-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GBQpb7gb+93KX+7aW47GfO0Aup3s4o3oNW7ThwEgLXy73yLH/NGgP8ICzQnczhT+ RMclzX11BGWlhWROCCV5AQ== 0000914317-99-000673.txt : 19991117 0000914317-99-000673.hdr.sgml : 19991117 ACCESSION NUMBER: 0000914317-99-000673 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990930 FILED AS OF DATE: 19991115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CCBT FINANCIAL COMPANIES INC CENTRAL INDEX KEY: 0001074972 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 043437708 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 333-72565 FILM NUMBER: 99754555 BUSINESS ADDRESS: STREET 1: 307 MAIN STREET CITY: HYANNIS STATE: MA ZIP: 02601 BUSINESS PHONE: 5087608323 MAIL ADDRESS: STREET 1: 307 MAIN STREET CITY: HYANNIS STATE: MA ZIP: 02601 FORMER COMPANY: FORMER CONFORMED NAME: CCBT BANCORP INC DATE OF NAME CHANGE: 19981209 10-Q 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999 COMMISSION FILE NO. 000-25381 CCBT FINANCIAL COMPANIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) MASSACHUSETTS 04-3437708 (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.) 307 MAIN STREET, HYANNIS, MASSACHUSETTS 02601 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE) (REGISTRANT'S TELEPHONE #, INCL. AREA CODE): 508-394-1300 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. (1):[X]Yes [ ]No and (2): [X]Yes [ ]No Indicate the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date. There were 9,061,064 shares of common stock outstanding as of September 30, 1999. TABLE OF CONTENTS
SECTION DESCRIPTION PAGE NO. - ------- ----------- -------- PART I FINANCIAL INFORMATION Item 1. Financial Statements Consolidated Statements of Financial Condition 1 September 30, 1999 (Unaudited) and December 31, 1998 Consolidated Statements of Income (Unaudited) 2 Three and Nine Months Ended September 30, 1999 and 1998 Consolidated Statements of Cash Flows (Unaudited) 3 Nine Months Ended September 30, 1999 and 1998 Consolidated Statements of Changes in Stockholders' Equity (Unaudited) 4 Nine Months Ended September 30, 1999 and 1998 Consolidated Statements of Comprehensive Income (Unaudited) 4 Nine Months Ended September 30, 1999 and 1998 Notes to Consolidated Financial Statements 5-6 Item 2. Management's Discussion and Analysis of Financial Condition 6-20 and Results of Operations Item 3. Quantitative and Qualitative Disclosures About Market Risk 21 PART II OTHER INFORMATION Item 1. Legal Proceedings 21 Item 2. Changes in Securities and Use of Proceeds 21 Item 3. Defaults upon Senior Securities 21 Item 4. Submission of Matters to a Vote of Security Holders 21-23 Item 5. Other Information 23 Item 6. Exhibits and Reports on Form 8-K 23 SIGNATURES 24
PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS
CCBT FINANCIAL COMPANIES, INC. CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION SEPTEMBER 30, DECEMBER 31, 1999 1998 ------------------- ------------------- ASSETS (UNAUDITED) Cash and due from banks $ 29,457,717 $ 29,383,227 Interest-bearing deposits in banks 714,973 43,888 Securities available for sale, at fair value 593,055,847 496,020,243 Federal Home Loan Bank stock, at cost 22,125,400 22,125,400 Federal Reserve Bank of Boston stock, at cost 1,096,700 --- Loans Commercial loans 68,675,170 70,766,629 Construction mortgage loans 61,133,296 47,939,708 Commercial mortgage loans 203,912,047 207,860,415 Industrial revenue bonds 1,207,536 1,344,336 Residential mortgage loans 285,251,278 254,320,484 Consumer loans 9,859,450 11,588,705 ------------------- ------------------- Total loans 630,038,777 593,820,277 Less: Reserve for loan losses (11,314,064) (11,107,633) ------------------- ------------------- Net loans 618,724,713 582,712,644 ------------------- ------------------- Loans held for sale 14,316,727 18,140,522 Premises and equipment 12,259,466 12,847,002 Deferred tax assets 5,040,793 4,992,690 Accrued interest receivable on securities 3,700,016 4,067,975 Principal and interest receivable on loans 2,992,213 3,596,836 Other real estate owned 1,500,000 --- Other assets 5,077,004 3,599,734 ------------------- ------------------- Total assets $ 1,310,061,569 $ 1,177,530,161 =================== =================== LIABILITIES AND STOCKHOLDERS' EQUITY Demand deposits $ 185,893,147 $ 160,966,042 NOW account deposits 117,966,817 114,210,098 Money market account deposits 151,786,020 141,316,906 Other savings deposits 171,819,084 160,125,653 Certificates of deposit of $100,000 or more 51,782,800 30,299,027 Other time deposits 120,212,620 120,979,249 ------------------- ------------------- Total deposits 799,460,488 727,896,975 ------------------- ------------------- Borrowings from the Federal Home Loan Bank 373,460,143 343,506,683 Other short-term borrowings 28,955,914 14,606,322 Current taxes payable 1,498,706 255,080 Interest payable on deposits 1,133,162 1,060,045 Interest payable on borrowings 1,537,831 1,437,695 Post retirement benefits payable 2,337,403 2,016,146 Employee profit sharing retirement and bonuses payable 1,425,975 1,783,350 Due to brokers securities settlement account 12,793,694 --- Other liabilities 3,372,498 1,425,465 ------------------- ------------------- Total liabilities 1,225,975,814 1,093,987,761 ------------------- ------------------- Stockholders' equity Common stock, $2.50 par value, 12,000,000 shares authorized, 9,061,064 shares outstanding 22,652,660 22,652,660 Surplus 13,903,294 13,903,294 Undivided profits 53,541,785 46,704,129 ------------------- ------------------- 90,097,739 83,260,083 Treasury stock, at cost (378,800 shares) (6,244,288) --- Accumulated other comprehensive income 232,304 282,317 ------------------- ------------------- Total stockholders' equity 84,085,755 83,542,400 ------------------- ------------------- Total liabilities and stockholders' equity $ 1,310,061,569 $ 1,177,530,161 =================== ===================
See accompanying notes to the unaudited consolidated financial statements. 1 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. CONSOLIDATED STATEMENTS OF INCOME THREE MONTHS ENDED SEPTEMBER 30, NINE MONTHS ENDED SEPTEMBER 30, 1999 1998 1999 1998 ----------- ----------- ----------- ----------- (UNAUDITED) (UNAUDITED) (UNAUDITED) (UNAUDITED) INTEREST AND DIVIDEND INCOME: Interest and fees on loans $12,299,918 $12,484,077 $36,315,791 $36,501,830 Taxable interest income on securities 6,966,588 6,519,018 19,334,396 16,291,540 Tax-exempt interest income on securities 219,039 199,394 583,594 573,945 Dividends on securities 309,411 299,059 1,082,775 906,637 ----------- ----------- ----------- ----------- Total interest and dividend income 19,794,956 19,501,548 57,316,556 54,273,952 ----------- ----------- ----------- ----------- INTEREST EXPENSE: Interest on deposits 4,553,343 4,899,763 13,095,992 14,982,209 Interest on borrowings from the Federal Home Loan Bank 4,633,261 4,786,634 14,378,087 10,779,720 Interest on other short-term borrowings 264,446 204,081 582,513 474,365 ----------- ----------- ----------- ----------- Total interest expense 9,451,050 9,890,478 28,056,592 26,236,294 ----------- ----------- ----------- ----------- Net interest income 10,343,906 9,611,070 29,259,964 28,037,658 Provision for loan losses -- -- -- -- ----------- ----------- ----------- ----------- Net interest income after provision for loan losses 10,343,906 9,611,070 29,259,964 28,037,658 ----------- ----------- ----------- ----------- NON-INTEREST INCOME: Trust and Investment fees 1,419,403 1,288,812 4,328,516 3,848,184 Credit card merchant fees 1,963,744 1,680,527 3,493,602 2,951,711 MoneyCard interchange fees 148,852 121,394 440,674 311,325 Service charges on deposit accounts 480,074 367,112 1,456,362 1,133,945 Return and overdraft charges 543,674 499,077 1,649,269 1,489,406 ATM fees 190,337 240,895 451,818 487,239 Net gain on sale of loans 51,869 135,657 346,046 219,813 Net gain on sale of investment securities 223,779 89,231 282,883 320,133 Brokerage fees and commissions 216,134 190,040 741,242 895,273 Other 84,044 353,102 1,096,820 1,023,758 ----------- ----------- ----------- ----------- Total non-interest income 5,321,910 4,965,847 14,287,232 12,680,787 ----------- ----------- ----------- -----------
NON-INTEREST EXPENSE: Salaries and wages 3,194,678 2,990,839 9,223,502 8,571,540 Employee benefits 1,329,615 1,137,058 3,668,201 3,373,059 Occupancy expense 695,724 522,944 1,810,981 1,659,110 Equipment rental and expense 470,971 505,150 1,462,429 1,487,393 Credit card processing expense 1,631,604 1,367,930 3,133,473 2,605,858 Advertising and marketing expense 179,949 224,934 605,077 617,577 Printing and supplies 190,620 249,741 559,627 683,284 Delivery and communication expense 357,711 324,708 995,000 1,005,711 Service charges correspondent banks 90,098 46,966 201,716 340,832 Directors' fees 75,250 75,500 226,250 227,000 Outside services 914,831 1,004,129 3,571,441 3,357,807 ATM network expense 142,164 122,059 400,488 296,356 Insurance expense 70,316 83,778 205,906 262,828 Other 290,302 299,574 862,348 1,083,595 ----------- ----------- ----------- ----------- Total non-interest expense 9,633,833 8,955,310 26,926,439 25,571,950 ----------- ----------- ----------- ----------- Income before income taxes 6,031,983 5,621,607 16,620,757 15,146,495 Provision for income taxes 2,181,763 2,237,542 6,012,077 6,038,465 ----------- ----------- ----------- ----------- Net income $ 3,850,220 $ 3,384,065 $10,608,680 $ 9,108,030 =========== =========== =========== =========== Average shares outstanding 8,887,753 9,061,064 8,957,493 9,061,064 Basic earnings per share $ 0.43 $ 0.37 $ 1.18 $ 1.01 Diluted earnings per share $ 0.43 $ 0.37 $ 1.18 $ 1.00 Cash dividends declared $ 0.14 $ 0.13 $ 0.42 $ 0.37
See accompanying notes to the unaudited consolidated financial statements. 2 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 1998 ----------------- ------------------ CASH PROVIDED BY OPERATING ACTIVITIES (UNAUDITED) Net income $ 10,608,680 $ 9,108,030 Adjustments to reconcile net income to net cash flow provided by operating activities: Provision for loan losses --- --- Depreciation and amortization 1,620,726 1,665,815 Net amortization of securities (2,753,616) (36,324) Amortization of deferred loan fees 148,128 811,117 Gain from Mortgage Servicing rights (493,509) (510,063) Net gain on sale of investment securities (282,883) (320,132) Net gain on sale of loans (346,046) (219,813) Net change in: Loans held for sale 3,823,795 (9,222,215) Accrued interest receivable 972,582 (197,830) Accrued expenses and other liabilities 14,877,862 26,964,012 Other, net 1,771,619 (7,020,298) ----------------- ------------------ Net cash provided by operating activities 29,947,338 21,022,299 ----------------- ------------------ CASH USED BY INVESTING ACTIVITIES Net increase in loans (111,570,024) (109,174,517) Proceeds from sale of loans 74,288,570 61,685,004 Sales of property from defaulted loans 115,000 587,774 Purchase of money market funds (669,426,779) (603,450,000) Sales of money market funds 655,490,379 603,450,000 Maturities of securities 443,039,938 325,218,368 Purchase of available for sale securities (586,457,139) (594,238,786) Sales of available for sale securities 60,863,759 100,498,820 Purchase of premises and equipment (1,396,719) (1,964,499) ----------------- ------------------ Net cash used by investing activities (135,053,015) (217,387,836) ----------------- ------------------
(continued)
1999 1998 ----------------- ------------------ CASH PROVIDED BY OPERATING ACTIVITIES (UNAUDITED) Net increase in deposits 71,563,513 30,132,617 Net increase in borrowings from the Federal Home Bank 29,953,460 155,393,588 Net increase in other short-term borrowings 14,349,592 8,219,746 Purchase of CCBT Financial Companies, Inc. common stock in open market (6,244,288) --- Cash dividends paid on common stock (3,771,025) (3,352,594) ----------------- ------------------ Net cash provided by financing activities 105,851,252 190,393,357 ----------------- ------------------ Net increase (decrease) in cash and cash equivalents 745,575 (5,972,180) Cash and cash equivalents at beginning of period 29,427,115 34,087,493 ----------------- ------------------ Cash and cash equivalents at end of period $ 30,172,690 $ 28,115,313 ================= ================== Cash equivalents include amounts due from banks and federal funds sold. SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION Cash paid for: Interest $ 27,883,338 $ 25,467,000 Income taxes 4,360,000 7,050,000 Non-cash transactions: Additions to property from defaulted loans $ 1,615,000 $ 188,900 Loans to finance OREO property 100,000 ---
