"All Other Compensation" includesOrdinary Income Arising from Stock Option Exercises
Includes ordinary income arising from
the exercise of stock
option exercises, 401(k) matching contributions, split dollar life insurance benefits, and supplemental retirement benefits, as follows:15
| | | | | | | | |
| | | | Ordinary | |
| | | | Income from | |
Current Executive Officers | | Year | | | Exercises | |
| | | | | | |
Mr. Oddleifson | | | 2004 | | | | — | |
| | | 2003 | | | | — | |
Mr. Kelley | | | 2004 | | | $ | 117,014 | |
| | | 2003 | | | $ | 73,383 | |
| | | 2002 | | | $ | 89,832 | |
Mr. Paciulli | | | 2004 | | | | — | |
| | | 2003 | | | | — | |
Mr. Seksay | | | 2004 | | | | — | |
| | | 2003 | | | $ | 165,888 | |
| | | 2002 | | | | — | |
Mr. Sheahan | | | 2004 | | | | | |
| | | 2003 | | | | — | |
| | | 2002 | | | | — | |
| | | | | | | | |
| | | | Ordinary | |
| | | | Income from | |
Retired Executive Officer | | Year | | | Exercises | |
| | | | | | |
Mr. Driscoll | | | 2004 | | | $ | 257,650 | |
| | | 2003 | | | $ | 322,732 | |
| | | 2002 | | | $ | 435,128 | |
401(k) Matching Contributions Includes the 401(k) Company matching contributions on behalf of these executive officers:
| | | | | | | | |
| | | | 401(k) | |
Current Executive Officers | | Year | | | Match | |
| | | | | | |
Mr. Oddleifson | | | 2004 | | | $ | 4,569 | |
| | | 2003 | | | | — | |
Mr. Kelley | | | 2004 | | | $ | 4,047 | |
| | | 2003 | | | $ | 6,000 | |
| | | 2002 | | | $ | 5,500 | |
Mr. Paciulli | | | 2004 | | | $ | 693 | |
| | | 2003 | | | | — | |
Mr. Seksay | | | 2004 | | | $ | 3,570 | |
| | | 2003 | | | $ | 5,796 | |
| | | 2002 | | | $ | 5,500 | |
Mr. Sheahan | | | 2004 | | | $ | 3,640 | |
| | | 2003 | | | $ | 5,992 | |
| | | 2002 | | | $ | 4,900 | |
| | | | | | | | |
| | | | 401(k) | |
Retired Executive Officer | | Year | | | Match | |
| | | | | | |
Mr. Driscoll | | | 2004 | | | $ | 2,499 | |
| | | 2003 | | | $ | 6,000 | |
| | | 2002 | | | $ | 5,500 | |
23
Executive Officer
| | Year
| | 401(k) Match
|
---|
Mr. Philipsen | | 2002
2001
2000 | | $
$
$ | 5,500
5,100
5,250 |
Mr. Driscoll |
|
2002
2001
2000 |
|
$
$
$ |
5,500
5,100
5,250 |
Mr. Kelley |
|
2002
2001
2000 |
|
$
$
$ |
5,500
5,100
5,250 |
Mr. Seksay |
|
2002
2001 |
|
$
$ |
5,500
2,086 |
Mr. Sheahan |
|
2002
2001
2000 |
|
$
$
$ |
4,900
4,624
3,845 |
Split Dollar Life Insurance Policies
These policies provide supplemental retirement benefits for
As noted previously, during 2003 the executive. Under the split dollar agreements, the Company has a surety interest in the death benefits or cash surrender value under the policy equal to theExecutive Split Dollar Agreements were terminated. The amount of premiums paid by the Company, as noted previously. Amount column includes the premium paid for term life portion and the present value of the benefit aggregated from policy inception.
