
"Effective Date"), known as Lake Sunapee Savings Bank Profit Sharing-Stock
Ownership Plan (herein referred to as the "Plan") in recognition of the
contribution made to its successful operation by its employees and for the
exclusive benefit of its eligible employees; and
WHEREAS, under the terms of the Plan, the Employer has the ability to
amend the Plan, provided the Trustee joins in such amendment if the provisions
of the Plan affecting the Trustee are amended; and
WHEREAS, contributions to the Plan will be made by the Employer and
such contributions made to the trust will be invested primarily in the capital
stock of the Employer;
NOW, THEREFORE, effective January 1, 1989, except as otherwise
provided, the Employer and the Trustee in accordance with the provisions of the
Plan pertaining to amendments thereof, hereby amend the Plan in its entirety and
restate the Plan to provide as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.2 "Administrator" means the person designated by the Employer
pursuant to Section 2.4 to administer the Plan on behalf of the Employer.
1.3 "Affiliated Employer" means any corporation which is a member of
a controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which
is under common control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to Regulations under Code Section 414(o).
<PAGE>
1.4 "Aggregate Account" means, with respect to each Participant, the
value of all accounts maintained on behalf of a Participant, whether
attributable to Employer or Employee contributions, subject to the provisions of
Section 2.2.
1.5 "Anniversary Date" means December 31st.
1.6 "Beneficiary" means the person to whom the share of a deceased
Participant's total account is payable, subject to the restrictions of Sections
7.2 and 7.5.
1.7 "Code" means the Internal Revenue Code of 1986, as amended or
replaced from time to time.
1.8 "Company Stock" means common stock issued by the Employer (or by
a corporation which is a member of the controlled group of corporations of which
the Employer is a member) which is readily traceable on an established
securities market. If there is no common stock which meets the foregoing
requirement, the term "Company Stock" means common stock issued by the Employer
(or by a corporation which is a member of the same controlled group) having a
combination of voting power and dividend rights equal to or in excess of: (A)
that class of common stock of the Employer (or of any other such corporation)
having the greatest voting power, and (B) that class of common stock of the
Employer (or of any other such corporation) having the greatest dividend rights.
Noncallable preferred stock shall be deemed to be "Company Stock" if such stock
is convertible at any time into stock which constitutes "Company Stock"
hereunder and if such conversion is at a conversion price which (as of the date
of the acquisition by the Trust) is reasonable. For purposes of the preceding
sentence, pursuant to Regulations, preferred stock shall be treated as
noncallable if after the call there will be a reasonable opportunity for a
conversion which meets the requirements of the preceding sentence.
1.9 "Company Stock Account" means the account of a Participant which
is credited with the shares of Company Stock purchased and paid for by the Trust
Fund or contributed to the Trust Fund.
A separate accounting shall be maintained with respect to that portion
of the Company Stock Account attributable to Elective Contributions and Non-
Elective Contributions.
1.10 "Compensation" with respect to any Participant means such
Participant's wages, salaries, fees for professional services and other amounts
received (without regard to whether or a not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Employer maintaining the Plan to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or
other expense allowances under a nonaccountable plan (as described in Regulation
1.62-2(c)) for a Plan Year.
Compensation shall exclude (a)(l) contributions made by the Employer
to a plan of deferred compensation to the extent that, the contributions are not
includible in the gross income of the Participant for the taxable year in which
contributed, (2) Employer contributions
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made on behalf of an Employee to a simplified employee pension plan described in
Code Section 408(k) to the extent such contributions are excludable from the
Employee's gross income, (3) any distributions from a plan of deferred
compensation; (b) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee either
becomes freely transferable or is no longer subject to a substantial risk of
forfeiture; (c) amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and (d) other amounts which
receive special tax benefits, or contributions made by the Employer (whether or
not under a salary reduction) towards the purchase of any annuity contract
described in Code Section 403(b) (whether or not the contributions are actually
excludable from the gross income of the Employee).
For purposes of this Section, the determination of Compensation shall
be made by:
(a) including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125,
402(a)(8), 402(h), 403(b) or 457, and Employee contributions described
in Code Section 414(h)(2) that are treated as Employer contributions.
For a Participant's initial year of participation, Compensation shall
be recognized as of such Employee's effective date of participation pursuant to
Section 3.3.
Compensation in excess of $200,000 shall be disregarded. Such amount
shall be adjusted at the same time and in such manner as permitted under Code
Section 415(d), except that the dollar increase in effect on January 1 of any
calendar year shall be effective for the Plan Year beginning with or within such
calendar year and the first adjustment to the $200,000 limitation shall be
effective on January 1, 1990. For any short Plan Year the Compensation limit
shall be an amount equal to the Compensation limit for the calendar year in
which the Plan Year begins multiplied by the ratio obtained by dividing the
number of full months in the short Plan Year by twelve (12). In applying this
limitation, the family group of a Highly Compensated Participant who is subject
to the Family Member aggregation rules of Code Section 414(q)(6) because such
Participant is either a "five percent owner" of the Employer or one of the ten
(10) Highly Compensated Employees paid the greatest "415 Compensation" during
the year, shall be treated as a single Participant, except that for this purpose
Family Members shall include only the affected Participant's spouse and any
lineal descendants who have not attained age nineteen (19) before the close of
the year. If, as a result of the application of such rules the adjusted $200,000
limitation is exceeded, then the limitation shall be prorated among the affected
Family Members in proportion to each such Family Member's Compensation prior to
the application of this limitation, or the limitation shall be adjusted in
accordance with any other method permitted by Regulation.
If, as a result of such rules, the maximum "annual addition" limit of
Section 4.9(a) would be exceeded for one or more of the affected Family Members,
the prorated Compensation of all affected Family Members shall be adjusted to
avoid or reduce any excess. The prorated Compensation of any affected Family
Member whose allocation would exceed the limit shall be adjusted downward to the
level needed to provide an allocation equal to such limit. The prorated
Compensation of affected Family Members not affected by such limit shall then
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be adjusted upward on a pro rata basis not to exceed each such affected Family
Member's Compensation as determined prior to application of the Family Member
rule. The resulting allocation shall not exceed such individual's maximum
"annual addition" limit. If, after these adjustments, an "excess amount" still
results, such "excess amount" shall be disposed of in the manner described in
Section 4.10(a) pro rata among all affected Family Members.
If, in connection with the adoption of this amendment and restatement,
the definition of Compensation has been modified, then, for Plan Years prior to
the Plan Year which includes the adoption date of this amendment and
restatement, Compensation means compensation determined pursuant to the Plan
then in effect.
For Plan Years beginning prior to January 1, 1989, the $200,000 limit
(without regard to Family Member aggregation) shall apply only for Top Heavy
Plan Years and shall not be adjusted.
1.11 "Contract" or "Policy" means any life insurance policy,
retirement income or annuity policy, or annuity contract (group or individual)
issued pursuant to the terms of the Plan.
1.12 "Deferred Compensation" with respect to any Participant means the
amount of the Participant's total Compensation which has been contributed to the
Plan in accordance with the Participant's deferral election pursuant to Section
4.2 excluding any such amounts distributed as excess "annual additions" pursuant
to Section 4.10(a).
1.13 "Early Retirement Date" means the first day of the month (prior
to the Normal Retirement Date) coinciding with or following the date on which a
Participant or Former Participant attains age 55 and has completed at least 5
Years of Service with the Employer (Early Retirement Age). A Participant shall
become fully Vested upon satisfying this requirement if still employed at his
Early Retirement Age.
A Former Participant who terminates employment after satisfying the
service requirement for Early Retirement and who thereafter reaches the age
requirement contained herein shall be entitled to receive his benefits under
this Plan.
1.14 "Elective Contribution" means the Employer's contributions to the
Plan of Deferred Compensation excluding any such amounts distributed as excess
"annual additions" pursuant to Section 4.10(a). In addition, any Employer
Qualified Non-Elective Contribution made pursuant to Section 4.1(c) and Section
4.6 shall be considered an Elective Contribution for purposes of the Plan. Any
such contributions deemed to be Elective Contributions shall be subject to the
requirements of Sections 4.2(b) and 4.2(c) and shall further be required to
satisfy the discrimination requirements of Regulation 1.401(k)-l(b)(5), the
provisions of which are specifically incorporated herein by reference.
1.15 "Eligible Employee" means any Employee.
Employees of Affiliated Employers shall not be eligible to
participate in this Plan unless such Affiliated Employers have specifically
adopted this Plan in writing.
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<PAGE>
1.16 "Employee" means any person who is employed by the Employer or
Affiliated Employer, but excludes any person who is an independent contractor.
Employee shall include Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) unless such Leased Employees are covered by a plan
described in Code Section 414(n)(5) and such Leased Employees do not constitute
more than 20% of the recipient's non-highly compensated work force.
1.17 "Employer" means Lake Sunapee Savings Bank and any successor
which shall maintain this Plan; and any predecessor which has maintained this
Plan. The Employer is a corporation with principal offices in the State of New
Hampshire.
1.18 "Excess Aggregate Contributions" means, with respect to any Plan
Year, the excess of the aggregate amount of the Employer matching contributions
made pursuant to Section 4.1(b) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 4.7(c) on behalf of
Highly Compensated Participants for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 4.7(a).
1.19 "Excess Contributions" means, with respect to a Plan Year, the
excess of Elective Contributions made on behalf of Highly Compensated
Participants for the Plan Year over the maximum amount of such contributions
permitted under Section 4.5(a). Excess Contributions shall be treated as an
"annual addition" pursuant to Section 4.9(c).
1.20 "Excess Deferred Compensation" means, with respect to any taxable
year of a Participant, the excess of the aggregate amount of such Participant's
Deferred Compensation and the elective deferrals pursuant to Section 4.2(f)
actually made on behalf of such Participant for such taxable year, over the
dollar limitation provided for in Code Section 402(g), which is incorporated
herein by reference. Excess Deferred Compensation shall be treated as an "annual
addition" pursuant to Section 4.9(c) when contributed to the Plan unless
distributed to the affected Participant not later than the first April 15th
following the close of the Participant's taxable year. Additionally, for
purposes of Sections 2.2 and 4.4(i), Excess Deferred Compensation shall continue
to be treated as Employer contributions even if distributed pursuant to Section
4.2(f). However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section 4.5(a) to the
extent such Excess Deferred Compensation occurs pursuant to Section 4.2(d).
1.21 "ESOP" means an employee stock ownership plan that meets the
requirements of Code Section 4975(e)(7) and Regulation 54.4975-11.
1.22 "Family Member" means, with respect to an affected Participant,
such Participant's spouse, such Participant's lineal descendants and ascendants
and their spouses, all as described in Code Section 414(q)(6)(B).
1.23 "Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of its
assets, (b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
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<PAGE>
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and its representative body, and the
Administrator.
1.24 "Fiscal Year" means the Employer's accounting year of 12 months
commencing on January 1st of each year and ending the following December 31st.
1.25 "Forfeiture" means that portion of a Participant's Account that
is not Vested, and occurs on the earlier of:
(a) the distribution of the entire Vested portion of a Participant's
Account, or
(b) the last day of the Plan Year in which the Participant incurs
five (5) consecutive 1-Year Breaks in Service.
Furthermore, for purposes of paragraph (a) above, in the case of a
Terminated Participant whose Vested benefit is zero, such Terminated Participant
shall be deemed to have received a distribution of his Vested benefit upon his
termination of employment. Restoration of such amounts shall occur pursuant to
Section 7.4(f)(2). In addition, the term Forfeiture shall also include amounts
deemed to be Forfeitures pursuant to any other provision of this Plan.
1.26 "Former Participant" means a person who has been a Participant,
but who has ceased to be a Participant for any reason.
1.27 "415 Compensation" with respect to any Participant means such
Participant's wages, salaries, fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash) for
personal services actually rendered in the course of employment with the
Employer maintaining the Plan to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or
other expense allowances under a nonaccountable plan (as described in Regulation
1.62-2(c)) for a Plan Year.
"415 Compensation" shall exclude (a)(l) contributions made by the
Employer to a plan of deferred compensation to the extent that, the
contributions are not includible in the gross income of the Participant for the
taxable year in which contributed, (2) Employer contributions made on behalf of
an Employee to a simplified employee pension plan described in Code Section
408(k) to the extent such contributions are excludable from the Employee's gross
income, (3) any distributions from a plan of deferred compensation; (b) amounts
realized from the exercise of a non-qualified stock option, or when restricted
stock (or property) held by an Employee either becomes freely transferable or is
no longer subject to a substantial risk of forfeiture; (c) amounts realized from
the sale, exchange or other disposition of stock acquired under a qualified
stock option; and (d) other amounts which receive special tax benefits, or
contributions made by the Employer (whether or not under a salary reduction)
towards the purchase of any annuity contract described in Code Section 403(b)
(whether or not the contributions are actually excludable from the gross income
of the Employee).
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If, in connection with the adoption of this amendment and restatement,
the definition of "415 Compensation" has been modified, then, for Plan Years
prior to the Plan Year which includes the adoption date of this amendment and
restatement, "415 Compensation" means compensation determined pursuant to the
Plan then in effect.
1.28 "414(s) Compensation" with respect to any Participant means such
Participant's "415 Compensation" paid during a Plan Year. The amount of "414(s)
Compensation" with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year, except that "414(s) Compensation" shall only be recognized for
that portion of the Plan Year during which an Employee was a Participant in the
Plan.
For purposes of this Section, the determination of "414(s)
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(a)(8),
402(h), 403(b) or 457, and Employee contributions described in Code Section
414(h)(2) that are treated as Employer contributions.
"414(s) Compensation" in excess of $200,000 shall be disregarded. Such
amount shall be adjusted at the same time and in such manner as permitted under
Code Section 415(d), except that the dollar increase in effect on January 1 of
any calendar year shall be effective for the Plan Year beginning with or within
such calendar year and the first adjustment to the $200,00 limitation shall be
effective on January 1, 1990. For any short Plan Year the "414(s) Compensation"
limit shall be an amount equal to the "414(s) Compensation" limit for the
calendar year in which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by twelve (12). In
applying this limitation, the family group of a Highly Compensated Participant
who is subject to the Family Member aggregation rules of Code Section 414(q)(6)
because such Participant is either a "five percent owner" of the Employer or one
of the ten (10) Highly Compensated Employees paid the greatest "415
Compensation" during the year, shall be treated as a single Participant, except
that for this purpose Family Members shall include only the affected
Participant's spouse and any lineal descendants who have not attained age
nineteen (19) before the close of the year.
If, in connection with the adoption of this amendment and restatement,
the definition of "414(s) Compensation" has been modified, then, for Plan Years
prior to the Plan Year which includes the adoption date of this amendment and
restatement, "414(s) Compensation" means compensation determined pursuant to the
Plan then in effect.
1.29 "Highly Compensated Employee" means an Employee described in Code
Section 414(q) and the Regulations thereunder, and generally means an Employee
who performed services for the Employer during the "determination year" and is
in one or more of the following groups:
(a) Employees who at any time during the "determination year" or
"look-back year" were "five percent owners" as defined in Section
1.35(c).
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(b) Employees who received "415 Compensation" during the "look-
back year" from the Employer in excess of $75,000.
(c) Employees who received "415 Compensation" during the "look-
back year" from the Employer in excess of $50,000 and were in the Top
Paid Group of Employees for the Plan Year.
(d) Employees who during the "look-back year" were officers of
the Employer (as that term is defined within the meaning of the
Regulations under Code Section 416) and received "415 Compensation"
during the "look-back year" from the Employer greater than 50 percent
of the limit in effect under Code Section 415(b)(1)(A) for any such
Plan Year. The number of officers shall be limited to the lesser of
(i) 50 employees; or (ii) the greater of 3 employees or 10 percent of
all employees. For the purpose of determining the number of officers,
Employees described in Section 1.59(a), (b), (c) and (d) shall be
excluded, but such Employees shall still be considered for the purpose
of identifying the particular Employees who are officers. If the
Employer does not have at least one officer whose annual "415
Compensation" is in excess of 50 percent of the Code Section
415(b)(1)(A) limit, then the highest paid officer of the Employer will
be treated as a Highly Compensated Employee.
(e) Employees who are in the group consisting of the 100
Employees paid the greatest "415 Compensation" during the
"determination year" and are also described in (b), (c) or (d) above
when these paragraphs are modified to substitute "determination year"
for "look-back year".
The "determination year" shall be the Plan Year for which testing is
being performed, and the "look-back year" shall be the immediately preceding
twelve-month period.
For purposes of this Section, the determination of "415 Compensation"
shall be made by including amounts that would otherwise be excluded from a
Participant's gross income by reason of the application of Code Sections 125,
402(a)(8), 402(h)(l)(B) and, in the case of Employer contributions made pursuant
to a salary reduction agreement, by including amounts that would otherwise be
excluded from a Participant's gross income by reason of the application of Code
Section 403(b). Additionally, the dollar threshold amounts specified in (b) and
(c) above shall be adjusted at such time and in such manner as is provided in
Regulations. In the case of such an adjustment, the dollar limits which shall be
applied are those for the calendar year in which the "determination year" or
"look-back year" begins.
In determining who is a Highly Compensated Employee, Employees who are
non-resident aliens and who received no earned income (within the meaning of
Code Section 911(d)(2)) from the Employer constituting United States source
income within the meaning of Code Section 861(a)(3) shall not be treated as
Employees. Additionally, all Affiliated Employers shall be taken into account as
a single employer and Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased
Employees are covered by a plan described in Code Section 414(n)(5) and are not
covered in any qualified plan maintained by the Employer. The exclusion of
Leased Employees for this
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purpose shall be applied on a uniform and consistent basis for all of the
Employer's retirement plans. Highly Compensated Former Employees shall be
treated as Highly Compensated Employees without regard to whether they performed
services during the "determination year".
1.30 "Highly Compensated Former Employee" means a former Employee who
had a separation year prior to the "determination year" and was a Highly
Compensated Employee in the year of separation from service or in any
"determination year" after attaining age 55. Notwithstanding the foregoing, an
Employee who separated from service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year
preceding the separation year) or any year after the Employee attains age 55 (or
the last year ending before the Employee's 55th birthday), the Employee either
received "415 Compensation" in excess of $50,000 or was a "five percent owner".
For purposes of this Section, "determination year", "415 Compensation" and "five
percent owner" shall be determined in accordance with Section 1.29. Highly
Compensated Former Employees shall be treated as Highly Compensated Employees.
The method set forth in this Section for determining who is a "Highly
Compensated Former Employee" shall be applied on a uniform and consistent basis
for all purposes for which the Code Section 414(q) definition is applicable.
1.31 "Highly Compensated Participant" means any Highly Compensated
Employee who is eligible to participate in the Plan.
1.32 "Hour of Service" means (1) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by the Employer
for the performance of duties during the applicable computation period; (2) each
hour for which an Employee is directly or indirectly compensated or entitled to
compensation by the Employer (irrespective of whether the employment
relationship has terminated) for reasons other than performance of duties (such
as vacation, holidays, sickness, jury duty, disability, lay-off, military duty
or leave of absence) during the applicable computation period; (3) each hour for
which back pay is awarded or agreed to by the Employer without regard to
mitigation of damages. These hours will be credited to the Employee for the
computation period or periods to which the award or agreement pertains rather
than the computation period in which the award, agreement or payment is made.
The same Hours of Service shall not be credited both under (1) or (2), as the
case may be, and under (3).
Notwithstanding the above, (i) no more than 501 Hours of Service are
required to be credited to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account of a period
during which no duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.
For purposes of this Section, a payment shall be deemed to be made by
or due from the Employer regardless of whether such payment is made by or due
from the Employer directly, or indirectly through, among others, a trust fund,
or insurer, to which the Employer
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contributes or pays premiums and regardless of whether contributions made or due
to the trust fund, insurer, or other entity are for the benefit of particular
Employees or are on behalf of a group of Employees in the aggregate.
An Hour of Service must be counted for the purpose of determining a
Year of Service, a year of participation for purposes of accrued benefits, a 1-
Year Break in Service, and employment commencement date (or reemployment
commencement date).
In addition, Hours of Service will be credited for employment with
other Affiliated Employers. The provisions of Department of Labor regulations
2530.200b-2(b) and (c) are incorporated herein by reference.
1.33 "Income" means the income or losses allocable to Excess Deferred
Compensation which amount shall be allocated in the same manner as income or
losses are allocated pursuant to Section .
1.34 "Investment Manager" means an entity that (a) has the power to
manage, acquire, or dispose of Plan assets and (b) acknowledges fiduciary
responsibility to the Plan in writing. Such entity must be a person, firm, or
corporation registered as an investment adviser under the Investment Advisers
Act of 1940, a bank, or an insurance company.
1.35 "Key Employee" means an Employee as defined in Code Section
416(i) and the Regulations thereunder. Generally, any Employee or former
Employee (as well as each of his Beneficiaries) is considered a Key Employee if
he, at any time during the Plan Year that contains the "Determination Date" or
any of the preceding four (4) Plan Years, has been included in one of the
following categories:
(a) an officer of the Employer (as that term is defined within the
meaning of the Regulations under Code Section 416) having annual "415
Compensation" greater than 50 percent of the amount in effect under Code
Section 415(b)(1)(A) for any such Plan Year.
(b) one of the ten employees having annual "415 Compensation" from
the Employer for a Plan Year greater than the dollar limitation in effect
under Code Section 415(c)(1)(A) for the calendar year in which such Plan
Year ends and owning (or considered as owning within the meaning of Code
Section 318) both more than one-half percent interest and the largest
interests in the Employer.
(c) a "five percent owner" of the Employer. "Five percent owner"
means any person who owns (or is considered as owning within the meaning of
Code Section 318) more than five percent (5%) of the outstanding stock of
the Employer or stock possessing more than five percent (5%) of the total
combined voting power of all stock of the Employer or, in the case of an
unincorporated business, any person who owns more than five percent (5%) of
the capital or profits interest in the Employer. In determining percentage
ownership hereunder, employers that would otherwise be aggregated under
Code Sections 414(b), (c). (m) and (o) shall be treated as separate
employers.
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(d) a "one percent owner" of the Employer having an annual "415
Compensation" from the Employer of more than $150,000. "One percent owner"
means any person who owns (or is considered as owning within the meaning of
Code Section 318) more than one percent (1%) of the outstanding stock of
the Employer or stock possessing more than one percent (1%) of the total
combined voting power of all stock of the Employer or, in the case of an
unincorporated business, any person who owns more than one percent (1%) of
the capital or profits interest in the Employer. In determining percentage
ownership hereunder, employers that would otherwise be aggregated under
Code Sections 414(b), (c), (m) and (o) shall be treated as separate
employers. However, in determining whether an individual has "415
Compensation" of more than $150,000, "415 Compensation" from each employer
required to be aggregated under Code Sections 414(b), (c), (m) and (o)
shall be taken into account.
For purposes of this Section, the determination of "415 Compensation"
shall be made by including amounts that would otherwise be excluded from a
Participant's gross income by reason of the application of Code Sections 125,
402(a)(8), 402(h)(1)(B) and, in the case of Employer contributions made pursuant
to a salary reduction agreement, by including amounts that would otherwise be
excluded from a Participant's gross income by reason of the application of Code
Section 403(b).
1.36 "Late Retirement Date" means the first day of the month
coinciding with or next following a Participant's actual Retirement Date after
having reached his Normal Retirement Date.
1.37 "Leased Employee" means any person (other than an Employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with Code Section
414(n)(6)) on a substantially full time basis for a period of at least one year,
and such services are of a type historically performed by employees in the
business field of the recipient employer. Contributions or benefits provided a
Leased Employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the
recipient employer. A Leased Employee shall not be considered an Employee of the
recipient:
(a) if such employee is covered by a money purchase pension plan
providing:
(1) a non-integrated employer contribution rate of at least 10%
of compensation, as defined in Code Section 415(c)(3), but including
amounts contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Code Sections 125,
402(a)(8), 402(h) or 403(b);
(2) immediate participation; and
(3) full and immediate vesting; and
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(b) if Leased Employees do not constitute more than 20% of the
recipient's non-highly compensated work force.
1.38 "Non-Elective Contribution" means the Employer's contributions to
the Plan excluding, however, contributions made pursuant to the Participant's
deferral election provided for in Section 4.2 and any Qualified Non-Elective
Contribution.
1.39 "Non-Highly Compensated Participant" means any Participant who is
neither a Highly Compensated Employee nor a Family Member.
1.40 "Non-Key Employee" means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.
1.41 "Normal Retirement Age" means the Participant's 65th birthday. A
Participant shall become fully Vested in his Participant's Account upon
attaining his Normal Retirement Age.
1.42 "Normal Retirement Date" means the first day of the month
coinciding with or next following the Participant's Normal Retirement Age.
1.43 "1-Year Break in Service" means the applicable computation period
during which an Employee has not completed more than 500 Hours of Service with
the Employer. Further, solely for the purpose of determining whether a
Participant has incurred a 1-Year Break in Service, Hours of Service shall be
recognized for "authorized leaves of absence" and "maternity and paternity
leaves of absence." Years of Service and 1-Year Breaks in Service shall be
measured on the same computation period.
"Authorized leave of absence" means an unpaid, temporary cessation
from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.
A "maternity or paternity leave of absence" means, for Plan Years
beginning after December 31, 1984, an absence from work for any period by reason
of the Employee's pregnancy, birth of the Employee's child, placement of a child
with the Employee in connection with the adoption of such child, or any absence
for the purpose of caring for such child for a period immediately following such
birth or placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if credit
therefore is necessary to prevent the Employee from incurring a 1-Year Break in
Service, or, in any other case, in the immediately following computation period.
The Hours of Service credited for a "maternity or paternity leave of absence"
shall be those which would normally have been credited but for such absence, or,
in any case in which the Administrator is unable to determine such hours
normally credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed 501.
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1.44 "Other Investments Account" means the account of a Participant
which is credited with his share of the net gain (or loss) of the Plan and
Employer contributions in other than Company Stock and which is debited with
payments made to pay for Company Stock.
A separate accounting shall be maintained with respect to that portion
of the Other Investments Account attributable to Elective Contributions and Non-
Elective Contributions.
1.45 "Participant" means any Eligible Employee who participates in the
Plan as provided in Sections 3.2 and 3.3, and has not for any reason become
ineligible to participate further in the Plan.
1.46 "Participant's Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer's Non-Elective
Contributions.
A separate accounting shall be maintained with respect to that portion
of the Participant's Account attributable to Employer matching contributions
made pursuant to Section 4.1(b) and Employer discretionary contributions made
pursuant to Section 4.1(d).
1.47 "Participant's Combined Account" means the total aggregate amount
of each Participant's Elective Account and Participant's Account.
1.48 "Participant's Elective Account" means the account established
and maintained by the Administrator for each Participant with respect to his
total interest in the Plan and Trust resulting from the Employer's Elective
Contributions. A separate accounting shall be maintained with respect to that
portion of the Participant's Elective Account attributable to Elective
Contributions pursuant to Section 4.2 and any Employer Qualified Non-Elective
Contributions.
1.49 "Plan" means this instrument, including all amendments thereto.