See accompanying notes to the unaudited consolidated financial statements. 3 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 1998 ----------------- ----------------- (UNAUDITED) COMMON STOCK Balance, beginning of the year $ 22,652,660 $ 11,326,330 100% stock dividend paid August 7, 1998 --- 11,326,330 ----------------- ----------------- Balance, September 30 22,652,660 22,652,660 ----------------- ----------------- SURPLUS Balance, beginning of the year 13,903,294 25,229,624 100% stock dividend paid August 7, 1998 --- (11,326,330) ----------------- ----------------- Balance, September 30 13,903,294 13,903,294 ----------------- ----------------- UNDIVIDED PROFITS Balance, beginning of the year 46,704,129 38,677,715 Net Income 10,608,680 9,108,030 Dividends declared (3,771,024) (3,352,593) ----------------- ----------------- Balance, September 30 53,541,785 44,433,152 ----------------- ----------------- TREASURY STOCK Balance, beginning of the year --- --- Purchase of Treasury stock (6,244,288) --- ----------------- ----------------- Balance, September 30 (6,244,288) --- ----------------- ----------------- ACCUMULATED OTHER COMPREHENSIVE INCOME Balance, beginning of the year 282,317 402,625 Net other comprehensive income (loss) (50,013) 1,349,803 ----------------- ----------------- Balance, September 30 232,304 1,752,428 ----------------- ----------------- TOTAL STOCKHOLDERS' EQUITY $ 84,085,755 $ 84,741,534 ================= =================
See accompanying notes to the unaudited consolidated financial statements. (continued)
CCBT FINANCIAL COMPANIES, INC. CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1999 1998 ---------------- ---------------- (UNAUDITED) Net income $ 10,608,680 $ 9,108,030 ----------------- ----------------- Holding gains on securities held for sale 184,767 2,548,752 Reclassification of gains on securities held in income (282,883) (320,132) ----------------- ----------------- Net unrealized gains (losses) (98,116) 2,228,620 Related tax effect 48,103 (878,817) ----------------- ----------------- Net other comprehensive income (loss) (50,013) 1,349,803 ----------------- ----------------- Comprehensive income $ 10,558,667 $ 10,457,833 ================= =================
See accompanying notes to the unaudited consolidated financial statements. 4 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS (CONTINUED) CCBT FINANCIAL COMPANIES, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS NINE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998 NOTE 1. BASIS OF PRESENTATION GENERAL CCBT Financial Companies, Inc. ("Company") was incorporated under the laws of the Commonwealth of Massachusetts under the name CCBT Bancorp, Inc. ("Bancorp") on October 8, 1998 at the direction of the Board of Directors and management of Cape Cod Bank and Trust Company, N.A. ("Bank") for the purpose of becoming a bank holding company for the Bank. On February 11, 1999, Bancorp acquired 100% of the outstanding shares of the Bank's common stock in a 1:1 exchange for Bancorp common stock (the "Reorganization"). At a special stockholders meeting held July 29, 1999, Bancorp's name was changed to CCBT Financial Companies, Inc. This name change became effective September 23, 1999. On August 26, 1999, the Directors of the Company voted to amend the charter of the Bank to that of a National Bank, effective September 1, 1999. On September 16, 1999, the Bank announced that it had entered into a purchase agreement with Fleet Bank to acquire two of Fleet's banking offices, in Falmouth and Wareham, Massachusetts. Contingent upon regulatory approvals, these acquisitions are expected to be concluded in the Spring of 2000. Financial information contained herein for periods and dates prior to February 11, 1999 is that of the Bank. Since the Bank is the only subsidiary of the Company, financial information contained herein for periods and dates after February 11, 1999 is essentially financial information of the Bank. Certain amounts have been reclassified in the September 30, 1998 financial statements to conform to the 1999 presentation . The accompanying unaudited consolidated financial statements have been prepared in accordance with generally accepted accounting principals for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principals for complete financial statements. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the three months and nine months ended September 30, 1999 are not necessarily indicative of the results that may be expected for the current fiscal year. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company's annual report on Form 10-K for the year ended December 31, 1998. EARNINGS PER SHARE On August 7, 1998, the Company paid a 100% stock dividend to shareholders of record on July 20, 1998. Prior period per share data have been restated herein to reflect this dividend. NOTE 2. COMMITMENTS The Company had outstanding commitments to originate new residential and commercial mortgages of $37.8 million at September 30, 1999, including a $10.0 million participation with a leading New England financial institution to finance a project in Boston, MA, and $25.6 million at December 31, 1998 which are not reflected on the consolidated statement of financial condition. Additional unadvanced funds on various loan types at September 30, 1999 are shown in the following schedule. 5 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS (CONTINUED) NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
Additional Unadvanced Loan Commitments September 30, December 31, 1999 1998 -------------------------------------------- (in thousands) Commercial loans Dealer floor plan $ 10,667 $ 7,352 Lines of credit 51,966 44,960 Other 1,379 943 Commercial mortgage Construction 10,835 3,084 Other 521 711 Residential mortgage Home equity 31,761 26,321 Consumer lines of credit 1,977 1,858 ------------- ------------------ Total $ 109,106 $ 85,229 ============= ==================
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. GENERAL This Form 10Q contains certain statements that may be considered forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. The Company's actual results could differ materially from those projected in the forward-looking statements as a result, among other factors, of changes in national or regional economic conditions, changes in loan default and charge-off rates, reductions in deposit levels necessitating increased borrowing to fund loans and investments, changes in interest rates, changes in the size and nature of the Company's competition, uncertainties relating to the ability of the Company and its suppliers, vendors and other third parties to resolve Year 2000 issues in a timely manner, and changes in the assumptions used in making such forward-looking statements. The following discussion should be read in conjunction with the accompanying consolidated financial statements and selected consolidated financial data included within this report. Given that the Company's principal activity currently is ownership of the Bank, for ease of reference, the term "Company" in this item generally will refer to the investments and activities of the Company and the Bank except where otherwise noted. During the second quarter of 1999, the Company formed a real estate investment trust as a subsidiary of Cape Cod Bank and Trust Company to utilize income tax advantages available under Massachusetts tax law. Under the name of CCBT Preferred Corp., this new corporation purchased 100% of the commercial mortgage loans of the Bank on May 14, 1999, and retained the Bank as servicer of those loans. Cape Cod Bank and Trust Company, N.A. is a commercial bank with twenty-six banking offices located in Barnstable County, Massachusetts. As such, its principal business activities are the acceptance of deposits from businesses and individuals and the making of loans. The Bank also has a sizable Trust Department operation. The Bank's market area is heavily dependent on the tourist and vacation business on Cape Cod. 6 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) COMPARATIVE ANALYSIS OF SELECTED PERIOD-END ASSETS, LIABILITIES AND CAPITAL The Company had $1.31 billion of consolidated total assets, $799.5 million of deposits and $84.1 million of stockholders' equity at September 30, 1999. Its capital to assets ratio was 6.42%, exceeding all regulatory requirements. As compared to reported balances at December 31, 1998, investment securities, at fair value at September 30, 1999, increased $97.0 million or 19.6%, total loans increased $36.2 million or 6.1%, deposits increased $71.6 million or 9.8% and borrowed funds increased $44.3 million or 12.4%. INVESTMENT SECURITIES The adjusted cost and estimated market values of investment securities which the Company considers to be available for sale at September 30, 1999 and December 31, 1998 were as follows:
September 30, 1999 (in thousands) ----------------------------------------------- Gross Gross Estimated Amortized Unrealized Unrealized Market Cost Gains Losses Value -------- -------- -------- -------- U. S. Government agency CMOs $215,316 $ 1,999 $ 1,432 $215,883 Other U. S. Government agencies 32,598 13 276 32,335 Other collateralized mortgage obligations 92,687 534 79 93,142 State and municipal obligations 26,131 -- -- 26,131 Other debt securities 225,937 450 822 225,565 -------- -------- -------- -------- Totals $592,669 $ 2,996 $ 2,609 $593,056 ======== ======== ======== ======== December 31, 1998 (in thousands) ----------------------------------------------- Gross Gross Estimated Amortized Unrealized Unrealized Market Cost Gains Losses Value -------- -------- -------- -------- U. S. Government agency CMOs $266,397 $ 1,506 $ 850 $267,053 Other U. S. Government agencies 18,554 124 235 18,443 Other collateralized mortgage obligations 79,107 617 176 79,548 State and municipal obligations 16,416 -- -- 16,416 Other debt securities 115,060 138 638 114,560 -------- -------- -------- -------- Totals $495,534 $ 2,385 $ 1,899 $496,020 ======== ======== ======== ========
7 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) Investment securities increased $97.0 million to $593.1 million at September 30, 1999, funded by increases in deposits and short term borrowings. Generally, continuing efforts to maximize yield while maintaining portfolio liquidity are reflected in the changing portfolio mix, while State and municipal obligations approached seasonally high levels at September 30, 1999. Also on that date, Other debt securities, up $111.0 million since the 1998 year end, consisted of approximately $90.5 million floating rate and $119.9 million short term fixed rate securities, nearly all backed by assets other than residential mortgages, and $15.2 million of money market investments readily convertible into cash. Sales of securities produced net gains of $224 thousand during the quarter ended September 30, 1999 compared to net gains of $89 thousand during the same period in 1998. Net gains on security sales have amounted to $283 thousand and $320 thousand for the nine months ended September 30, 1999 and 1998, respectively. LOANS The following is a summary of the Company's outstanding loan balances as of the dates indicated:
September 30, December 31, 1999 1998 -------- -------- (in thousands) Mortgage loans on real estate: Residential $263,701 $233,533 Commercial 203,912 207,860 Construction 61,133 47,940 Equity lines of credit 21,551 20,787 -------- -------- 550,297 510,120 -------- -------- Other loans Commercial 68,675 70,767 Industrial revenue bonds 1,208 1,344 Consumer and other 9,859 11,589 -------- -------- 79,742 83,700 -------- -------- Total loans 630,039 593,820 Less: Allowance for loan losses (11,314) (11,108) -------- -------- Loans, net $618,725 $582,712 ======== ========
Total loans increased $36.2 million or 6.1% to $630 million at September 30, 1999 as compared to December 31, 1998, led by residential mortgage loans, up $30.2 million or 12.9%. New residential loan volume was strong, with originations of $49.2 million fixed rate and $129.5 million adjustable rate mortgages. During the first nine months of 1999, the Company sold $58.5 million residential mortgages, producing net gains of $346 thousand. Construction loans increased $13.2 million or nearly 28% while all other loan categories remained relatively constant with the 1998 year end levels. 8 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) Non performing assets and loan loss experience: As shown in the table below, non-performing assets were $3.4 million or 0.26% of total assets at September 30, 1999 compared to $7.5 million or 0.63% of total assets at December 31, 1998. All of these amounts represent non accruing loans. Accrual of interest income on loans is discontinued when it is questionable whether the borrower will be able to pay the principal and interest in full and/or when loan payments are 60 days past due, or 90 days past due if the loan is fully secured by real estate or other collateral held by the Bank. The Company recently acquired one property from a defaulted commercial real estate loan which property is being actively marketed for sale.