| | | | | | | | |
Current Executive Officers | | Year | | | Amount | |
| | | | | | |
Mr. Oddleifson | | | 2003 | | | | — | |
Mr. Kelley | | | 2003 | | | | — | |
| | | 2002 | | | $ | 33,853 | |
Mr. Paciulli | | | 2003 | | | | — | |
Mr. Seksay | | | 2003 | | | | — | |
| | | 2002 | | | $ | 46,048 | |
Mr. Sheahan | | | 2003 | | | | — | |
| | | 2002 | | | $ | 33,725 | |
| | | | | | | | |
Retired Executive Officer | | Year | | | Amount | |
| | | | | | |
Mr. Driscoll | | | 2003 | | | | — | |
| | | 2002 | | | $ | 76,378 | |
Group Term Life Insurance Premiums
Includes the premiums paid for Group Term Life Insurance:
| | | | | | | | |
Current Executive Officers | | Year | | | Amount | |
| | | | | | |
Mr. Oddleifson | | | 2004 | | | $ | 540 | |
| | | 2003 | | | $ | 360 | |
Mr. Kelley | | | 2004 | | | $ | 2,376 | |
| | | 2003 | | | $ | 1,548 | |
| | | 2002 | | | $ | 1,548 | |
Mr. Paciulli | | | 2004 | | | $ | 1,548 | |
| | | 2003 | | | $ | 138 | |
Mr. Seksay | | | 2004 | | | $ | 540 | |
| | | 2003 | | | $ | 540 | |
| | | 2002 | | | $ | 360 | |
Mr. Sheahan | | | 2004 | | | $ | 324 | |
| | | 2003 | | | $ | 324 | |
| | | 2002 | | | $ | 324 | |
| | | | | | | | |
Retired Executive Officer | | Year | | | Amount | |
| | | | | | |
Mr. Driscoll | | | 2004 | | | $ | 738 | |
| | | 2003 | | | $ | 1,548 | |
| | | 2002 | | | $ | 1,548 | |
24
Executive Officer Supplemental Retirement Benefits Under the Rockland SERP
| | Year
| | Amount
|
---|
Mr. Philipsen | | 2002
2001
2000 | | $
$
$ | —
54,245
57,042 |
Mr. Driscoll |
|
2002
2001
2000 |
|
$
$
$ |
76,378
78,342
80,160 |
Mr. Kelley |
|
2002
2001
2000 |
|
$
$
$ |
33,853
60,657
63,171 |
Mr. Seksay |
|
2002
2001 |
|
$
$ |
46,048
45,987 |
Mr. Sheahan |
|
2002
2001 |
|
$
$ |
33,725
33,504 |
As noted previously,
The amount stated is based upon the expense recognized by the Company,
is currently reevaluating split dollar life insurance arrangementsas determined in
lightaccordance with Statement of
the SOAFinancial Accounting Statements No. 87 and
IRS Notice 2002-8, and suspended further premium payments subsequent to enactment of SOA.16
Supplemental Retirement Benefits
2002—Consists of $253,234 and $27,351 liability incurred as part of the Company's obligation to fund certain retirement benefits for Messrs. Philipsen and Driscoll, respectively;
2001—Consists of $242,284 and $29,337 liability incurred as part of the Company's obligation to fund certain retirement benefits for Messrs. Philipsen and Driscoll, respectively;
2000—Consists of $242,126 and $29,337 liability incurred as part of the Company's obligation to fund certain retirement benefits for Messrs. Philipsen and Driscoll, respectively.
132.
| | | | | | | | |
Current Executive Officers | | Year | | | Amount | |
| | | | | | |
Christopher Oddleifson | | | 2004 | | | $ | 66,249 | |
| | | 2003 | | | $ | 52,239 | |
Ferdinand T. Kelley | | | 2004 | | | $ | 53,124 | |
| | | 2003 | | | $ | 42,556 | |
| | | 2002 | | | | — | |
Anthony A. Paciulli | | | 2004 | | | | — | |
| | | 2003 | | | | — | |
Edward H. Seksay | | | 2004 | | | $ | 23,636 | |
| | | 2003 | | | $ | 16,782 | |
| | | 2002 | | | | — | |
Denis K. Sheahan | | | 2004 | | | $ | 27,219 | |
| | | 2003 | | | $ | 20,307 | |
| | | 2002 | | | | — | |
| | | | | | | | |
Retired Executive Officer | | Year | | | Amount | |
| | | | | | |
Richard F. Driscoll | | | 2004 | | | $ | 148,153 | |
| | | 2003 | | | $ | 43,184 | |
| | | 2002 | | | $ | 27,351 | |
The following table sets forth individual grants of stock options that were made during the last fiscal year to the CEO and the other four most highly compensated executive officers. This table is intended to allow stockholders to ascertain the number and size of option grants made during the fiscal year, the expiration date of the grants, and the potential realizable value of such options, assuming that the market price of the underlying security appreciates in value from the date of grant to the end of the term (ten years) at assumed annualized rates of 5% and 10%.