1.50 "Plan Year" means the Plan's accounting year of twelve (12)
months commencing on January 1st of each year and ending the following December
31st.
1.51 "Qualified Non-Elective Contribution" means the Employer's
contributions to the Plan that are made pursuant to Section 4.1(c) and Section
4.6. Such contributions shall be considered an Elective Contribution for the
purposes of the Plan and used to satisfy the "Actual Deferral Percentage" tests.
In addition, the Employer's contributions to the Plan that are made
pursuant to Section 4.8(h) which are used to satisfy the "Actual Contribution
Percentage" tests shall be considered Qualified Non-Elective Contributions and
be subject to the provisions of Sections 4.2(b) and 4.2(c).
1.52 "Regulation" means the Income Tax Regulations as promulgated by
the Secretary of the Treasury or his delegate, and as amended from time to time.
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1.53 "Retired Participant" means a person who has been a Participant,
but who has become entitled to retirement benefits under the Plan.
1.54 "Retirement Date" means the date as of which a Participant
retires for reasons other than Total and Permanent Disability, whether such
retirement occurs on a Participant's Normal Retirement Date, Early or Late
Retirement Date (see Section 7.1).
1.55 "Super Top Heavy Plan" means a plan described in Section 2.2(b).
1.56 "Terminated Participant" means a person who has been a
Participant, but whose employment has been terminated other than by death, Total
and Permanent Disability or retirement.
1.57 "Top Heavy Plan" means a plan described in Section 2.2(a).
1.58 "Top Heavy Plan Year" means a Plan Year during which a the Plan
is a Top Heavy Plan.
1.59 "Top Paid Group" means the top 20 percent of Employees who
performed services for the Employer during the applicable year, ranked according
to the amount of "415 Compensation" (determined for this purpose in accordance
with Section 1.29) received from the Employer during such year. All Affiliated
Employers shall be taken into account as a single employer, and Leased Employees
within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered
Employees unless such Leased Employees are covered by a plan described in Code
Section 414(n)(5) and are not covered in any qualified plan maintained by the
Employer. Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 911(d)(2)) from the Employer
constituting United States source income within the meaning of Code Section
861(a)(3) shall not be treated as Employees. Additionally, for the purpose of
determining the number of active Employees in any year, the following additional
Employees shall also be excluded; however, such Employees shall still be
considered for the purpose of identifying the particular Employees in the Top
Paid Group:
(a) Employees with less than six (6) months of service;
(b) Employees who normally work less than 17 1/2 hours per week;
(c) Employees who normally work less than six (6) months during a
year; and
(d) Employees who have not yet attained age 21.
In addition, if 90 percent or more of the Employees of the Employer
are covered under agreements the Secretary of Labor finds to be collective
bargaining agreements between Employee representatives and the Employer, and the
Plan covers only Employees who are not covered under such agreements, then
Employees covered by such agreements shall be excluded from both the total
number of active Employees as well as from the identification of particular
Employees in the Top Paid Group.
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The foregoing exclusions set forth in this Section shall be applied on
a uniform and consistent basis for all purposes for which the Code Section
414(q) definition is applicable.
1.60 "Total and Permanent Disability" means a physical or mental
condition of a Participant resulting from bodily injury, disease, or mental
disorder which renders him incapable of continuing his usual and customary
employment with the Employer. The disability of a Participant shall be
determined by a licensed physician chosen by the Administrator. The
determination shall be applied uniformly to all Participants.
1.61 "Trustee" means the person or entity named as trustee herein or
in any separate trust forming a part of this Plan, and any successors.
1.62 "Trust Fund" means the assets of the Plan and Trust as the same
shall exist from time to time.
1.63 "Vested" means the nonforfeitable portion of any account
maintained on behalf of a Participant.
1.64 "Year of Service" means the computation period of twelve (12)
consecutive months, herein set forth, during which an Employee has at least 1000
Hours of Service.
For purposes of eligibility for participation, the initial computation
period shall begin with the date on which the Employee first performs an Hour of
Service. The participation computation period beginning after a 1-Year Break in
Service shall be measured from the date on which an Employee again performs an
Hour of Service. The participation computation period shall shift to the Plan
Year which includes the anniversary of the date on which the Employee first
performed an Hour of Service. An Employee who is credited with the required
Hours of Service in both the initial computation period (or the computation
period beginning after a 1-Year Break in Service) and the Plan Year which
includes the anniversary of the date on which the Employee first performed an
Hour of Service, shall be credited with two (2) Years of Service for purposes of
eligibility to participate.
For vesting purposes, the computation period shall be the Plan Year,
including periods prior to the Effective Date of the Plan.
For all other purposes, the computation period shall be the Plan Year.
Notwithstanding the foregoing, for any short Plan Year, the
determination of whether an Employee has completed a Year of Service shall be
made in accordance with Department of Labor regulation 2530.203-2(c). However,
in determining whether an Employee has completed a Year of Service for benefit
accrual purposes in the short Plan Year, the number of the Hours of Service
required shall be proportionately reduced based on the number of full months in
the short Plan Year.
Years of Service with any Affiliated Employer shall be recognized.
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ARTICLE II
TOP HEAVY AND ADMINISTRATION
2.1 TOP HEAVY PLAN REQUIREMENTS
For any Top Heavy Plan Year, the Plan shall provide the special
vesting requirements of Code Section 416(b) pursuant to Section 7.4 of the Plan
and the special minimum allocation requirements of Code Section 416(c) pursuant
to Section 4.4 of the Plan.
2.2 DETERMINATION OF TOP HEAVY STATUS
(a) This Plan shall be a Top Heavy Plan for any Plan Year in which, as
of the Determination Date, (1) the Present Value of Accrued Benefits of Key
Employees and (2) the sum of the Aggregate Accounts of Key Employees under
this Plan and all plans of an Aggregation Group, exceeds sixty percent
(60%) of the Present Value of Accrued Benefits and the Aggregate Accounts
of all Key and Non-Key Employees under this Plan and all plans of an
Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year, but such
Participant was a Key Employee for any prior Plan Year, such Participant's
Present Value of Accrued Benefit and/or Aggregate Account balance shall not
be taken into account for purposes of determining whether this Plan is a
Top Heavy or Super Top Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top Heavy Group). In addition, if a Participant or
Former Participant has not performed any services for any Employer
maintaining the Plan at any time during the five year period ending on the
Determination Date, any accrued benefit for such Participant or Former
Participant shall not be taken into account for the purposes of determining
whether this Plan is a Top Heavy or Super Top Heavy Plan.
(b) This Plan shall be a Super Top Heavy Plan for any Plan Year in
which, as of the Determination Date, (1) the Present Value of Accrued
Benefits of Key Employees and (2) the sum of the Aggregate Accounts of Key
Employees under this Plan and all plans of an Aggregation Group, exceeds
ninety percent (90%) of the Present Value of Accrued Benefits and the
Aggregate Accounts of all Key and Non-Key Employees under this Plan and all
plans of an Aggregation Group.
(c) Aggregate Account: A Participant's Aggregate Account as of the
Determination Date is the sum of:
(1) his Participant's Combined Account balance as of the
most recent valuation occurring within a twelve (12) month period
ending on the Determination Date;
(2) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of any
contributions actually made after the valuation date but due on
or before the Determination Date, except for the first Plan Year
when such
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adjustment shall also reflect the amount of any contributions
made after the Determination Date that are allocated as of a date
in that first Plan Year;
(3) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4) preceding
Plan Years. However, in the case of distributions made after the
valuation date and prior to the Determination Date, such
distributions are not included as distributions for top heavy
purposes to the extent that such distributions are already
included in the Participant's Aggregate Account balance as of the
valuation date. Notwithstanding anything herein to the contrary,
all distributions, including distributions made prior to January
1, 1984, and distributions under a terminated plan which if it
had not been terminated would have been required to be included
in an Aggregation Group, will be counted. Further, distributions
from the Plan (including the cash value of life insurance
policies) of a Participant's account balance because of death
shall be treated as a distribution for the purposes of this
paragraph.
(4) any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax deductible
qualified voluntary employee contributions shall not be
considered to be a part of the Participant's Aggregate Account
balance.
(5) with respect to unrelated rollovers and plan-to-plan
transfers (ones which are both initiated by the Employee and made
from a plan maintained by one employer to a plan maintained by
another employer), if this Plan provides the rollovers or plan-
to-plan transfers, it shall always consider such rollovers or
plan-to-plan transfers as a distribution for the purposes of this
Section. If this Plan is the plan accepting such rollovers or
plan-to-plan transfers, it shall not consider such rollovers or
plan-to-plan transfers as part of the Participant's Aggregate
Account balance.
(6) with respect to related rollovers and plan-to-plan
transfers (ones either not initiated by the Employee or made to a
plan maintained by the same employer), if this Plan provides the
rollover or plan-to-plan transfer, it shall not be counted as a
distribution for purposes of this Section. If this Plan is the
plan accepting such rollover or plan-to-plan transfer, it shall
consider such rollover or plan-to-plan transfer as part of the
Participant's Aggregate Account balance, irrespective of the date
on which such rollover or plan-to-plan transfer is accepted.
(7) For the purposes of determining whether two employers
are to be treated as the same employer in (5) and (6) above, all
employers aggregated under Code Section 414(b), (c), (m) and (o)
are treated as the same employer.
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(d) "Aggregation Group" means either a Required Aggregation Group or a
Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group: In determining a Required
Aggregation Group hereunder, each plan of the Employer in which a Key
Employee is a participant in the Plan Year containing the
Determination Date or any of the four preceding Plan Years, and each
other plan of the Employer which enables any plan in which a Key
Employee participates to meet the requirements of Code Sections
401(a)(4) or 410, will be required to be aggregated. Such group shall
be known as a Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the group
will be considered a Top Heavy Plan if the Required Aggregation Group
is a Top Heavy Group. No plan in the Required Aggregation Group will
be considered a Top Heavy Plan if the Required Aggregation Group is
not a Top Heavy Group.
(2) Permissive Aggregation Group: The Employer may also include
any other plan not required to be included in the Required Aggregation
Group, provided the resulting group, taken as a whole, would continue
to satisfy the provisions of Code Sections 401(a)(4) and 410. Such
group shall be known as a Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan that is
part of the Required Aggregation Group will be considered a Top Heavy
Plan if the Permissive Aggregation Group is a Top Heavy Group. No plan
in the Permissive Aggregation Group will be considered a Top Heavy
Plan if the Permissive Aggregation Group is not a Top Heavy Group.
(3) Only those plans of the Employer in which the Determination
Dates fall within the same calendar year shall be aggregated in order
to determine whether such plans are Top Heavy Plans.
(4) An Aggregation Group shall include any terminated plan of the
Employer if it was maintained within the last five (5) years ending on
the Determination Date.
(e) "Determination Date" means (a) the last day of the preceding Plan
Year, or (b) in the case of the first Plan Year, the last day of such Plan
Year.
(f) Present Value of Accrued Benefit: In the case of a defined benefit
plan, the Present Value of Accrued Benefit for a Participant other than a
Key Employee, shall be as determined using the single accrual method used
for all plans of the Employer and Affiliated Employers, or if no such
single method exists, using a method which results in benefits accruing not
more rapidly than the slowest accrual rate permitted under Code Section
411(b)(1)(C). The determination of the Present Value of Accrued Benefit
shall be determined as of the most recent valuation date that falls within
or ends with the 12-month period ending on the Determination Date except as
provided in Code Section
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416 and the Regulations thereunder for the first and second plan years of a
defined benefit plan.
(g) "Top Heavy Group" means an Aggregation Group in which, as of the
Determination Date, the sum of:
(1) the Present Value of Accrued Benefits of Key Employees under
all defined benefit plans included in the group, and
(2) the Aggregate Accounts of Key Employees under all defined
contribution plans included in the group,
exceeds sixty percent (60%) of a similar sum determined for all
Participants.
2.3 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) The Employer shall be empowered to appoint and remove the Trustee
and the Administrator from time to time as it deems necessary for the
proper administration of the Plan to assure that the Plan is being operated
for the exclusive benefit of the Participants and their Beneficiaries in
accordance with the terms of the Plan, the Code, and the Act.
(b) The Employer shall establish a "funding policy and method", i.e.,
it shall determine whether the Plan has a short run need for liquidity
(e.g., to pay benefits) or whether liquidity is a long run goal and
investment growth (and stability of same) is a more current need, or shall
appoint a qualified person to do so. The Employer or its delegate shall
communicate such needs and goals to the Trustee, who shall coordinate such
Plan needs with its investment policy. The communication of such a "funding
policy and method" shall not, however, constitute a directive to the
Trustee as to investment of the Trust Funds. Such "funding policy and
method" shall be consistent with the objectives of this Plan and with the
requirements of Title I of the Act.
(c) The Employer shall periodically review the performance of any
Fiduciary or other person to whom duties have been delegated or allocated
by it under the provisions of this Plan or pursuant to procedures
established hereunder. This requirement may be satisfied by formal periodic
review by the Employer or by a qualified person specifically designated by
the Employer, through day-to-day conduct and evaluation, or through other
appropriate ways.
(d) The Employer will furnish Plan Fiduciaries and Participants with
notices and information statements when voting rights must be exercised
pursuant to Section 8.5.
2.4 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall appoint one or more Administrators. Any
person, including, but not limited to, the Employees of the Employer, shall
be eligible to serve as an Administrator. Any person so appointed shall
signify his acceptance by filing written acceptance
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with the Employer. An Administrator may resign by delivering his written
resignation to the Employer or be removed by the Employer by delivery of
written notice of removal, to take effect at a date specified therein, or
upon delivery to the Administrator if no date is specified.
The Employer, upon the resignation or removal of an
Administrator, shall promptly designate in writing a successor to this
position. If the Employer does not appoint an Administrator, the Employer
will function as the Administrator.
2.5 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed as Administrator, the
responsibilities of each Administrator may be specified by the Employer and
accepted in writing by each Administrator. In the event that no such
delegation is made by the Employer, the Administrators may allocate the
responsibilities among themselves, in which event the Administrators shall
notify the Employer and the Trustee in writing of such action and specify
the responsibilities of each Administrator. The Trustee thereafter shall
accept and rely upon any documents executed by the appropriate
Administrator until such time as the Employer or the Administrators file
with the Trustee a written revocation of such designation.
2.6 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer
the Plan for the exclusive benefit of the Participants and their
Beneficiaries, subject to the specific terms of the Plan. The Administrator
shall administer the Plan in accordance with its terms and shall have the
power and discretion to construe the terms of the Plan and to determine all
questions arising in connection with the administration, interpretation,
and application of the Plan. Any such determination by the Administrator
shall be conclusive and binding upon all persons. The Administrator may
establish procedures, correct any defect, supply any information, or
reconcile any inconsistency in such manner and to such extent as shall be
deemed necessary or advisable to carry out the purpose of the Plan;
provided, however, that any procedure, discretionary act, interpretation or
construction shall be done in a nondiscriminatory manner based upon uniform
principles consistently applied and shall be consistent with the intent
that the Plan shall continue to be deemed a qualified plan under the terms
of Code Section 401(a), and shall comply with the terms of the Act and all
regulations issued pursuant thereto. The Administrator shall have all
powers necessary or appropriate to accomplish his duties under this Plan.
The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) the discretion to determine all questions relating to the
eligibility of Employees to participate or remain a Participant hereunder
and to receive benefits under the Plan;
(b) to compute, certify, and direct the Trustee with respect to the
amount and the kind of benefits to which any Participant shall be entitled
hereunder;
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(c) to authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from the Trust;
(d) to maintain all necessary records for the administration of the
Plan;
(e) to interpret the provisions of the Plan and to make and publish
such rules for regulation of the Plan as are consistent with the terms
hereof;
(f) to determine the size and type of any Contract to be purchased
from any insurer, and to designate the insurer from which such Contract
shall be purchased;
(g) to compute and certify to the Employer and to the Trustee from
time to time the sums of money necessary or desirable to be contributed to
the Plan;
(h) to consult with the Employer and the Trustee regarding the short
and long-term liquidity needs of the Plan in order that the Trustee can
exercise any investment discretion in a manner designed to accomplish
specific objectives;
(i) to prepare and implement a procedure to notify Eligible Employees
that they may elect to have a portion of their Compensation deferred or
paid to them in cash;
(j) to establish and communicate to Participants a procedure, which
includes at least three (3) investment options pursuant to Regulations, for
allowing each Participant to direct the Trustee as to the investment of his
Company Stock Account pursuant to Section 4.12;
(k) to establish and communicate to Participants a procedure and
method to insure that each Participant will vote Company Stock allocated to
such Participant's Company Stock Account pursuant to Section 8.5;
(l) to enter into a written agreement with regard to the payment of
federal estate tax pursuant to Code Section 2210(b);
(m) to assist any Participant regarding his rights, benefits, or
elections available under the Plan.
2.7 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and
shall keep all other books of account, records, and other data that may be
necessary for proper administration of the Plan and shall be responsible
for supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required by
law.
2.8 APPOINTMENT OF ADVISERS
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The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists, advisers, and other
persons as the Administrator or the Trustee deems necessary or desirable in
connection with the administration of this Plan.
2.9 INFORMATION FROM EMPLOYER
To enable the Administrator to perform his functions, the
Employer shall supply full and timely information to the Administrator on
all matters relating to the Compensation of all Participants, their Hours
of Service, their Years of Service, their retirement, death, disability, or
termination of employment, and such other pertinent facts as the
Administrator may require; and the Administrator shall advise the Trustee
of such of the foregoing facts as may be pertinent to the Trustee's duties
under the Plan. The Administrator may rely upon such information as is
supplied by the Employer and shall have no duty or responsibility to verify
such information.
2.10 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund
unless paid by the Employer. Such expenses shall include any expenses
incident to the functioning of the Administrator, including, but not
limited to, fees of accountants, counsel, and other specialists and their
agents, and other costs of administering the Plan. Until paid, the expenses
shall constitute a liability of the Trust Fund. However, the Employer may
reimburse the Trust Fund for any administration expense incurred.
2.11 MAJORITY ACTIONS
Except where there has been an allocation and delegation of
administrative authority pursuant to Section 2.5, if there shall be more
than one Administrator, they shall act by a majority of their number, but
may authorize one or more of them to sign all papers on their behalf.
2.12 CLAIMS PROCEDURE
Claims for benefits under the Plan may be filed with the
Administrator on forms supplied by the Employer. Written notice of the
disposition of a claim shall be furnished to the claimant within 90 days
after the application is filed. In the event the claim is denied, the
reasons for the denial shall be specifically set forth in the notice in
language calculated to be understood by the claimant, pertinent provisions
of the Plan shall be cited, and, where appropriate, an explanation as to
how the claimant can perfect the claim will be provided. In addition, the
claimant shall be furnished with an explanation of the Plan's claims review
procedure.
2.13 CLAIMS REVIEW PROCEDURE
Any Employee, former Employee, or Beneficiary of either, who has
been denied a benefit by a decision of the Administrator pursuant to
Section 2.12 shall be entitled to request the Administrator to give further
consideration to his claim by filing with the Administrator (on a form
which may be obtained from the Administrator) a request for a hearing. Such
request,
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together with a written statement of the reasons why the claimant believes
his claim should be allowed, shall be filed with the Administrator no later
than 60 days after receipt of the written notification provided for in
Section 2.12. The Administrator shall then conduct a hearing within the
next 60 days, at which the claimant may be represented by an attorney or
any other representative of his choosing and at which the claimant shall
have an opportunity to submit written and oral evidence and arguments in
support of his claim. At the hearing (or prior thereto upon 5 business days
written notice to the Administrator) the claimant or his representative
shall have an opportunity to review all documents in the possession of the
Administrator which are pertinent to the claim at issue and its
disallowance. Either the claimant or the Administrator may cause a court
reporter to attend the hearing and record the proceedings. In such event, a
complete written transcript of the proceedings shall be furnished to both
parties by the court reporter. The full expense of any such court reporter
and such transcripts shall be borne by the party causing the court reporter
to attend the hearing. A final decision as to the allowance of the claim
shall be made by the Administrator within 60 days of receipt of the appeal
(unless there has been an extension of 60 days due to special
circumstances, provided the delay and the special circumstances occasioning
it are communicated to the claimant within the 60 day period). Such
communication shall be written in a manner calculated to be understood by
the claimant and shall include specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision
is based.
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee who has completed one (1) Year of Service
and has attained age 21 shall be eligible to participate hereunder as of
the date he has satisfied such requirements. However, any Employee who was
a Participant in the Plan prior to the effective date of this amendment and
restatement shall continue to participate in the Plan. The Employer shall
give each prospective Eligible Employee written notice of his eligibility
to participate in the Plan prior to the close of the Plan Year in which he
first becomes an Eligible Employee.
3.2 APPLICATION FOR PARTICIPATION
In order to become a Participant hereunder, each Eligible
Employee shall make application to the Employer for participation in the
Plan and agree to the terms hereof. Upon the acceptance of any benefits
under this Plan, such Employee shall automatically be deemed to have made
application and shall be bound by the terms and conditions of the Plan and
all amendments hereto.
3.3 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of
the earlier of the first day of the Plan Year or the first day of the
seventh month of such Plan Year coinciding with or next following the date
such Employee met the eligibility requirements of Section 3.1, provided
said Employee was still employed as of such date (or if not employed on
such date, as of the date of rehire if a 1-Year Break in Service has not
occurred).
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3.4 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each Employee for
participation in the Plan based upon information furnished by the Employer. Such
determination shall be conclusive and binding upon all persons, as long as the
same is made pursuant to the Plan and the Act. Such determination shall be
subject to review per Section 2.13.
3.5 TERMINATION OF ELIGIBILITY
(a) In the event a Participant shall go from a classification of
an Eligible Employee to an ineligible Employee, such Former
Participant shall continue to vest in his interest in the Plan for
each Year of Service completed while a noneligible Employee, until
such time as his Participant's Account shall be forfeited or
distributed pursuant to the terms of the Plan. Additionally, his
interest in the Plan shall continue to share in the earnings of the
Trust Fund.
(b) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to participate but
has not incurred a 1-Year Break in Service, such Employee will
participate immediately upon returning to an eligible class of
Employees. If such Participant incurs a 1-Year Break in Service,
eligibility will be determined under the break in service rules of the
Plan.
3.6 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a Participant
in the Plan is erroneously omitted and discovery of such omission is not made
until after a contribution by his Employer for the year has been made, the
Employer shall make a subsequent contribution with respect to the omitted
Employee in the amount which the said Employer would have contributed with
respect to him had he not been omitted. Such contribution shall be made
regardless of whether or not it is deductible in whole or in part in any taxable
year under applicable provisions of the Code.
3.7 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been included as a
Participant in the Plan is erroneously included and discovery of such incorrect
inclusion is not made until after a contribution for the year has been made, the
Employer shall not be entitled to recover the contribution made with respect to
the ineligible person regardless of whether or not a deduction is allowable with
respect to such contribution. In such event, the amount contributed with respect
to the ineligible person shall constitute a Forfeiture (except for Deferred
Compensation which shall be distributed to the ineligible person) for the Plan
Year in which the discovery is made.
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3.8 ELECTION NOT TO PARTICIPATE
An Employee may, subject to the approval of the Employer,
elect voluntarily not to participate in the Plan. The election not to
participate must be communicated to the Employer, in writing, at least
thirty (30) days before the beginning of a Plan Year.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan:
(a) The amount of the total salary reduction elections of all
Participants made pursuant to Section 4.2(a), which amount shall be
deemed an Employer's Elective Contribution.
(b) On behalf of each Participant who is eligible to share in
matching contributions for the Plan Year, a discretionary matching
contribution equal to a percentage of each such Participant's Deferred
Compensation, the exact percentage to be determined each year by the
Employer, which amount shall be deemed an Employer's Non-Elective
Contribution.
(c) On behalf of each Non-Highly Compensated Participant who is
eligible to share in the Qualified Non-Elective Contribution for the
Plan Year, a discretionary Qualified Non-Elective Contribution equal
to a percentage of each eligible individual's Compensation, the exact
percentage to be determined each year by the Employer. The Employer's
Qualified Non-Elective Contribution shall be deemed an Employer's
Elective Contribution.
(d) A discretionary amount, which amount shall be deemed an
Employer's Non-Elective Contribution.
(e) Notwithstanding the foregoing, however, the Employer's
contributions for any Plan Year shall not exceed the maximum amount
allowable as a deduction to the Employer under the provisions of Code
Section 404. All contributions by the Employer shall be made in cash,
Company Stock or in such property as is acceptable to the Trustee.
(f) Except, however, to the extent necessary to provide the top
heavy minimum allocations, the Employer shall make a contribution even
if it exceeds the amount which is deductible under Code Section 404.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(a) Each Participant may elect to defer from 2% to 15% of his
Compensation which would have been received in the Plan Year, but for
the
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deferral election. A deferral election (or modification of an earlier
election) may not be made with respect to Compensation which is
currently available on or before the date the Participant executed
such election.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an Employer
Elective Contribution and allocated to that Participant's Elective
Account.
(b) The balance in each Participant's Elective Account shall be
fully Vested at all times and shall not be subject to Forfeiture for
any reason.
(c) Amounts held in the Participant's Elective Account may not be
distributable earlier than:
(1) a Participant's termination of employment, Total and
Permanent Disability, or death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the establishment or
existence of a "successor plan" as that term is described in
Regulation 1.401(k)-l(d)(3);
(4) the date of disposition by the Employer to an entity that is
not an Affiliated Employer of substantially all of the assets
(within the meaning of Code Section 409(d)(2)) used in a trade or
business of such corporation if such corporation continues to
maintain this Plan after the disposition with respect to a
Participant who continues employment with the corporation
acquiring such assets;
(5) the date of disposition by the Employer or an Affiliated
Employer who maintains the Plan of its interest in a subsidiary
(within the meaning of Code Section 409(d)(3)) to an entity which
is not an Affiliated Employer but only with respect to a
Participant who continues employment with such subsidiary; or
(6) the proven financial hardship of a Participant, subject to
the limitations of Section 7.9.
(d) For each Plan Year beginning after December 31, 1987, a
Participant's Deferred Compensation made under this Plan and all other
plans, contracts or arrangements of the Employer maintaining this Plan
shall not exceed, during any taxable year of the Participant, the
limitation imposed by Code Section 402(g), as in effect at the
beginning of such taxable year. If such dollar limitation is exceeded,
a Participant will be deemed to have notified the Administrator of
such excess amount which shall be distributed in a manner consistent
with 4.2(f).
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The dollar limitation shall be adjusted annually pursuant to the
method provided in Code Section 415(d) in accordance with Regulations.
(e) In the event a Participant has received a hardship
distribution from his Participant's Elective Account pursuant to
Section 7.9 or pursuant to Regulation 1.401(k)-l(d)(2)(iv)(B) from any
other plan maintained by the Employer, then such Participant shall not
be permitted to elect to have Deferred Compensation contributed to the
Plan on his behalf for a period of twelve (12) months following the
receipt of the distribution. Furthermore, the dollar limitation under
Code Section 402(g) shall be reduced, with respect to the
Participant's taxable year following the taxable year in which the
hardship distribution was made, by the amount of such Participant's
Deferred Compensation, if any, pursuant to this Plan (and any other
plan maintained by the Employer) for the taxable year of the hardship
distribution.