September 30, December 31, 1999 1998 ------ ------ (in thousands) Nonaccrual loans $1,891 $7,468 Loans past due 90 days or more and still accruing -- -- Property from defaulted loans 1,500 -- ------ ------ Total non-performing assets $3,391 $7,468 ====== ====== Restructured troubled debt performing in accordance with amended terms, not included above $ 644 $ 478 ====== ======
The following is a summary of the activity in the reserve for loan losses for the indicated periods:
Nine months ended September 30, 1999 1998 ------- ------- (in thousands) Balance at the beginning of the period $11,108 $10,962 Provisions -- -- Recoveries 542 565 ------- ------- 11,650 11,527 Less: Charge-offs (336) (416) ------- ------- Balance at the end of the period $11,314 $11,111 ======= =======
Management believes that, upon review of loan quality and payment statistics, provisions from current income were unnecessary in the indicated periods, notwithstanding growth in the loan portfolio. The reserve represented 1.80% of total loans at September 30, 1999 and 1.87% at December 31, 1998. Management considers the reserve to be adequate at September 30, 1999, although there can be no assurance that the reserve is adequate or that additional provisions might be necessary. 9 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) DEPOSITS The following table is a summary of deposits outstanding as of the dates indicated:
September 30, December 31, 1999 1998 -------- -------- (in thousands) Demand deposits $185,893 $160,966 NOW accounts 117,967 114,210 Other savings deposits 171,819 160,126 Money market accounts 151,786 141,317 Certificates of deposit > $100,000 51,783 30,299 Other time deposits 120,212 120,979 -------- -------- Total deposits $799,460 $727,897 ======== ========
Reflecting the seasonal nature of the Cape Cod economy as discussed in "Liquidity" on page 19 herein, total deposits at September 30, 1999 were $71.6 million or 9.8% higher than total deposits at December 31, 1998, led by seasonally-high Demand deposits, up $24.9 million or 15.5% and large Certificates of deposit, up $21.5 million or 70.9%. Generally, the Company's strategy is to price deposits that reflect national market rates, offering higher alternative rates based on increasing amounts deposited. Interest rates paid are frequently reviewed and are modified to reflect changing conditions. BORROWED FUNDS Historically, the Company has selectively engaged in short and long term borrowings from the Federal Home Loan Bank of Boston, and has sold securities under agreements to repurchase, to fund loans and investments. At September 30, 1999, borrowed funds totaled $402.4 million, up $44.3 million or 12.4% compared to borrowed funds at December 31, 1998. This increase has been utilized to support heretofore described loan and investment growth. STOCKHOLDERS' EQUITY The Company's capital to assets ratio was 6.42% at September 30, 1999 versus 7.09% at December 31, 1998. The Company (on a consolidated basis) and the Bank are subject to various regulatory capital requirements administered by the federal banking agencies. Failure to meet minimum capital requirements can initiate certain mandatory and possible additional discretionary actions by regulators that, if undertaken, could have a direct material effect on the Company's and the Bank's financial statements. Under capital adequacy guidelines and the regulatory framework for prompt corrective action, the Company and/or the Bank must meet specific capital guidelines that involve quantitative measures of their assets, liabilities and certain off-balance-sheet items as calculated under regulatory accounting practices. Holding companies, such as the Company, are not subject to prompt corrective action provisions. The capital amounts and classification are also subject to qualitative judgments by the regulators about components, risk weightings, and other factors. Quantitative measures established by regulation to ensure capital adequacy require the Company and the Bank to maintain minimum amounts of total and Tier 1 capital (as defined) to average assets (as defined). The following schedule displays these capital guidelines and the ratios of the Company and the Bank as of September 30, 1999: 10 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
Minimum September 30, 1999 Regulatory Guidelines Company Bank ---------- ------- ------ Tier 1 leverage capital 3.00% 6.92% 6.89% Tier 1 capital to risk-weighted assets 4.00% 9.65% 9.61% Total capital to risk-weighted assets 8.00% 10.90% 10.86%
During the quarter ended March 31, 1999, the Company's Board of Directors authorized the repurchase of up to 5% of the Company's stock in the open market (the "Program"). Consistent with that authorization, the Company repurchased 378,800 shares (4.2%) between February and September 1999, at an average cost of $16.48 per share. The Company expects to continue these repurchases as acceptable opportunities are presented, and until the Program is complete. The Company's book value at September 30, 1999 was $9.68 per share compared to $9.22 per share at December 31, 1998. (The remainder of this page intentionally left blank) 11 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. AVERAGE BALANCE SHEETS, INTEREST RATES and SPREAD Three Months ended September 30, 1999 1998 -------------------------------------- ------------------------------- Interest Average Interest Average Average Income/ Yield/ Average Income/ Yield/ Balance Expense Rate Paid Balance Expense Rate Paid ------- ------- --------- ------- ------- --------- (Dollar amounts in thousands) ASSETS Securities Mortgage-backed securities $ 52,191 $ 487 3.73% $ 52,382 $ 706 5.39% U.S. Government CMOs 158,446 2,263 5.71% 245,370 2,667 4.35% U.S. Government agencies 30,659 470 6.13% 32,713 453 5.54% Other CMOs 74,840 1,067 5.70% 77,808 1,468 7.55% State & municipal agencies 28,475 226 4.40% 18,219 200 5.71% Other securities 211,799 2,982 5.63% 97,892 1,523 6.22% ---------- ---------- ---------- ---------- Total securities 556,410 7,495 5.45% 524,384 7,017 5.40% ---------- ---------- ---------- ---------- Loans Commercial 70,906 1,644 9.27% 67,743 1,683 9.94% Commercial construction 14,331 322 8.99% 10,302 245 9.41% Residential construction 41,901 608 5.80% 39,503 591 6.00% Commercial mortgages 203,001 4,492 8.85% 212,095 5,031 9.38% Industrial revenue bonds 1,248 24 10.77% 1,630 35 12.10% Residential mortgages 285,201 4,953 6.95% 252,718 4,589 7.26% Consumer loans 9,903 257 10.38% 12,541 310 9.89% Overdrafts 730 --- 988 --- ---------- ---------- ---------- ---------- Total loans 627,221 12,300 7.85% 597,520 12,484 8.33% ---------- ---------- ---------- ---------- Total interest earning assets 1,183,631 19,795 6.72% 1,121,904 19,501 6.96% Non-earning assets 61,047 ---------- 46,270 ---------- ---------- ---------- Total assets $1,244,678 $1,168,174 ========== ========== LIABILITIES AND STOCKHOLDERS' EQUITY NOW accounts $ 116,193 $ 240 0.82% $ 106,548 $ 315 1.19% Regular savings 169,486 1,228 2.87% 165,064 1,324 3.22% Money market accounts 149,419 1,169 3.10% 147,354 1,274 3.47% Time certificates of deposit 156,612 1,916 4.85% 147,961 1,987 5.39% ---------- ---------- ---------- ---------- Total interest bearing deposits 591,710 4,553 3.05% 566,927 4,900 3.47% ---------- ---------- ---------- ----------
Borrowings FHLB 335,477 4,633 5.48% 327,027 4,786 5.87% Other short-term borrowings 25,090 265 4.19% 18,232 204 4.49% ---------- ---------- ---------- ---------- Total borrowings 360,567 4,898 5.39% 345,259 4,990 5.80% ---------- ---------- ---------- ---------- Total interest bearing liabilities 952,277 9,451 3.94% 912,186 9,890 4.35% Demand deposits 193,429 167,154 Non-interest bearing liabilities 11,187 8,186 Stockholders' equity 87,785 80,648 ---------- ---------- Total liabilities and stockholders' equity $1,244,678 $1,168,174 ========== ========== Net interest income/spread $ 10,344 2.79% $ 9,611 2.61% ========== ========== Net interest margin (NII/Average Earning Assets) 3.47% 3.44%
12 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. VOLUME/ RATE ANALYSIS Three Months ended September 30, 1999 vs September 30, 1998 Changes in income/expense due to -------------------------------- Volume Rate Total ------ ---- ----- EARNING ASSETS Securities Mortgage-backed securities $ -2 $ -217 $ -219 U.S. Government CMOs -1,102 698 -404 U.S. Government agencies -30 47 17 Other CMOs -50 -352 -401 State & municipal agencies 131 -105 26 Other securities 1,702 -242 1,459 -------- ------- ---------- Total securities 649 -171 478 -------- ------- ---------- Loans Commercial 77 -116 -39 Commercial construction 93 -16 77 Residential construction 36 -19 17 Commercial mortgages -209 -330 -539 Industrial revenue bonds -11 0 -11 Residential mortgages 582 -218 364 Consumer loans -67 14 -53 Overdrafts --- --- --- -------- ------- ---------- Total loans 501 -685 -184 -------- ------- ---------- Total earning assets $ 1,150 $ -856 $ 294 -------- ------- ---------- INTEREST BEARING LIABILITIES NOW accounts $ 24 $ -99 $ -75 Regular savings 34 -130 -96 Money Market accounts 17 -122 -105 Time certificates of deposit 112 -183 -71 -------- ------- ---------- Total interest bearing deposits 187 -534 -347 -------- ------- ---------- Borrowings FHLB 121 -274 -153 Other short-term borrowings 75 -14 61 -------- ------- ---------- Total borrowings 196 -288 -92 -------- ------- ---------- Total interest bearing liabilities $ 383 $ -822 $ -439 -------- ------- ---------- Net changes due to volume/rate $ 767 $ -34 $ 733 ======== ======= ==========
13 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) RESULTS OF OPERATIONS THREE MONTHS ENDED SEPTEMBER 30, 1999 VS. THREE MONTHS ENDED SEPTEMBER 30, 1998 SOURCES OF FUNDS As shown in the table on page 12, average interest bearing deposits outstanding increased $24.8 million or 4.4% during the third quarter 1999 versus the third quarter 1998. The cost of those funds declined in the 1999 period, however, as management reduced deposit rates in response to generally declining market rates. Average borrowed funds also increased in the 1999 period. The rates paid on these borrowed funds were less in the 1999 period when compared to 1998, again reflecting the general decline in market rates. The remaining sources of funds, i.e., non-interest bearing demand deposits, other liabilities and capital, averaged 14.2% higher in the 1999 period under discussion when compared to the 1998 comparable period, including demand deposit growth of $26.3 million or 15.7%. In total, average sources of funds increased nearly $76.5 million or 6.5% period to period, while the average cost of interest bearing funds declined from 4.35% to 3.94%. USES OF FUNDS When compared to the third quarter of 1998, average loans and investments were higher in 1999 by 5.0% and 6.1%, respectively, and on a combined basis, approximated 95% of average total assets in each period. Loan growth was spearheaded by residential mortgage and related construction lending, up $34.9 million or 11.9% in a very active local market. Investment growth of $32.0 million or 6.1% primarily occurred in the Other Securities category (see Investment Securities on pp 7-8 herein). Consistent with generally declining market rates, the average yield on earning assets declined to 6.72% for the three months ended September 30, 1999 from the 6.95% reported for the comparable period in 1998. NET INTEREST INCOME Net interest income was $10.3 million for the three months ended September 30, 1999 as compared to $9.6 million for the same period in 1998, up 7.9%. The spread and net interest margin ratios were 2.79% and 3.47%, respectively, for the three months ended September 30, 1999 as compared to 2.61% and 3.44%, respectively, for the comparable 1998 period. In each of the quarters reported, the seasonally high levels of demand and other deposits had a positive effect on both spread and margin. As shown on the Volume/Rate Analysis on page 13, the Company's net interest income improved on volume increases and covered the effect of changes in rates. PROVISION FOR POSSIBLE LOAN LOSSES No provisions were made to the reserve for possible loan losses in the quarters ended September 30, 1999 or 1998. Management believes that, upon continuing review of loan payment and quality statistics, the current reserve continues to be adequate to cover possible losses. NON-INTEREST INCOME Non-interest income totaled $5.32 million for the three months ended September 30, 1999, up $356 thousand or 7.2% compared to the $4.97 million earned during the same period in 1998 due to a general increase in volumes. Higher trust and investment fees, increased deposit activity fees and greater net gains on sales of securities contributed to this increase, along with increased credit card merchant and interchange fees increase. The latter, which reflect the continuing strength of the tourist season in our marketplace, are partially offset by increased expenses, as discussed below. 14 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) NON-INTEREST EXPENSES During the third quarter of 1999, non-interest expenses totaled $9.63 million, $679 thousand or 7.6% greater than the expenses of the comparable period last year. Salaries and benefits, the largest combined category of expense, rose $396 thousand or 9.6% to total $4.5 million. Credit card processing expense increased $264 thousand in conjunction with high activity and strong fee income growth. In total, all other expense categories were even quarter-to-quarter, reflecting continued expense control within the Company. INCOME TAXES The combined State and Federal income tax expense of $2.2 million for the quarter ended September 30, 1999 was virtually equal to that recorded for the same quarter in 1998. The combined effective State and Federal tax expense declined to 36.1% of pretax income in the third quarter of 1999 reflecting the state tax savings brought about by the Bank's real estate investment trust subsidiary (see "General" on page 5 herein). The combined effective tax rate was 39.8% of pretax net income for the 1998 third quarter. NET INCOME Consolidated net income was $3.85 million representing earnings per share of $0.43 for the three months ended September 30, 1999 as compared to $3.38 million or $0.37 per share for the comparable three months of 1998. Annualized returns on average assets and average equity were 1.23% and 17.40%, respectively, for the three months ended September 30, 1999 as compared to 1.15% and 16.65%, respectively, for the same three months in 1998. (The remainder of this page intentionally left blank) 15 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. AVERAGE BALANCE SHEETS, INTEREST RATES and SPREAD Nine Months ended September 30, 1999 1998 --------------------------------------- ------------------------------------ Interest Average Interest Average Average Income/ Yield/ Average Income/ Yield/ Balance Expense Rate Paid Balance Expense Rate Paid ------------- ----------- ------------ ---------- ------- --------- (Dollar amounts in thousands) ASSETS Securities Mortgage-backed securities $ 67,636 $ 2,446 4.82% $ 22,867 $ 948 5.53% U.S. Goverment CMO's 149,747 5,566 4.96% 195,930 7,684 5.23% U.S. Government agencies 27,420 1,166 5.67% 42,526 1,764 5.53% Other CMO's 67,989 2,724 5.34% 56,370 2,792 6.60% State & municipal agencies 21,742 610 4.86% 17,495 574 5.69% Other securities 198,939 8,489 5.69% 92,115 4,010 5.80% ------------- ----------- -------------- ---------- Total securities 533,473 21,001 5.29% 427,303 17,772 5.60% ------------- ----------- -------------- ---------- Loans Commercial 74,212 5,043 9.06% 73,932 5,482 9.89% Commercial construction 13,451 893 8.85% 11,404 788 9.21% Residential construction 39,031 1,712 5.85% 32,037 1,497 6.23% Commercial mortgages 204,553 13,593 8.86% 206,832 14,689 9.47% Industrial revenue bonds 1,312 74 10.52% 1,730 108 11.65% Residential mortgages 277,227 14,212 6.84% 236,642 12,941 7.29% Consumer loans 10,418 789 30.30% 13,710 997 9.70% Overdrafts 645 --- 1,372 --- ------------- ----------- -------------- ---------- Total loans 620,849 36,316 8.14% 577,659 36,502 8.44% ------------- ----------- -------------- ---------- Total earning assets 1,154,322 57,317 6.83% 1,004,962 54,274 7.23% ----------- ---------- Non - earning assets 55,410 46,296 ------------- -------------- Total assets $ 1,209,732 $ 1,051,258 ============= ============== LIABILITIES AND STOCKHOLDERS' EQUITY NOW accounts $ 112,355 $ 690 0.82% $ 104,447 $ 1,035 1.32% Regular savings 162,185 3,488 2.87% 160,775 4,022 3.34% Money market accounts 143,788 3,314 3.07% 146,345 3,874 3.53% Time certificates of deposit 153,158 5,604 4.88% 149,799 6,051 5.39% ------------- ----------- -------------- ---------- Total interest bearing deposits 571,486 13,096 3.06% 561,366 14,982 3.56% ------------- ----------- -------------- ----------
Borrowings FHLB 356,294 14,378 5.38% 244,820 10,780 5.87% Other short-term borrowings 19,287 583 4.03% 13,524 474 4.67% ------------- ----------- -------------- ---------- Total borrowings 375,581 14,961 5.31% 258,344 11,254 5.81% ------------- ----------- -------------- ---------- Total interest bearing liabilities 947,067 28,057 3.95% 819,710 26,236 4.27% ----------- ---------- Demand deposits 167,692 146,980 Non-interest bearing liabilities 9,783 6,281 Stockholders' equity 85,190 78,287 ------------- -------------- Total liabilities and stockholders' equity $ 1,209,732 $ 1,051,258 ============= ============== Net interest income/ spread $ 29,260 2.88% $ 28,038 2.96% =========== ========== Net interest margin (NII/Average Earning Assets) 3.39% 3.73%
16 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
CCBT FINANCIAL COMPANIES, INC. VOLUME/ RATE ANALYSIS Nine Months ended September 30, 1999 vs September 30, 1998 Changes in income/expense due to -------------------------------- Volume Rate Total ------ ---- ----- EARNING ASSETS Securities Mortgage-backed securities $ 1,733 $ -235 $ 1,498 U.S. Government CMOs -1,759 -359 -2,118 U.S. Government agencies -633 35 -598 Other CMOs 519 -587 -68 State & municipal agencies 168 -131 36 Other securities 4,592 -115 4,479 ----------- ---------- ---------- Total securities 4,620 -1,392 3,229 ----------- ---------- ---------- Loans Commercial 20 -459 -439 Commercial construction 138 -33 105 Residential construction 316 -101 215 Commercial mortgages -156 -940 -1,096 Industrial revenue bonds -35 1 -34 Residential mortgages 2,144 -873 1,271 Consumer loans -492 284 -208 Overdrafts --- --- --- ----------- ---------- ---------- Total loans 1,935 -2,121 -186 ----------- ---------- ---------- Total earning assets $ 6,555 $ -3,513 $ 3,043 ----------- ---------- ---------- INTEREST BEARING LIABILITIES NOW accounts $ 63 $ -409 $ -345 Regular savings 33 -567 -534 Money Market accounts -63 -497 -560 Time certificates of deposit 129 -576 -447 ----------- ---------- ---------- Total interest bearing deposits 162 -2,049 -1,886 ----------- ---------- ---------- Borrowings FHLB 4,691 -1,093 3,598 Other short-term borrowings 188 -79 109 ----------- ---------- ---------- Total borrowings 4,879 -1,172 3,707 ----------- ---------- ---------- Total interest bearing liabilities $ 5,041 $ -3,221 $ 1,821 ----------- ---------- ---------- Net changes due to volume/rate $ 1,514 $ -292 $ 1,222