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | Potential Realizable Value | |
| | Number | | | Percent of | | | | | | | at Assumed Annual Rates | |
| | of | | | Total Options | | | | | | | of Stock Price Appreciation | |
| | Securities | | | Granted to | | | | | | | for Option Term | |
| | Underlying | | | Employees In | | | Exercise | | | Expiration | | | | |
Current Executive Officers | | Option | | | 2004 | | | Price | | | Date(2) | | | 5% | | | 10% | |
| | | | | | | | | | | | | | | | | | |
Christopher Oddleifson | | | 31,000 | (1) | | | 14.32 | | | $ | 34.18 | | | | 12/9/2014 | | | $ | 666,364 | | | $ | 1,688,698 | |
Ferdinand T. Kelley | | | 12,000 | (1) | | | 5.54 | | | $ | 34.18 | | | | 12/9/2014 | | | $ | 257,947 | | | $ | 653,689 | |
Anthony A. Paciulli | | | 10,000 | (1) | | | 4.62 | | | $ | 34.18 | | | | 12/9/2014 | | | $ | 214,956 | | | $ | 544,741 | |
Edward H. Seksay | | | 7,500 | (1) | | | 3.46 | | | $ | 34.18 | | | | 12/9/2014 | | | $ | 161,217 | | | $ | 408,556 | |
Denis K. Sheahan | | | 12,000 | (1) | | | 5.54 | | | $ | 34.18 | | | | 12/9/2014 | | | $ | 257,947 | | | $ | 653,689 | |
| |
(1) | One-third of such options become exercisable June 9, 2005, one-third of such options become exercisable on January 2, 2006 and one-third of such options become exercisable on January 2, 2007, unless the holder thereof is terminated without cause (as defined in the Option Agreement) or resigns for good reason (as defined in the Option Agreement), in which case, all of such options become immediately exercisable and remain so for three months following such termination. |
|
(2) | All of these options may expire earlier than December 9, 2014 under certain circumstances involving termination of employment, disability or retirement of the option holder. |
| |
| |
| |
| |
| | Potential Realizable Value at Assumed Annual Rates of Stock Price Appreciation for Option Term
|
---|
| |
| | Percent of Total Options Granted to Employees In 2002
| |
| |
|
---|
| | Number of Securities Underlying Option
| |
| |
|
---|
Name
| | Exercise Price
| | Expiration Date(2)
|
---|
| 5%
| | 10%
|
---|
Douglas H. Philipsen | | — | | — | | | — | | — | | — | | — |
Richard F. Driscoll | | 11,900 | (1) | 9.61 | % | $ | 23.470 | | 12/19/2012 | | 175,646 | | 445,121 |
Ferdinand T. Kelley | | 11,900 | (1) | 9.61 | % | $ | 23.470 | | 12/19/2012 | | 175,646 | | 445,121 |
Edward H. Seksay | | 8,725 | (1) | 7.05 | % | $ | 23.470 | | 12/19/2012 | | 128,782 | | 326,360 |
Denis K. Sheahan | | 9,850 | (1) | 7.95 | % | $ | 23.470 | | 12/19/2012 | | 145,388 | | 368,441 |
25
(1)One-third of such options become exercisable June 20, 2003, one-third of such options become exercisable on January 2, 2004 and one-third of such options become exercisable on January 2, 2005, unless the holder thereof is terminated without cause (as defined in the Option Agreement) or resigns for good reason (as defined in the Option Agreement), in which case, all of such options become immediately exercisable and remain so for three months following such termination.
(2)All of these options may expire earlier than December 19, 2012 under certain circumstances involving termination of employment, disability or retirement of the option holder.