(f) If a Participant's Deferred Compensation under this Plan
together with any elective deferrals (as defined in Regulation
1.402(g)-l(b)) under another qualified cash or deferred arrangement
(as defined in Code Section 401(k)), a simplified employee pension (as
defined in Code Section 408(k)), a salary reduction arrangement
(within the meaning of Code Section 3121(a)(5)(D)), a deferred
compensation plan under Code Section 457, or a trust described in Code
Section 501(c)(18) cumulatively exceed the limitation imposed by Code
Section 402(g) (as adjusted annually in accordance with the method
provided in Code Section 415(d) pursuant to Regulations) for such
Participant's taxable year, the Participant may, not later than March
1 following the close of the Participant's taxable year, notify the
Administrator in writing of such excess and request that such
Participant's Deferred Compensation under this Plan be reduced by an
amount specified by the Participant. In such event, the Administrator
may direct the Trustee to distribute such excess amount (and any
Income allocable to such excess amount) to the Participant not later
than the first April 15th following the close of the Participant's
taxable year. Distributions in accordance with this paragraph may be
made for any taxable year of the Participant which begins after
December 31, 1986. Any distribution of less than the entire amount of
Excess Deferred Compensation and Income shall be treated as a pro rata
distribution of Excess Deferred Compensation and Income. The amount
distributed shall not exceed the Participant's Deferred Compensation
under the Plan for the taxable year. Any distribution on or before the
last day of the Participant's taxable year must satisfy each of the
following conditions:
(1) the distribution must be made after the date on which the
Plan received the Excess Deferred Compensation;
(2) the Participant shall designate the distribution as Excess
Deferred Compensation; and
(3) the Plan must designate the distribution as a distribution
of Excess Deferred Compensation.
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Matching contributions which relate to Excess Deferred
Compensation which is distributed pursuant to this Section 4.2(f)
shall be forfeited.
(g) Notwithstanding Section 4.2(f) above, a Participant's Excess
Deferred Compensation shall be reduced, but not below zero, by any
distribution of Excess Contributions pursuant to Section 4.6(a) for
the Plan Year beginning with or within the taxable year of the
Participant.
(h) At Normal Retirement Date, or such other date when the
Participant shall be entitled to receive benefits, the fair market
value of the Participant's Elective Account shall be used to provide
additional benefits to the Participant or his Beneficiary.
(i) All amounts allocated to a Participant's Elective Account
may be treated as a Directed Investment Account pursuant to Section
4.12.
(j) Employer Elective Contributions made pursuant to this
Section may be segregated into a separate account for each Participant
in a federally insured savings account, certificate of deposit in a
bank or savings and loan association, money market certificate, or
other short-term debt security acceptable to the Trustee until such
time as the allocations pursuant to Section 4.4 have been made.
(k) The Employer and the Administrator shall implement the
salary reduction elections provided for herein in accordance with the
following:
(1) A Participant may commence making elective deferrals to the
Plan only after first satisfying the eligibility and
participation requirements specified in Article III. However, the
Participant must make his initial salary deferral election within
a reasonable time, not to exceed thirty (30) days, after entering
the Plan pursuant to Section 3.3. If the Participant fails to
make an initial salary deferral election within such time, then
such Participant may thereafter make an election in accordance
with the rules governing modifications. The Participant shall
make such an election by entering into a written salary reduction
agreement with the Employer and filing such agreement with the
Administrator. Such election shall initially be effective
beginning with the pay period following the acceptance of the
salary reduction agreement by the Administrator, shall not have
retroactive effect and shall remain in force until revoked.
(2) A Participant may modify a prior election during the Plan
Year and concurrently make a new election by filing a written
notice with the Administrator within a reasonable time before the
pay period for which such modification is to be effective.
However, modifications to a salary deferral election shall only
be permitted semi-annually, during election periods established
by the Administrator prior to the first day of a Plan Year and
the first day of the seventh month of a Plan Year. Any
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modification shall not have retroactive effect and shall remain
in force until revoked.
(3) A Participant may elect to prospectively revoke his salary
reduction agreement in its entirety at any time during the Plan
Year by providing the Administrator with thirty (30) days written
notice of such revocation (or upon such shorter notice period as
may be acceptable to the Administrator). Such revocation shall
become effective as of the beginning of the first pay period
coincident with or next following the expiration of the notice
period. Furthermore, the termination of the Participant's
employment, or the cessation of participation for any reason,
shall be deemed to revoke any salary reduction agreement then in
effect, effective immediately following the close of the pay
period within which such termination or cessation occurs.
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION
Employer contributions will be paid in cash, Company Stock or other
property as the Employer may from time to time determine. Company Stock and
other property will be valued at their then fair market value. The Employer
shall generally pay to the Trustee its contribution to the Plan for each Plan
Year, within the time prescribed by law, including extensions of time, for the
filing of the Employer's federal income tax return for the Fiscal Year.
However, Employer Elective Contributions accumulated through payroll
deductions shall be paid to the Trustee as of the earliest date on which such
contributions can reasonably be segregated from the Employer's general assets,
but in any event within ninety (90) days from the date on which such amounts
would otherwise have been payable to the Participant in cash. The provisions of
Department of Labor regulations 2510.3-102 are incorporated herein by reference.
Furthermore, any additional Employer contributions which are allocable to the
Participant's Elective Account for a Plan Year shall be paid to the Plan no
later than the twelve-month period immediately following the close of such Plan
Year.
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS
(a) The Administrator shall establish and maintain an account in
the name of each Participant to which the Administrator shall credit
as of each Anniversary Date all amounts allocated to each such
Participant as set forth herein.
(b) The Employer shall provide the Administrator with all
information required by the Administrator to make a proper allocation
of the Employer's contributions for each Plan Year. Within a
reasonable period of time after the date of receipt by the
Administrator of such information, the Administrator shall allocate
such contribution as follows:
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(1) With respect to the Employer's Elective Contribution made
pursuant to Section 4.l(a), to each Participant's Elective
Account in an amount equal to each such Participant's Deferred
Compensation for the year.
(2) With respect to the Employer's Non-Elective Contribution made
pursuant to Section 4.l(b), to each Participant's Account in
accordance with Section 4.l(b).
Only Participants who have completed a Year of Service during the
Plan Year and are actively employed on the last day of the Plan
Year shall be eligible to share in the matching contribution for
the year.
(3) With respect to the Employer's Qualified Non-Elective
Contribution made pursuant to Section 4.1(c), to each
Participant's Elective Account in accordance with Section 4.1(c).
Only Non-Highly Compensated Participants who have completed a
Year of Service during the Plan Year and are actively employed on
the last day of the Plan Year shall be eligible to share in the
Qualified Non-Elective Contribution for the year.
(4) With respect to the Employer's Non-Elective Contribution made
pursuant to Section 4.1(d), to each Participant's Account in the
same proportion that each such Participant's Compensation for the
year bears to the total Compensation of all Participants for such
year.
Only Participants who have completed a Year of Service during the
Plan Year and are actively employed on the last day of the Plan
Year shall be eligible to share in the discretionary contribution
for the year.
(c) The Company Stock Account of each Participant shall be
credited as of each Anniversary Date with his allocable share of
Company Stock (including fractional shares) purchased and paid for by
the Plan or contributed in kind by the Employer. Stock dividends on
Company Stock held in his Company Stock Account shall be credited to
his Company Stock Account when paid. Cash dividends on Company Stock
held in his Company Stock Account shall be credited to his Other
Investments Account when paid.
(d) As of each Anniversary Date or other valuation date, before
the current valuation period allocation of Employer contributions, any
earnings or losses (net appreciation or net depreciation) of the Trust
Fund shall be allocated in the same proportion that each Participant's
and Former Participant's nonsegregated accounts (other than each
Participant's Company Stock Account) bear to the total of all
Participants' and Former Participants' nonsegregated accounts (other
than Participants' Company Stock Accounts) as of such date. Earnings
or losses attributable to any salary reduction account balances,
however,
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will not include one-half of all Employer contributions made
during the Plan Year.
[Participants' transfers from other qualified plans deposited in
the general Trust Fund shall share in any earnings and losses (net
appreciation or net depreciation) of the Trust Fund in the same manner
provided above. Each segregated account maintained on behalf of a
Participant shall be credited or charged with its separate earnings
and losses.
(e) As of each Anniversary Date any amounts which became
Forfeitures since the last Anniversary Date shall first be made
available to reinstate previously forfeited account balances of Former
Participants, if any, in accordance with Section 7.4(f)(2). The
remaining Forfeitures, if any, shall be used to reduce the
contribution of the Employer hereunder for the Plan Year in which such
Forfeitures occur in the following manner:
(1) Forfeitures attributable to Employer matching contributions
made pursuant to Section 4.1(b) shall be used to reduce the
Employer's contribution for the Plan Year in which such
Forfeitures occur.
(2) Forfeitures attributable to Employer discretionary
contributions made pursuant to Section 4.1(d) shall be used to
reduce the Employer's contribution for the Plan Year in which
such Forfeitures occur.
(f) For any Top Heavy Plan Year, Employees not otherwise eligible
to share in the allocation of contributions as provided above, shall
receive the minimum allocation provided for in Section 4.4(i) if
eligible pursuant to the provisions of Section 4.4(k).
(g) Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to Retirement
(Early, Normal or Late) or Total and Permanent Disability shall share
in the allocation of contributions for that Plan Year.
(h) Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to death shall
not share in the allocation of contributions for that Plan Year.
(i) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of
the Employer's contributions allocated to the Participant's Combined
Account of each Employee shall be equal to at least three percent (3%)
of such Employee's "415 Compensation" (reduced by contributions and
forfeitures, if any, allocated to each Employee in any defined
contribution plan included with this plan in a Required Aggregation
Group). However, if (1) the sum of the Employer's contributions
allocated to the Participant's Combined Account of each Key Employee
for such Top Heavy Plan Year is less than three percent (3%) of each
Key Employee's
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"415 Compensation" and (2) this Plan is not required to be included in
an Aggregation Group to enable a defined benefit plan to meet the
requirements of Code Section 401(a)(4) or 410, the sum of the
Employer's contributions allocated to the Participant's Combined
Account of each Employee shall be equal to the largest percentage
allocated to the Participant's Combined Account of any Key Employee.
However, in determining whether a Non-Key Employee has received the
required minimum allocation, such Non-Key Employee's Deferred
Compensation and matching contributions needed to satisfy the "Actual
Contribution Percentage tests pursuant to Section 4.7(a) shall not be
taken into account.
However, no such minimum allocation shall be required in
this Plan for any Employee who participates in another defined
contribution plan subject to Code Section 412 providing such benefits
included with this Plan in a Required Aggregation Group.
(j) For purposes of the minimum allocations set forth above, the
percentage allocated to the Participant's Combined Account of any Key
Employee shall be equal to the ratio of the sum of the Employer's
contributions allocated on behalf of such Key Employee divided by the
"415 Compensation" for such Key Employee.
(k) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the Participant's Combined Account
of all Employees who are Participants and who are employed by the
Employer on the last day of the Plan Year, including Employees who
have (1) failed to complete a Year of Service; and (2) declined to
make mandatory contributions (if required) or, in the case of a cash
or deferred arrangement, elective contributions to the Plan.
(l) "In lieu of the above, in any Plan Year in which an Employee
is a Participant in both this Plan and a defined benefit pension plan
included in a Required Aggregation Group which is top heavy, the
Employer shall not be required to provide such Employee with both the
full separate defined benefit plan minimum benefit and the full
separate defined contribution plan minimum allocation.
Therefore, for any Plan Year when the Plan is a Top Heavy
Plan, an Employee who is participating in this Plan and a defined
benefit plan maintained by the Employer shall receive a minimum
monthly accrued benefit in the defined benefit plan equal to the
product of (1) one-twelfth (1/12th) of "415 Compensation" averaged
over the five (5) consecutive limitation years (or actual "limitation
years", if less) which produce the highest average and (2) the lesser
of (i) two percent (2%) multiplied by years of service when the plan
is top heavy or (ii) twenty percent (20%). Further, the extra minimum
allocation (required by Section 4.9(n) to provide higher limitations)
shall not be provided.
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(m) "For the purposes of this Section, "415 Compensation" shall
be limited to $200,000. Such amount shall be adjusted at the same time
and in the same manner as permitted under Code Section 415(d), except
that the dollar increase in effect on January 1 of any calendar year
shall be effective for the Plan Year beginning with or within such
calendar year and the first adjustment to the $200,000 limitation
shall be effective on January 1, 1990. For any short Plan Year the
"415 Compensation" limit shall be an amount equal to the "415
Compensation" limit for the calendar year in which the Plan Year
begins multiplied by the ratio obtained by dividing the number of full
months in the short Plan Year by twelve (12). However, for Plan Years
beginning prior to January 1, 1989, the $200,000 limit shall apply
only for Top Heavy Plan Years and shall not be adjusted.
(n) Notwithstanding anything herein to the contrary, Participants
who terminated employment for any reason during the Plan Year shall
share in the salary reduction contributions made by the Employer for
the year of termination without regard to the Hours of Service
credited.
(o) If a Former Participant is reemployed after five (5)
consecutive 1-Year Breaks in Service, then separate accounts shall be
maintained as follows:
(1) one account for nonforfeitable benefits attributable to pre-
break service; and
(2) one account representing his status in the Plan attributable
to post-break service.
(p) Notwithstanding anything to the contrary, for Plan Years
beginning after December 31, 1989, if this is a Plan that would
otherwise fail to meet the requirements of Code Sections 401(a)(26),
410(b)(1) or 410(b)(2)(A)(i) and the Regulations thereunder because
Employer contributions would not be allocated to a sufficient number
or percentage of Participants for a Plan Year, then the following
rules shall apply:
(1) The group of Participants eligible to share in the Employer's
contribution for the Plan Year shall be expanded to include the
minimum number of Participants who would not otherwise be
eligible as are necessary to satisfy the applicable test
specified above. The specific Participants who shall become
eligible under the terms of this paragraph shall be those who are
actively employed on the last day of the Plan Year and, when
compared to similarly situated Participants, have completed the
greatest number of Hours of Service in the Plan Year.
(2) If after application of paragraph (1) above, the applicable
test is still not satisfied, then the group of Participants
eligible to share in the Employer's contribution for the Plan
Year shall be further expanded to include the minimum number of
Participants who are not actively
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employed on the last day of the Plan Year as are necessary to
satisfy the applicable test. The specific Participants who shall
become eligible to share shall be those Participants, when
compared to similarly situated Participants, who have completed
the greatest number of Hours of Service in the Plan Year before
terminating employment.
(3) Nothing in this Section shall permit the reduction of a
Participant's accrued benefit. Therefore any amounts that have
previously been allocated to Participants may not be reallocated
to satisfy these requirements. In such event, the Employer shall
make an additional contribution equal to the amount such affected
Participants would have received had they been included in the
allocations, even if it exceeds the amount which would be
deductible under Code Section 404. Any adjustment to the
allocations pursuant to this paragraph shall be considered a
retroactive amendment adopted by the last day of the Plan Year.
(4) Notwithstanding the foregoing, for any Top Heavy Plan Year
beginning after December 31, 1992, if the portion of the Plan
which is not a Code Section 401(k) or 401(m) plan would fail to
satisfy Code Section 410(b) if the coverage tests were applied by
treating those Participants whose only allocation (under such
portion of the Plan) would otherwise be provided under the top
heavy formula as if they were not currently benefiting under the
Plan, then, for purposes of this Section 4.4(p), such
Participants shall be treated as not benefiting and shall
therefore be eligible to be included in the expanded class of
Participants who will share in the allocation provided under the
Plan's non top heavy formula.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(a) Maximum Annual Allocation: For each Plan Year beginning after
December 31, 1986, the annual allocation derived from Employer Elective
Contributions to a Participant's Elective Account shall satisfy one of the
following tests:
(1) The Actual Deferral Percentage" for the Highly Compensated
Participant group shall not be more than the "Actual Deferral
Percentage" of the Non-Highly Compensated Participant group multiplied
by 1.25, or
(2) The excess of the "Actual Deferral Percentage" for the Highly
Compensated Participant group over the "Actual Deferral Percentage"
for the Non-Highly Compensated Participant group shall not be more
than two percentage points. Additionally, the "Actual Deferral
Percentage" for the Highly Compensated Participant group shall not
exceed the "Actual Deferral Percentage" for the Non-Highly Compensated
Participant group multiplied by 2. The provisions of Code Section
401(k](3) and Regulation 1.401(k)-l(b) are incorporated herein by
reference.
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However, for Plan Years beginning after December 31, 1988, in order to
prevent the multiple use of the alternative method described in (2)
above and in Code Section 401(m)(9)(A), any Highly Compensated
Participant eligible to make elective deferrals pursuant to Section
4.2 and to make Employee contributions or to receive matching
contributions under this Plan or under any other plan maintained by
the Employer or an Affiliated Employer shall have his actual
contribution ratio reduced pursuant to Regulation 1.401(m)-2, the
provisions of which are incorporated herein by reference.
(b) For the purposes of this Section "Actual Deferral Percentage"
means, with respect to the Highly Compensated Participant group and Non-
Highly Compensated Participant group for a Plan Year, the average of the
ratios, calculated separately for each Participant in such group, of the
amount of Employer Elective Contributions allocated to each Participant's
Elective Account for such Plan Year, to such Participant's "414(s)
Compensation" for such Plan Year. The actual deferral ratio for each
Participant and the "Actual Deferral Percentage" for each group shall be
calculated to the nearest one-hundredth of one percent for Plan Years
beginning after December 31, 1988. Employer Elective Contributions
allocated to each Non-Highly Compensated Participant's Elective Account
shall be reduced by Excess Deferred Compensation to the extent such excess
amounts are made under this Plan or any other plan maintained by the
Employer.
(c) For the purpose of determining the actual deferral ratio of a
Highly Compensated Employee who is subject to the Family Member aggregation
rules of Code Section 414(q)(6) because such Participant is either a "five
percent owner" of the Employer or one of the ten (10) Highly Compensated
Employees paid the greatest "415 Compensation" during the year, the
following shall apply:
(1) The combined actual deferral ratio for the family group (which
shall be treated as one Highly Compensated Participant) shall be
determined by aggregating Employer Elective Contributions and "414(s)
Compensation" of all eligible Family Members (including Highly
Compensated Participants). However, in applying the $200,000 limit to
"414(s) Compensation", for Plan Years beginning after December 31,
1988, Family Members shall include only the affected Employee's spouse
and any lineal descendants who have not attained age 19 before the
close of the Plan Year. Notwithstanding the foregoing, with respect to
Plan Years beginning prior to January 1, 1990, compliance with the
Regulations then in effect shall be deemed to be compliance with this
paragraph.
(2) The Employer Elective Contributions and "414(s) Compensation" of
all Family Members shall be disregarded for purposes of determining
the "Actual Deferral Percentage" of the Non-Highly Compensated
Participant group except to the extent taken into account in paragraph
(1) above.
(3) If a Participant is required to be aggregated as a member of more
than one family group in a plan, all Participants who are members of
those family groups that include the Participant are aggregated as one
family group in accordance with paragraphs (1) and (2) above.
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(d) For the purposes of Sections 4.5(a) and 4.6, a Highly Compensated
Participant and a Non-Highly Compensated Participant shall include any
Employee eligible to make a deferral election pursuant to Section 4.2,
whether or not such deferral election was made or suspended pursuant to
Section 4.2.
(e) For the purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(k), if two or more plans which include cash or deferred
arrangements are considered one plan for the purposes of Code Section
401(a)(4) or 410(b) (other than Code Section 410(b)(2)(A)(ii) as in effect
for Plan Years beginning after December 31, 1988), the cash or deferred
arrangements included in such plans shall be treated as one arrangement. In
addition, two or more cash or deferred arrangements may be considered as a
single arrangement for purposes of determining whether or not such
arrangements satisfy Code Sections 401(a)(4), 410(b) and 401(k). In such a
case, the cash or deferred arrangements included in such plans and the
plans including such arrangements shall be treated as one arrangement and
as one plan for purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(k). Plans may be aggregated under this paragraph (e) for
Plan Years beginning after December 31, 1989 only if they have the same
plan year.
Notwithstanding the above, for Plan Years beginning after
December 31, 1988, this Plan may not be combined with any other plan for
purposes of determining whether this Plan or any other plan satisfies this
Section and Code Sections 401(a)(4), 410(b) and 401(k).
(f) For the purposes of this Section, if a Highly Compensated
Participant is a Participant under two or more cash or deferred
arrangements of the Employer or an Affiliated Employer, all such cash or
deferred arrangements shall be treated as one cash or deferred arrangement
for the purpose of determining the actual deferral ratio with respect to
such Highly Compensated Participant. However, for Plan Years beginning
after December 31, 1988, no such aggregation of cash or deferred
arrangements is required.
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event that the initial allocations of the Employer's Elective
Contributions made pursuant to Section 4.4 do not satisfy one of the tests set
forth in Section 4.5(a) for Plan Years beginning after December 31, 1986, the
Administrator shall adjust Excess Contributions pursuant to the options set
forth below:
(a) On or before the fifteenth day of the third month following
the end of each Plan Year, the Highly Compensated Participant having
the highest actual deferral ratio shall have his portion of Excess
Contributions distributed to him until one of the tests set forth in
Section 4.5(a) is satisfied, or until his actual deferral ratio equals
the actual deferral ratio of the Highly Compensated Participant having
the second highest actual deferral ratio. This process shall continue
until one of the tests set forth in Section 4.5(a) is satisfied. For
each Highly Compensated Participant, the amount of Excess
Contributions is equal to the Elective Contributions on behalf of such
Highly Compensated Participant
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(determined prior to the application of this paragraph) minus the
amount determined by multiplying the Highly Compensated Participant's
actual deferral ratio (determined after application of this paragraph)
by his "414(s) Compensation". However, in determining the amount of
Excess Contributions to be distributed with respect to an affected
Highly Compensated Participant as determined herein, such amount shall
be reduced by any Excess Deferred Compensation previously distributed
to such affected Highly Compensated Participant for his taxable year
ending with or within such Plan Year.
(1) With respect to the distribution of Excess Contributions
pursuant to (a) above, such distribution:
(i) may be postponed but not later than the close of the
Plan Year following the Plan Year to which they are
allocable;
(ii) shall cause matching contributions which relate to
such Deferred Compensation to be forfeited;
(iii) shall be adjusted for Income; and
(iv) shall be designated by the Employer as a distribution
of Excess Contributions (and Income).
(2) Any distribution of less than the entire amount of Excess
Contributions shall be treated as a pro rata distribution of
Excess Contributions and Income.
(3) The determination and correction of Excess Contributions of a
Highly Compensated Participant whose actual deferral ratio is
determined under the family aggregation rules shall be
accomplished by reducing the actual deferral ratio as required
herein, and the Excess Contributions for the family unit shall
then be allocated among the Family Members in proportion to the
Elective Contributions of each Family Member that were combined
to determine the group actual deferral ratio. Notwithstanding the
foregoing, with respect to Plan Years beginning prior to January
1, 1990, compliance with the Regulations then in effect shall be
deemed to be compliance with this paragraph.
(b) Within twelve (12) months after the end of the Plan Year,
the Employer may make a special Qualified Non-Elective Contribution on
behalf of Non-Highly Compensated Participants in an amount sufficient
to satisfy one of the tests set forth in Section 4.5(a). Such
contribution shall be allocated to the Participant's Elective Account
of each Non-Highly Compensated Participant in the same proportion that
each Non-Highly Compensated Participant's Compensation for the year
bears to the total Compensation of all Non-Highly Compensated
Participants.
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(c) If during a Plan Year the projected aggregate amount of
Elective Contributions to be allocated to all Highly Compensated
Participants under this Plan would, by virtue of the tests set forth
in Section 4.5(a), cause the Plan to fail such tests, then the
Administrator may automatically reduce proportionately or in the order
provided in Section 4.6(a) each affected Highly Compensated
Participant's deferral election made pursuant to Section 4.2 by an
amount necessary to satisfy one of the tests set forth in Section
4.5(a).
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) The "Actual Contribution Percentage" for Plan Years beginning
after December 31, 1986 for the Highly Compensated Participant group
shall not exceed the greater of:
(1) 125 percent of such percentage for the Non-Highly
Compensated Participant group; or
(2) the lesser of 200 percent of such percentage for the Non-
Highly Compensated Participant group, or such percentage for the
Non-Highly Compensated Participant group plus 2 percentage
points. However, for Plan Years beginning after December 31,
1988, to prevent the multiple use of the alternative method
described in this paragraph and Code Section 401(m)(9)(A), any
Highly Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 or any other cash or deferred
arrangement maintained by the Employer or an Affiliated Employer
and to make Employee contributions or to receive matching
contributions under this Plan or under any other plan maintained
by the Employer or an Affiliated Employer shall have his actual
contribution ratio reduced pursuant to Regulation 1.401(m)-2. The
provisions of Code Section 401(m) and Regulations 1.401(m)-l(b)
and 1.401(m)-2 are incorporated herein by reference.
(b) For the purposes of this Section and Section 4.8, "Actual
Contribution Percentage" for a Plan Year means, with respect to the
Highly Compensated Participant group and Non-Highly Compensated
Participant group, the average of the ratios (calculated separately
for each Participant in each group) of:
(1) the sum of Employer matching contributions made pursuant to
Section 4.1(b) on behalf of each such Participant for such Plan
Year; to
(2) the Participant's "414(s) Compensation" for such Plan Year.
(c) For purposes of determining the "Actual Contribution
Percentage" and the amount of Excess Aggregate Contributions pursuant
to Section 4.8(d), only Employer matching contributions (excluding
Employer matching contributions forfeited pursuant to Sections 4.2(f)
and 4.6(a)(1) or forfeited pursuant to Section 4.8(a)) contributed to
the Plan prior to the end of the succeeding Plan Year shall
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be considered. In addition, the Administrator may elect to take into
account, with respect to Employees eligible to have Employer matching
contributions pursuant to Section 4.1(b) allocated to their accounts,
elective deferrals (as defined in Regulation 1.402(g)-l(b)) and
qualified non-elective contributions (as defined in Code Section
401(m)(4)(C)) contributed to any plan maintained by the Employer. Such
elective deferrals and qualified non-elective contributions shall be
treated as Employer matching contributions subject to Regulation
1.401(m)-l(b)(5) which is incorporated herein by reference. However,
for Plan Years beginning after December 31, 1988, the Plan Year must
be the same as the plan year of the plan to which the elective
deferrals and the qualified non-elective contributions are made.