17 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) RESULTS OF OPERATIONS NINE MONTHS ENDED SEPTEMBER 30, 1999 VS NINE MONTHS ENDED SEPTEMBER 30, 1998 SOURCES OF FUNDS As shown in the table on the page 16, average interest bearing deposits outstanding increased $10.1 million when comparing the first nine months of 1999 with the same period in 1998. The cost of those funds was significantly less in the 1999 period, however, as management reduced deposit rates in response to generally declining market rates. On the other hand, average borrowed funds increased substantially in the 1999 period-to-date in order to fund increases in both loans and securities. The rates paid on these borrowed funds were less in the 1999 period when compared to 1998, again reflecting the general decline in market rates. The remaining sources of funds, i.e., non-interest bearing demand deposits, other liabilities and capital, averaged 13.4% higher in the 1999 period under discussion when compared to the 1998 comparable period, including demand deposit growth of $20.7 million or 14.1%. In total, average sources of funds increased $158 million or 15.1% period to period, while the average cost of interest bearing funds declined from 4.27% during the nine months ended September 30, 1998 to 3.95% in 1999. USES OF FUNDS Loans and investments were higher in 1999 by 7.5% and 24.8%, respectively, and on a combined basis, approximated 95% of average total assets during each period. Loan growth was spearheaded by residential mortgage and related construction lending, up $47.6 million or 17.7% in very active local market. Investment growth of $106.2 million or 24.8% primarily occurred in Other Securities (see Investment Securities on pp 7-8 herein). Consistent with generally declining market rates, the average yield on earning assets declined to 6.83% for the nine months ended September 30, 1999 from the 7.23% reported for the comparable period in 1998. NET INTEREST INCOME Net interest income was $29.3 million for the nine months ended September 30, 1999 as compared to $28.0 million for the same period in 1998, up 4.4%. The spread and net interest margin ratios were 2.88% and 3.39%, respectively, for the current nine month period as compared to 2.96% and 3.73%, respectively, for the comparable 1998 period. Consumer attraction to lower residential mortgage rate opportunities lowered yields on the residential mortgage portfolio and the securities portfolio. These, along with intense local competitive pressure for quality commercial loans throughout 1998 and into 1999, are the primary factors contributing to these results. As shown on the Volume/Rate analysis on page 17, the Company's net interest income improved on volume increases but declined as a result of the narrower spread. PROVISION FOR POSSIBLE LOAN LOSSES No provisions were made to the reserve for possible loan losses in the quarters ended September 30, 1999 or 1998. Management believes that, upon continuing review of loan payment and quality statistics, the current reserve continues to be adequate to cover possible losses. NON-INTEREST INCOME Non-interest income totaled $14.3 million for the nine months ended September 30, 1999, up $1.6 million or 12.7% compared to the $12.7 million earned during the same period in 1998 due to a general increase in volumes. Higher trust and investment fees and increased deposit activity fees contributed to this increase, along with increased credit card merchant and interchange fees increase. The latter, which reflect a strong summer tourist season , are partially offset by increased expenses, as discussed below. 18 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) NON-INTEREST EXPENSES During the first nine months of 1999, non-interest expenses totaled $26.9 million, $1.4 million or 5.3% greater than the expenses of the comparable period last year. Salaries and benefits, the largest combined category of expense, rose $947 thousand or 7.9% to total $12.9 million thus far in 1999. Credit card processing expense increased $528 thousand, or 20.2%, in conjunction with strong fee income growth while, in total, all other expense categories were very near 1998 levels in accordance with the Company's expectations. INCOME TAXES Despite higher pretax income in 1999, the combined State and Federal income tax expense of $6.0 million nearly equaled that recorded for the same period in 1998. The combined effective State and Federal tax expense equalled 36.2% of pretax income for the first nine months of 1999 reflecting the state tax savings brought about by the Bank's real estate investment trust subsidiary (see "General", page 5 herein). The combined effective tax rate was 39.9% of pretax net income for the comparable 1998 period. NET INCOME Consolidated net income was $10.6 million representing earnings per share of $1.18 for the nine months ended September 30, 1999 as compared to $9.1 million or $1.01 per share for the comparable 1998 period. Annualized returns on average assets and average equity were 1.17% and 16.65%, respectively, for the current nine month period as compared to 1.16% and 15.55%, respectively, for the comparable 1998 period. LIQUIDITY The Bank normally experiences a wide swing in its liquidity each year due to the seasonal nature of the economy in its market area. Liquidity is usually high in late summer and early fall and the annual low point is usually in the early spring. The Bank's investment portfolio is of high quality and is highly marketable although a gain or loss would be realized if the market value of securities sold were not equal to their adjusted book value at date of sale. Alternately, the Bank can borrow funds using investment securities as collateral. The Bank has an available line of credit of $13.0 million from the Federal Home Loan Bank of Boston, has established a line of credit for the purchase of federal funds from a regional bank and may borrow from the Federal Reserve Bank if necessary. ASSET/LIABILITY MANAGEMENT Through the Bank's Asset/Liability Management Committee ("ALCO"), which is comprised of senior management and several Directors, the Company and the Bank monitor the level and general mix of earning assets and interest bearing liabilities, with particular attention to those assets and liabilities which are rate-sensitive. The primary objective of ALCO is to manage interest rate risk in accordance with policies approved by the Board of Directors regarding acceptable levels of interest rate risk, liquidity and capital. The committee meets monthly and sets the rates paid on deposits, approves loan pricing and reviews investment transactions. Given the substantial liquidity from cash flow and maturities of the Company's investment portfolio, the sizable proportion of rate sensitive loans to total loans, and the large core deposit base, ALCO believes the Company to be moderately asset-sensitive to changes in interest rates. Nevertheless, the Company's strategy has included the funding of certain fixed rate loans with medium term borrowed funds in order to mitigate a margin squeeze should interest rates rise. 19 PART I FINANCIAL INFORMATION ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS (CONTINUED) The Cape Cod market is one in which competing financial institutions frequently offer a wide range of yields for similar deposit products. Within this market, the Company finds it necessary, from time to time, to offer higher rates than it would otherwise justify, thereby increasing pressure on net interest income. In order to offset this pressure somewhat, the Company is strategically focusing on customer relationship profitability. COMPUTER PROCESSING IN THE YEAR 2000 The statements in the following section include "Year 2000 readiness disclosure" within the meaning of the Year 2000 Information and Readiness Act of 1998. Much computer software has been written which allows the year in a date to be recognized and/or stored based on a two-digit number, i.e., "12/31/99", clearly recognizable as meaning December 31, 1999. The same is true of a variety of hardware devices with built-in clock-calendars, such as computers. In some cases, this could create problems at the turn of the century because "01/01/00" could be interpreted to mean January 1, 1900 rather than January 1, 2000. If such circumstances are not identified and corrected in advance, they could cause system failure or erroneous calculations of such items as interest income or expense. This could potentially have a significant impact on the Bank's ability to do business. For the Bank's internal computer processing, it was determined to be necessary to replace some of its computers and to acquire more recent versions of certain software. $800,000 was spent for this purpose in 1998 and an additional $500,000 is expected to be spent in 1999. These costs have been or will be capitalized and depreciated over the useful lives of the items purchased. The Bank relies on outside vendors for much of its critical data processing. These vendors have assured the Bank that they are Year 2000 compliant. The Bank's testing has confirmed this, to the extent that the Bank's testing is complete. As of September 30, 1999, testing is complete on those systems that the Bank considers to be critical or high risk. Contingency plans for processing of the Bank's work in the event of failure of any of these systems are essentially complete. The Bank is also dependent on other providers in the conduct of its business, most notably for electrical power and telecommunications. Should these providers experience Year 2000 problems, disruption of service, especially if prolonged, could seriously effect the Bank's ability to conduct business as usual. Certain of the Bank's customers may also be subject to Year 2000 problems which impact their ability to do business. Among other repercussions, this could reduce a customer's ability to make loan payments to the Bank. Year 2000 risk still needs to be evaluated for a number of the Bank's significant customer relationships. Other customers may withdraw funds from the Bank in anticipation of possible Year 2000 disruptions. The Bank has traditionally maintained a substantial liquidity position in the normal course of doing business, and has developed contingency plans to cover any unusual deposit activity. Please refer to the statement regarding "Forward-Looking Information" at the beginning of Part II, Item 7 of this 10Q entitled "Management's Discussion and Analysis of Financial Condition and Results of Operations" with regard to any forward-looking statements in this section. Although management of the Bank and the Company believe that their responses to the Year 2000 issue are appropriate, neither the Bank nor the Company can guarantee their Year 2000 readiness, nor that of material vendors or customers, nor the effectiveness of contingency plans in the event of a failure in any of the Bank's computer systems. 20 PART I FINANCIAL INFORMATION ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK For a discussion of the Company's management of market risk exposure, see "Asset/Liability Management" in Item 2 of Part I of this report and Item 7A of Part II of the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (the "1998 Annual Report"). For quantitative information about market risk, see Item 7A of Part II of the Company's 1998 Annual Report. There have been no material changes in the quantitative and qualitative disclosures about market risk as of September 30, 1999 from those presented in the Company's 1998 Annual Report. PART II OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS There are no material legal proceedings to which the Company is a party or to which any of its property is subject, although the Company is a party to ordinary routine litigation incidental to its business. ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS Not applicable ITEM 3. DEFAULTS UPON SENIOR SECURITIES Not applicable ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS A special meeting of shareholders of the Company was held on July 29, 1999, at which twelve proposals regarding changes to the Company's Articles of Organization and By-laws were presented. Proposals One and Three through Twelve were ratified and approved in all respects. A stockholder proposal to cancel the holding company structure was not approved by the stockholders. Shareholders representing 88.51% of the shares of Common Stock outstanding and eligible to vote were present in person or by proxy. The proposals and the votes cast (with percentages of shares outstanding and eligible to vote) are as follows: PROPOSALS #1-5: TO APPROVE AND ADOPT AMENDED AND RESTATED ARTICLES OF ORGANIZATION 1. Change the name of the Company to CCBT Financial Companies, Inc. FOR: 7,556,884.644 VOTES, 84.36%; AGAINST: 338,649.423 VOTES, 3.78%; ABSTENTIONS AND BROKER NONVOTES: 33,064.396 votes, 0.37%. 2. Authorize the Board of Directors to issue up to 2 million shares of preferred stock. FOR: 5,502,808.431 VOTES, 61.43%; AGAINST: 1,611,392.143 VOTES, 17.99%; ABSTENTIONS AND BROKER NONVOTES: 814,397.888 votes, 9.09%. 3. Limit the monetary liability of directors under certain circumstances. FOR: 7,339,644.520 VOTES, 81.94%; AGAINST: 409,034.832 VOTES, 4.57%; ABSTENTIONS AND BROKER NONVOTES: 179,919.111 votes, 2.01%. 21 PART II OTHER INFORMATION ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS (CONTINUED) 4. Lower the stockholder vote needed to approve certain transactions to a majority if the Board of Directors recommends such approval. FOR: 6,352,682.394 VOTES, 70.92%; AGAINST: 844,040.104 VOTES, 9.42%; ABSTENTIONS AND BROKER NONVOTES: 731,875.965 votes, 8.17%. 5. Lower the stockholder vote needed to approve amendments to the articles to a majority if the Board of Directors recommends such approval. FOR: 6,348,130.589 VOTES, 70.87%; AGAINST: 848,632.487 VOTES, 9.47%; ABSTENTIONS AND BROKER NONVOTES: 731,835.387 votes, 8.17%. PROPOSALS #6-12: TO AMEND THE BY-LAWS OF THE COMPANY 6. Institute advance notice procedures for director nominations and new business to be presented by stockholders at meetings. FOR: 6,304,713.656 VOTES, 70.38%; AGAINST: 904,925.000 VOTES, 10.10%; ABSTENTIONS AND BROKER NONVOTES: 718,959.807 votes, 8.02%. 7. Increase percentage of stockholders required to call a special meeting of stockholders from 30% to 51%. FOR: 5,888,982.677 VOTES, 65.74%; AGAINST: 1,279,364.432 VOTES, 14.28%; ABSTENTIONS AND BROKER NONVOTES: 760,251.354 votes, 8.48%. 8. Provide that the Board of Directors set the number of directors, fill vacancies on the Board and remove directors; stockholders may remove a director for cause by a two-thirds vote. FOR: 6,064,966.834 VOTES, 67.71%; AGAINST: 1,138,483.885 VOTES, 12.71%; ABSTENTIONS AND BROKER NONVOTES: 725,147.744 votes, 8.09%. 9. Provide that the Chairman of the Board of Directors be a non-employee director. FOR: 7,643,809.247 VOTES, 85.33%; AGAINST: 204,964.417 VOTES, 2.29%; ABSTENTIONS AND BROKER NONVOTES: 79,824.798 votes, 0.89%. 10. Provide that the Chairman of the Board, the President, or a majority of directors may call a special meeting of directors. FOR: 6,351,542.091 VOTES, 70.91%; AGAINST: 859,461.697 VOTES, 9.59%; ABSTENTIONS AND BROKER NONVOTES: 717,594.674 votes, 8.02%. 11. Amend the provisions regarding indemnification of directors, executive officers and employees. FOR: 7,512,580.183 VOTES, 83.87%; AGAINST: 306,213.407 VOTES, 3.42%; ABSTENTIONS AND BROKER NONVOTES: 109,804.872 votes, 1.23%. 22 PART II OTHER INFORMATION ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS (CONTINUED) 12. Provide that the By-laws may be amended by the Board of Directors and to raise the vote to two-thirds for stockholder approval of amendments not recommended by the Board of Directors. FOR: 5,612,775.662 VOTES, 62.66%; AGAINST: 1,509,939.980 VOTES, 16.86%; ABSTENTIONS AND BROKER NONVOTES: 805,882.821 votes, 9.00%. PROPOSAL # 13: STOCKHOLDER PROPOSAL TO CANCEL THE HOLDING COMPANY STRUCTURE 13. Vote to cancel the holding company structure. FOR: 656,013.260 VOTES, 7.32%; AGAINST: 5,473,302.855 VOTES, 61.10%; ABSTENTIONS AND BROKER NONVOTES: 1,799,282.347 votes, 20.09%. ITEM 5. OTHER INFORMATION Any stockholder proposals (including director nominations) submitted pursuant to Rule 14a-8 of the Securities Exchange Act of 1934, as amended ("Exchange Act"), and intended to be presented at the Company's 2000 Annual Meeting of Stockholders, which is currently scheduled to be held on April 27, 2000, must be received by the Company prior to November 23, 1999 to be eligible for inclusion in the proxy statement and form of proxy to be distributed by the Board of Directors in connection with such meeting. Such proposals must also comply with the requirements as to form and substance established by the Securities and Exchange Commission if such proposals are to be included in the proxy statement and form of proxy. Pursuant to the Company's Amended By-laws, any stockholder proposals (including director nominations) intended to be presented at the Company's 2000 Annual Meeting, other than a stockholder proposal submitted pursuant to Exchange Act Rule 14a-8, must be received in writing by the Clerk of the Company at the Company's principal executive office on or between the dates of December 24, 1999 and January 25, 2000, together with all supporting documentation required by the Company's Amended By-laws. However, if the 2000 Annual Meeting is scheduled to be held on a date more than 30 days before, or more than 60 days after, April 22, 2000, a stockholder's notice shall be timely filed if delivered to, or received by, the Company at is principal executive office not later than the close of business on the later of (a) 90 days prior to the date of the scheduled meeting or (b) the 10th day following the day on which public announcement of the date of such annual meeting is first made by the Company. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits See Exhibit index below. (b) Reports on Form 8-K No reports on Form 8-K were filed by the Company during the three month period ended September 30, 1999. EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- 3.1 Restated Articles of Organization, as amended 3.2 Amended By-laws 27 Financial data schedule 23 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. (REGISTRANT) CCBT FINANCIAL COMPANIES, INC DATE: NOVEMBER , 1999 /s/ Stephen B. Lawson - ----------------------------------------------------------- Stephen B. Lawson, Prsident and Chief Executive Officer /s/ Noal D. Reid, Chief Financial Officer and Treasurer - ------------------------------------------------------- Noal D. Reid, Chief Financial Officer and Treasurer 24 EX-3.(I) 2 Exhibit 3.1 FEDERAL IDENTIFICATION NO. 04-3437708 (illegible) - ------------------- Examiner THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 (illegible) - -------------- Name RESTATED ARTICLES OF ORGANIZATION Approved (GENERAL LAWS, CHAPTER 156B, Section 74) We, Stephen B. Lawson, President, and John S. Burnett, Clerk, of CCBT Bancorp, Inc., located at 307 Main Street, Hyannis, MA 02601, do hereby certify that these Articles of Amendment affecting articles numbered: Article I of the Articles of Organization were duly adopted at a meeting held on July 15, 1999, by vote of: 6,348,130.589 shares of Common stock of 8,957,564 shares outstanding, being at least two-thirds of each type, class or series outstanding and entitled to vote thereon: ARTICLE I The exact name of the corporation is: CCBT FINANCIAL COMPANIES, INC. ARTICLE II The purpose of the corporation is to engage in the following business activities: A. To acquire, invest in or hold stock in any subsidiary permitted under (i) the Bank Holding Company Act of 1956, and (ii) Massachusetts General Laws, Chapter 167, as such statutes may be amended from time to time, and to engage in any other activity or enterprise permitted to a bank holding company under said statutes or other applicable law. B. To buy, sell, invest in, hold and deal in property of every nature and description, real and personal, tangible and intangible, permissible for such a corporation. 1 C. To carry on any business or other activity which may be lawfully carried on by a corporation organized under the Business Corporation Law of the Commonwealth of Massachusetts, whether or not related to those referred to in the foregoing paragraphs. ARTICLE III State the total number of shares and par value, if any, of each class of stock which the corporation is authorized to issue. - -------------------------------------------------------------------------------- WITHOUT PAR VALUE WITH PAR VALUE - -------------------------------------------------------------------------------- TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE - -------------------------------------------------------------------------------- Common: 0 Common: 12,000,000 $1.00 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Preferred: 0 Preferred: 0 - -------------------------------------------------------------------------------- ARTICLE IV If more than one class of stock is authorized, state a distinguishing designation for each class. Prior to the issuance of any shares of a class, if shares of another class are outstanding, the corporation must provide a description of the preferences, voting powers, qualifications, and special or relative rights or privileges of that class and of each other class of which shares are outstanding and of each series then established within any class. ARTICLE V The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are: None. ARTICLE VI **Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholder, or of any class of stockholders. Please see attached Addendum A. 2 ADDENDA TO THE AMENDED AND RESTATED ARTICLES OF ORGANIZATION OF CCBT BANCORP, INC. Addendum A ARTICLE VI (A) LIMITATION OF LIABILITY OF DIRECTORS A. No Director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director notwithstanding any provision of law imposing such liability; provided, however, that this Article shall not eliminate or limit any liability of a Director (i) for any breach of the Director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Sections 61 or 62 of Chapter 156B of the General Laws of the Commonwealth of Massachusetts, or (iv) with respect to any transaction from which the Director derived an improper personal benefit. B. No amendment or repeal of this Article shall adversely affect the rights and protection afforded to a Director of this Corporation under this Article for acts or omissions occurring prior to such amendment or repeal. If the Massachusetts Business Corporation Law is hereafter amended to further eliminate or limit the personal liability of Directors or to authorize corporate action to further eliminate or limit such liability, then the liability of the Directors of this Corporation shall be eliminated or limited to the fullest extent permitted by the Massachusetts Business Corporation Law as so amended. ARTICLE VI (B) STOCKHOLDER VOTE REQUIRED FOR AMENDMENT OF ARTICLES OF ORGANIZATION These Articles may be amended at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of at least two-thirds of the total votes eligible to be cast on such amendment by holders of voting stock, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment at such meeting of stockholders, such amendment shall only require the affirmative vote of a majority of the total votes eligible to be cast on such amendment by holders of voting stock, voting together as a single class. 3 ARTICLE VI (C) STOCKHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS Whenever any vote of the stockholders of the Corporation is required by applicable law to approve any (i) sale, lease or exchange of all or substantially all of the property or assets, including goodwill, of the Corporation or (ii) merger or consolidation of the Corporation with or into any another corporation, such approval shall require the affirmative vote of at least two-thirds of the total votes eligible to be cast on such sale, lease or exchange, or merger or consolidation, by holders of voting stock, voting together as a single class, at any annual meeting of stockholders or special meeting of stockholders called for such purpose; provided, however, that if the Board of Directors recommends that stockholders approve such sale, lease or exchange, or merger or consolidation, at such meeting of stockholders, such approval shall require the affirmative vote of a majority of the total votes eligible to be cast on such sale, lease or exchange, or merger or consolidation, by holders of voting stock, voting together as a single class. 4 Addendum B ----------
Post Office Name Residence Address ---- --------- ------- President: Stephen B. Lawson 218 Willow Street Same West Barnstable, MA 02668 Treasurer: Noal D. Reid 156 Blue Rock Road Same South Yarmouth, MA 02664 Clerk: John S. Burnett 14 Madison Avenue Same Centerville, MA 02632 Directors: Class I Mr. William C. Snow 24 Gibson Road P.O. Box 355 Orleans, MA 02653 Orleans, MA 02653 Mr.George D. Denmark 29 Depot Road P.O. Box 92 Cataumet, MA 02534 Cataumet, MA 02534 Class II Mr. Stephen B. Lawson 218 Willow Street Same West Barnstable, MA 02668 Mr. Palmer Davenport 177 Uncle Barney's Road P.O. Box 218 West Dennis, MA 02670 West Dennis, MA 02670 Class III Mr. John F. Aylmer 119 Tern Lane Same Centerville, MA 02632 Mr. John Otis Drew 39 Sea Marsh Road Same Centerville, MA 02632
5 ARTICLE VII ----------- THE INFORMATION CONTAINED IN ARTICLE VIII IS NOT A PERMANENT PART OF THE ARTICLES OF ORGANIZATION. a. The street address (post office boxes are not acceptable) of the principal office of the corporation in Massachusetts is: 307 Main Street, Hyannis, Massachusetts 02601 b. The name, residential address and post office address of each director and officer of the corporation is as follows: POST OFFICE NAME RESIDENTIAL ADDRESS ADDRESS President: Stephen B. Lawson 218 Willow Street West Barnstable, MA 02630 Same Treasurer: Noal D. Reid 156 Blue Rock Road South Yarmouth, MA 02664 Same Clerk: John S. Burnett 14 Madison Avenue Centerville, MA 02632 Same Directors: SEE ADDENDUM B c. The fiscal year (i.e., tax year) of the corporation shall end on the last day of the month of: December d. The name and business address of the resident agent, if any, of the corporation is: John S. Burnett, Clerk 307 Main Street, Hyannis, Massachusetts 02601 **We further certify that the foregoing Restated Articles of Organization affect no amendments to the Articles of Organization of the corporation as heretofore amended, except amendments to the following articles. Briefly describe amendments below: Article VI changed. There is now an attached Addendum A which contains 3 additional provisions dealing with limitation of liability of directors, stockholder vote required for amendment of the Articles of Organization, and stockholder vote required for certain transactions. SIGNED UNDER THE PENALTIES OF PERJURY, this 20 day of August, 1999. /s/ Stephen B. Lawson - -------------------------------- Stephen B. Lawson, President /s/ John S. Burnett - -------------------------------- John S. Burnett, Clerk 6 IDENTIFICATION NO. 04-3437708 (illegible) - ------------------- Examiner THE COMMONWEALTH OF MASSACHUSETTS WILLIAM FRANCIS GALVIN Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 (illegible) - -------------- Name ARTICLES OF AMENDMENT Approved (GENERAL LAWS, CHAPTER 156B, Section 72) We, Stephen B. Lawson, President, and John S. Burnett, Clerk, of CCBT Bancorp, Inc., located at 307 Main Street, Hyannis, MA 02601, do hereby certify that these Articles of Amendment affecting articles numbered: Article I of the Articles of Organization were duly adopted at a meeting held on July 15, 1999, by vote of: 6,348,130.589 shares of Common Stock of 8,957,564 shares outstanding, being at least a majority of each type, class or series outstanding and entitled to vote thereon: To amend the Restated Articles of Organization as follows: Article I The name of the corporation is: CCBT Financial Companies, Inc. The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. Later effective date: _____________________ SIGNED UNDER THE PENALTIES OF PERJURY, this 21 day of September, 1999. /s/ Stephen B. Lawson - -------------------------------- Stephen B. Lawson, President /s/ John S. Burnett - -------------------------- John S. Burnett, Clerk 8 EX-3.(II) 3 Exhibit 3.2 AMENDED BY-Laws (as of July 29, 1999) ------------------------------------- of CCBT FINANCIAL COMPANIES, INC. (the "Company") ARTICLE I Principal Office The Company shall have its principal office in the County of Barnstable, Massachusetts, and may have branch offices at such place or places as are permitted by law and authorized by the Board of Directors. ARTICLE II Meetings of Stockholders Section 1. Annual Meeting. The annual meeting of the stockholders shall be held on the fourth Thursday of April of each year at such time and place in the County of Barnstable, Massachusetts, as shall be determined by the Board of Directors and specified in the notice of the meeting, for the election of a Clerk and a Board of Directors and the transaction of such other business as may properly come before the meeting. If, for any cause, the annual meeting shall not be called and held as hereinabove prescribed, a special meeting shall be called in the manner hereinbelow provided in lieu of the annual meeting and for the purposes thereof and for such additional purposes as shall be specified in the notice of said special meeting. Section 2. Special Meetings. Special meetings of stockholders may be called by the Board of Directors. Special meetings shall be called by the Clerk or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more stockholders who hold at least (i) 51% in interest of the capital stock entitled to vote at such meeting or (ii) such lesser percentage, if any, (but not less than 40%) as shall be determined to be the maximum percentage which the Corporation is permitted by applicable law to establish for the call of such a meeting. Application to a court pursuant to Section 34(b) of Chapter 156B of the General Laws of the Commonwealth of Massachusetts requesting the call of a special meeting of stockholders because none of the officers is able and willing to call such a meeting may be made only by stockholders who hold at least (i) 51% in interest of the capital stock entitled to vote at such meeting or (ii) such lesser percentage, if any, (but not less than 40%) as shall be determined to be the maximum percentage which the Corporation is permitted by applicable law to establish for the call of such a meeting. The hour, date and place of any special meeting and the record date for determining the stockholders having the right to notice of and to 1 vote at such meeting shall be determined by the Board of Directors or the President. At a special meeting of stockholders, only such business shall be conducted, and only such proposals shall be acted upon, as shall have been stated in the written notice of the special meeting and otherwise properly brought before the special meeting. In order for a proposal by a stockholder to be properly brought before a special meeting of the stockholders, the application to the Clerk for the call of such meeting must contain the information required by the second paragraph of Section 3(A) of this Article II with respect to proposals by stockholders to be considered at an Annual Meeting. Section 3. Notice of Stockholder Business and Nominations. A. Annual Meetings of Stockholders. -------------------------------- (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this By-law, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this By-law. (2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph 1 of this Section 3.A, the stockholder must have given timely notice thereof in writing to the Clerk of the Corporation and such other business must be a proper matter for stockholder action. To be timely, a stockholder's notice shall be delivered to the Clerk at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder's notice as described above. Such stockholder's notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11 thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the 2 reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, and (ii) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner. (3) Notwithstanding anything in the second sentence of paragraph 2 of this By-law to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least 100 days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this By-law shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Clerk at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. B. Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (a) by or at the direction of the Board of Directors or (b) by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in this By-law, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this By-law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by paragraph 2 of this By-law shall be delivered to the Clerk at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder's notice as described above. C. General. (1) Only such persons who are nominated in accordance with the procedures set forth in this By-law shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this By-law. If the Board of Directors or a designated committee thereof determines that any stockholder 3 proposal or nomination was not made in a timely fashion in accordance with the provisions of this By-law or that the information provided in a stockholder's notice does not satisfy the information requirements of this By-law in any material respect, such proposal or nomination shall not be presented for action at the Annual Meeting in question. If neither the Board of Directors nor such committee makes a determination as to the validity of any stockholder proposal or nomination in the manner set forth above, the presiding officer of the Annual Meeting shall determine whether the stockholder proposal or nomination was made in accordance with the terms of this By-law. If the presiding officer determines that any stockholder proposal or nomination was not made in a timely fashion in accordance with the provisions of this By-law or that the information provided in a stockholder's notice does not satisfy the information requirements of this By-law in any material respect, such proposal or nomination shall not be presented for action at the Annual Meeting in question. If the Board of Directors, a designated committee thereof or the presiding officer determines that a stockholder proposal or nomination was made in accordance with the requirements of this By-law, the presiding officer shall so declare at the Annual Meeting and ballots shall be provided for use at the meeting with respect to such proposal or nomination. (2) For purposes of this By-law, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission (including, without limitation, a Form 8- K) pursuant to Section 13, 14 or 15(d) of the Exchange Act. (3) Notwithstanding the foregoing provisions of this By-law, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this By-law. Nothing in this By-law shall be deemed to affect any rights of (i) stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) the holders of any series of Preferred Stock to elect directors under specified circumstances. Section 4. Notice. The Clerk shall give notice of every meeting of the stockholders by mailing, postage prepaid, a written notice thereof at least seven days before the time fixed for the meeting to each stockholder of record entitled to vote thereat addressed to him at his address as appearing upon the books of the Company. The notice of each meeting shall set forth the time, place, and purposes thereof. In the event of the absence, incapacity or refusal of the Clerk to call or give notice of any annual meeting or any special meeting, such meeting may be called by the President or by any other person designated for the purpose by the Board of Directors, in the manner hereinabove prescribed. 