(d) For the purpose of determining the actual contribution ratio
of a Highly Compensated Employee who is subject to the Family Member
aggregation rules of Code Section 414(q)(6) because such Employee is
either a "five percent owner" of the Employer or one of the ten (10)
Highly Compensated Employees paid the greatest "415 Compensation"
during the year, the following shall apply:
(1) The combined actual contribution ratio for the family group
(which shall be treated as one Highly Compensated Participant)
shall be determined by aggregating Employer matching
contributions made pursuant to Section 4.1(b) and "414(s)
Compensation" of all eligible Family Members (including Highly
Compensated Participants). However, in applying the $200,000
limit to "414(s) Compensation" for Plan Years beginning after
December 31, 1988, Family Members shall include only the affected
Employee's spouse and any lineal descendants who have not
attained age 19 before the close of the Plan Year.
Notwithstanding the foregoing, with respect to Plan Years
beginning prior to January 1, 1990, compliance with the
Regulations then in effect shall be deemed to be compliance with
this paragraph.
(2) The Employer matching contributions made pursuant to Section
4.1(b) and "414(s) Compensation" of all Family Members shall be
disregarded for purposes of determining the "Actual Contribution
Percentage" of the Non-Highly Compensated Participant group
except to the extent taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a member of
more than one family group in a plan, all Participants who are
members or those family groups that include the Participant are
aggregated as one family group in accordance with paragraphs (1)
and (2) above.
(e) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Employer to which
matching contributions, Employee contributions, or both, are made are
treated as one plan for purposes of Code Sections 401(a)(4) or 410(b)
(other than the average benefits test under Code Section
410(b)(2)(A)(ii) as in effect for Plan Years beginning after
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December 31, 1988), such plans shall be treated as one plan. In
addition, two or more plans of the Employer to which matching
contributions, Employee contributions, or both, are made may be
considered as a single plan for purposes of determining whether or not
such plans satisfy Code Sections 401(a)(4), 410(b) and 401(m). In such
a case, the aggregated plans must satisfy this Section and Code
Sections 401(a)(4), 410(b) and 401(m) as though such aggregated plans
were a single plan.
Notwithstanding the above, for Plan Years beginning after
December 31, 1988, this Plan may not be aggregated with any other plan
for purposes of determining whether this Plan or any other plan
satisfies this Section and Code Sections 401(a)(4), 410(b) and 401(m).
(f) If a Highly Compensated Participant is a Participant under
two or more plans which are maintained by the Employer or an
Affiliated Employer to which matching contributions, Employee
contributions, or both, are made, all such contributions on behalf of
such Highly Compensated Participant shall be aggregated for purposes
of determining such Highly Compensated Participant's actual
contribution ratio. However, for Plan Years beginning after December
31, 1988, no such aggregation is permitted.
(g) For purposes of Sections 4.7(a) and 4.8, a Highly
Compensated Participant and Non-Highly Compensated Participant shall
include any Employee eligible to have Employer matching contributions
pursuant to Section 4.1(b) (whether or not a deferral election was
made or suspended pursuant to Section 4.2(e)) allocated to his account
for the Plan Year.
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) In the event that the "Actual Contribution Percentage" for
the Highly Compensated Participant group exceeds the "Actual
Contribution Percentage" for the Non-Highly Compensated Participant
group pursuant to Section 4.7(a), the Administrator (on or before the
fifteenth day of the third month following the end of the Plan Year,
but in no event later than the close of the following Plan Year) shall
direct the Trustee to distribute to the Highly Compensated Participant
having the highest actual contribution ratio, his Vested portion of
Excess Aggregate Contributions (and Income allocable to such
contributions) and, if forfeitable, forfeit such non-Vested Excess
Aggregate Contributions attributable to Employer matching
contributions (and Income allocable to such forfeitures) until either
one of the tests set forth in Section 4.7(a) is satisfied, or until
his actual contribution ratio equals the actual contribution ratio of
the Highly Compensated Participant having the second highest actual
contribution ratio. This process shall continue until one of the tests
set forth in Section 4.7(a) is satisfied.
If the correction of Excess Aggregate Contributions
attributable to Employer matching contributions is not in proportion
to the Vested and non-Vested portion of such contributions, then the
Vested portion of the
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Participant's Account attributable to Employer matching contributions
after the correction shall be subject to Section 7.5(k).
(b) Any distribution and/or Forfeiture of less than the entire
amount of Excess Aggregate Contributions (and Income) shall be treated
as a pro rata distribution and/or Forfeiture of Excess Aggregate
Contributions and Income. Distribution of Excess Aggregate
Contributions shall be designated by the Employer as a distribution of
Excess Aggregate Contributions (and Income). Forfeitures of Excess
Aggregate Contributions shall be treated in accordance with Section
4.4.
(c) Excess Aggregate Contributions, including forfeited matching
contributions, shall be treated as Employer contributions for purposes
of Code Sections 404 and 415 even if distributed from the Plan.
Forfeited matching contributions that are reallocated to
Participants' Accounts for the Plan Year in which the forfeiture
occurs shall be treated as an "annual addition" pursuant to Section
4.9(c) for the Participants to whose Accounts they are reallocated and
for the Participants from whose Accounts they are forfeited.
(d) For each Highly Compensated Participant, the amount of
Excess Aggregate Contributions is equal to the Employer matching
contributions made pursuant to Section 4.1(b) and any qualified non-
elective contributions or elective deferrals taken into account
pursuant to Section 4.7(c) on behalf of the Highly Compensated
Participant (determined prior to the application of this paragraph)
minus the amount determined by multiplying the Highly Compensated
Participant's actual contribution ratio (determined after application
of this paragraph) by his "414(s) Compensation". The actual
contribution ratio must be rounded to the nearest one-hundredth of one
percent for Plan Years beginning after December 31, 1988. In no case
shall the amount of Excess Aggregate Contribution with respect to any
Highly Compensated Participant exceed the amount of Employer matching
contributions made pursuant to Section 4.1(b) and any qualified non-
elective contributions or elective deferrals taken into account
pursuant to Section 4.7(c) on behalf of such Highly Compensated
Participant for such Plan Year.
(e) The determination of the amount of Excess Aggregate
Contributions with respect to any Plan Year shall be made after first
determining the Excess Contributions, if any, to be treated as
voluntary Employee contributions due to recharacterization for the
plan year of any other qualified cash or deferred arrangement (as
defined in Code Section 401(k)) maintained by the Employer that ends
with or within the Plan Year.
(f) If the determination and correction of Excess Aggregate
Contributions of a Highly Compensated Participant whose actual
contribution ratio is determined under the family aggregation rules,
then the actual contribution ratio shall be
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reduced and the Excess Aggregate Contributions for the family unit
shall be allocated among the Family Members in proportion to the sum
of Employer matching contributions made pursuant to Section 4.1(b) and
any qualified non-elective contributions or elective deferrals taken
into account pursuant to Section 4.7(c) of each Family Member that
were combined to determine the group actual contribution ratio.
Notwithstanding the foregoing, with respect to Plan Years beginning
prior to January 1, 1990, compliance with the Regulations then in
effect shall be deemed to be compliance with this paragraph.
(g) If during a Plan Year the projected aggregate amount of
Employer matching contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue of the tests
set forth in Section 4.7(a), cause the Plan to fail such tests, then
the Administrator may automatically reduce proportionately or in the
order provided in Section 4.8(a) each affected Highly Compensated
Participant's projected share of such contributions by an amount
necessary to satisfy one of the tests set forth in Section 4.7(a).
(h) Notwithstanding the above, within twelve (12) months after
the end of the Plan Year, the Employer may make a special Qualified
Non-Elective Contribution on behalf of Non-Highly Compensated
Participants in an amount sufficient to satisfy one of the tests set
forth in Section 4.7(a). Such contribution shall be allocated to the
Participant's Elective Account of each Non-Highly Compensated
Participant in the same proportion that each Non-Highly Compensated
Participant's Compensation for the year bears to the total
Compensation of all Non-Highly Compensated Participants. A separate
accounting shall be maintained for the purpose of excluding such
contributions from the "Actual Deferral Percentage" tests pursuant to
Section 4.5(a).
4.9 MAXIMUM ANNUAL ADDITIONS
(a) Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's accounts for any "limitation
year" shall equal the lesser of: (1) $30,000 (or, if greater, one-
fourth of the dollar limitation in effect under Code Section
415(b)(1)(A)) or (2) twenty-five percent (25%) of the Participant's
"415 Compensation" for such "limitation year". For any short
"limitation year", the dollar limitation in (1) above shall be reduced
by a fraction, the numerator of which is the number of full months in
the short "limitation year" and the denominator of which is twelve
(12).
(b) For "limitation years" beginning prior to July 13, 1989, the
dollar amount provided for in paragraph (a)(l) above shall be
increased by the lesser of the dollar amount determined under
paragraph (a)(l) above or the amount of Company Stock contributed, or
purchased with cash contributed. The dollar amount shall be increased
provided no more than one-third of the Employer's contributions for
the year are allocated to Highly Compensated Participants. In applying
this limitation, the family group of a Highly Compensated Participant
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who is subject to the Family Member aggregation rules of Code Section
414(q)(6) shall be determined pursuant to Regulations.
(c) For purposes of applying the limitations of Code Section 415,
"annual additions" means the sum credited to a Participant's accounts
for any "limitation year" of (1) Employer contributions, (2) Employee
contributions, (3) forfeitures, (4) amounts allocated, after March 31,
1984, to an individual medical account, as defined in Code Section
415(1)(2) which is part of a pension or annuity plan maintained by the
Employer and (5) amounts derived from contributions paid or accrued
after December 31, 1985, in taxable years ending after such date,
which are attributable to post-retirement medical benefits allocated
to the separate account of a key employee (as defined in Code Section
419A(d)(3)) under a welfare benefit plan (as defined in Code Section
419(e)) maintained by the Employer. Except, however, the "415
Compensation" percentage limitation referred to in paragraph (a)(2)
above shall not apply to: (1) any contribution for medical benefits
(within the meaning of Code Section 419A(f)(2)) after separation from
service which is otherwise treated as an "annual addition", or (2) any
amount otherwise treated as an "annual addition" under Code Section
415(1)(1).
(d) For purposes of applying the limitations of Code Section
415, the transfer of funds from one qualified plan to another is not
an "annual addition". In addition, the following are not Employee
contributions for the purposes of Section 4.9(c)(2): (1) rollover
contributions (as defined in Code Sections 402(a)(5), 403(a)(4),
403(b)(8) and 408(d)(3)); (2) repayments of loans made to a
Participant from the Plan; (3) repayments of distributions received by
an Employee pursuant to Code Section 411(a)(7)(B) (cash-outs); ()
repayments of distributions received by an Employee pursuant to Code
Section 411(a)(3)(D) (mandatory contributions); and (5) Employee
contributions to a simplified employee pension excludable from gross
income under Code Section 408(k)(6).
(e) For purposes of applying the limitations of Code Section
415, the "limitation year" shall be the Plan Year.
(f) The dollar limitation under Code Section 415(b)(1)(A) stated
in paragraph (a)(l) above shall be adjusted annually as provided in
Code Section 415(d) pursuant to the Regulations. The adjusted
limitation is effective as of January 1st of each calendar year and is
applicable to "limitation years" ending with or within that calendar
year.
(g) For the purpose of this Section, all qualified defined
benefit plans (whether terminated or not) ever maintained by the
Employer shall be treated as one defined benefit plan, and all
qualified defined contribution plans (whether terminated or not) ever
maintained by the Employer shall be treated as one defined
contribution plan.
(h) For the purpose of this Section, if the Employer is a member
of a controlled group of corporations, trades or businesses under
common control (as
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defined by Code Section 1563(a) or Code Section 414(b) and (c) as
modified by Code Section 415(h)), is a member of an affiliated service
group (as defined by Code Section 414(m)), or is a member of a group
of entities required to be aggregated pursuant to Regulations under
Code Section 414(o), all Employees of such Employers shall be
considered to be employed by a single Employer.
(i) For the purpose of this Section, if this Plan is a Code
Section 413(c) plan, all Employers of a Participant who maintain this
Plan will be considered to be a single Employer.
(j) (1) If a Participant participates in more than one defined
contribution plan maintained by the Employer which have different
Anniversary Dates, the maximum "annual additions" under this Plan
shall equal the maximum "annual additions" for the "limitation year"
minus any "annual additions" previously credited to such Participant's
accounts during the "limitation year".
(2) If a Participant participates in both a defined contribution
plan subject to Code Section 412 and a defined contribution plan
not subject to Code Section 412 maintained by the Employer which
have the same Anniversary Date, "annual additions" will be
credited to the Participant's accounts under the defined
contribution plan subject to Code Section 412 prior to crediting
"annual additions" to the Participant's accounts under the
defined contribution plan not subject to Code Section 412.
(3) If a Participant participates in more than one defined
contribution plan not subject to Code Section 412 maintained by
the Employer which have the same Anniversary Date, the maximum
"annual additions" under this Plan shall equal the product of (A)
the maximum "annual additions" for the "limitation year" minus
any "annual additions" previously credited under subparagraphs
(1) or (2) above, multiplied by (B) a fraction (i) the numerator
of which is the "annual additions" which would be credited to
such Participant's accounts under this Plan without regard to the
limitations of Code Section 415 and (ii) the denominator of which
is such "annual additions" for all plans described in this
subparagraph.
(k) If an Employee is (or has been) a Participant in one or more
defined benefit plans and one or more defined contribution plans
maintained by the Employer, the sum of the defined benefit plan
fraction and the defined contribution plan fraction for any
"limitation year" may not exceed 1.0.
(l) The defined benefit plan fraction for any "limitation year"
is a fraction, the numerator of which is the sum of the Participant's
projected annual benefits under all the defined benefit plans (whether
or not terminated) maintained by the Employer, and the denominator of
which is the lesser of 125 percent of the dollar limitation determined
for the "limitation year" under Code Sections 415(b) and (d) or 140
percent of the highest average compensation, including any adjustments
under Code Section 415(b).
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Notwithstanding the above, if the Participant was a
Participant as of the first day of the first "limitation year"
beginning after December 31, 1986, in one or more defined benefit
plans maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will not be less than 125
percent of the sum of the annual benefits under such plans which the
Participant had accrued as of the close of the last "limitation year"
beginning before January 1, 1987, disregarding any changes in the
terms and conditions of the plan after May 5, 1986. The preceding
sentence applies only if the defined benefit plans individually and in
the aggregate satisfied the requirements of Code Section 415 for all
"limitation years" beginning before January 1, 1987.
(m) The defined contribution plan fraction for any "limitation
year" is a fraction, the numerator of which is the sum of the annual
additions to the Participant's Account under all the defined
contribution plans (whether or not terminated) maintained by the
Employer for the current and all prior "limitation years" (including
the annual additions attributable to the Participant's nondeductible
Employee contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the annual additions
attributable to all welfare benefit funds, as defined in Code Section
419(e), and individual medical accounts, as defined in Code Section
415(1)(2), maintained by the Employer), and the denominator of which
is the sum of the maximum aggregate amounts for the current and all
prior "limitation years" of service with the Employer (regardless of
whether a defined contribution plan was maintained by the Employer).
The maximum aggregate amount in any "limitation year" is the lesser of
125 percent of the dollar limitation determined under Code Sections
415(b) and (d) in effect under Code Section 415(c)(1)(A) or 35 percent
of the Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first
day of the first "limitation year" beginning after December 31, 1986,
in one or more defined contribution plans maintained by the Employer
which were in existence on May 6, 1986, the numerator of this fraction
will be adjusted if the sum of this fraction and the defined benefit
fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of (1) the excess
of the sum of the fractions over 1.0 times (2) the denominator of this
fraction, will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they
would be computed as of the end of the last "limitation year"
beginning before January 1, 1987, and disregarding any changes in the
terms and conditions of the Plan made after May 5, 1986, but using the
Code Section 415 limitation applicable to the first "limitation year"
beginning on or after January 1, 1987. The annual addition for any
"limitation year" beginning before January 1, 1987 shall not be
recomputed to treat all Employee contributions as annual additions.
(n) Notwithstanding the foregoing, for any "limitation year" in
which the Plan is a Top Heavy Plan, 100 percent shall be substituted
for 125 percent in Sections 4.9(1) and 4.9(m) unless the extra minimum
allocation is being provided
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pursuant to Section 4.4. However, for any "limitation year" in which
the Plan is a Super Top Heavy Plan, 100 percent shall be substituted
for 125 percent in any event.
(o) It the sum of the defined benefit plan fraction and the
defined contribution plan fraction shall exceed 1.0 in any "limitation
year" for any Participant in this Plan, the Administrator shall limit,
to the extent necessary, the "annual additions" to such Participant's
accounts for such "limitation year". If, after limiting the annual
additions" to such Participant's accounts for the "limitation year",
the sum of the defined benefit plan fraction and the defined
contribution plan fraction still exceed 1.0, the Administrator shall
then adjust the numerator of the defined benefit plan fraction so that
the sum of both fractions shall not exceed 1.0 in any "limitation
year" for such Participant.
(p) Notwithstanding anything contained in this Section to the
contrary, the limitations, adjustments and other requirements
prescribed in this Section shall at all times comply with the
provisions of Code Section 415 and the Regulations thereunder, the
terms of which are specifically incorporated herein by reference.
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(a) If, as a result of a reasonable error in estimating a
Participant's Compensation, a reasonable error in determining the
amount of elective deferrals (within the meaning of Code Section
402(g)(3)) that may be made with respect to any Participant under the
limits of Section 4.9 or other facts and circumstances to which
Regulation 1.415-6(b)(6) shall be applicable, the "annual additions"
under this Plan would cause the maximum "annual additions" to be
exceeded for any Participant, the Administrator shall (1) distribute
any elective deferrals (within the meaning of Code Section 402(g)(3))
or return any voluntary Employee contributions credited for the
"limitation year" to the extent that the return would reduce the
"excess amount" in the Participant's accounts (2) hold any "excess
amount" remaining after the return of any elective deferrals or
voluntary Employee contributions in a "Section 415 suspense account"
(3) use the "Section 415 suspense account" in the next "limitation
year" (and succeeding "limitation years" if necessary) to reduce
Employer contributions for that Participant if that Participant is
covered by the Plan as of the end of the "limitation year", or if the
Participant is not so covered, allocate and reallocate the "Section
415 suspense account" in the next "limitation year" (and succeeding
"limitation years" if necessary) to all Participants in the Plan
before any Employer or Employee contributions which would constitute
"annual additions" are made to the Plan for such "limitation year" (4)
reduce Employer contributions to the Plan for such "limitation year"
by the amount of the "Section 415 suspense account" allocated and
reallocated during such "limitation year".
(b) For purposes of this Article, "excess amount" for any
Participant for a "limitation year" shall mean the excess, if any, of
(1) the "annual additions" which would be credited to his account
under the terms of the Plan without regard
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to the limitations of Code Section 415 over (2) the maximum "annual
additions" determined pursuant to Section 4.9.
(c) For purposes of this Section, "Section 415 suspense account"
shall mean an unallocated account equal to the sum of "excess amounts"
for all Participants in the Plan during the "limitation year". The
"Section 415 suspense account" shall not share in any earnings or
losses of the Trust Fund.
(d) The Plan may not distribute "excess amounts", other than
voluntary Employee contributions, to Participants or Former
Participants.
4.11 TRANSFERS FROM QUALIFIED PLANS
(a) With the consent of the Administrator, amounts may be
transferred from other qualified plans by Employees, provided that the
trust from which such funds are transferred permits the transfer to be
made and the transfer will not jeopardize the tax exempt status of the
Plan or Trust or create adverse tax consequences for the Employer. The
amounts transferred shall be set up in a separate account herein
referred to as a "Participant's Rollover Account". Such account shall
be fully Vested at all times and shall not be subject to Forfeiture
for any reason.
(b) Amounts in a Participant's Rollover Account shall be held by
the Trustee pursuant to the provisions of this Plan and may not be
withdrawn by, or distributed to the Participant, in whole or in part,
except as provided in paragraphs (c) and (d) of this Section.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), amounts attributable to elective contributions (as
defined in Regulation 1.401(k)-l(g)(3)), including amounts treated as
elective contributions, which are transferred from another qualified
plan in a plan-to-plan transfer shall be subject to the distribution
limitations provided for in Regulation 1.401(k)-l(d).
(d) At Normal Retirement Date, or such other date when the
Participant or his Beneficiary shall be entitled to receive benefits,
the fair market value of the Participant's Rollover Account shall be
used to provide additional benefits to the Participant or his
Beneficiary. Any distributions of amounts held in a Participant's
Rollover Account shall be made in a manner which is consistent with
and satisfies the provisions of Section 7.5, including, but not
limited to, all notice and consent requirements of Code Section
411(a)(11) and the Regulations thereunder. Furthermore, such amounts
shall be considered as part of a Participant's benefit in determining
whether an involuntary cash-out of benefits without Participant
consent may be made.
(e) The Administrator may direct that employee transfers made
after a valuation date be segregated into a separate account for each
Participant in a federally insured savings account, certificate of
deposit in a bank or savings and loan association, money market
certificate, or other short term debt security
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acceptable to the Trustee until such time as the allocations pursuant
to this Plan have been made, at which time they may remain segregated
or be invested as part of the general Trust Fund, to be determined by
the Administrator.
(f) All amounts allocated to a Participant's Rollover Account may
be treated as a Directed Investment Account pursuant to Section 4.12.
(g) For purposes of this Section, the term "qualified plan" shall
mean any tax qualified plan under Code Section 401(a). The term
"amounts transferred from other qualified plans" shall mean: (i)
amounts transferred to this Plan directly from another qualified plan;
(ii) lump-sum distributions received by an Employee from another
qualified plan which are eligible for tax free rollover to a qualified
plan and which are transferred by the Employee to this Plan within
sixty (60) days following his receipt thereof; (iii) amounts
transferred to this Plan from a conduit individual retirement account
provided that the conduit individual retirement account has no assets
other than assets which (A) were previously distributed to the
Employee by another qualified plan as a lump-sum distribution (B) were
eligible for tax-free rollover to a qualified plan and (C) were
deposited in such conduit individual retirement account within sixty
(60) days of receipt thereof and other than earnings on said assets:
and (iv) amounts distributed to the Employee from a conduit individual
retirement account meeting the requirements of clause (iii) above, and
transferred by the Employee to this Plan within sixty (60) days of his
receipt thereof from such conduit individual retirement account.
(h) Prior to accepting any transfers to which this Section
applies, the Administrator may require the Employee to establish that
the amounts to be transferred to this Plan meet the requirements of
this Section and may also require the Employee to provide an opinion
of counsel satisfactory to the Employer that the amounts to be
transferred meet the requirements of this Section.
(i) This Plan shall not accept any direct or indirect transfers
(as that term is defined and interpreted under Code Section 401(a)(11)
and the Regulations thereunder) from a defined benefit plan, money
purchase plan (including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a life annuity
form of payment to the Participant.
(j) Notwithstanding anything herein to the contrary, a transfer
directly to this Plan from another qualified plan (or a transaction
having the effect of such a transfer) shall only be permitted if it
will not result in the elimination or reduction of any "Section
411(d)(6) protected benefit" as described in Section 9.1.
4.12 DIRECTED INVESTMENT ACCOUNT
(a) The Administrator, subject to subparagraph (b) below, may
determine that all Participants be permitted to direct the Trustee as
to the investment of all or a portion of the interest in any one or
more of their individual account balances. If such authorization is
given, Participants may, subject to a procedure
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established by the Administrator and applied in a uniform
nondiscriminatory manner, direct the Trustee in writing to invest any
portion of their account in specific assets, specific funds or other
investments permitted under the Plan and the directed investment
procedure. That portion of the account of any Participant so directing
will thereupon be considered a Directed Investment Account, which
shall not share in Trust Fund earnings.
b) Each "Qualified Participant" may elect within ninety (90)
days after the close of each Plan Year during the "Qualified Election
Period" to direct the Trustee in writing as to the investment of 25
percent of the total number of shares of Company Stock acquired by or
contributed to the Plan that have ever been allocated to such
"Qualified Participant's" Company Stock Account (reduced by the number
of shares of Company Stock previously invested pursuant to a prior
election). In the case of the election year in which the Participant
can make his last election, the preceding sentence shall be applied by
substituting "50 percent" for "25 percent". If the "Qualified
Participant" elects to direct the Trustee as to the investment of his
Company Stock Account, such direction shall be effective no later than
180 days after the close of the Plan Year to which such direction
applies.
Notwithstanding the above, if the fair market value
(determined pursuant to Section 6.1 at the Plan valuation date
immediately preceding the first day on which a "Qualified Participant"
is eligible to make an election) of Company Stock acquired by or
contributed to the Plan and allocated to a "Qualified Participant's"
Company Stock Account is $500 or less, then such Company Stock shall
not be subject to this paragraph. For purposes of determining whether
the fair market value exceeds $500, Company Stock held in accounts of
all employee stock ownership plans (as defined in Code Section
4975(e)(7)) and tax credit employee stock ownership plans (as defined
in Code Section 409(a)) maintained by the Employer or any Affiliated
Employer shall be considered as held by the Plan.
(c) For the purposes of this Section the following definitions
shall apply:
(1) "Qualified Participant" means any Participant or Former
Participant who has completed ten (10) Plan Years of Service as a
Participant and has attained age 55.
(2) "Qualified Election Period" means the six (6) Plan Year
period beginning with the later of (i) the first Plan Year in
which the Participant first became a "Qualified Participant", or
(ii) the first Plan Year beginning after December 31, 1986.
(d) A separate Directed Investment Account shall be established
for each Participant who has directed an investment. Transfers between
the Participant's regular account and his Directed Investment Account
shall be charged and credited as the case may be to each account. The
Directed Investment Account
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shall not share in Trust Fund earnings, but it shall be charged or
credited as appropriate with the net earnings, gains, losses and
expenses as well as any appreciation or depreciation in market value
during each Plan Year attributable to such account.
ARTICLE V
FUNDING AND INVESTMENT POLICY
5.1 INVESTMENT POLICY
(a) The Plan is designed to invest primarily in Company Stock.
(b) With due regard to subparagraph (a) above, the Administrator
may also direct the Trustee to invest funds under the Plan in other
property described in the Trust or in life insurance policies to the
extent permitted by subparagraph (c) below, or the Trustee may hold
such funds in cash or cash equivalents.
(c) With due regard to subparagraph (a) above, the Administrator
may also direct the Trustee to invest funds under the Plan in
insurance policies on the life of any "keyman" Employee. The proceeds
of a "keyman" insurance policy may not be used for the repayment of
any indebtedness owed by the Plan which is secured by Company Stock.
In the event any "keyman" insurance is purchased by the Trustee, the
premiums paid thereon during any Plan Year, net of any policy
dividends and increases in cash surrender values, shall be treated as
the cost of Plan investment and any death benefit or cash surrender
value received shall be treated as proceeds from an investment of the
Plan.
(d) The Plan may not obligate itself to acquire Company Stock
from a particular holder thereof at an indefinite time determined upon
the happening of an event such as the death of the holder.
(e) The Plan may not obligate itself to acquire Company Stock
under a put option binding upon the Plan. However, at the time a put
option is exercised, the Plan may be given an option to assume the
rights and obligations of the Employer under a put option binding upon
the Employer.
(f) All purchases of Company Stock shall be made at a price
which, in the judgment of the Administrator, does not exceed the fair
market value thereof. All sales of Company Stock shall be made at a
price which, in the judgment of the Administrator, is not less than
the fair market value thereof. The valuation rules set forth in
Article VI shall be applicable.
5.2 TRANSACTIONS INVOLVING COMPANY STOCK
(a) No portion of the Trust Fund attributable to (or allocable
in lieu of) Company Stock acquired by the Plan in a sale to which Code
Section 1042 or, for estates of decedents who died prior to December
20, 1989, Code Section 2057
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applies may accrue or be allocated directly or indirectly under any
plan maintained by the Employer meeting the requirements of Code
Section 401(a):
(1) during the "Nonallocation Period", for the benefit of
(i) any taxpayer who makes an election under Code Section
1042(a) with respect to Company Stock or any decedent if
the executor of the estate of the decedent makes a
qualified sale to which Code Section 2057 applies,
(ii) any individual who is related to the taxpayer or the
decedent (within the meaning of Code Section 267(b)), or
(2) for the benefit of any other person who owns (after
application of Code Section 318(a) applied without regard to the
employee trust exception in Code Section 318(a)(2)(B)(i)) more
than 25 percent of
(i) any class of outstanding stock of the Employer or
Affiliated Employer which issued such Company Stock, or
(ii) the total value of any class of outstanding stock of
the Employer or Affiliated Employer.
(b) Except, however, subparagraph (a)(l)(ii) above shall not
apply to lineal descendants of the taxpayer, provided that the
aggregate amount allocated to the benefit of all such lineal
descendants during the "Nonallocation Period" does not exceed more
than five (5) percent of the Company Stock (or amounts allocated in
lieu thereof) held by the Plan which are attributable to a sale to the
Plan by any person related to such descendants (within the meaning of
Code Section 267(c)(4)) in a transaction to which Code Section 1042 or
Code Section 2057 is applied.
(c) A person shall be treated as failing to meet the stock
ownership limitation under paragraph (a)(2) above if such person fails
such limitation:
(1) at any time during the one (1) year period ending on the
date of sale of Company Stock to the Plan, or
(2) on the date as of which Company Stock is allocated to
Participants in the Plan.
(d) For purposes of this Section, "Nonallocation Period" means
the period beginning on the date of the sale of the Company Stock and
ending on the date which is ten (10) years after the date of sale.
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ARTICLE VI
VALUATIONS
6.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each Anniversary
Date, and at such other date or dates deemed necessary by the Administrator,
herein called "valuation date", to determine the net worth of the assets
comprising the Trust Fund as it exists on the "valuation date." In determining
such net worth, the Trustee shall value the assets comprising the Trust Fund at
their fair market value as of the "valuation date" and shall deduct all expenses
for which the Trustee has not yet obtained reimbursement from the Employer or
the Trust Fund.
6.2 METHOD OF VALUATION
Valuations must be made in good faith and based on all relevant
factors for determining the fair market value of securities. In the case of a
transaction between a Plan and a disqualified person, value must be determined
as of the date of the transaction. For all other Plan purposes, value must be
determined as of the most recent "valuation date" under the Plan. An independent
appraisal will not in itself be a good faith determination of value in the case
of a transaction between the Plan and a disqualified person. However, in other
cases, a determination of fair market value based on at least an annual
appraisal independently arrived at by a person who customarily makes such
appraisals and who is independent of any party to the transaction will be deemed
to be a good faith determination of value. Company Stock not readily tradeable
on an established securities market shall be valued by an independent appraiser
meeting requirements similar to the requirements of the Regulations prescribed
under Code Section 170(a)(1).
ARTICLE VII
DETERMINATION AND DISTRIBUTION OF BENEFITS
7.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer and
retire for the purposes hereof on his Normal Retirement Date or Early Retirement
Date. However, a Participant nay postpone the termination of his employment with
the Employer to a later date, in which event the participation of such
Participant in the Plan, including the right to receive allocations pursuant to
Section 4.4, shall continue until his Late Retirement Date. Upon a Participant's
Retirement Date, or as soon thereafter as is practicable, the Trustee shall
distribute all amounts credited to such Participant's Combined Account in
accordance with Sections 7.5 and 7.6.
7.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his Retirement Date or
other termination of his employment, all amounts credited to such
Participant's Combined Account shall become fully Vested. If elected,
distribution of the Participant's Combined Account shall commence not
later than one (1) year after
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the close of the Plan Year in which such Participant's death occurs.
The Administrator shall direct the Trustee, in accordance with the
provisions of Sections 7.5 and 7.6, to distribute the value of the
deceased Participant's accounts to the Participant's Beneficiary.
(b) Upon the death of a Former Participant, the Administrator
shall direct the Trustee, in accordance with the provisions of
Sections 7.5 and 7.6, to distribute any remaining Vested amounts
credited to the accounts of a deceased Former Participant to such
Former Participant's Beneficiary.
(c) Any security interest held by the Plan by reason of an
outstanding loan to the Participant or Former Participant shall be
taken into account in determining the amount of the death benefit.
(d) The Administrator may require such proper proof of death and
such evidence of the right of any person to receive payment of the
value of the account of a deceased Participant or Former Participant
as the Administrator may deem desirable. The Administrator's
determination of death and of the right of any person to receive
payment shall be conclusive.
(e) The Beneficiary of the death benefit payable pursuant to this
Section shall be the Participant's spouse. Except, however, the
Participant may designate a Beneficiary other than his spouse if:
(1) the spouse has waived the right to be the Participant's
Beneficiary, or
(2) the Participant is legally separated or has been abandoned
(within the meaning of local law) and the Participant has a court
order to such effect (and there is "no qualified domestic
relations order" as defined in Code Section 414(p) which provides
otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall be
made on a form satisfactory to the Administrator. A Participant may at
any time revoke his designation of a Beneficiary or change his
Beneficiary by filing written notice of such revocation or change with
the Administrator. However, the Participant's spouse must again
consent in writing to any change in Beneficiary unless the original
consent acknowledged that the spouse had the right to limit consent
only to a specific Beneficiary and that the spouse voluntarily elected
to relinquish such right. In the event no valid designation of
Beneficiary exists at the time of the Participant's death, the death
benefit shall be payable to his estate.
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(f) Any consent by the Participant's spouse to waive any rights
to the death benefit must be in writing, must acknowledge the effect
of such waiver, and be witnessed by a Plan representative or a notary
public. Further, the spouse's consent must be irrevocable and must
acknowledge the specific nonspouse Beneficiary.
7.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Participant's Total and Permanent Disability prior
to his Retirement Date or other termination of his employment, all amounts
credited to such Participant's Combined Account shall become fully Vested. In
the event of a Participant's Total and Permanent Disability, the Trustee, in
accordance with the provisions of Sections 7.5 and 7.6, shall distribute to such
Participant all amounts credited to such Participant's Combined Account as
though he had retired. If such Participant elects, distribution shall commence
not later than one (1) year after the close of the Plan Year in which Total and
Permanent Disability occurs.
7.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) On or before the Anniversary Date coinciding with or
subsequent to the termination of a Participant's employment for any
reason other than death, Total and Permanent Disability or retirement,
the Administrator may direct the Trustee to segregate the amount of
the Vested portion of such Terminated Participant's Combined Account
and invest the aggregate amount thereof in a separate, federally
insured savings account, certificate of deposit, common or collective
trust fund of a bank or a deferred annuity. In the event the Vested
portion of a Participant's Combined Account is not segregated, the
amount shall remain in a separate account for the Terminated
Participant and share in allocations pursuant to Section 4.4 until
such time as a distribution is made to the Terminated Participant.
If a portion of a Participant's Account is forfeited,
Company Stock allocated to the Participant's Company Stock Account
must be forfeited only after the Participant's Other Investments
Account has been depleted. If interest in more than one class of
Company Stock has been allocated to a Participant's Account, the
Participant must be treated as forfeiting the same proportion of each
such class.
Distribution of the funds due to a Terminated Participant
shall be made on the occurrence of an event which would result in the
distribution had the Terminated Participant remained in the employ of
the Employer (upon the Participant's death, Total and Permanent
Disability, Early or Normal Retirement). However, at the election of
the Participant, the Administrator shall direct the Trustee to cause
the entire Vested portion of the Terminated Participant's Combined
Account to be payable to such Terminated Participant on or after the
"valuation date" coinciding with or next following termination of
employment. Any distribution under this paragraph shall be made in a
manner which is
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consistent with and satisfies the provisions of Sections 7.5 and 7.6,
including, but not limited to, all notice and consent requirements of
Code Section 411(a)(11) and the Regulations thereunder.
If the value of a Terminated Participant's Vested benefit
derived from Employer and Employee contributions does not exceed
$3,500 and has never exceeded $3,500 at the time of any prior
distribution, the Administrator shall direct the Trustee to cause the
entire Vested benefit to be paid to such Participant in a single lump
sum.
(b) The Vested portion of any Participant's Account shall be a
percentage of the total amount credited to his Participant's Account
determined on the basis of the Participant's number of Years of
Service according to the following schedule:
Vesting Schedule
Years of Service Percentage
1 20%
2 40%
3 60%
4 80%
5 100%
(c) Notwithstanding the vesting schedule above, the Vested
percentage of a Participant's Account shall not be less than the
Vested percentage attained as of the later of the effective date or
adoption date of this amendment and restatement.
(d) Notwithstanding the vesting schedule above, upon the
complete discontinuance of the Employer's contributions to the Plan or
upon any full or partial termination of the Plan, all amounts credited
to the account of any affected Participant shall become 100% Vested
and shall not thereafter be subject to Forfeiture.
(e) The computation of a Participant's nonforfeitable percentage
of his interest in the Plan shall not be reduced as the result of any
direct or indirect amendment to this Plan. For this purpose, the Plan
shall be treated as having been amended if the Plan provides for an
automatic change in vesting due to a change in top heavy status. In
the event that the Plan is amended to change or modify any vesting
schedule, a Participant with at least three (3) Years of Service as of
the expiration date of the election period may elect to have his
nonforfeitable percentage computed under the Plan without regard to
such amendment. If a Participant fails to make such election, then
such Participant shall be subject to the new vesting schedule. The
Participant's election period shall commence on the adoption date of
the amendment and shall end 60 days after the latest of:
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(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice of the
amendment from the Employer or Administrator.
(f)(1) If any Former Participant shall be reemployed by the
Employer before a 1-Year Break in Service occurs, he shall continue to
participate in the Plan in the same manner as if such termination had
not occurred.
(2) If any Former Participant shall be reemployed by the
Employer before five (5) consecutive 1-Year Breaks in Service,
and such Former Participant had received a distribution of his
entire Vested interest prior to his reemployment, his forfeited
account shall be reinstated only if he repays the full amount
distributed to him before the earlier of five (5) years after the
first date on which the Participant is subsequently reemployed by
the Employer or the close of the first period of five (5)
consecutive 1-Year Breaks in Service commencing after the
distribution. In the event the Former Participant does repay the
full amount distributed to him, the undistributed portion of the
Participant's Account must be restored in full, unadjusted by any
gains or losses occurring subsequent to the Anniversary Date or
other valuation date coinciding with or preceding his
termination. The source for such reinstatement shall first be any
Forfeitures occurring during the year. If such source is
insufficient, then the Employer shall contribute an amount which
is sufficient to restore any such forfeited Accounts provided,
however, that if a discretionary contribution is made for such
year pursuant to section 4.l(d), such contribution shall first be
applied to restore any such Accounts and the remainder shall be
allocated in accordance with Section 4.4.
(3) If any Former Participant is reemployed after a 1-Year Break
in Service has occurred, Years of Service shall include Years of
Service prior to his 1-Year Break in Service subject to the
following rules:
(i) If a Former Participant has a 1-Year Break in Service,
his pre-break and post-break service shall be used for
computing Years of Service for eligibility and for vesting
purposes only after he has been employed for one (1) Year of
Service following the date of his reemployment with the
Employer;
(ii) Any Former Participant who under the Plan does not
have a nonforfeitable right to any interest in the Plan
resulting from Employer contributions shall lose credits
otherwise allowable under (i) above if his consecutive 1-
Year Breaks in Service equal or exceed the greater of (A)
five (5) or (B) the aggregate number of his pre-break Years
of Service;
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(iii) After five (5) consecutive 1-Year Breaks in Service,
a Former Participant's Vested Account balance attributable
to pre-break service shall not be increased as a result of
post-break service;
(iv) If a Former Participant who has not had his Years of
Service before a 1-Year Break in Service disregarded
pursuant to (ii) above completes one (1) Year of Service for
eligibility purposes following his reemployment with the
Employer, he shall participate in the Plan retroactively
from his date of reemployment;
(v) If a Former Participant who has not had his Years of
Service before a 1-Year Break in Service disregarded
pursuant to (ii) above completes a Year of Service (a 1-Year
Break in Service previously occurred, but employment had not
terminated), he shall participate in the Plan retroactively
from the first day of the Plan Year during which he
completes one (1) Year of Service.
7.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the
Participant (or if no election has been made prior to the
Participant's death, by his Beneficiary), shall direct the Trustee to
distribute to a Participant or his Beneficiary any amount to which he
is entitled under the Plan in one or more of the following methods:
(1) One lump-sum payment;
(2) Payments over a period certain in monthly, quarterly,
semiannual, or annual installments. The period over which such
payment is to be made shall not extend beyond the earlier of the
Participant's life expectancy (or the life expectancy of the
Participant and his designated Beneficiary) or the limited
distribution period provided for in Section 7.5(b).
(b) Unless the Participant elects in writing a longer
distribution period, distributions to a Participant or his Beneficiary
attributable to Company Stock shall be in substantially equal monthly,
quarterly, semiannual, or annual installments over a period not longer
than five (5) years. In the case of a Participant with an account
balance attributable to Company Stock in excess of $500,000, the five
(5) year period shall be extended one (1) additional year (but not
more than five (5) additional years) for each $100,000 or fraction
thereof by which such balance exceeds $500,000. The dollar limits
shall be adjusted at the same time and in the same manner as provided
in Code Section 415(d).
(c) Any distribution to a Participant who has a benefit which
exceeds, or has ever exceeded, $3,500 at the time of any prior
distribution shall require such Participant's consent if such
distribution commences prior to the later of his Normal Retirement Age
or age 62. With regard to this required consent:
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(1) The Participant must be informed of his right to defer
receipt of the distribution. If a Participant fails to consent,
it shall be deemed an election to defer the commencement of
payment of any benefit. However, any election to defer the
receipt of benefits shall not apply with respect to distributions
which are required under Section 7.5(f).
(2) Notice of the rights specified under this paragraph shall be
provided no less than 30 days and no more than 90 days before the
first day on which all events have occurred which entitle the
Participant to such benefit.
(3) Written consent of the Participant to the distribution must
not be made before the Participant receives the notice and must
not be made more than 90 days before the first day on which all
events have occurred which entitle the Participant to such
benefit.
(4) No consent shall be valid if a significant detriment is
imposed under the Plan on any Participant who does not consent to
the distribution.
(d) Notwithstanding anything herein to the contrary, the
Administrator, in his sole discretion, may direct that cash dividends
on shares of Company Stock allocable to Participants' or Former
Participants' Company Stock Accounts be distributed to such
Participants or Former Participants within 90 days after the close of
the Plan Year in which the dividends are paid.
(e) Any part of a Participant's benefit which is retained in the
Plan after the Anniversary Date on which his participation ends will
continue to be treated as a Company Stock Account or as an Other
Investments Account (subject to Section 7.4(a)) as provided in Article
IV. However, neither account will be credited with any further
Employer contributions.
(f) Notwithstanding any provision in the Plan to the contrary,
the distribution of a Participant's benefits shall be made in
accordance with the following requirements and shall otherwise comply
with Code Section 401(a)(9) and the Regulations thereunder (including
Regulation 1.401(a)(9)-2), the provisions of which are incorporated
herein by reference:
(1) A Participant's benefits shall be distributed to him not
later than April 1st of the calendar year following the later of
(i) the calendar year in which the Participant attains age 70 1/2
or (ii) the calendar year in which the Participant retires,
provided, however, that this clause (ii) shall not apply in the
case of a Participant who is a "five (5) percent owner" at any
time during the five (5) Plan Year period ending in the calendar
year in which he attains age 70 1/2 or, in the case of a
Participant who becomes a "five (5) percent owner" during any
subsequent Plan Year, clause (ii) shall no longer apply and the
required beginning date shall be the April 1st of the calendar
year following the calendar year in which
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such subsequent Plan Year ends. Alternatively, distributions to a
Participant must begin no later than the applicable April 1st as
determined under the preceding sentence and must be made over a
period certain measured by the life expectancy of the Participant
(or the life expectancies of the Participant and his designated
Beneficiary) in accordance with Regulations. Notwithstanding the
foregoing, clause (ii) above shall not apply to any Participant
unless the Participant had attained age 70 1/2 before January 1,
1988 and was not a "five (5) percent owner" at any time during
the Plan Year ending with or within the calendar year in which
the Participant attained age 66 1/2 or any subsequent Plan Year.
(2) Distributions to a Participant and his Beneficiaries shall
only be made in accordance with the incidental death benefit
requirements of Code Section 401(a)(9)(G) and the Regulations
thereunder.
Additionally, for calendar years beginning before 1989,
distributions may also be made under an alternative method which
provides that the then present value of the payments to be made
over the period of the Participant's life expectancy exceeds
fifty percent (50%) of the then present value of the total
payments to be made to the Participant and his Beneficiaries.
(g) Notwithstanding any provision in the Plan to the
contrary, distributions upon the death of a Participant shall be
made in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the Regulations
thereunder. If it is determined pursuant to Regulations that the
distribution of a Participant's interest has begun and the
Participant dies before his entire interest has been distributed
to him, the remaining portion of such interest shall be
distributed at least as rapidly as under the method of
distribution selected pursuant to Section 7.5 as of his date of
death. If a Participant dies before he has begun to receive any
distributions of his interest under the Plan or before
distributions are deemed to have begun pursuant to Regulations,
then his death benefit shall be distributed to his Beneficiaries
by December 31st of the calendar year in which the fifth
anniversary of his date of death occurs.
However, the 5-year distribution requirement of the
preceding paragraph shall not apply to any portion of the
deceased Participant's interest which is payable to or for the
benefit of a designated Beneficiary. In such event, such portion
may, at the election of the Participant (or the Participant's
designated Beneficiary), be distributed over a period not
extending beyond the life expectancy of such designated
Beneficiary provided such distribution begins not later than
December 31st of the calendar year immediately following the
calendar year in which the Participant died. However, in the
event the Participant's spouse (determined as of the date of the
Participant's death) is his Beneficiary,
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the requirement that distributions commence within one year of a
Participant's death shall not apply. In lieu thereof,
distributions must commence on or before the later of: (1)
December 31st of the calendar year immediately following the
calendar year in which the Participant died; or (2) December 31st
of the calendar year in which the Participant would have attained
age 70 1/2. If the surviving spouse dies before distributions to
such spouse begin, then the 5-year distribution requirement of
this Section shall apply as if the spouse was the Participant.
(h) For purposes of Section 7.5(g), the election by a designated
Beneficiary to be excepted from the 5-year distribution requirement
must be made no later than December 31st of the calendar year
following the calendar year of the Participant's death. Except,
however, with respect to a designated Beneficiary who is the
Participant's surviving spouse, the election must be made by the
earlier of: (1) December 31st of the calendar year immediately
following the calendar year in which the Participant died or, if
later, the calendar year in which the Participant would have attained
age 70 1/2; or (2) December 31st of the calendar year which contains
the fifth anniversary of the date of the Participant's death. An
election by a designated Beneficiary must be in writing and shall be
irrevocable as of the last day of the election period stated herein.
In the absence of an election by the Participant or a designated
Beneficiary, the 5-year distribution requirement shall apply.
(i) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the election of the
Participant or the Participant's spouse, be redetermined in accordance
with Regulations. The election, once made, shall be irrevocable. If no
election is made by the time distributions must commence, then the
life expectancy of the Participant and the Participant's spouse shall
not be subject to recalculation. Life expectancy and joint and last
survivor expectancy shall be computed using the return multiples in
Tables V and VI of Regulation 1.72-9.
(j) Except as limited by Sections 7.5 and 7.6, whenever the
Trustee is to make a distribution or to commence a series of payments
on or as of an Anniversary Date, the distribution or series of
payments may be made or begun on such date or as soon thereafter as is
practicable. However, unless a Former Participant elects in writing to
defer the receipt of benefits (such election may not result in a death
benefit that is more than incidental), the payment of benefits shall
begin not later than the 60th day after the close of the Plan Year in
which the latest of the following events occurs:
(1) the date on which the Participant attains the earlier of age
65 or the Normal Retirement Age specified herein;
(2) the 10th anniversary of the year in which the Participant
commenced participation in the Plan; or
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(3) the date the Participant terminates his service with the
Employer.
(k) If a distribution is made at a time when a Participant is not
fully Vested in his Participant's Account (employment has not
terminated) and the Participant may increase the Vested percentage in
such account:
(1) a separate account shall be established for the Participant's
interest in the Plan as of the time of the distribution; and
(2) at any relevant time, the Participant's Vested portion of the
separate account shall be equal to an amount ("X") determined by
the formula:
X equals P(AB plus (R x D)) - (R x D)
For purposes of applying the formula: P is the Vested percentage
at the relevant time, AB is the account balance at the relevant
time, D is the amount of distribution, and R is the ratio of the
account balance at the relevant time to the account balance after
distribution.
7.6 HOW PLAN BENEFIT WILL BE DISTRIBUTED
(a) Distribution of a Participant's benefit may be made in cash
or Company Stock or both, provided, however, that if a Participant or
Beneficiary so demands, such benefit (other than Company Stock
reinvested pursuant to Section 4.12(b)) shall be distributed only in
the form of Company Stock. Prior to making a distribution of benefits,
the Administrator shall advise the Participant or his Beneficiary, in
writing, of the right to demand that benefits be distributed solely in
Company Stock.
(b) If a Participant or Beneficiary demands that benefits be
distributed solely in Company Stock, distribution of a Participant's
benefit will be made entirely in whole shares or other units of
Company Stock. Any balance in a Participant's Other Investments
Account will be applied to acquire for distribution the maximum number
of whole shares or other units of Company Stock at the then fair
market value. Any fractional unit value unexpended will be distributed
in cash. If Company Stock is not available for purchase by the
Trustee, then the Trustee shall hold such balance until Company Stock
is acquired and then make such distribution, subject to Sections
7.5(j) and 7.5(f).
(c) The Trustee will make distribution from the Trust only on
instructions from the Administrator.
(d) Notwithstanding anything contained herein to the contrary,
if the Employer's charter or by-laws restrict ownership of
substantially all shares of Company Stock to Employees and the Trust
Fund, as described in Code Section 409(h)(2), the Administrator shall
distribute a Participant's Combined Account
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entirely in cash without granting the Participant the right to demand
distribution in shares of Company Stock.
(e) Except as otherwise provided herein, Company Stock
distributed by the Trustee may be restricted as to sale or transfer by
the by-laws or articles of incorporation of the Employer, provided
restrictions are applicable to all Company Stock of the same class. If
a Participant is required to offer the sale of his Company Stock to
the Employer before offering to sell his Company Stock to a third
party, in no event may the Employer pay a price less than that offered
to the distributee by another potential buyer making a bona fide offer
and in no event shall the Trustee pay a price less than the fair
market value of the Company Stock.
7.7 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by the laws of the state in which said Beneficiary resides. Such a payment to
the legal guardian, custodian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
7.8 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to
a Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall be treated as a Forfeiture
pursuant to the Plan. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, such benefit shall be restored.
7.9 ADVANCE DISTRIBUTION FOR HARDSHIP
(a) The Administrator, at the election of the Participant, shall
direct the Trustee to distribute to any Participant in any one Plan
Year up to the lesser of 100% of his Participant's Elective Account
and his Participant's Account valued as of the last Anniversary Date
or other valuation date or the amount necessary to satisfy the
immediate and heavy financial need of the Participant. Any
distribution made pursuant to this Section shall be deemed to be made
as of the first day of the Plan Year or, if later, the valuation date
immediately preceding the date of distribution, and the Participant's
Elective Account and his Participant's Account shall be reduced
accordingly. Withdrawal under this Section shall be authorized only if
the distribution is on account of:
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(1) Expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, his spouse, or any of his
dependents (as defined in Code Section 152) or necessary for
these persons to obtain medical care;
(2) The costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage payments);
(3) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the
Participant, his spouse, children, or dependents; or
(4) Payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
(b) No such distribution shall be made from the Participant's
Account until such Account has become fully Vested.
(c) No distribution shall be made pursuant to this Section
unless the Administrator, based upon the Participant's representation
and such other facts as are known to the Administrator, determines
that all of the following conditions are satisfied:
(1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant. The amount
of the immediate and heavy financial need may include any amounts
necessary to pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the distribution;
(2) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable (at the time of the
loan) loans currently available under all plans maintained by the
Employer;
(3) The Plan, and all other plans maintained by the Employer,
provide that the Participant's elective deferrals and voluntary
Employee contributions will be suspended for at least twelve (12)
months after receipt of the hardship distribution or, the
Participant, pursuant to a legally enforceable agreement, will
suspend his elective deferrals and voluntary Employee
contributions to the Plan and all other plans maintained by the
Employer for at least twelve (12) months after receipt of the
hardship distribution; and
(4) The Plan, and all other plans maintained by the Employer,
provide that the Participant may not make elective deferrals for
the Participant's taxable year immediately following the taxable
year of the hardship distribution in excess of the applicable
limit under Code Section 402(g) for
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such next taxable year less the amount of such Participant's
elective deferrals for the taxable year of the hardship
distribution.
(d) Notwithstanding the above, for Plan Years beginning after
December 31, 1988, distributions from the Participant's Elective
Account pursuant to this Section shall be limited, as of the date of
distribution, to the Participant's Elective Account as of the end of
the last Plan Year ending before July 1, 1989, plus the total
Participant's Deferred Compensation after such date, reduced by the
amount of any previous distributions pursuant to this Section.
(e) Any distribution made pursuant to this Section shall be made
in a manner which is consistent with and satisfies the provisions of
Sections 7.5 and 7.6, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the Regulations
thereunder.
7.10 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic relations order." Furthermore, a
distribution to an "alternate payee" shall be permitted if such distribution is
authorized by a "qualified domestic relations order," even if the affected
Participant has not separated from service and has not reached the "earliest
retirement age" under the Plan. For the purposes of this Section, "alternate
payee," "qualified domestic relations order" and "earliest retirement age" shall
have the meaning set forth under Code Section 414(p).
ARTICLE VIII
TRUSTEE
8.1 BASIC RESPONSIBILITIES OF THE TRUSTEE
The Trustee shall have the following categories of responsibilities:
(a) Consistent with the "funding policy and method" determined by
the Employer, to invest, manage, and control the Plan assets subject,
however, to the direction of an Investment Manager if the Trustee
should appoint such manager as to all or a portion of the assets of
the Plan;
(b) At the direction of the Administrator, to pay benefits
required under the Plan to be paid to Participants, or, in the event
of their death, to their Beneficiaries;
(c) To maintain records of receipts and disbursements and furnish
to the Employer and/or Administrator for each Plan Year a written
annual report per Section 8.8; and
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(d) If there shall be more than one Trustee, they shall act by a
majority of their number, but may authorize one or more of them to
sign papers on their behalf.