4 Section 5. Method of Voting. Each holder of record of stock outstanding and entitled to vote at a meeting, if present in person or represented by valid proxy thereat, shall have one vote at such meeting for each share of stock outstanding and entitled to vote thereat held of record by such holder. A proxy may be appointed by an instrument in writing signed by the stockholder or his duly authorized attorney or legal representative but no proxy instrument which is dated more than six months before the meeting named therein shall be accepted and no such proxy instrument shall be valid after the final adjournment of such meeting. All proxy instruments shall be filed with and verified by the Clerk of the meeting before being voted. Election of Directors and Clerk shall be by ballot, and upon request of any stockholder at any meeting, the vote upon any question properly brought before the meeting shall be by ballot. Section 6. Quorum. At any stockholders' meeting a majority in interest of the shares of stock of the Company outstanding and entitled to vote, represented at the meeting by stockholders of record in person or by proxy, shall constitute a quorum for the transaction of business at any meeting. When a quorum is present at any meeting, a majority of the stock represented thereat and entitled to vote shall decide any question brought up at such meeting, except where a larger vote is required by express provision of law or by these By-laws or the Articles of Organization. Section 7. Adjournments. By vote of the holders of record of a majority of the stock outstanding and entitled to vote at a meeting and present in person or by proxy thereat, whether or not a quorum is present, such meeting may be adjourned finally or to reconvene to the same place or at such other place in Barnstable County and at such other time as shall be specified in such vote. No notice of any such adjournment shall be required other than announcement of such adjournment at the meeting or at any adjournment thereof at which such adjournment is voted, whether the adjournment is by vote of a quorum or of less than a quorum. At any such reconvened meeting, whether the adjournment has been by vote of a quorum or of less than a quorum, at which a quorum shall be present in person or by proxy, any business may be transacted which might have been transacted at the meeting as originally called. Section 8. Addresses of Stockholders. Every stockholder, if and when requested by the Clerk, shall file with the Clerk an address at or to which all notices may be served upon or mailed to such stockholder and, if no such address is furnished, notices may be addressed to such stockholder at any other address of the stockholder appearing upon the books of the Company as determined by the Secretary. ARTICLE III Directors, Officers and Committees Section 1. Directors. The Board of Directors of the Company shall consist of not less than six nor more than sixteen Directors as fixed by resolution adopted by the Board of Directors pursuant to these By-laws. 5 At least three-fourths of the Directors shall be citizens of the Commonwealth and resident therein. Directors shall be nominated in accordance with Section 3 of Article II. Section 2. Officers. The officers of the Company shall be a President, a Treasurer, one or more Vice Presidents, one or more Assistant Treasurers, a Clerk, and a Secretary of the Board of Directors, and if the Board of Directors so determines, a Chairman of the Board of Directors, and such other officers as shall be elected by the Board of Directors. The Chairman of the Board, if one is elected, shall be a non-employee director. The Clerk shall be a resident of the Commonwealth. One person may be elected to and serve in more than one office except that the President may not be either the Treasurer or the Clerk. Section 3. Committees. There shall be an Executive Committee, as hereinafter provided for, and such additional committees as the Board of Directors shall from time to time appoint. Section 4. Oath of Office. The Directors and officers shall be sworn to the faithful performance of their duties as prescribed by law and the Directors shall take such additional oaths as shall be required by law. ARTICLE IV Elections Section 1. Directors. Except as hereinbelow provided, approximately one-third of the Directors shall be chosen by ballot at each annual meeting of the stockholders or special meeting of the stockholders called in lieu of and for purposes of the annual meeting. They shall serve for a term of three years and until their successors are elected and have qualified, providing, however, that a term of one or two years shall be substituted when necessary to insure that no person serve as a Director after the annual meeting following such person's 72nd birthday. There shall be three classes of directors. The initial Class I Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 1999, the initial Class II Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 2000, and the initial Class III Directors shall serve for a term expiring at the annual meeting of stockholders to be held in 2001. Those standing for re-election shall be elected for a term of three years. Section 2. Officers. The President, who shall be a member of the Board of Directors, the Treasurer, the Secretary of the Board of Directors, and at least one Vice President and one Assistant Treasurer shall be elected by the Board of Directors at its organizational meeting held after each annual meeting of the stockholders or special meeting of the stockholders called in lieu of and for the purposes of the annual meeting. The Board of Directors shall also have power to elect such additional Vice Presidents, Assistant Treasurers and other officers and agents (other than the Clerk except in the event of a vacancy) and a Chairman of the Board as the Board of Directors shall from time to time determine and to confer upon any such other officers and agents 6 such titles as the Board of Directors sees fit. All officers and agents elected and appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors. The Clerk shall be elected by ballot at each annual meeting of the stockholders or special meeting of the stockholders called in lieu of and for the purposes of the annual meeting. He shall serve until the next annual meeting of the stockholders and until his successor is elected and has qualified. Section 3. Resignations and Vacancies. Any Director or officer may resign by giving written notice to the President, the Clerk or the Board of Directors, and such resignation shall take effect as specified in the notice or sooner at the pleasure of the Board of Directors. Vacancies in the Board of Directors or in any office shall be filled by the Board of Directors and in the event of a vacancy in the Board of Directors, such vacancy shall be filled by the remaining members of the Board then in office. The person chosen to fill any vacancy in the Board of Directors or in the office of Clerk shall hold office for the unexpired portion of the term for which his predecessor was chosen and the person chosen to fill any other office shall hold office during the pleasure of the Board of Directors. Section 4. Removal of Directors. (A) Removal by Directors. A Director may be removed, with or without cause, by vote of a majority of the Directors then in office. (B) Removal by Stockholders. Stockholders may remove a Director only with cause and only by the affirmative vote of at least two-thirds of the total votes which would be eligible to be cast by stockholders in the election of such Director. For purposes of this Section 4, "cause," with respect to the removal of any Director shall mean only (i) conviction of a felony, (ii) declaration of unsound mind by order of court, (iii) gross dereliction of duty, (iv) commission of any action involving moral turpitude, or (v) commission of an action which constitutes intentional misconduct or a knowing violation of law if such action in either event results both in an improper substantial personal benefit and a material injury to the Corporation. A Director may be removed for cause only after reasonable notice and opportunity to be heard before the body proposing removal. ARTICLE V Powers and Duties of Board of Directors Section 1. Regular Meetings. The Board of Directors shall hold regular meetings at least once in each fiscal quarter, and at such other times as the Board shall from time to time determine, upon such day, at such time, and at such place as the Board shall from time to time determine. No notice of any regular meeting shall be necessary. 7 Section 2. Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the Clerk, or other officer designated for the purpose by the Board, at the request of the Chairman of the Board, the President or a majority of the Board of Directors, and at such time and place and for such purposes as shall be stated in such request consistently with these and applicable provisions of law. An organizational meeting of the Board of Directors may be held immediately after the annual meeting of stockholders. Notice of the time and place of any special meeting shall be given by the Clerk or other officer calling the meeting orally or in writing at least 24 hours before the time fixed for the meeting. Except as otherwise provided below in this Section 2, notice mailed to a Director at his usual place of business or residence at least 24 hours before the time fixed for the meeting shall be sufficient. Any notice received by a Director in time to enable him to attend the meeting concerning which notice is given shall be likewise sufficient as to that meeting. Any meeting shall be legal without notice if each Director waives such notice by a writing filed with the records of the meeting either before or after the holding thereof. Except as may be otherwise prescribed by law, any business whatsoever may be transacted at a meeting of the Board although it may not have been specified in the notice of the meeting. Section 3. Quorum. A majority of the Directors at the time in office shall constitute a quorum for the transaction of business at any meeting. The vote of a majority of the Directors present at any meeting when a quorum is present shall be sufficient for action at such meeting. A majority of the Directors present at any meeting, although less than a quorum, may adjourn the meeting finally or from time to time. No notice of such adjournment other than announcement at the meeting or at an adjournment at which such adjournment is voted shall be necessary. Section 4. Powers. The Board of Directors shall have the general management and direction of the property, business and affairs of the Company and all its trusts and undertakings and may exercise all powers of the Company except such as are expressly reserved to the stockholders by applicable provisions of law, the Articles of Organization, or these By-laws. Without limiting the generality of the foregoing, the Board of Directors shall have full power to make or authorize all investments or reinvestments, to authorize the sale, mortgage, pledge, or transfer of any real estate or personal property belonging to the Company in any capacity, to prescribe the duties of the officers, employees and agents of the Company consistently with applicable provisions of law, the Articles of Organization, as amended, and these By-laws, to fix the compensation of all officers, employees, and agents, including their own fees for services as Directors or members of committees, and subject to approval by the Board of Directors, in such instances as the Board of Directors determines, to authorize any committee or any officer to fix the compensation of such officers, employees and agents, or classifications thereof, as the Board of Directors designates, to declare all dividends, to determine upon the form of certificate of stock, and upon transfers thereof, and upon a corporate seal, to fix the amount of the bond or bonds for officers, employees, and agents, including the amount and terms and conditions of blanket or schedule bonds, to issue from time to time any part of the previously authorized capital of the Company, subject to applicable regulatory approval, and generally to 8 take or cause to be taken any action and do any and all things not repugnant to the Articles of Organization, these By-laws and applicable provisions of law, which the Board of Directors shall deem fit and proper to take, cause to be taken, or to use and carry into effect the powers of the Company. Section 5. Presumption of Assent. A Director who is present at a meeting of the Board of Directors at which action on any matter is taken shall be presumed to have consented to the action taken unless his or her dissent or abstention shall be entered in the minutes of the meeting or unless he shall file a written dissent to such action with the person acting as the Clerk of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Clerk within five (5) days after the date a copy of the minutes of the meeting is received. Such right to dissent shall not apply to a Director who voted in favor of such action. Section 6. Classification of Directors. The provisions of Section 50A of Chapter 156B of the General Laws of the Commonwealth of Massachusetts ("Section 50A"), as it may be amended from time to time, shall not apply to the classification of directors of the Company within the meaning of Section 50A. ARTICLE VI Powers and Duties of Officers Section 1. General. All officers shall perform such duties and have such powers as shall be prescribed by law, by these By-laws, the Articles of Organization, or the Board of Directors, or consistently with the foregoing provision of this Section 1, as shall be designated by the President in the case of any of said officers other than the Chairman of the Board, the Clerk, and Secretary of the Board. Without limiting the generality of the foregoing and subject, or in addition, to specific provisions of other Articles, certain officers shall have specific duties and/or powers as stated in the following sections of this Article. Section 2. Chairman of the Board. The Chairman of the Board, if one shall be elected by the Board of Directors, shall preside at all meetings of the Board of Directors at which he shall be present. Section 3. President. The President shall be the chief executive officer of the Company. He shall preside at all meetings of the stockholders and, unless there shall be a Chairman of the Board and such Chairman shall be present and preside, at all meetings of the Board of Directors. He shall be ex officio a member of all standing committees except any Auditing Committee and he shall have the general management and direction of the Company's business in all departments and shall see that all orders and resolutions of the Board of Directors are carried into effect. Section 4. Vice President. The Board of Directors may, in its discretion, designate any one or more Vice Presidents as Executive Vice President and any one or more of the Vice Presidents as Senior Vice President, with such duties, powers and authorities, consistent with 9 these By-laws, the Articles of Organization, and applicable provisions of law, as the Board of Directors shall from time to time determine. A Director or Executive Vice President chosen by the Board of Directors, shall have the duty of presiding at meetings of the stockholders when the President is absent and at meetings of the Board of Directors when neither the President nor the Chairman of the Board (if there shall be one) is present. The Director or Executive Vice President chosen by the Board of Directors shall perform the duties and have the powers and authorities of the President during his absence or disability, except any duties, powers, and authorities which by law only the President is permitted to perform or have. Section 5. Treasurer. The Treasurer shall have custody of the corporate seal. Subject to the general supervision of the Board of Directors and of the President, the Treasurer shall be charged with and be responsible for the keeping of adequate and accurate books of account in all departments of the Company's business and with the preparation of reports therefrom as may be required from time to time by the Board of Directors or by law. Section 6. Assistant Treasurers. The Assistant Treasurers in such order as the Board of Directors shall from time to time determine shall perform the duties and have the powers and authorities of the Treasurer during his absence or disability, except any duties, powers, and authorities which by law only the Treasurer is permitted to perform or have. Section 7. Clerk. The Clerk shall have custody of the books of record of the meetings of the stockholders. He shall give due notice of and attend all meetings of the stockholders and shall record the votes of the stockholders in books kept for the purpose. In the absence of the President and a Vice President at any meeting of stockholders, he shall call the meeting to order until a temporary Chairman is chosen. In the absence of the Clerk at any meeting of the stockholders, a temporary Clerk for such meeting shall be chosen who shall be sworn to the faithful performance of his duties. Section 9. Secretary of the Board. The Secretary of the Board shall attend all meetings of the Board and shall keep the records thereof under the supervision of the Board, except as the Board shall otherwise order. In the absence of the Secretary of the Board at any meeting of the Board, a temporary Secretary of the Board for such meeting shall be chosen who shall be sworn to the faithful performance of his duties. ARTICLE VII Executive Committee Section 1. Composition and Election. The Executive Committee shall consist of the President, ex officio, and not less than 4 nor more than 6 other members, who shall be elected by and from the Board of Directors and shall hold office during the pleasure of the Board. The Board of Directors shall elect members of the Executive Committee at or after the first meeting of the Board of Directors held after each annual meeting of the stockholders or special meeting of the stockholders called in lieu of and for the purposes of the annual meeting. The Board of 10 Directors may elect additional members of the Executive Committee within the foregoing limits or fill vacancies in the Executive Committee at any regular or special meeting of the Board of Directors. The President shall be, ex officio, Chairman of the Executive Committee. Section 2. Powers. The Executive Committee shall supervise the business affairs of the Company and shall have authority, except as otherwise prescribed by the Board of Directors, when the Board of Directors is not in session, to transact such business for and on behalf of the Company as the Board of Directors might transact including the power to give such directions to the officers regarding the Company and its affairs as the Committee determines and the power to authorize any of the officers in the name and behalf of the Company to sign, affix the corporate seal to, and deliver contracts, deeds, releases, assignments or other instruments in writing. Section 3. Meetings. Meetings of the Executive Committee shall be held at such times and places as the Committee from time to time determines. Special meetings of the Committee may be called at any time by the President, or in his absence or disability, by any Vice President. No notice shall be necessary to the validity of such meetings. The Committee shall keep minutes of each of its meetings and the minutes of each meeting, not previously submitted to the Board of Directors, shall be submitted to the regular meeting of the Board of Directors next following such meeting except as otherwise ordered by the Board. Section 4. Quorum. A majority of the Executive Committee at the time in office shall constitute a quorum for the transaction of business and when a quorum is present at any meeting the vote of a majority of those present shall be sufficient for action at such meetings. ARTICLE VIII Certificates of Stock and Transfers Thereof Section 1. Form - Execution. The Board of Directors may provide by resolution that some or all of any or all classes and series of shares shall be uncertificated shares. Unless such a resolution has been adopted, each stockholder shall be entitled to a certificate of the capital stock of the Company in such form as may from time to time be prescribed by the Board of Directors. Such certificate shall be signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer. Such signatures may be facsimile if the certificate is signed by a transfer agent, or by a registrar, other than a Director, officer or employee of the Company. In case any officer who has signed or whose facsimile signature has been placed on such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Company is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. 