8.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust Fund to keep the
Trust Fund invested without distinction between principal and income and in
such securities or property, real or personal, wherever situated, as the
Trustee shall deem advisable, including, but not limited to, stocks, common
or preferred, bonds and other evidences of indebtedness or ownership, and
real estate or any interest therein. The Trustee shall at all times in
making investments of the Trust Fund consider, among other factors, the
short and long-term financial needs of the Plan on the basis of information
furnished by the Employer. In making such investments, the Trustee shall
not be restricted to securities or other property of the character
expressly authorized by the applicable law for trust investments; however,
the Trustee shall give due regard to any limitations imposed by the Code or
the Act so that at all times the Plan may qualify as an Employee Stock
Ownership Plan and Trust.
(b) The Trustee may employ a bank or trust company pursuant to the
terms of its usual and customary bank agency agreement, under which the
duties of such bank or trust company shall be of a custodial, clerical and
record-keeping nature.
(c) The Trustee may from time to time with the consent of the Employer
transfer to a common, collective, or pooled trust fund maintained by any
corporate Trustee hereunder, all or such part of the Trust Fund as the
Trustee may deem advisable, and such part or all of the Trust Fund so
transferred shall be subject to all the terms and provisions of the common,
collective, or pooled trust fund which contemplate the commingling for
investment purposes of such trust assets with trust assets of other trusts.
The Trustee may, from time to time with the consent of the Employer,
withdraw from such common, collective, or pooled trust fund all or such
part of the Trust Fund as the Trustee may deem advisable.
(d) In the event the Trustee invests any part of the Trust Fund,
pursuant to the directions of the Administrator, in any shares of stock
issued by the Employer, and the Administrator thereafter directs the
Trustee to dispose of such investment, or any part thereof, under
circumstances which, in the opinion of counsel for the Trustee, require
registration of the securities under the Securities Act of 1933 and/or
qualification of the securities under the Blue Sky laws of any state or
states, then the Employer at its own expense, will take or cause to be
taken any and all such action as may be necessary or appropriate to effect
such registration and/or qualification.
8.3 OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under common
law, statutory authority, including the Act, and other provisions of the Plan,
shall have the following powers and authorities, to be exercised in the
Trustee's sole discretion:
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(a) To purchase, or subscribe for, any securities or other
property and to retain the same. In conjunction with the purchase of
securities, margin accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to
purchase, or otherwise dispose of any securities or other property
held by the Trustee, by private contract or at public auction. No
person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency, or propriety of any such sale or other disposition, with
or without advertisement;
(c) To vote upon any stocks, bonds, or other securities; to give
general or special proxies or powers of attorney with or without power
of substitution; to exercise any conversion privileges, subscription
rights or other options, and to make any payments incidental thereto;
to oppose, or to consent to, or otherwise participate in, corporate
reorganizations or other changes affecting corporate securities, and
to delegate discretionary powers, and to pay any assessments or
charges in connection therewith; and generally to exercise any of the
powers of an owner with respect to stocks, bonds, securities, or other
property;
(d) To cause any securities or other property to be registered in
the Trustee's own name or in the name of one or more of the Trustee's
nominees, and to hold any investments in bearer form, but the books
and records of the Trustee shall at all times show that all such
investments are part of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in such
amount, and upon such terms and conditions, as the Trustee shall deem
advisable; and for any sum so borrowed, to issue a promissory note as
Trustee, and to secure the repayment thereof by pledging all, or any
part, of the Trust Fund; and no person lending money to the Trustee
shall be bound to see to the application of the money lent or to
inquire into the validity, expediency, or propriety of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash
balances as the Trustee may, from time to time, deem to be in the best
interests of the Plan, without liability for interest thereon;
(g) To accept and retain for such time as the Trustee may deem
advisable any securities or other property received or acquired as
Trustee hereunder, whether or not such securities or other property
would normally be purchased as investments hereunder;
(h) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other instruments
that may be necessary or appropriate to carry out the powers herein
granted;
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(i) To settle, compromise, or submit to arbitration any claims,
debts, or damages due or owing to or from the Plan, to commence or
defend suits or legal or administrative proceedings, and to represent
the Plan in all suits and legal and administrative proceedings;
(j) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation, and such agent or counsel may or
may not be agent or counsel for the Employer;
(k) To apply for and procure from responsible insurance
companies, to be selected by the Administrator, as an investment of
the Trust Fund such annuity, or other Contracts (on the life of any
Participant) as the Administrator shall deem proper; to exercise, at
any time or from time to time, whatever rights and privileges may be
granted under such annuity, or other Contracts; to collect, receive,
and settle for the proceeds of all such annuity or other Contracts as
and when entitled to do so under the provisions thereof;
(l) To invest funds of the Trust in time deposits or savings
accounts bearing a reasonable rate of interest in the Trustee's bank;
(m) To invest in Treasury Bills and other forms of United States
government obligations;
(n) To invest in shares of investment companies registered under
the Investment Company Act of 1940;
(o) To deposit monies in federally insured savings accounts or
certificates of deposit in banks or savings and loan associations;
(p) To vote Company Stock as provided in Section 8.5;
(q) To consent to or otherwise participate in reorganizations,
recapitalizations, consolidations, mergers and similar transactions
with respect to Company Stock or any other securities and to pay any
assessments or charges in connection therewith;
(r) To deposit such Company Stock (but only if such deposit does
not violate the provisions of Section 8.5 hereof) or other securities
in any voting trust, or with any protective or like committee, or with
a trustee or with depositories designated thereby;
(s) To sell or exercise any options, subscription rights and
conversion privileges and to make any payments incidental thereto:
(t) To exercise any of the powers of an owner, with respect to
such Company Stock and other securities or other property comprising
the Trust Fund. The Administrator, with the Trustee's approval, may
authorize the Trustee to act
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on any administrative matter or class of matters with respect to which
direction or instruction to the Trustee by the Administrator is called
for hereunder without specific direction or other instruction from the
Administrator;
(u) To sell, purchase and acquire put or call options if the
options are traded on and purchased through a national securities
exchange registered under the Securities Exchange Act of 1934, as
amended, or, if the options are not traded on a national securities
exchange, are guaranteed by a member firm of the New York Stock
Exchange;
(v) To do all such acts and exercise all such rights and
privileges, although not specifically mentioned herein, as the Trustee
may deem necessary to carry out the purposes of the Plan.
(w) Directed Investment Account. The powers granted to the
Trustee shall be exercised in the sole fiduciary discretion of the
Trustee. However, pursuant to Section 4.12, each Participant is
authorized and empowered, in his sole and absolute discretion, to give
directions to the Trustee pursuant to the procedure established by the
Administrator and in such form as the Trustee may require concerning
the investment of the Participant's Directed Investment Account. The
Trustee shall comply as promptly as practicable with directions given
by the Participant hereunder. The Trustee may refuse to comply with
any direction from the Participant in the event the Trustee, in its
sole and absolute discretion, deems such directions improper by virtue
of applicable law. The Trustee shall not be responsible or liable for
any loss or expense which may result from the Trustee's refusal or
failure to comply with any directions from the Participant. Any costs
and expenses related to compliance with the Participant's directions
shall be borne by the Participant's Directed Investment Account.
8.4 LOANS TO PARTICIPANTS
(a) The Trustee may, in the Trustee's discretion, make loans to
Participants and Beneficiaries under the following circumstances: (1)
loans shall be made available to all Participants and Beneficiaries on
a reasonably equivalent basis; (2) loans shall not be made available
to Highly Compensated Employees in an amount greater than the amount
made available to other Participants and Beneficiaries; (3) loans
shall bear a reasonable rate of interest; (4) loans shall be
adequately secured; and (5) shall provide for repayment over a
reasonable period of time.
(b) Loans made pursuant to this Section (when added to the
outstanding balance of all other loans made by the Plan to the
Participant) shall be limited to the lesser of:
(1) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the Participant
during the one year period ending on the day before the date on
which such loan is made, over
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the outstanding balance of loans from the Plan to the Participant
on the date on which such loan was made, or
(2) one-half (1/2) of the present value of the non-forfeitable
accrued benefit of the Participant under the Plan.
For purposes of this limit, all plans of the Employer shall
be considered one plan.
(c) Loans shall provide for level amortization with payments to
be made not less frequently than quarterly over a period not to exceed
five (5) years. However, loans used to acquire any dwelling unit
which, within a reasonable time, is to be used (determined at the time
the loan is made) as a principal residence of the Participant shall
provide for periodic repayment over a reasonable period of time that
may exceed five (5) years.
(d) Any loans granted or renewed on or after the last day of the
first Plan Year beginning after December 31, 1988 shall be made
pursuant to a Participant loan program. Such loan program shall be
established in writing and must include, but need not be limited to,
the following:
(1) the identity of the person or persons authorized to
administer the Participant loan program;
(2) a procedure for applying for loans;
(3) the basis on which loans will be approved or denied;
(4) limitations, if any, on the types and amounts of loans
offered;
(5) the procedure under the program for determining a reasonable
rate of interest;
(6) the types of collateral which may secure a Participant loan;
and
(7) the events constituting default and the steps that will be
taken to preserve Plan assets.
Such Participant loan program shall be contained in a
separate written document which, when properly executed, is hereby
incorporated by reference and made a part of the Plan. Furthermore,
such Participant loan program may be modified or amended in writing
from time to time without the necessity of amending this Section.
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8.5 VOTING COMPANY STOCK
The Trustee shall vote all Company Stock held by it as part of the
Plan assets at such time and in such manner as the Administrator shall direct.
Provided, however, that if any agreement entered into by the Trust provides for
voting of any shares of Company Stock pledged as security for any obligation of
the Plan, then such shares of Company Stock shall be voted in accordance with
such agreement. If the Administrator fails or refuses to give the Trustee timely
instructions as to how to vote any Company Stock as to which the Trustee
otherwise has the right to vote, the Trustee shall not exercise its power to
vote such Company Stock and shall consider the Administrator's failure or
refusal to give timely instructions as an exercise of the Administrator's rights
and a directive to the Trustee not to vote said Company Stock. The Trustee shall
not vote Company Stock which a Participant or Beneficiary fails to exercise
pursuant to this Section.
Notwithstanding the foregoing, if the Employer has a registration-type
class of securities, each Participant or Beneficiary shall be entitled to direct
the Trustee as to the manner in which the Company Stock which is entitled to
vote and which is allocated to the Company Stock Account of such Participant or
Beneficiary is to be voted. If the Employer does not have a registration-type
class of securities, each Participant or Beneficiary in the Plan shall be
entitled to direct the Trustee as to the manner in which voting rights on shares
of Company Stock which are allocated to the Company Stock Account of such
Participant or Beneficiary are to be exercised with respect to any corporate
matter which involves the voting of such shares with respect to the approval or
disapproval of any corporate merger or consolidation, recapitalization,
reclassification, liquidation, dissolution, sale of substantially all assets of
a trade or business, or such similar transaction as prescribed in Regulations.
For purposes of this Section the term "registration-type class of securities"
means: (A) a class of securities required to be registered under Section 12 of
the Securities Exchange Act of 1934; and (B) a class of securities which would
be required to be so registered except for the exemption from registration
provided in subsection (g)(2)(H) of such Section 12.
If the Employer does not have a registration-type class of securities
and the by-laws of the Employer require the Plan to vote an issue in a manner
that reflects a one-man, one-vote philosophy, each Participant or Beneficiary
shall be entitled to cast one vote on an issue and the Trustee shall vote the
shares held by the Plan in proportion to the results of the votes cast on the
issue by the Participants and Beneficiaries.
8.6 DUTIES OF THE TRUSTEE REGARDING PAYMENTS
(a) The Trustee shall make distributions from the Trust Fund at
such times and in such numbers of shares or other units of Company
Stock and amounts of cash to or for the benefit of the person entitled
thereto under the Plan as the Administrator directs in writing. Any
undistributed part of a Participant's interest in his accounts shall
be retained in the Trust Fund until the Administrator directs its
distribution. Where distribution is directed in Company Stock, the
Trustee shall cause an appropriate certificate to be issued to the
person entitled thereto and mailed to the address furnished it by the
Administrator. Any portion of a Participant's Combined Account to be
distributed in cash shall be paid by the
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Trustee mailing its check to the same person at the same address. If a
dispute arises as to who is entitled to or should receive any benefit
or payment, the Trustee may withhold or cause to be withheld such
payment until the dispute has been resolved.
(b) As directed by the Administrator, the Trustee shall make
payments out of the Trust Fund. Such directions or instructions need
not specify the purpose of the payments so directed and the Trustee
shall not be responsible in any way respecting the purpose or
propriety of such payments except as mandated by the Act.
(c) In the event that any distribution or payment directed by
the Administrator shall be mailed by the Trustee to the person
specified in such direction at the latest address of such person
filed with the Administrator, and shall be returned to the Trustee
because such person cannot be located at such address, the Trustee
shall promptly notify the Administrator of such return. Upon the
expiration of sixty (60) days after such notification, such direction
shall become void and unless and until a further direction by the
Administrator is received by the Trustee with respect to such
distribution or payment, the Trustee shall thereafter continue to
administer the Trust as if such direction had not been made by the
Administrator. The Trustee shall not be obligated to search for or
ascertain the whereabouts of any such person.
8.7 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as shall from
time to time be agreed upon in writing by the Employer and the Trustee. An
individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from the Plan. In addition, the Trustee
shall be reimbursed for any reasonable expenses, including reasonable counsel
fees incurred by it as Trustee. Such compensation and expenses shall be paid
from the Trust Fund unless paid or advanced by the Employer. All taxes of any
kind and all kinds whatsoever that may be levied or assessed under existing or
future laws upon, or in respect of, the Trust Fund or the income thereof, shall
be paid from the Trust Fund.
8.8 ANNUAL REPORT OF THE TRUSTEE
Within a reasonable period of time after the later of the Anniversary
Date or receipt of the Employer's contribution for each Plan Year, the Trustee
shall furnish to the Employer and Administrator a written statement of account
with respect to the Plan Year for which such contribution was made setting
forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund upon sales
or other disposition of the assets;
(c) the increase, or decrease, in the value of the Trust Fund;
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(d) all payments and distributions made from the Trust Fund; and
(e) Such further information as the Trustee and/or Administrator
deems appropriate. The Employer, forthwith upon its receipt of each
such statement of account, shall acknowledge receipt thereof in
writing and advise the Trustee and/or Administrator of its approval or
disapproval thereof. Failure by the Employer to disapprove any such
statement of account within thirty (30) days after its receipt thereof
shall be deemed an approval thereof. The approval by the Employer of
any statement of account shall be binding as to all matters embraced
therein as between the Employer and the Trustee to the same extent as
if the account of the Trustee had been settled by judgment or decree
in an action for a judicial settlement of its account in a court of
competent jurisdiction in which the Trustee, the Employer and all
persons having or claiming an interest in the Plan were parties;
provided, however, that nothing herein contained shall deprive the
Trustee of its right to have its accounts judicially settled if the
Trustee so desires.
8.9 AUDIT
(a) If an audit of the Plan's records shall be required by the
Act and the regulations thereunder for any Plan Year, the
Administrator shall direct the Trustee to engage on behalf of all
Participants an independent qualified public accountant for that
purpose. Such accountant shall, after an audit of the books and
records of the Plan in accordance with generally accepted auditing
standards, within a reasonable period after the close of the Plan
Year, furnish to the Administrator and the Trustee a report of his
audit setting forth his opinion as to whether any statements,
schedules or lists that are required by Act Section 103 or the
Secretary of Labor to be filed with the Plan's annual report, are
presented fairly in conformity with generally accepted accounting
principles applied consistently. All auditing and accounting fees
shall be an expense of and may, at the election of the Administrator,
be paid from the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply with Act Section 103 is maintained by a bank,
insurance company, or similar institution, regulated and supervised
and subject to periodic examination by a state or federal agency, it
shall transmit and certify the accuracy of that information to the
Administrator as provided in Act Section 103(b) within one hundred
twenty (120) days after the end of the Plan Year or by such other date
as may be prescribed under regulations of the Secretary of Labor.
8.10 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the
Employer, at least thirty (30) days before its effective date, a
written notice of his resignation.
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(b) The Employer may remove the Trustee by mailing by registered
or certified mail, addressed to such Trustee at his last known
address, at least thirty (30) days before its effective date, a
written notice of his removal.
(c) Upon the death, resignation, incapacity, or removal of any
Trustee, a successor may be appointed by the Employer; and such
successor, upon accepting such appointment in writing and delivering
same to the Employer, shall, without further act, become vested with
all the estate, rights, powers, discretions, and duties of his
predecessor with like respect as if he were originally named as a
Trustee herein. Until such a successor is appointed, the remaining
Trustee or Trustees shall have full authority to act under the terms
of the Plan.
(d) The Employer may designate one or more successors prior to
the death, resignation, incapacity, or removal of a Trustee. In the
event a successor is so designated by the Employer and accepts such
designation, the successor shall, without further act, become vested
with all the estate, rights, powers, discretions, and duties of his
predecessor with the like effect as if he were originally named as
Trustee herein immediately upon the death, resignation, incapacity, or
removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such, he
shall furnish to the Employer and Administrator a written statement of
account with respect to the portion of the Plan Year during which he
served as Trustee. This statement shall be either (i) included as part
of the annual statement of account for the Plan Year required under
Section 8.8 or (ii) set forth in a special statement. Any such special
statement of account should be rendered to the Employer no later than
the due date of the annual statement of account for the Plan Year. The
procedures set forth in Section 8.8 for the approval by the Employer
of annual statements of account shall apply to any special statement
of account rendered hereunder and approval by the Employer of any such
special statement in the manner provided in Section 8.8 shall have the
same effect upon the statement as the Employer's approval of an annual
statement of account. No successor to the Trustee shall have any duty
or responsibility to investigate the acts or transactions of any
predecessor who has rendered all statements of account required by
Section 8.8 and this subparagraph.
8.11 TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan, the
Trustee at the direction of the Administrator shall transfer the Vested
interest, if any, of such Participant in his account to another trust forming
part of a pension, profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by said employer in writing as
meeting the requirements of Code Section 401(a), provided that the trust to
which such transfers are made permits the transfer to be made.
Notwithstanding the above, with respect to distributions made after
December 31, 1992, if the distributee of any "eligible rollover distribution"
(as defined in Code Section
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402(f)(2)(A)) (1) elects to have such distribution paid directly to an eligible
retirement plan", and (2) specifies the "eligible, retirement plan to which such
distribution is to be paid (in such form and at such time as the Administrator
may prescribe), then the distribution shall be made in the form of a direct
trustee-to-trustee transfer to the specified eligible retirement plan. Moreover,
the amount subject to the direct trustee-to-trustee transfer shall be limited to
the amount of the distribution that would be includible in gross income if not
transferred in accordance with the preceding (determined without regard to Code
Sections 402(c) and 403(a)(4)).
For purposes of this section, the term "eligible retirement plan" has
the meaning given such term by Code Section 402(c)(8)(B), except that a
qualified trust shall be considered an eligible retirement plan only if it is a
defined contribution plan, the terms of which permit the acceptance of rollover
distributions.
ARTICLE IX
AMENDMENT, TERMINATION AND MERGERS
9.1 AMENDMENT
(a) The Employer shall have the right at any time to amend the
Plan, subject to the limitations of this Section. However, any
amendment which affects the rights, duties or responsibilities of the
Trustee and Administrator may only be made with the Trustee's and
Administrator's written consent. Any such amendment shall become
effective as provided therein upon its execution. The Trustee shall
not be required to execute any such amendment unless the Trust
provisions contained herein are a part of the Plan and the amendment
affects the duties of the Trustee hereunder.
(b) No amendment to the Plan shall be effective if it authorizes
or permits any part of the Trust Fund (other than such part as is
required to pay taxes and administration expenses) to be used for or
diverted to any purpose other than for the exclusive benefit of the
Participants or their Beneficiaries or estates; or causes any
reduction in the amount credited to the account of any Participant; or
causes or permits any portion of the Trust Fund to revert to or become
property of the Employer.
(c) Except as permitted by Regulations, no Plan amendment or
transaction having the effect of a Plan amendment (such as a merger,
plan transfer or similar transaction) shall be effective to the extent
it eliminates or reduces any "Section 411(d)(6) protected benefit" or
adds or modifies conditions relating to "Section 411(d)(6) protected
benefits" the result of which is a further restriction on such benefit
unless such protected benefits are preserved with respect to benefits
accrued as of the later of the adoption date or effective date of the
amendment. "Section 411(d)(6) protected benefits" are benefits
described in Code Section 411(d)(6)(A), early retirement benefits and
retirement-type subsidies, and optional forms of benefit.
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9.2 TERMINATION
(a) The Employer shall have the right at any time to terminate
the Plan by delivering to the Trustee and Administrator written notice
of such termination. Upon any full or partial termination, all amounts
credited to the affected Participants' Combined Accounts shall become
100% Vested as provided in Section 7.4 and shall not thereafter be
subject to forfeiture, and all unallocated amounts shall be allocated
to the accounts of all Participants in accordance with the provisions
hereof.
(b) Upon the full termination of the Plan, the Employer shall
direct the distribution of the assets of the Trust Fund to
Participants in a manner which is consistent with and satisfies the
provisions of Sections 7.5 and 7.6. Except as permitted by
Regulations, the termination of the Plan shall not result in the
reduction of "Section 411(d)(6) protected benefits" in accordance with
Section 9.1(c).
9.3 MERGER OR CONSOLIDATION
This Plan and Trust may be merged or consolidated with, or its assets
and/or liabilities may be transferred to any other plan and trust only if the
benefits which would be received by a Participant of this Plan, in the event of
a termination of the plan immediately after such transfer, merger or
consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or
consolidation, and such transfer, merger or consolidation does not otherwise
result in the elimination or reduction of any "Section 411(d)(6) protected
benefits" in accordance with Section 9.1(c).
ARTICLE X
MISCELLANEOUS
10.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between the
Employer and any Participant or to be a consideration or an inducement for the
employment of any Participant or Employee. Nothing contained in this Plan shall
be deemed to give any Participant or Employee the right to be retained in the
service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon him as a Participant of this Plan.
10.2 ALIENATION
(a) Subject to the exceptions provided below, no benefit which
shall be payable out of the Trust Fund to any person (including a
Participant or his Beneficiary) shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge the same
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shall be void; and no such benefit shall in any manner be liable for,
or subject to, the debts, contracts, liabilities, engagements, or
torts of any such person, nor shall it be subject to attachment or
legal process for or against such person, and the same shall not be
recognized by the Trustee, except to such extent as may be required by
law.
(b) This provision shall not apply to the extent a Participant or
Beneficiary is indebted to the Plan, as a result of a loan from the
Plan. At the time a distribution is to be made to or for a
Participant's or Beneficiary's benefit, such proportion of the amount
distributed as shall equal such loan indebtedness shall be paid by the
Trustee to the Trustee or the Administrator, at the direction of the
Administrator, to apply against or discharge such loan indebtedness.
Prior to making a payment, however, the Participant or Beneficiary
must be given written notice by the Administrator that such loan
indebtedness is to be so paid in whole or part from his Participant's
Combined Account. If the Participant or Beneficiary does not agree
that the loan indebtedness is a valid claim against his Vested
Participant's Combined Account, he shall be entitled to a review of
the validity of the claim in accordance with procedures provided in
Sections 2.12 and 2.13.
(c) This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p), and those other
domestic relations orders permitted to be so treated by the
Administrator under the provisions of the Retirement Equity Act of
1984. The Administrator shall establish a written procedure to
determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the
extent provided under a "qualified domestic relations order", a former
spouse of a Participant shall be treated as the spouse or surviving
spouse for all purposes under the Plan.
10.3 CONSTRUCTION OF PLAN
This Plan and Trust shall be construed and enforced according to the
Act and the laws of the State of New Hampshire, other than its laws respecting
choice of law, to the extent not preempted by the Act.
10.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
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10.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding the
Trust and/or Plan established hereunder to which the Trustee or the
Administrator may be a party, and such claim, suit, or proceeding is resolved in
favor of the Trustee or Administrator, they shall be entitled to be reimbursed
from the Trust Fund for any and all costs, attorney's fees, and other expenses
pertaining thereto incurred by them for which they shall have become liable.
10.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation of the Plan or
of the Trust, by termination of either, by power of revocation or
amendment, by the happening of any contingency, by collateral
arrangement or by any other means, for any part of the corpus or
income of any trust fund maintained pursuant to the Plan or any funds
contributed thereto to be used for, or diverted to, purposes other
than the exclusive benefit of Participants, Retired Participants, or
their Beneficiaries.
(b) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act Section
403(c)(2)(A), the Employer may demand repayment of such excessive
contribution at any time within one (1) year following the time of
payment and the Trustees shall return such amount to the Employer
within the one (1) year period. Earnings of the Plan attributable to
the excess contributions may not be returned to the Employer but any
losses attributable thereto must reduce the amount so returned.
10.7 BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide protection to the Plan
against any loss by reason of acts of fraud or dishonesty by the Fiduciary alone
or in connivance with others. The surety shall be a corporate surety company (as
such term is used in Act Section 412(a)(2)), and the bond shall be in a form
approved by the Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may, at the election
of the Administrator, be paid from the Trust Fund or by the Employer.
10.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer nor the Trustee, nor their successors, shall be
responsible for the validity of any Contract issued hereunder or for the failure
on the part of the insurer to
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make payments provided by any such Contract, or for the action of any person
which may delay payment or render a Contract null and void or unenforceable in
whole or in part.
10.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall not have any
responsibility for the validity of this Plan or for the tax or legal aspects of
this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
10.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative, Beneficiary,
or to any guardian or committee appointed for such Participant or Beneficiary in
accordance with the provisions of the Plan, shall, to the extent thereof, be in
full satisfaction of all claims hereunder against the Trustee and the Employer,
either of whom may require such Participant, legal representative, Beneficiary,
guardian or committee, as a condition precedent to such payment, to execute a
receipt and release thereof in such form as shall be determined by the Trustee
or Employer.
10.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.