11 Section 2. Transfer. Shares of the stock of the Company shall be transferable only on the books of the Company by assignment in writing by the holder of record thereof, or his legal representative, in person or by duly authorized attorney, upon surrender of the certificate thereof. The Company shall not be bound to take notice of or recognize any trust, express, implied or constructive, or any charge or equity affecting any shares of the capital stock or to ascertain or inquire whether any sale or transfer of any such shares by any holder of record thereof, his attorney legally constituted, or his legal representative, is authorized by such trust, charge or equity or to recognize any person as having any interest therein, except the holder of record thereof for the time being. Section 3. Loss, Destruction, Mutilation. In case of the loss, destruction or mutilation of a certificate of stock, a new certificate, to replace the certificate so lost, destroyed, or mutilated, may be issued by order of the Board of Directors upon reasonable evidence of such loss, destruction or mutilation and the filing by the holder of record, or his legal representative, of a bond of indemnity in such form, in such amount and with such surety or sureties as the Board of Directors may approve. Section 4. Record Date. The Board of Directors may fix in advance a time not more than sixty (60) days before the date of any meeting of the stockholders or the date for the payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof, or the right to receive such dividend or distribution, or the right to give such consent or dissent, and in such case, only stockholders of record on such record date shall have such right notwithstanding any transfer of stock on the books of the corporation after the record date. In lieu of fixing such date, the Board of Directors may for any of such purposes close the stock transfer books of the Company for all or any portion of said sixty (60) day period. Section 5. Issuance of Capital Stock. The Board of Directors shall have the authority to issue or reserve for issue from time to time the whole or any part of the capital stock of the Company which may be authorized from time to time, to such persons or organizations, for such consideration, whether cash, property, services or expenses, and on such terms as the Board of Directors may determine, including without limitation the granting of options, warrants, or conversion or other rights to subscribe to said capital stock. The Board of Directors may delegate some or all of its authority under this Section 5 to one or more committees of Directors. 12 ARTICLE IX Execution of Instruments Checks, conveyances, deeds, assignments, discharges of mortgages and other instruments, whether connected with the exercise by the Company of its powers in any fiduciary capacity, or otherwise, shall be executed in the name and behalf of the Company by such officer or officers or other individual or individuals and in such manner as shall be prescribed or authorized from time to time by the Board of Directors or the Executive Committee. Any such instrument so executed by prescription or authority of the Executive Committee shall have the same validity as if expressly authorized by vote of the Board of Directors. ARTICLE X Contributions The Board of Directors shall have power and authority to make contributions, in such amounts as the Board of Directors may determine to be reasonable, to corporations, trusts, funds or foundations, organized and operated exclusively for charitable, scientific or educational purposes, no part of the net earnings of which enures to the benefit of any private shareholder or individual; provided that such contributions in any fiscal year shall not in the aggregate exceed one-half of one percent of the capital and surplus of the Company as of the end of the preceding fiscal year, unless contributions in excess of one-half of one percent of such capital and surplus shall be authorized by the stockholders at a regular or special meeting. Nothing in this Article shall be construed as directly or indirectly restricting or otherwise affecting, except as herein provided, the rights and powers of the Company with reference to payments of the nature above specified. ARTICLE XI Corporate Seal The corporate seal shall be in such form as the Board of Directors shall from time to time determine. Unless and until otherwise determined by the Board of Directors, the corporate seal shall be circular and shall have thereon the name of the Company and the year and state of its incorporation. ARTICLE XII Indemnification Section 1. Actions, Suits and Proceedings. The Company shall, to the maximum extent permitted from time to time under the law of The Commonwealth of Massachusetts, indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was, or has agreed to become, a Director or Executive Officer (defined as any of the Chief Executive Officer, Chief Financial Officer, President, Vice President, Treasurer or Clerk) of the Company, or is or was 13 serving, or has agreed to serve, at the request of the Company, in any capacity with respect to any employee benefit plan of the Company (all such persons being referred to hereafter as an "Indemnitee"), or by reason of any action alleged to have been taken or omitted to be taken in such capacity, against all expenses (including reasonable attorneys' fees), judgments and fines incurred by him or on his behalf in connection with such action, suit, proceeding or investigation, and any appeal therefrom, unless the Indemnitee shall be finally adjudicated in such action, suit, proceeding or investigation, not to have acted in good faith in the reasonable belief that his action was in the best interests of the Company or, to the extent such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. Notwithstanding anything to the contrary in this Article XII, except as set forth in Section 7 of this Article XII, the Company shall not indemnify an Indemnitee seeking indemnification in connection with an action, suit, proceeding or investigation (or part thereof) initiated by the Indemnitee unless the initiation thereof was approved by the Board of Directors of the Company. Section 2. Employees and Agents. The Company may, at the discretion of the Board of Directors, indemnify employees and agents of the Company and directors and officers of any subsidiary of the Company as if they were included in Section 1 of this Article XII. Section 3. Settlements. The right to indemnification conferred in this Article XII shall include the right to be paid by the Company for amounts paid in settlement of any such action, suit, proceeding or investigation and any appeal therefrom, and all expenses (including reasonable attorneys' fees) incurred in connection with such settlement, pursuant to a consent decree or otherwise, unless and to the extent it is determined pursuant to Section 6 of this Article XII that the Indemnitee did not act in good faith in the reasonable belief that his or her action was in the best interests of the Company or, to the extent such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. Section 4. Notification and Defense of Claim. As a condition precedent to his or her right to be indemnified, the Indemnitee must notify the Company in writing as soon as practicable of any action, suit, proceeding or investigation involving such Indemnitee or with respect to which indemnity will or could be sought. With respect to any action, suit, proceeding or investigation of which the Company is so notified, the Company will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee. After notice from the Company to the Indemnitee of its election so to assume such defense, the Company shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with such claim, other than as provided below in this Section 4 of this Article XII. The Indemnitee shall have the right to employ his of her own counsel in connection with such claim, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Company and the Indemnitee in the conduct of the defense of such action or (iii) the Company shall not in fact have employed counsel to assume 14 the defense of such action, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the expense of the Company, except as otherwise expressly provided by this Article XII. The Company shall not be entitled, without the consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above. Section 5. Advance of Expenses. Subject to the provisions of Section 6 of this Article XII, in the event that the Company does not assume the defense, or unless and until the Company assumes the defense, pursuant to Section 4 of this Article XII of any action, suit, proceeding or investigation of which the Company receives notice under this Article XII, any expenses (including reasonable attorneys' fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Company in advance of the final disposition of such matter, provided, however, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company as authorized in this Article XII. Such undertaking may be accepted without reference to the financial ability of the Indemnitee to make such repayment. Section 6. Procedure for Indemnification. In order to obtain indemnification or advancement of expenses pursuant to Sections 1, 3 or 5 of this Article XII, the Indemnitee shall submit to the Company a written request, including in such request such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or advancement of expenses. Any such indemnification pursuant to Section 1 of this Article XII shall be made promptly, and in any event within 60 days after receipt by the Company of the written request of the Indemnitee, unless a court of competent jurisdiction finally adjudicates that the Indemnitee did not meet the applicable standard of conduct set forth in Section 1 of this Article XII. Any such indemnification pursuant to Section 3 of this Article XII or advancement of expenses pursuant to Section 5 of this Article XII shall be made promptly, and in any event within 60 days after receipt by the Company of the written request of the Indemnitee, unless the Company determines, by clear and convincing evidence, within such 60-day period that the Indemnitee did not meet the applicable standard of conduct set forth in Sections 1 or 3 of this Article XII, as the case may be. Such determination by the Company shall be made in each instance by (a) a majority vote of a quorum of the Directors of the Company, (b) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for Directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit, proceeding or investigation in question, or (c) independent legal counsel (who may be regular legal counsel to the Company). Section 7. Remedies. The right to indemnification or advances as granted by this Article XII shall be enforceable by the Indemnitee in any court of competent jurisdiction if the Company denies such request, in whole or in part, or if no disposition thereof is made within the 60-day period referred to above in Section 6 of this Article XII. Unless otherwise provided by 15 law, the Company shall have the burden of proving that the Indemnitee is not entitled to indemnification or advancement of expenses under this Article XII. Neither the failure of the Company to have made a determination prior to the commencement of any such action by the Indemnitee that indemnification is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company pursuant to Section 6 of this Article XII that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct. The Indemnitee's expenses (including attorneys' fees) incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Company. Section 8. Subsequent Amendment. No amendment, termination or repeal of this Article XII or of the relevant provisions of Chapter 156B of the Massachusetts General Laws or any other applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal. Section 9. Other Rights. The indemnification and advancement of expenses provided by this Article XII shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), agreement or vote of stockholders or Directors or otherwise, both as to action in his or her official capacity and as to action in any other capacity while holding office for the Company, and shall continue as to an Indemnitee who has ceased to be a Director or officer, and shall inure to the benefit of the estate, heirs, executors, personal representatives and administrators of the Indemnitee. Nothing contained in this Article XII shall be deemed to prohibit, and the Company is specifically authorized to enter into, agreements with officers and Directors providing indemnification rights and procedures different from those set forth in this Article XII. In addition, the Company may, to the extent authorized from time to time by its Board of Directors pursuant to Section 2 of this Article XII or otherwise, grant indemnification rights to other employees or agents of the Company or other persons serving the Company and such rights may be equivalent to, or greater or less than, those set forth in this Article XII. Section 10. Partial Indemnification. If an Indemnitee is entitled under any provision of this Article XII to indemnification by the Company for some or a portion of the expenses (including attorneys' fees), judgments, fines or amounts paid in settlement actually and reasonably incurred by such Indemnitee or on such Indemnitee's behalf in connection with any action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for the portion of such expenses (including reasonable attorneys' fees), judgments, fines or amounts paid in settlement to which such Indemnitee is entitled. Section 11. Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Director, officer, employee or agent of the Company, any subsidiary, another organization or employee benefit plan against any expense, liability or loss incurred by him of her in any such capacity, or arising out of his of her status as such, whether or 16 not the Company would have the power to indemnify such person against such expense, liability or loss under Chapter 156B of the Massachusetts General Laws. Section 12. Merger or Consolidation. If the Company is merged into or consolidated with another corporation and the Company is not the surviving corporation, the surviving Company shall assume the obligations of the Company under this Article XII with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring at or prior to the date of such merger or consolidation. Section 13. Savings Clause. If this Article XII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Indemnitee as to any expenses (including reasonable attorneys' fees), judgments, fines and amounts paid in settlement in connection with any action, suit, proceeding or investigation, whether civil, criminal or administrative, including an action by or in the right of the Company, to the fullest extent permitted by any applicable portion of this Article XII that shall not have been invalidated and to the fullest extent permitted by applicable law. Section 14. Subsequent Legislation. If the Massachusetts General Laws are amended after adoption of this Article XII to expand further the indemnification permitted to Indemnitees, then the Company shall indemnify such persons to the fullest extent permitted by the Massachusetts General Laws, as so amended. ARTICLE XIII Fair Price Provision The stockholder vote required to approve Business Combinations (hereinafter defined) shall be as set forth in this Article XIII. Section 1. Higher Vote for Business Combinations. In addition to any affirmative vote required by applicable provisions of law, the Articles of Organization or these By-laws, and except as otherwise expressly provided in Section 3 of this Article XIII: (a) Any merger or consolidation of the Company or any Subsidiary with (i) any Interested Stockholder or (ii) any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger or consolidation would be, an Affiliate or Associate of an Interested Stockholder; or (b) Any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder of any assets of the Company or any Subsidiary thereof having an aggregate Fair Market Value of $5,000,000 or more; or 17 (c) The issuance, exchange or transfer by the Company or any Subsidiary (in one transaction or a series of transactions) of any securities of the Company or any Subsidiary to any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder in exchange for cash, securities or other consideration (or a combination thereof) having an aggregate Fair Market Value of $5,000,000 or more; or (d) The adoption of any plan or proposal for the liquidation or dissolution of the Company proposed by or on behalf of an Interested Stockholder or any Affiliate or Associate of any Interested Stockholder; or (e) Any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or any merger or consolidation of the Company with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Company or any Subsidiary which is directly or indirectly owned by any Interested Stockholder or any Affiliate or Associate of any Interested Stockholder; or (f) Any agreement, contract or other arrangement with an Interested Stockholder (or in which the Interested Stockholder has an interest other than proportionately as a stockholder) providing for any one or more of the actions specified in subsections (a) to (e) of this Section 1, shall require the affirmative vote of the holders of at least eighty percent (80%) of the votes which all stockholders would be entitled to cast at any annual election of Directors or class of Directors (the "Voting Stock"). Such affirmative vote shall be required notwithstanding the fact that no vote may be required or that a lesser percentage may be specified by applicable provisions of law or in any agreement with any national securities exchange or otherwise. Section 2. Definition of "Business Combination." The term "Business Combination" as used in this Article XIII shall mean any transaction which is referred to in any one or more of subsections (a) through (f) of Section 1. Section 3. When Higher Vote Is Not Required. The provisions of Section 1 of this Article XIII shall not be applicable to any particular Business Combination, and such Business Combination shall require only such affirmative vote, if any, as is required by applicable provisions of law, the Articles of Organization, as amended, or these By-laws, if the condition specified in either of the following subsections (a) or (b) are met: (a) Approval by Disinterested Directors. The Business Combination shall have been approved by two-thirds of the Disinterested Directors. 