10.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2) the
Administrator and (3) the Trustee. The named Fiduciaries shall have only those
specific powers, duties, responsibilities, and obligations as are specifically
given them under the Plan. In general, the Employer shall have the sole
responsibility for making the contributions provided for under Section 4.1; and
shall have the sole authority to appoint and remove the Trustee and the
Administrator; to formulate the Plan's" funding policy and method"; and to amend
or terminate, in whole or in part, the Plan. The Administrator shall have the
sole responsibility for the administration of the Plan, which responsibility is
specifically described in the Plan. The Trustee shall have the sole
responsibility of management of the assets held under the Trust, except those
assets, the management of which has been assigned to an Investment Manager, who
shall be solely responsible for the management of the assets assigned to it, all
as specifically provided in the Plan. Each named Fiduciary warrants that any
directions given, information furnished, or action taken by it shall be in
accordance with the provisions of the Plan, authorizing or providing for such
direction, information or action. Furthermore, each named Fiduciary may rely
upon any such direction, information or action of another named Fiduciary as
being proper under the Plan, and is not required under the Plan to inquire into
the propriety of any such
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direction, information or action. It is intended under the Plan that each named
Fiduciary shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under the Plan. No named Fiduciary
shall guarantee the Trust Fund in any manner against investment loss or
depreciation in asset value. Any person or group may serve in more than one
Fiduciary capacity. In the furtherance of their responsibilities hereunder, the
"named Fiduciaries" shall be empowered to interpret the Plan and Trust and to
resolve ambiguities, inconsistencies and omissions, which findings shall be
binding, final and conclusive.
10.13 HEADINGS
The headings and subheadings of this Plan have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
10.14 APPROVAL BY INTERNAL REVENUE SERVICE
(a) Notwithstanding anything herein to the contrary,
contributions to this Plan are conditioned upon the initial
qualification of the Plan under Code Section 401. If the Plan receives
an adverse determination with respect to its initial qualification,
then the Plan may return such contributions to the Employer within one
year after such determination, provided the application for the
determination is made by the time prescribed by law for filing the
Employer's return for the taxable year in which the Plan was adopted,
or such later date as the Secretary of the Treasury may prescribe.
(b) Notwithstanding any provisions to the contrary, except
Sections 3.6, 3.7, and 4.1(f), any contribution by the Employer to the
Trust Fund is conditioned upon the deductibility of the contribution
by the Employer under the Code and, to the extent any such deduction
is disallowed, the Employer may, within one (1) year following the
disallowance of the deduction, demand repayment of such disallowed
contribution and the Trustee shall return such contribution within one
(1) year following the disallowance. Earnings of the Plan attributable
to the excess contribution may not be returned to the Employer, but
any losses attributable thereto must reduce the amount so returned.
10.15 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a
uniform, nondiscriminatory manner. In the event of any conflict between the
terms of this Plan and any Contract purchased hereunder, the Plan provisions
shall control.
10.16 SECURITIES AND EXCHANGE COMMISSION APPROVAL
The Employer may request an interpretative letter from the Securities
and Exchange Commission stating that the transfers of Company Stock contemplated
hereunder do not involve transactions requiring a registration of such Company
Stock under the Securities Act of 1933. In the event that a favorable
interpretative letter is not obtained, the Employer reserves
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the right to amend the Plan and Trust retroactively to their Effective Dates in
order to obtain a favorable interpretative letter or to terminate the Plan.
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LAKE SUNAPEE SAVINGS BANK
PROFIT SHARING-STOCK OWNERSHIP PLAN
FUNDING POLICY AND METHOD
A pension benefit plan (as defined in the Employee Retirement Income
Security Act of 1974) has been adopted by the company for the purpose of
rewarding long and loyal service to the company by providing to employees
additional financial security at retirement. Incidental benefits are provided in
the case of disability, death or other termination of employment.
Since the principal purpose of the plan is to provide benefits at
normal retirement age, the principal goal of the investment of the funds in the
plan should be both security and long-term stability with moderate growth
commensurate with the anticipated retirement dates of participants. The Plan is
designed to invest primarily in company stock. Investments, other than company
stock, may be included among the plan's investments. Investments should be
sufficiently liquid to enable the plan, on short notice, to make some
distributions in cash in the event of the death or disability of a participant.
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EXHIBIT 10.2
NEW HAMPSHIRE THRIFT BANCSHARES, INC.
1996 STOCK OPTION PLAN
SECTION 1.01. Purpose. The purpose of this New Hampshire Thrift
Bancshares, Inc. Stock Option Plan (the "Plan") is to promote the growth and
general prosperity of New Hampshire Thrift Bancshares, Inc. (the "Company") and
its subsidiary corporations by permitting the Company to grant options to
purchase shares of its $1.00 par value common stock (the "Common Stock"). The
Plan is designed to help attract and retain superior personnel for positions of
substantial responsibility with the Company and its subsidiary corporations and
to provide key employees and directors with an additional incentive to
contribute to the success of the Company and those subsidiary corporations. Key
employees eligible for the Plan shall be all salaried employees. The Company
intends that options may be granted pursuant to the provisions of the Plan which
will qualify as "incentive stock options" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") and Treasury
Regulations promulgated thereunder, as well as options which do not qualify as
incentive stock options ("nonqualified options".) As used in the Plan, the
terms "parent corporation" and "subsidiary corporation" shall have the meanings
set forth in subsections (e) and (f), respectively, of Section 424 of the Code.
SECTION 2.01. Administration. The Plan as it related to incentive
stock options shall be administered by the Board of Directors of the Company or
by a committee of the Board of Directors consisting of three or more directors
to whom administration of the Plan has been delegated by resolution of the Board
of Directors and none of whom are eligible to receive stock options under the
Plan except as provided in Section 2.03(b). The members of that committee are
hereafter referred to as the "Plan Administrators." Actions of the Plan
Administrators shall be taken by majority vote or by unanimous written consent.
All Plan Administrators shall be disinterested persons within the meaning of
Rule 16b-3(d)(3) of the General Rules and Regulations under the Securities
Exchange Act of 1934.
SECTION 2.02. Authority of Plan Administrators. Subject to the
provisions of the Plan, and with a view to effecting its purpose, the Plan
Administrators shall have sole authority, in their absolute discretion with
respect to incentive stock options, (a) to construe and interpret the Plan, (b)
to define the terms used herein, (c) to prescribe, amend, and rescind rules and
regulations relating to the Plan, (d) to determine, based upon criteria to be
established by the Plan Administrators, the individual employees to whom
incentive stock options to purchase stock shall be granted under the Plan, (e)
to determine the time or times at which incentive stock options shall be granted
to employees under the Plan, (f) to determine the number of shares of Common
Stock subject to each incentive stock option, the option price and the duration
of each incentive stock option granted under the Plan, (g) to determine all of
the other terms and conditions of incentive stock options granted under the
Plan, and (h) to make all other determinations necessary or advisable for the
administration of the Plan and do everything necessary or appropriate to
administer the Plan. All decisions, determinations and interpretations made by
the Plan Administrators shall be binding and conclusive on all participants in
the Plan and on their legal representatives, heirs and beneficiaries. The Plan
Administrators shall endeavor to ensure that option agreements entered into with
employees pursuant to the Plan meet all requirements for incentive stock options
described in Section 422 of the Code.
<PAGE>
SECTION 2.03. Terms, Conditions and Method of Grant.
(a) Incentive Stock Options. The terms and conditions of incentive
stock options granted under the Plan may differ from one another in such manner
as the Plan Administrators, in their absolute discretion, shall determine as
long as incentive stock options granted under the Plan satisfy the requirements
of the Plan. No employee who receives an incentive stock option (the
"optionee") shall have any rights with respect to an option granted under the
Plan unless the optionee shall have executed and delivered to the Plan
Administrators an option agreement (with a copy of the Plan attached). The
option agreement shall be in the form and shall contain such provisions
consistent with the Plan as the Plan Administrators, acting with the benefit of
legal counsel, shall deem advisable. No option under the Plan shall be granted
the exercise of which shall be conditioned upon the exercise of any other option
under the Plan or any other plan designed to confer incentive stock option
treatment to options granted thereunder.
(b) Nonqualified Stock Options. Each director shall receive a
nonqualified stock option to acquire the number of shares of Common Stock as set
forth on Schedule A. Such option shall be exercisable in full at any time
before the tenth anniversary of the date it is granted. Such option shall be
reflected in an option agreement in the form attached hereto as Exhibit A.
SECTION 3.01. Maximum Number of Shares of Common Stock Subject to the
Plan. Subject to the provisions of Section 13.01, the maximum aggregate number
of shares that may be optioned and sold under the Plan is 168, 950 shares of
authorized and unissued Common Stock. If any of the options granted under the
Plan expire or terminate for any reason before they have been exercised in full,
the unpurchased stock subject to those expired or terminated options shall again
be available for the purposes of the Plan.
SECTION 4.01. Eligibility and Participation. Only key management,
full-time employees of the Company or its subsidiaries, who are not directors of
the Company, shall be eligible for selection by the Plan Administrators to
participate in the Plan and receive incentive stock options. As used herein,
the term "full-time employee" shall mean any person employed by the Company or
its subsidiaries in return for salary, wages or other compensation, whose
employment shall be on a regular as opposed to a part-time or job basis. All
directors of the Company shall participate in the Plan with respect to
nonqualified stock options.
SECTION 5.01. Effective Date and Term of Plan. The Plan shall become
effective upon its adoption by the Board of Directors of the Company (the
"Effective Date"), subject to approval of the Plan by the stockholders of the
Company, as provided in Section 15.01. The Plan shall continue in effect for a
term of ten years from the Effective Date unless sooner terminated under Section
14.01.
SECTION 5.02. Duration of Options. Each incentive stock option and
all rights thereunder granted pursuant to the terms of the Plan shall expire on
the date determined by the Plan Administrators, but in no event shall any
incentive stock option granted under the Plan expire later than ten (10) years
from the date on which the option is granted. Each nonqualified
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stock option shall expire on the tenth anniversary of the date on which it was
granted. In addition, each option shall be subject to early termination as
provided in the Plan.
SECTION 5.03. Purchase Price. The purchase price for shares of Common
Stock acquired pursuant to the exercise (in whole or in part) of any stock
option granted under this Plan shall be not less than the fair market value of
the stock at the time of the grant of the option. Fair market value shall be
determined by the Plan Administrators on the basis of those factors they deem
appropriate; provided that the Plan Administrators shall make a good faith
effort to determine such fair market value in selecting such factors, and
provided further, that if at the time the determination is made the Common Stock
is admitted to trading on a national securities exchange, the fair market value
of the shares shall be not less than the mean between the high bid and asked
pries reported for the Common Stock on that exchange on the day or most recent
trading day preceding the date on which the option is granted. The phrase
"national securities exchange" shall include the National Association of
Securities Dealers Automated Quotation System and the over-the-counter market.
SECTION 5.04. Term and Purchase Price of Option Granted to More than
Ten Percent Stockholder. Notwithstanding anything to the contrary in Sections
5.02 and 5.03, if an incentive stock option is to be granted to an optionee who
at the time the option is granted owns (or under Section 424(d) of the Code is
deemed to own) more than ten percent of the voting power or value of all classes
of stock of the Company or of any parent corporation or subsidiary corporation
of the Company, (i) that option by its terms shall not be exercisable after the
expiration of five years after the date that option is granted, and (ii) the
purchase price for shares acquired pursuant to the exercise (in whole or in
part) of that option shall be at least 110 percent of the fair market value (as
determined under Section 5.03) of the shares subject to the option at the time
the option is granted.
SECTION 5.05. Maximum Amount of Incentive Stock Options In Any
Calendar Year. The maximum aggregate fair market value (determined as of the
time the option is granted) of Common Stock for which any optionee may be
granted incentive stock options (as defined in Section 422(b) of the Code) which
first become exercisable in any calendar year under all stock option plans of
the Company, or of any parent corporation or subsidiary corporation of the
Company, shall not exceed $100,000.
SECTION 6.01. Exercise of Options by Optionee.
(a) Incentive Stock Options. Each incentive stock option shall be
exercisable in one or more installments during its term, and the right to
exercise may be cumulative as determined by the Plan Administrators. No
incentive stock option may be exercised for a fraction of a share of Common
Stock or other than on a business day of the Company. The full purchase price
of any shares purchased shall be paid at the time of exercise of the option by a
combination of cash, certified or cashier's check payable to the order of the
Company or shares of Common Stock. If any portion of the purchase price is paid
in shares of Common Stock, those shares shall be tendered at their then fair
market value, as determined by the Plan Administrators in accordance with
Section 5.03 of the Plan. No option may be exercised on a date later than ten
years from the date it is granted or, if earlier, the date on which it otherwise
expires in accordance with its terms or the terms of this Plan.
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(b) Nonqualified Stock Options. Each nonqualified stock option shall
be exercisable in full throughout its term. No nonqualified stock option may be
exercised for a fraction of a share of Common Stock or other than on a business
day of the Company. The full purchase price of any shares purchased shall be
paid at the time of exercise of the option by a combination of cash, certified
or cashier's check payable to the order of the Company or shares of Common
Stock. If any portion of the purchase price is paid in shares of Common Stock,
those shares shall be tendered at their then fair market value, as determined by
the Plan Administrators in accordance with Section 5.03 of the Plan. No
nonqualified stock option may be exercised on a date later than ten years from
the date it is granted or, if earlier, the date on which it otherwise expires in
accordance with its terms or the terms of this Plan.
SECTION 6.02. Exercise of Options by Estate or Beneficiaries.
(a) Incentive Stock Options. Subject to the provisions of Section
12.01, if an incentive stock option shall have been transferred to an estate of
an optionee, or to any beneficiary thereof who shall have acquired such option
by bequest or inheritance by reason of the death of such optionee, the option
shall be exercisable in the same manner as if exercised by such optionee
pursuant to Section 6.01. Notwithstanding the provisions of Section 9.01, the
executor or administrator of such estate or the beneficiary thereof, may
exercise such incentive stock option within twelve months following the death of
such optionee, provided, however, that the exercise of such option shall
otherwise be pursuant to the terms of such option. Such incentive stock
options, if so exercised, shall be eligible for treatment under Section 422 of
the Code without regard to whether such executor, administrator or beneficiary
is then employed by the Company, provided the optionee shall have met the
employment requirements of the Plan at the date of death thereof or within three
(3) months prior to such date of death. If an incentive stock option shall not
be exercised by an optionee prior to the expiration of the applicable holding
period of Section 422(a)(1) of the Code, the executor, administrator or
beneficiary of the estate of such optionee may exercise such option, and such
option shall be treated as an incentive stock option, without regard to whether
the shares of Common Stock acquired thereunder shall be disposed of prior to the
expiration of such applicable period.
(b) Nonqualified Stock Options. Subject to the provisions of Section
12.01, if a nonqualified stock option shall have been transferred to an estate
of an optionee, or to any beneficiary thereof who shall have acquired such
option by bequest or inheritance by reason of the death of such optionee, the
option shall be exercisable in the same manner as if exercised by such optionee
pursuant to Section 6.01. Notwithstanding the provisions of Section 9.01, the
executor or administrator of such estate or the beneficiary thereof, may
exercise such nonqualified stock option within twelve months following the death
of such optionee, provided, however, that the exercise of such option shall
otherwise be pursuant to the term of such option.
SECTION 6.03. Written Notice Required. Any option granted pursuant to
the terms of the Plan shall be considered exercised when written notice of that
exercise, together with the investment representations described in Section
7.01, if any, have been given to the Company at its principal office by the
person entitled to exercise the option and full payment for the shares with
respect to which the option is exercised has been received by the Company. Upon
receipt thereof, and in connection with the transfer of Common Stock, the
Company shall
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provide optionee with a written statement containing the information required by
Section 6039(a) of the Code.
SECTION 6.04. Limitation on Exercise. In the event an optionee shall
exercise his or her option to acquire Common Stock in whole or in part, with
shares of Common Stock previously acquired thereby through the exercise of an
incentive stock option, all such shares shall have been held by each optionee
for the applicable periods provided by Code Section 422(a)(1) prior to their
tender to the Company in exercise of such option.
SECTION 7.01. Compliance with State and Federal Laws. Shares of
Common Stock shall not be issued with respect to any option granted under the
Plan unless the exercise of that option and the issuance and delivery of the
Common Stock pursuant to that exercise shall comply with all relevant provisions
of state and federal laws, rules and regulations, and the requirements of any
stock exchange upon which the Common Stock may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to that
compliance. If any law or any regulation of any federal or state body having
jurisdiction shall require the Company or the optionee to take any action in
connection with the shares specified in the optionee's notice, then the date for
the delivery of the shares shall be adjourned until the completion of the
necessary action. The Plan Administrators also shall require (to the extent
required by applicable laws, rules and regulations) an optionee to furnish
evidence satisfactory to the Company (including a written and singed
representation letter and a consent to be bound by any transfer restrictions
imposed by law, legend condition, or otherwise) that the Common Stock is being
purchased only for investment and without any present intention to sell or
distribute the Common Stock in violation of any law, rule or regulation.
Further, each optionee shall consent to the imposition of a legend on the shares
of Common Stock subject to his or her option restricting their transferability
as may be required by applicable laws, rules or regulations.
SECTION 8.01. Employment of Optionee. In connection with the granting
of incentive stock options, the Plan Administrator may provide that a particular
option will not be exercisable in whole or in part for a period of time, and
then only if the optionee remains an employee of the Company until that time.
Nothing in the Plan (including the foregoing sentence) or in any option
agreement entered into under the Plan shall confer upon any optionee any right
to continued employment by the Company, or limit in any way the right of the
Company at any time to terminate or alter the terms of that employment.
SECTION 9.01. Option Rights Upon Termination of Employment.
(a) Incentive Stock Options. If an optionee ceases to be employed by
the Company, without regard to the anticipated duration of that unemployment,
for any reason other than death or permanent and total disability, his or her
incentive stock option shall immediately terminate, unless an option agreement
allows the option to be exercised (to the extent exercisable on the date of
termination of employment) at any time within three (3) months after the date of
termination of employment. For this purpose the employment relationship in
respect of which an incentive stock option shall have been granted shall be
deemed to continue while the optionee to whom said option shall have been
granted shall be on military leave, leave on account of illness or other bona
fide leave determined in the discretion of the Plan Administrators, provided the
period of such leave shall not exceed ninety (90) days, or if longer, so long as
the right of
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the optionee to reemployment with the Company is guaranteed either by operation
of law or contract. If such reemployment is not so guaranteed by operation of
law or contract, then such employment relationship shall be deemed to terminate
on the ninety-first (91st) day of such leave.
(b) Nonqualified Stock Options. If an optionee ceases to be a
director of the Company for any reason other than death or permanent and total
disability, his or her nonqualified stock option shall immediately terminate,
unless an option agreement allows the option to be exercised (to the extent
exercisable on the date he ceases to be a director) at a time following such
termination.
SECTION 10.01. Option Rights Upon Death or Disability. Except as
otherwise limited by the Plan Administrators at the time of the grant of an
incentive stock option, if an optionee dies or becomes permanently and totally
disabled within the meaning of Section 105(d)(4) of the Code while employed by
the Company, or dies within three months after ceasing to be an employee
thereof, his or her option shall expire one year after the date of death or the
date of permanent and total disability unless either the option agreement or the
Plan otherwise provides for earlier termination. During that one year (or
shorter) period, the unexercised portion of the incentive stock option may be
exercised by the optionee, if living, or by the person or persons to whom the
optionee's rights under the option shall pass by will or by the laws of descent
and distribution, but only to the extent that the optionee is entitled to
exercise the option at the date of death or the date of permanent and total
disability, as the case may be.
SECTION 11.01. Privileges of Stock Ownership. Notwithstanding the
exercise of any option granted pursuant to the Plan, no optionee shall have any
of the rights or privileges of a stockholder of the Company in respect of any
shares of Common Stock issuable upon the exercise of his or her option until the
optionee becomes a stockholder of record.
SECTION 12.01. Options Not Transferable. Options granted pursuant to
the terms of the Plan may not be sold, pledged, assigned or transferred in any
manner other than by will or the laws of descent or distribution and may be
exercised during the lifetime of an optionee only by that optionee.
SECTION 13.01. Adjustment for Changes in Capitalization or
Organization; Acceleration of Right to Exercise Option. All options granted
pursuant to the Plan shall be adjusted in a manner prescribed by this section.
(a) If the outstanding shares of the Common Stock of the Company are
increased, decreased, changed into, or exchanged for a different number or kind
of shares or securities through recapitalization, reclassification, stock
dividend, stock split or reverse stock split, an appropriate and proportionate
adjustment shall be made in the maximum number and kind of shares of stock as to
which options may be granted under the Plan. A corresponding adjustment
changing the number or kind of shares of stock allocated to unexercised options
or portions thereof, which shall have been granted prior to any such change,
shall likewise be made. Any such adjustment in outstanding options shall be
made without change in the aggregate purchase price applicable to the
unexercised portion of the option, but with a
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corresponding adjustment in the price for each share of stock or other unit of
any security covered by the option.
(b) Upon the effective date of the dissolution or liquidation of the
Company, or of a reorganization, merger, combination or consolidation of the
Company with one or more other corporations in which the Company is not the
surviving corporation, or of the transfer of substantially all of the assets or
stock of the Company to another corporation, the Plan and any option theretofore
granted hereunder shall terminate unless provision is made in writing in
connection with that transaction for the continuance of the Plan and for the
assumption of options theretofore granted hereunder, or the substitution for
those options of new options covering the stock of the successor corporation, or
a parent or subsidiary thereof, with appropriate adjustments, as determined or
approved by the Plan Administrators, as to the number and kind of shares of
stock subject to the substituted options and prices therefor, in which event the
Plan and the options theretofore granted, or the new options substituted
therefor, shall continue in the manner and under the terms so provided. For the
purposes of the preceding sentence, the excess of the aggregate fair market
value of the shares subject to the option immediately after the substitution or
assumption over the aggregate option price of those shares shall not be more
than the excess of the aggregate fair market value of the shares subject to the
option immediately before the substitution or assumption over the aggregate
option price of those shares, and the new option or assumption of the old option
shall not give the optionee additional benefits which the optionee did not have
under the old option.
In the event of (i) such dissolution, liquidation, reorganization,
merger, combination, consolidation or sale or transfer of assets or stock in
which provision is not made in the transaction, prior to the receipt of
regulatory approval of such transaction, for the continuance of the Plan and for
the assumption of options theretofore granted or the substitution for those
options of new options covering the securities of a successor corporation or a
parent or subsidiary thereof, each optionee (or that person's estate or a person
who acquired the right to exercise the option from the optionee by bequest or
inheritance) shall be entitled, after the receipt of such regulatory approval
and prior to the effective date of the consummation of any such transaction, to
purchase, in whole or in part, the full number of shares of Common Stock under
the option or options granted to him or her which he or she would otherwise have
been entitled to purchase during the remaining term of the option and without
regard to any otherwise applicable exercise restrictions set forth in the option
agreement. To the extent that any such exercise relates to stock that is not
otherwise available for purchase through the exercise of the option by the
optionee at that time, the exercise shall be contingent upon the consummation of
that dissolution, liquidation, reorganization, merger, combination,
consolidation, or sale or transfer of assets or stock.
(c) Notwithstanding the foregoing, in the event of a complete
liquidation of a subsidiary corporation, or in the event that such corporation
ceases to be a subsidiary corporation as that term is defined herein, any
unexercised incentive stock options theretofore granted to an employee of the
subsidiary corporation shall be deemed cancelled three months after the
occurrence of any such event unless the employee shall become employed by the
Company or by any other subsidiary corporation on or before the occurrence of
any such event.
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SECTION 14.01. Termination and Amendment of the Plan. The Plan shall
terminate ten years after the Effective Date, and no options shall be granted
under the Plan after that termination date; provided, however, that termination
of the Plan shall not terminate any option granted prior thereto, and options
granted prior to termination of the Plan and existing at the time of termination
of the Plan shall continue to be subject to all the terms and conditions of the
Plan as if the Plan had not terminated. Subject to the limitation contained in
Section 14.02, the Plan Administrators may at any time amend or revise the terms
of the Plan (including the form and substance of the option agreements to be
used hereunder), provided that no amendment or revision shall (i) increase the
maximum aggregate number of shares of Common Stock provided for in Section 3.01
that may be sold pursuant to options granted under the Plan, except with the
approval of the stockholders of the Company and the Commissioner of Banks for
the State of New Hampshire or except as required under the provisions of Section
13.01(a), (ii) permit the granting of an option to anyone other than as provided
in Section 4.01, (iii) increase the maximum term provided for in Sections 5.02
and 5.04 of any option, or (iv) change the minimum purchase price for shares of
Common Stock under Sections 5.03 and 5.04.
SECTION 14.02. Prior Rights and Obligations. No amendment, suspension
or termination of the Plan shall, without the consent of the optionee, alter or
impair any of that optionee's rights and obligations under any option granted
under the Plan prior to that amendment, suspension or termination.
SECTION 15.01. Approval of Stockholders. Within 12 months before or
after its adoption by the Board of Directors of the Company, as provided by
Section 5.01, the Plan must be approved by stockholders of the Company holding
at least two-thirds of the voting stock of the Company voting in person or by
proxy at a duly held stockholders' meeting. Options may be granted under the
Plan prior to obtaining those approvals, subject to the limitations of Section
14.01 concerning the period during which options may be granted, but those
options shall be contingent upon those approvals being obtained and may not be
exercised prior to the receipt of those approvals.
SECTION 16.01. Reservation of Shares of Common Stock. The Company,
during the term of the Plan, will at all times reserve and keep available a
sufficient number of shares of Common Stock to satisfy the requirements of the
Plan. In addition, the Company will from time to time, as is necessary to
accomplish the purposes of the Plan, seek to obtain from any regulatory agency
having jurisdiction any requisite authority in order to grant options under the
Plan and to issue and sell shares of Common Stock hereunder. The inability of
the Company to obtain from any regulatory agency having jurisdiction the
authority deemed by the Company's counsel to be necessary to the lawful issuance
and sale of Common Stock hereunder shall relieve the Company of any liability in
respect of the nonissuance or sale of the stock as to which the requisite
authority shall not have been obtained.
SECTION 17.01. Headings. The headings of the sections of the Plan are
for convenience only and shall not be considered or referred to in resolving
questions of interpretation.
SECTION 18.01. Brokers' Commissions. No commission may be paid to
brokers on the sale by the Company to the optionee of stock that is optioned and
sold under the Plan.
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SECTION 19.01. Adoption. The plan has been adopted by a resolution
duly adopted by the Board of Directors of the Company on January 11, 1996.
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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of August 2, 1994, by and between
NEW HAMPSHIRE THRIFT BANCSHARES, INC. (the "Company") and its subsidiary Lake
Sunapee Bank, fsb. (the "Bank"), and Stephen W. Ensign (the "Executive").
WHEREAS, the Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Bank
on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve as President and Chief Executive Officer of the Bank and the Company.
During said period, Executive also agrees to serve, if elected, as a director of
the Company, the Bank and/or as an officer and director of any subsidiary or
affiliate of the Bank.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of sixty (60) full
calendar months thereafter. Commencing on the first anniversary date, and
continuing at each anniversary date thereafter, the Board of Directors of the
Bank (the "Board") may extend the Agreement for an additional year. Prior to the
extension of the Agreement as provided herein, the Board will conduct a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting.
(b) During the period of his employment hereunder, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations which, in the
Board's judgment, will not present any conflict of interest with the Bank, or
materially affect the performance of Executive's duties pursuant to this
Agreement.
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3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Sections 1 and 2. The
Bank shall pay Executive as compensation a salary of $125,000 per year ("Base
Salary"). Such Base Salary shall be payable bi-weekly. During the period of this
Agreement, Executive's Base Salary shall be reviewed at least annually; the
first such review will be made no later than one year from the date of this
Agreement. Such review shall be conducted by a Committee designated by the
Board, and the Board may increase Executive's Base Salary. In addition to the
Base Salary provided in this Section 3(a), the Bank shall provide Executive at
no cost to Executive with all such other benefits as are provided uniformly to
permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including, but not limited to, retirement
plans, supplemental retirement plans, pension plans, profit-sharing plans,
health and accident plan, medical coverage or any other employee benefit plan or
arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to, and on a basis consistent with, the
terms, conditions and overall administration of such plans and arrangements.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan, or pursuant to any arrangement of the Bank, in which Executive is
eligible to participate. Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement, except as provided under Section
5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3, the Bank shall pay or reimburse Executive for all reasonable
travel and other obligations under this Agreement and may provide such
additional compensation in such form and such amounts as the Board may from time
to time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a Change in Control, as defined in Section 5(a) hereof;
disability, as defined in Section 7(a) hereof; death; retirement, as defined in
Section 8 hereof; or for Cause, as defined in Section 9 hereof; (ii) Executive's
resignation from the Bank's employ, upon (A) unless consented to by the
Executive, a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the position and attributes
thereof
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described in Sections l and 2, above (any such material change shall be deemed a
continuing breach of this Agreement), (B) a relocation of Executive's principal
place of employment by more than 30 miles from its location at the effective
date of this Agreement, or a material reduction in the benefits and perquisites
to the Executive from those being provided as of the effective date of this
Agreement, (C) the liquidation or dissolution of the Bank, or (D) any breach of
this Agreement by the Bank. Upon the occurrence of any event described in
clauses (A), (B), (C), or (D), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation upon not less than
sixty (60) days prior written notice given within a reasonable period of time
not to exceed, except in case of a continuing breach, four calendar months after
the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the payments due to the Executive for the
remaining term of the Agreement, including Base Salary, bonuses, and any other
cash or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on the Executive's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the Bank as of the Date of Termination), to the Executive for the
term of the Agreement provided, however, that if the Bank is not in compliance
with its minimum capital requirements or if such payments would cause the Bank's
capital to be reduced below its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance. All
payments made pursuant to this Section 4(b) shall be paid in substantially equal
monthly installments over the remaining term of this Agreement following the
Executive's termination; provided, however, that if the remaining term of the
Agreement is less than one (1) year (determined as of the Executive's Date of
Termination), such payments and benefits shall be paid to the Executive in a
lump sum within 30 days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the Bank will
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Bank for Executive
prior to his termination. Such coverage shall cease upon the expiration of the
remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there
shall have occurred a Change in Control of the Bank, as set forth below. For
purposes of this Agreement, a "Change in Control" of the Bank shall mean an
event of a nature that: (i) it would be required to be reported in response to
Item l(a) of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"); or (ii) it results in a Change in Control of the Bank within
the meaning of the Home Owners' Loan Act of 1933 and the Rules and Regulations
promulgated by the Office of Thrift Supervision ("OTS"), as in effect on the
date hereof (provided that in applying the definition of change in control as
set forth in the rules and regulations of the OTS, the Board shall substitute
its judgment for that of the OTS); or (iii) without limitation, such a Change in
Control shall be deemed to have occurred at such time as (A) any "person" (as
the term is used in Sections 13(d)
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and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Bank representing 20% or more of the Bank's outstanding securities except
for any securities purchased by the Bank's employee stock ownership plan and
trust; or (B) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Bank's stockholders was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this clause (B), considered
as though he were a member of the Incumbent Board; or (C) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or similar transaction in which the Bank is not the resulting
entity occurs. Notwithstanding the foregoing, a "Change of Control" shall apply
if any of the events listed in Sections (A) through (C) occur with respect to
the Company.
(b) If any of the events described in Section 5(a) hereof constituting
a Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (c), (d) and (e) of this Section 5 upon his subsequent termination of
employment at any time during the term of this Agreement (regardless of whether
such termination results from his dismissal or his resignation at any time
during the term of this Agreement), unless such termination is because of his
death, retirement as provided in Section 8, termination for Cause, or
termination for Disability.
(c) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank shall pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to five times the Executive's "base amount," within the meaning of (S)280G(b)(3)
of the Internal Revenue Code of 1986 (the "Code"). Such payment shall be made in
a lump sum paid within ten (10) days of the Executive's Date of Termination.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. In addition,
Executive shall be entitled to receive the value of employer contributions that
would have been made on the Executive's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the Bank as of the
Date of Termination. Such coverage and payments shall cease at the end of the
thirty-sixth (36th) month after the month in which the Executive's employment
terminates.
(e) Upon the occurrence of a Change in Control, the Executive shall be
entitled to receive benefits due him under, or contributed by the Bank on his
behalf pursuant to, any retirement, incentive, profit sharing, bonus,
performance, disability or other employee benefit plan maintained by the Bank on
the Executive's behalf to the extent that such benefits are not otherwise paid
to the Executive upon a Change in Control.
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6. CERTAIN ADDITIONAL PAYMENTS BY THE BANK.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Bank to or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the GrossUp Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 6(c), all determinations
required to be made under this Section 6, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Smith,
Batchelder & Rugg (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Bank and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Bank. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Bank. Any Gross-Up Payment, as determined pursuant to this Section
6, shall be paid by the Bank to the Executive within five days of the receipt of
the Accounting Firm's determination. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall furnish the Executive with a
written opinion that failure to report the Excise Tax on the Executive's
applicable Federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the Accounting Firm shall be
binding upon the Bank and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Bank should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Bank exhausts its remedies pursuant to Section 6(c) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Bank to or for the benefit of the
Executive.
(c) The Executive shall notify the Bank in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Bank of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Bank of the
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nature of such claim and the date on which such claim is requested to be paid.
The Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which the Executive gives such notice to the Bank
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Bank notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Executive shall:
(i) give the Bank any information reasonably requested by the Bank relating
to such claim,
(ii) take such action in connection with contesting such claim as the Bank
shall reasonably request in writing from time to time, including without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by the Bank,
(iii) cooperate with the Bank in good faith in order effectively to
contest such claim, and
(iv) permit the Bank to participate in any proceedings relating to such
claim;
provided, however, that the Bank shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 6(c), the Bank shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Bank shall determine;
provided, however, that if the Bank directs the Executive to pay such claim and
sue for a refund, the Bank shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Bank's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and the Executive
shall be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Bank pursuant to Section 6(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Bank's
complying with the requirements of Section 6(c)) promptly pay to the Bank the
amount of such refund (together with any interest paid or credited
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thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Bank pursuant to Section 6(c), a determination is
made that the Executive shall not be entitled to any refund with respect to such
claim and the Bank does not notify the Executive in writing of its intent to
contest such denial or refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
7. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or mental
illness, he shall have been absent from his duties with the Bank on a full-time
basis for three (3) consecutive months, and within thirty (30) days after
written notice of potential termination is given, he shall not have returned to
the full-time performance of his duties, the Bank may terminate Executive's
employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to three-quarters (3/4) of Executive's bi-weekly rate of Base Salary on
the effective date of such termination. These disability payments shall commence
on the effective date of Executive's termination and will end on the earlier of
(i) the date Executive returns to the full-time employment of the Bank in the
same capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between Executive and the Bank; (ii)
Executive's full-time employment by another employer; (iii) Executive attaining
the age of 65; (iv) Executive's death; or (v) the expiration of the term of this
Agreement. The disability pay shall be reduced by the amount, if any, paid to
the Executive under any plan of the Bank providing disability benefits to the
Executive.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his termination for Disability. This coverage and
payments shall cease upon the earlier of (i) the date Executive returns to the
full-time employment of the Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive's attaining the age of 65; (iv) the Executive's death;
or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
8. TERMINATION UPON RETIREMENT; DEATH OF THE EXECUTIVE.
Termination by the Bank of the Executive based on "Retirement" shall mean
retirement at age 65 or in accordance with any retirement arrangement
established with Executive's consent with respect to him. Upon termination of
Executive upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a
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party. Upon the death of the Executive during the term of this Agreement, the
Bank shall pay to the Executive's estate the compensation due to the Executive
for a period of one year following the last day of the calendar month in which
his death occurred.
9. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination upon intentional
failure to perform stated duties, personal dishonesty which results in loss to
the Bank or one of its affiliates, willful violation of any law, rule,
regulation (other than traffic violations or similar offenses), or final cease
and desist order concerning conduct which results in substantial loss to the
Bank or one of its affiliates, or any material breach of this Agreement. For
purposes of this Section, no act, or the failure to act, on Executive's part
shall be "willful" unless done, or omitted to be done, not in good faith and
without reasonable belief that the action or omission was in the best interest
of the Bank or its affiliates. Notwithstanding the foregoing, Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying termination for Cause and specifying
the reasons thereof. The Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause. Any
stock options granted to Executive under any stock option plan or any unvested
awards granted under any other stock benefit plan of the Bank, the Company, or
any Subsidiary or affiliate thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause pursuant to Section 11
hereof, and shall not be exercisable by Executive at any time subsequent to such
Termination for Cause.
10. REQUIRED PROVISIONS.
(a) The Bank may terminate the Executive's employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
Executive's right to compensation or other benefits under this Agreement.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 9 herein.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(l) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(l)), the Bank's obligations under the Agreement shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may, in its
discretion, (i) pay the Executive all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate (in whole or in part)
any of its obligations that were suspended.
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(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(l) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(l)), all
obligations of the Bank under the Agreement shall terminate as of the effective
date of the order, but vested rights of the contracting parties shall not be
affected.
(d) If the Bank is in default (as defined in Section 3(x)(1) of the FDIA),
all obligations under this Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement may be terminated: (i) by the
Director of the Office of Thrift Supervision (the "Director") or his or her
designee at the time the Federal Deposit Insurance Corporation or the Resolution
Trust Corporation enters into an agreement to provide assistance to or on behalf
of the Bank under the authority contained in Section 13(c) of the FDIA and (ii)
by the Director, or his or her designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(f) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
(S)1828(k) and any regulations promulgated thereunder.
11. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) days period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having
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expired and no appeal having been perfected) and provided further that the Date
of Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such
dispute, the Bank will continue to pay Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he was participating when the notice of dispute was
given, until the dispute is finally resolved in accordance with this Agreement.
Amounts paid under this Section are in addition to all other amounts due under
this Agreement and shall not be offset against or reduce any other amounts due
under this Agreement.
12. NON-COMPETITION.
(a) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank. In the
event of a breach or threatened breach by the Executive of the provisions of
this Section, the Bank will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, the knowledge of the past, present,
planned or considered business activities of the Bank or affiliates thereof, or
from rendering any services to any person, firm, corporation, other entity to
whom such knowledge, in whole or in part, has been disclosed or is threatened to
be disclosed. Nothing herein will be construed as prohibiting the Bank from
pursuing any other remedies available to the Bank for such breach or threatened
breach, including the recovery of damages from Executive.
(b) The Executive shall have no right to terminate his employment under
this Agreement prior to the end of the term of this Agreement, unless such
termination either is approved by the Board or is within one year after a Change
in Control of the Bank has occurred. In the event that Executive violates this
provision, the Bank shall be entitled to enjoin the employment of Executive with
any significant competitor, which shall mean any bank, savings bank, co-
operative bank or savings and loan association or holding company affiliate
thereof having one or more deposit offices in any county where the Lake Sunapee
Bank, fsb has a main or branch office, of the Bank for a period of two years
from the date of Executive's termination of his employment hereunder.
13. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank or the Company, as applicable.
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14. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
15. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and, the Bank and their respective successors and assigns.
16. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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19. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New Hampshire,
unless otherwise specified herein.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
21. INDEMNIFICATION.
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
22. SUCCESSORS TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
23. GENERAL PROVISIONS.
The parties hereto acknowledge that this Agreement was drafted by the law
firm of Thompson & Mitchell which at various times has served a special counsel
to the Company and the Bank. Executive acknowledges that he is sophisticated in
business matters (including, but not limited to, employment agreements) and that
he has had the opportunity to seek independent legal advice. Executive
specifically waives any actual or apparent conflict of interest of Thompson &
Mitchell in connection with the preparation and negotiation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and their seal to be affixed hereunto by its duly authorized officers
and directors, and Executive has signed this Agreement, on the 2nd day of
August, 1994.
ATTEST: NEW HAMPSHIRE THRIFT BANCSHARES, INC.
BY:/s/ John J. Kiernan
/s/ Linda L. Oldham -------------------
- -------------------
LAKE SUNAPEE BANK, FSB.
ATTEST:
BY:/s/ John J. Kiernan
/s/ Linda L. Oldham -------------------
- -------------------
WITNESS:
/s/ Linda L. Oldham /s/ Stephen W. Ensign
- ------------------- ---------------------
Stephen W. Ensign
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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT is made effective as of August 2, 1994, by and between NEW
HAMPSHIRE THRIFT BANCSHARES, INC. (the "Company") and its subsidiary Lake
Sunapee Bank, fsb. (the "Bank"), and Stephen R. Theroux (the "Executive").
WHEREAS, the Company wishes to assure itself of the services of Executive
for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
Executive Vice President and Chief Financial Officer of the Bank and the
Company. During said period, Executive also agrees to serve, if elected, as a
director of the Company, the Bank and/or as an officer and director of any
subsidiary or affiliate of the Bank.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of sixty (60) full
calendar months thereafter. Commencing on the first anniversary date, and
continuing at each anniversary date thereafter, the Board of Directors of the
Bank (the "Board") may extend the Agreement for an additional year. Prior to the
extension of the Agreement as provided herein, the Board will conduct a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the approval
of the Board, as evidenced by a resolution of such Board, from time to time,
Executive may serve, or continue to serve, on the boards of directors of, and
hold any other offices or positions in, companies or organizations which, in the
Board's judgment, will not present any conflict of interest with the Bank, or
materially affect the performance of Executive's duties pursuant to this
Agreement.
<PAGE>
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The Bank
shall pay Executive as compensation a salary of $95,000 per year ("Base
Salary"). Such Base Salary shall be payable bi-weekly. During the period of this
Agreement, Executive's Base Salary shall be reviewed at least annually; the
first such review will be made no later than one year from the date of this
Agreement. Such review shall be conducted by a Committee designated by the
Board, and the Board may increase Executive's Base Salary. In addition to the
Base Salary provided in this Section 3(a), the Bank shall provide Executive at
no cost to Executive with all such other benefits as are provided uniformly to
permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Bank will not, without
Executive's prior written consent, make any changes in such plans, arrangements
or perquisites which would adversely affect Executive's rights or benefits
thereunder. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including, but not limited to, retirement
plans, supplemental retirement plans, pension plans, profit-sharing plans,
health and accident plan, medical coverage or any other employee benefit plan or
arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to, and on a basis consistent with, the
terms, conditions and overall administration of such plans and arrangements.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan, or pursuant to any arrangement of the Bank, in which Executive is
eligible to participate. Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement, except as provided under Section
5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable travel
and other obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a Change in Control, as defined in Section 5(a) hereof;
disability, as defined in Section 7(a) hereof; death; retirement, as defined in
Section 8 hereof; or for Cause, as defined in Section 9 hereof; (ii) Executive's
resignation from the Bank's employ, upon (A) unless consented to by the
Executive, a material change in Executive's
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function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Sections 1 and 2, above (any such
material change shall be deemed a continuing breach of this Agreement), (B) a
relocation of Executive's principal place of employment by more than 30 miles
from its location at the effective date of this Agreement, or a material
reduction in the benefits and perquisites to the Executive from those being
provided as of the effective date of this Agreement, (C) the liquidation or
dissolution of the Bank, or (D) any breach of this Agreement by the Bank. Upon
the occurrence of any event described in clauses (A), (B), (C), or (D), above,
Executive shall have the right to elect to terminate his employment under this
Agreement by resignation upon not less than sixty (60) days prior written notice
given within a reasonable period of time not to exceed, except in case of a
continuing breach, four calendar months after the event giving rise to said
right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the payments due to the Executive for the
remaining term of the Agreement, including Base Salary, bonuses, and any other
cash or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on the Executive's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the Bank as of the Date of Termination), to the Executive for the
term of the Agreement provided, however, that if the Bank is not in compliance
with its minimum capital requirements or if such payments would cause the Bank's
capital to be reduced below its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance. All
payments made pursuant to this Section 4(b) shall be paid in substantially equal
monthly installments over the remaining term of this Agreement following the
Executive's termination; provided, however, that if the remaining term of the
Agreement is less than one (1) year (determined as of the Executive's Date of
Termination), such payments and benefits shall be paid to the Executive in a
lump sum within 30 days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination. Such coverage shall cease upon the expiration of the remaining term
of this Agreement.
5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there shall
have occurred a Change in Control of the Bank, as set forth below. For purposes
of this Agreement, a "Change in Control" of the Bank shall mean an event of a
nature that: (i) it would be required to be reported in response to Item l(a) of
the current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act");
or (ii) it results in a Change in Control of the Bank within the meaning of the
Home Owners' Loan Act of 1933 and the Rules and Regulations promulgated by the
Office of Thrift
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Supervision ("OTS"), as in effect on the date hereof (provided that in applying
the definition of change in control as set forth in the rules and regulations of
the OTS, the Board shall substitute its judgment for that of the OTS); or (iii)
without limitation, such a Change in Control shall be deemed to have occurred at
such time as (A) any "person" (as the term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank
representing 20% or more of the Bank's outstanding securities except for any
securities purchased by the Bank's employee stock ownership plan and trust; or
(B) individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof whose election
was approved by a vote of at least three-quarters of the directors comprising
the Incumbent Board, or whose nomination for election by the Bank's stockholders
was approved by the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he were a member
of the Incumbent Board; or (C) a plan of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or similar transaction
in which the Bank is not the resulting entity occurs. Notwithstanding the
foregoing, a "Change of Control" shall apply if any of the events listed in
Sections (A) through (C) occur with respect to the Company.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (c), (d) and (e) of this Section 5 upon his subsequent termination of
employment at any time during the term of this Agreement (regardless of whether
such termination results from his dismissal or his resignation at any time
during the term of this Agreement), unless such termination is because of his
death, retirement as provided in Section 8, termination for Cause, or
termination for Disability.
(c) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank shall pay Executive, or in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, a sum equal to three
times the Executive's "base amount," within the meaning of (S)280G(b)(3) of the
Internal Revenue Code of 1986 (the "Code"). Such payment shall be made in a lump
sum paid within ten (10) days of the Executive's Date of Termination.
(d) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. In addition,
Executive shall be entitled to receive the value of employer contributions that
would have been made on the Executive's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the Bank as of the
Date of Termination. Such coverage and payments shall cease at the end of the
thirty-sixth (36th) month after the month in which the Executive's employment
terminates.
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(e) Upon the occurrence of a Change in Control, the Executive shall be
entitled to receive benefits due him under, or contributed by the Bank on his
behalf pursuant to, any retirement, incentive, profit sharing, bonus,
performance, disability or other employee benefit plan maintained by the Bank on
the Executive's behalf to the extent that such benefits are not otherwise paid
to the Executive upon a Change in Control.
6. CERTAIN ADDITIONAL PAYMENTS BY THE BANK.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Bank to or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
6) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the GrossUp Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 6(c), all determinations required
to be made under this Section 6, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by Smith, Batchelder &
Rugg (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Bank and the Executive within 15 business days of the
receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Bank. In the event that the Accounting Firm
is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder).
All fees and expenses of the Accounting Firm shall be borne solely by the Bank.
Any Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by
the Bank to the Executive within five days of the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with a written opinion
that failure to report the Excise Tax on the Executive's applicable Federal
income tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the Bank
and the Executive. As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Bank should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Bank exhausts
its remedies pursuant to Section 6(c) and the Executive thereafter is required
to make a payment of any
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Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the Bank
to or for the benefit of the Executive.
(c) The Executive shall notify the Bank in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Bank of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Bank of the nature of such claim
and the date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period following the
date on which the Executive gives such notice to the Bank (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Bank notifies the Executive in writing prior to the expiration
of such period that it desires to contest such claim, the Executive shall:
(i) give the Bank any information reasonably requested by the Bank
relating to such claim,
(ii) take such action in connection with contesting such claim as the
Bank shall reasonably request in writing from time to time, including without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by the Bank,
(iii) cooperate with the Bank in good faith in order effectively to
contest such claim, and
(iv) permit the Bank to participate in any proceedings relating to
such claim;
provided, however, that the Bank shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 6(c), the Bank shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Bank shall determine;
provided, however, that if the Bank directs the Executive to pay such claim and
sue for a refund, the Bank shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such
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contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Bank's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Bank pursuant to Section 6(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Bank's
complying with the requirements of Section 6(c)) promptly pay to the Bank the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Bank pursuant to Section 6(c), a determination is made that the
Executive shall not be entitled to any refund with respect to such claim and the
Bank does not notify the Executive in writing of its intent to contest such
denial or refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
7. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or mental
illness, he shall have been absent from his duties with the Bank on a full-time
basis for three (3) consecutive months, and within thirty (30) days after
written notice of potential termination is given, he shall not have returned to
the full-time performance of his duties, the Bank may terminate Executive's
employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to three-quarters (3/4) of Executive's bi-weekly rate of Base Salary on
the effective date of such termination. These disability payments shall commence
on the effective date of Executive's termination and will end on the earlier of
(i) the date Executive returns to the full-time employment of the Bank in the
same capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between Executive and the Bank; (ii)
Executive's full-time employment by another employer; (iii) Executive attaining
the age of 65; (iv) Executive's death; or (v) the expiration of the term of this
Agreement. The disability pay shall be reduced by the amount, if any, paid to
the Executive under any plan of the Bank providing disability benefits to the
Executive.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his termination for Disability. This coverage and
payments shall cease upon the earlier of (i) the date Executive returns to the
full-time employment of the Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer;
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(iii) Executive's attaining the age of 65; (iv) the Executive's death; or (v)
the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
8. TERMINATION UPON RETIREMENT; DEATH OF THE EXECUTIVE.
Termination by the Bank of the Executive based on "Retirement" shall mean
retirement at age 65 or in accordance with any retirement arrangement
established with Executive's consent with respect to him. Upon termination of
Executive upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a party. Upon
the death of the Executive during the term of this Agreement, the Bank shall pay
to the Executive's estate the compensation due to the Executive for a period of
one year following the last day of the calendar month in which his death
occurred.
9. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination upon intentional
failure to perform stated duties, personal dishonesty which results in loss to
the Bank or one of its affiliates, willful violation of any law, rule,
regulation (other than traffic violations or similar offenses), or final cease
and desist order concerning conduct which results in substantial loss to the
Bank or one of its affiliates, or any material breach of this Agreement. For
purposes of this Section, no act, or the failure to act, on Executive's part
shall be "willful" unless done, or omitted to be done, not in good faith and
without reasonable belief that the action or omission was in the best interest
of the Bank or its affiliates. Notwithstanding the foregoing, Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying termination for Cause and specifying
the reasons thereof. The Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause. Any
stock options granted to Executive under any stock option plan or any unvested
awards granted under any other stock benefit plan of the Bank, the Company, or
any Subsidiary or affiliate thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause pursuant to Section 11
hereof, and shall not be exercisable by Executive at any time subsequent to such
Termination for Cause.
10. REQUIRED PROVISIONS.
(a) The Bank may terminate the Executive's employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
Executive's right
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to compensation or other benefits under this Agreement. Executive shall not have
the right to receive compensation or other benefits for any period after
Termination for Cause as defined in Section 9 herein.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(l) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(l)), the Bank's obligations under the Agreement shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may, in its
discretion, (i) pay the Executive all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate (in whole or in part)
any of its obligations that were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(l) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the Bank under the Agreement shall terminate as of the effective
date of the order, but vested rights of the contracting parties shall not be
affected.
(d) If the Bank is in default (as defined in Section 3(x)(1) of the FDIA),
all obligations under this Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement may be terminated: (i) by the
Director of the Office of Thrift Supervision (the "Director") or his or her
designee at the time the Federal Deposit Insurance Corporation or the Resolution
Trust Corporation enters into an agreement to provide assistance to or on behalf
of the Bank under the authority contained in Section 13(c) of the FDIA and (ii)
by the Director, or his or her designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(f) Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
(S)1828(k) and any regulations promulgated thereunder.
11. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
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(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) days period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and provided further that the Date of Termination shall be extended by a notice
of dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue him
as a participant in all compensation, benefit and insurance plans in which he
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section are in addition to all other amounts due under this Agreement and shall
not be offset against or reduce any other amounts due under this Agreement.
12. NON-COMPETITION.
(a) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank. In the
event of a breach or threatened breach by the Executive of the provisions of
this Section, the Bank will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, the knowledge of the past, present,
planned or considered business activities of the Bank or affiliates thereof, or
from rendering any services to any person, firm, corporation, other entity to
whom such knowledge, in whole or in part, has been disclosed or is threatened to
be disclosed. Nothing herein will be construed as prohibiting the Bank from
pursuing any other remedies available to the Bank for such breach or threatened
breach, including the recovery of damages from Executive.
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(b) The Executive shall have no right to terminate his employment under
this Agreement prior to the end of the term of this Agreement, unless such
termination either is approved by the Board or is within one year after a Change
in Control of the Bank has occurred. In the event that Executive violates this
provision, the Bank shall be entitled to enjoin the employment of Executive with
any significant competitor, which shall mean any bank, savings bank, co-
operative bank or savings and loan association or holding company affiliate
thereof having one or more deposit offices in any county where the Lake Sunapee
Bank, fsb has a main or branch office, of the Bank for a period of two years
from the date of Executive's termination of his employment hereunder.
13. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank or the Company, as applicable.
14. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
15. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and, the Bank and their respective successors and assigns.
16. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver
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shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other
than that specifically waived.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New Hampshire,
unless otherwise specified herein.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
21. INDEMNIFICATION.
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
22. SUCCESSORS TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations
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under this Agreement, in the same manner and to the same extent that the Bank
would be required to perform if no such succession or assignment had taken
place.
23. GENERAL PROVISIONS.
The parties hereto acknowledge that this Agreement was drafted by the law
firm of Thompson & Mitchell which at various times has served a special counsel
to the Company and the Bank. Executive acknowledges that he is sophisticated in
business matters (including, but not limited to, employment agreements) and that
he has had the opportunity to seek independent legal advice. Executive
specifically waives any actual or apparent conflict of interest of Thompson &
Mitchell in connection with the preparation and negotiation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and their seal to be affixed hereunto by its duly authorized officers
and directors, and Executive has signed this Agreement, on the 2nd day of
August, 1994.
ATTEST: NEW HAMPSHIRE THRIFT BANCSHARES, INC.
/s/ Linda L. Oldham BY:/s/ John J. Kiernan
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ATTEST: LAKE SUNAPEE BANK, FSB.
/s/ Linda L. Oldham BY:/s/ John J. Kiernan
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WITNESS:
/s/ Linda L. Oldham /s/ Stephen R. Theroux
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Stephen R. Theroux