18 (b) Price and Procedure Requirements. All of the following seven conditions shall have been met: (c) The transaction constituting the Business Combination shall provide that the holders of Common Stock receive, in exchange for their stock, per share consideration (consisting of the cash and the Fair Market Value, as of the date of the consummation of the Business Combination, of consideration other than cash) at least equal to the highest of the following: A. If applicable, the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or on behalf of the Interested Stockholder for any share of Common Stock in connection with the acquisition by the Interested Stockholder of shares of Common Stock which were acquired (1) within the two- year period immediately prior to the initial day in which public trading of the Common Stock occurs following the first public announcement of the proposed Interested Stockholder (the "Announcement Date") or (2) in the transaction in which it became an Interested Stockholder, whichever is higher; B. The Fair Market Value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (the "Determination Date", whichever is higher; and C. If applicable, the price per share equal to the Fair Market Value per share of Common Stock determined pursuant to subsection 3(b)(i)(B) immediately preceding, multiplied by the ratio of (1) the per share price determined pursuant to subsection 3(b)(i)(A) above to (2) the Fair Market Value per share of Common Stock on the first date in the two-year period immediately prior to the Announcement Date on which the Interested Stockholder beneficially owned any shares of Common Stock. All per share prices shall be adjusted to reflect fairly any intervening stock split, stock dividend, reverse stock split, recapitalization, reorganization or similar event affecting the number of shares of Common Stock outstanding and the market price per share of outstanding shares of Common Stock. (i) If the transaction constituting the Business Combination shall also provide that the holders of any class of outstanding Voting Stock, other than Common Stock, if any, are to 19 receive consideration in exchange for their stock, the per share consideration (consisting of the cash and the Fair Market Value, as of the date of the consummation of the Business Combination, of consideration other than cash) shall be at least equal to the highest of the following (it being intended that the requirements of this subsection 3(b)(ii) shall be required to be met with respect to every class of outstanding Voting Stock, whether or not the Interested Stockholder beneficially owns any shares of a particular class of Voting Stock): A. If applicable, the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or on behalf of the Interested Stockholder for any share of such class of Voting Stock in connection with the acquisition by the Interested Stockholder of beneficial ownership of such share which was acquired (1) within the two-year period immediately prior to the Announcement Date or (2) in the transaction in which it became an Interested Stockholder, whichever is higher; B. If applicable, the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, regardless of whether the Business Combination to be consummated constitutes such an event; C. The Fair Market Value per share of such class of Voting Stock on the Announcement Date or on the Determination Date, whichever is higher; and D. If applicable, the price per share equal to the Fair Market Value per share of such class of Voting Stock determined pursuant to subsection 3(b)(ii)(c) immediately preceding, multiplied by the ratio of (1) the per share price determined pursuant to subsection 3(b)(ii)(A) above to (2) the Fair Market Value per share of such class of Voting Stock on the first day in the two-year period immediately prior to the Announcement Date on which the Interested Stockholder beneficially owned any shares of such class of Voting Stock. All per share prices shall be adjusted to reflect fairly any intervening stock split, stock dividend, reverse stock split, recapitalization, reorganization or similar event 20 affecting the number of shares of such Voting Stock outstanding and the market price per share of outstanding shares of such Voting Stock. (ii) The consideration to be received by holders of a particular class of outstanding Voting Stock (including Common Stock) shall be in cash or in the same form as was previously paid by or on behalf of the Interested Stockholder in connection with its direct or indirect acquisition of beneficial ownership of shares of such class of Voting Stock. If the Interested Stockholder beneficially owns shares of any class of Voting Stock which were acquired with varying forms of consideration, the form of consideration to be received by holders of such class of Voting Stock shall be either cash or the form used to acquire the largest number of shares of such class of voting Stock beneficially owned by it. (iii) After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (A) except as approved by two-thirds of the Disinterested Directors, there shall have been no failure to declare and pay at the regular date therefor any full quarterly dividends (whether or not cumulative) on any outstanding preferred stock; (B) there shall have been (1) no reduction in the annual rate of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock) except as approved by two-thirds of the Disinterested Directors, and (2) an increase in such annual rate of dividends (as necessary to prevent any such reduction) in the event of any reclassification (including any reverse stock split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure so to increase such annual rate is approved by two-thirds of the Disinterested Directors; and (c) such Interested Stockholder shall not have become the beneficial owner of any shares of Voting Stock except as part of the transaction in which it became an Interested Stockholder and except in a transaction which after giving effect thereto, would not result in any increase in the Interested Stockholder's percentage beneficial ownership of any class of Voting Securities. (iv) After such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Company, whether in anticipation of or in connection with such Business Combination or otherwise. 21 (v) A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed by the Interested Stockholder to all stockholders of the Company at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). (vi) Such Interested Stockholder shall not have made any major change in the Company's business or equity capital structure without the approval of two-thirds of the Disinterested Directors. Section 4. Certain Definitions. For the purposes of this Article XIII: (a) The term "person" shall mean any individual, firm, corporation or other entity and shall include any group comprised of any person and any other person with whom such person or any Affiliate or Associate of such person has any agreement, arrangement or understanding, directly or indirectly, for the purpose of acquiring, holding, voting or disposing of Voting Stock of the Company. (b) The term "Interested Stockholder" shall mean any person (other than the Company or any Subsidiary and other than any profit sharing, employee stock ownership or other employee benefit plan of the Company or any Subsidiary or any trustee of or fiduciary with respect to any such plan when acting in such capacity) who or which: (i) Is at such time the beneficial owner, directly or indirectly, of shares of the Company having more than ten percent (10%) of the voting power of the then outstanding Voting Stock (unless all such shares were received by such beneficial owner in exchange for shares of common stock of the Company (acquired by such beneficial owner on or before April 1, 1987 (the "Predecessor Shares")); or (ii) At any time within the two-year period immediately prior to such time was the beneficial owner, directly or indirectly, of shares of the Company having more than ten percent (10%) of the voting power of the then outstanding Voting Stock (unless all such shares are Predecessor Shares), or (iii) Is at any time an assignee of or has otherwise succeeded to the beneficial ownership of any shares of Voting Stock which were at 22 any time within the two-year period immediately prior to such time beneficially owned by any Interested Stockholder, 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 of 1933. (c) A person shall be a "beneficial owner" of any shares of Voting Stock: (i) Which are beneficially owned, directly or indirectly, by such person or any of its Affiliates or Associates; (ii) Which such person or any of its Affiliates or Associates has (a) the right to acquire (whether or not such right is exercisable immediately) pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options or otherwise or (b) the right to vote pursuant to any agreement, arrangement or understanding; or (iii) Which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. (d) For the purposes of determining whether a person is an Interested Stockholder pursuant to subsection 4(b), the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned by an Interested Stockholder through application of subsection 4(c) but shall not include any other shares of Voting Stock which may be issuable pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options or otherwise. (e) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on January 1, 1999 (the term registrant in said Rule 12b-2 meaning, in this case, the Company). (f) "Beneficially owned" shall have the meaning ascribed to such term in Rule 13d3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on January 1, 1999. (g) "Disinterested Director" means any member of the Board of Directors of the Company who is not an Interested Stockholder, who is unaffiliated with, and not a representative of, the Interested Stockholder and was a member of the Board of Directors the date of incorporation of the Company, or prior to the time that the Interested Stockholder became an 23 Interested Stockholder, and any successor of a Disinterested Director who is not an Interested Stockholder, who is unaffiliated with, and not a representative of, the Interested Stockholder and is recommended or elected to succeed a Disinterested Director by a majority of the Disinterested Directors then on the Board of Directors. (h) "Fair Market Value" means: (i) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the Composite Tape for New York Stock Exchange Listed Stocks or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange or, if such stock is not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed or, if such stock is not listed on any such exchange, the highest closing sale price or the highest closing bid quotation, respectively, with respect to a share of such stock during the 30-day period preceding the date in question on the National Market System or on the National Association of Securities Dealers, Inc. Automated Quotations System, as the case may be, or any system then in use or, if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by a majority of the Disinterested Directors in good faith; and (ii) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the Board of Directors in good faith. (i) In the event of any Business Combination in which the Company survives, the phrase "consideration other than cash to be received" as used in subsection 3(b) of this Article XIII shall include the shares of Common Stock and/or the shares of any other class of outstanding Voting Stock retained by the holders of such shares. "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Company. Section 5. The Disinterested Directors shall have the power and duty to determine for purposes of this Article XIII, on the basis of information known to them after reasonable inquiry, all facts necessary to determine compliance with this Article XIII, including, without limitation, (a) whether a person is an interested Stockholder, (b) the number of shares of Voting Stock beneficially owned by any person, (c) whether a person is an Affiliate or Associate of another, (d) whether the requirements of subsection 3(b) have been met with respect to any Business Combination and (e) whether the assets which are the subject of any Business Combination have, or whether the consideration to be received from the issuance or transfer of securities by the Company or any Subsidiary in any Business Combination has an aggregate Fair Market Value of $5,000,000 or more. Any such determination made in good faith shall be binding and conclusive. 24 Section 6. Nothing contained in this Article XIII shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. Section 7. Consideration for shares to be paid to any stockholder pursuant to this Article XIII shall be the minimum consideration payable to the stockholder and shall not limit a stockholder's right under any provision of law or otherwise to receive greater consideration for any shares of the Company. Section 8. The fact that any Business Combination complies with the provisions of Section 3 of this Article XIII shall not be construed to impose any fiduciary duty, obligation or responsibility on the Board of Directors, or any member thereof, to approve such Business Combination or recommend its adoption or approval to the stockholders of the Company, nor shall such compliance limit, prohibit or otherwise restrict in any manner the Board of Directors or any member thereof with respect to evaluations of or actions and responses taken with respect to such Business Combination. Section 9. Amendments to Article. Notwithstanding any other applicable provisions of law, the Articles of Organization, or these By-laws, and notwithstanding that a lesser percentage may be specified by law, the affirmative vote of the holders of at least eighty percent (80%) of the votes which all the stockholders would be entitled to cast at any annual election of Directors or class of Directors shall be required to amend or repeal, or to adopt any provision inconsistent with this Article XIII. ARTICLE XIV Amendments - Repeal (A) Amendment by Directors. Except with respect to any provisions of these By- laws which by law, the Articles of Organization or these By-laws require action by the stockholders, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then in office. Not later than the time of giving notice of the annual meeting of stockholders next following the amending or repealing by the Directors of any By-law, notice thereof stating the substance of such change shall be given to all stockholders entitled to vote on amending the By-laws. (B) Amendment by Stockholders. In addition to the right of directors to amend the By-laws in this Article XIV, paragraph (A), these By-laws may be amended or repealed at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of at least two-thirds of the total votes eligible to be cast on such amendment or repeal by holders of voting stock, voting together as a single class; provided, however, that if the Board of Directors recommends that stockholders approve such amendment or repeal at such meeting of stockholders, such amendment or repeal shall only require the affirmative vote of a majority of the total votes eligible to be cast on such amendment or repeal by holders of voting stock, voting together as a single class. 25 ARTICLE XV Control Share Acquisition The provisions of Chapter 110D of the General Laws of the Commonwealth of Massachusetts ("Chapter 110D"), as it may be amended from time to time, shall not apply to "control share acquisitions" of the Company within the meaning of Chapter 110D. EX-27 4
9 9-MOS DEC-31-1999 SEP-30-1999 29,457,717 714,973 0 0 593,055,847 0 0 630,038,777 (11,314,064) 1,310,061,569 799,460,488 0 0 0 0 0 22,652,660 0 1,310,061,569 12,299,918 7,185,627 309,411 19,794,956 4,553,343 4,897,707 10,343,906 0 223,779 9,633,833 6,031,983 0 0 0 3,850,220 0.43 0.43 3.47 1,891,000 0 644,000 5,885,088 11,254,731 224,025 283,358 11,314,064 11,314,064 0 0
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