The following table sets forth, with respect to
the CEO and the other four most highly compensated executive officers, information with respect to the aggregate amount of options exercised during the last fiscal year, any value realized thereon, the number of unexercised options at the end of the fiscal year (exercisable and unexercisable) and the value
with respect thereto.
| |
| |
| | Number of Unexercised in the Money Options at Fiscal Year End
| | Value of Unexercised in the Money Options at Fiscal Year End(1)
|
---|
Name
| | Shares Acquired on Exercise
| | Value Realized
|
---|
| Exercisable
| | Unexercisable
| | Exercisable
| | Unexercisable
|
---|
Douglas H. Philipsen | | 66,966 | | $ | 762,500 | | 40,800 | | — | | $ | 201,597 | | | — |
Richard F. Driscoll | | 36,371 | | | 435,128 | | 30,438 | | 11,991 | | | 206,429 | | $ | 63,784 |
Ferdinand T. Kelley | | 19,353 | | | 272,336 | | 47,456 | | 11,991 | | | 382,796 | | | 63,784 |
Edward H. Seksay | | — | | | — | | 15,092 | | 9,508 | | | 141,207 | | | 54,676 |
Denis K. Sheahan | | 2,350 | | | 33,088 | | 21,026 | | 10,399 | | | 160,330 | | | 57,947 |
(1)Based upon a closingthereof:
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | Number of Unexercised in | | | |
| | | | | | the Money | | | Value of Unexercised in the | |
| | | | | | | | Money Options at Fiscal | |
| | Shares | | | | | Options at Fiscal Year End | | | Year End(1) | |
| | Acquired on | | | Value | | | | | | | |
Current Executive Officers | | Exercise | | | Realized | | | Exercisable | | | Unexercisable | | | Exercisable | | | Unexercisable | |
| | | | | | | | | | | | | | | | | | |
Christopher Oddleifson | | | — | | | | — | | | | 55,550 | | | | 42,100 | | | $ | 499,004 | | | $ | 42,458 | |
Ferdinand T. Kelley | | | 16,400 | | | $ | 242,230 | | | | 34,869 | | | | 22,332 | | | $ | 526,485 | | | $ | 65,973 | |
Anthony A. Paciulli | | | — | | | | — | | | | 1,817 | | | | 13,633 | | | $ | 6,950 | | | $ | 13,896 | |
Edward H. Seksay | | | — | | | | — | | | | 17,167 | | | | 15,258 | | | $ | 193,847 | | | $ | 49,071 | |
Denis K. Sheahan | | | 2,000 | | | $ | 30,577 | | | | 38,759 | | | | 20,816 | | | $ | 604,524 | | | $ | 55,619 | |
| |
(1) | Based upon an average market price for the Company’s Common Stock as of December 31, 2004 of $33.97. |
Securities Authorized for the Company's Common StockIssuance Under Equity Compensation Plans
The following table sets forth information as of December 31,
20022004 about the securities authorized for issuance under our equity compensation plans, consisting of
$22.80.17
our 1996 Non-Employee Directors’ Stock Option Plan, our 1987 Employee Stock Option Plan, our 1997 Employee Stock Option Plan, and, if approved, our 2005 Employee Stock Plan. Our shareholders previously approved each of these plans and all amendments that were subject to shareholder approval, other than the 2005 Employee Stock Plan for which shareholder approval is being sought at the 2005 annual meeting and which is described above. We have no other equity compensation plans that have not been approved by shareholders
Equity Compensation Plans
| | | | | | | | | | | | |
| | | | | | Number of | |
| | | | | | Securities | |
| | Number of | | | | | Remaining Available | |
| | Securities to be | | | | | for Future Issuance | |
| | Issued upon | | | | | Under Equity | |
| | Exercise of | | | Weighted-Average | | | Compensation Plans | |
| | Outstanding | | | Exercise Price of | | | (Excluding | |
| | Options, Warrants | | | Outstanding Options, | | | Securities Reflected | |
Plan Category | | and Rights | | | Warrants and Rights | | | in Column (a)) | |
| | | | | | | | | |
| | (a) | | | (b) | | | (c) | |
Equity compensation plans approved by security holders | | | 818,729 | | | | $23.76 | | | | 167,071 | (1) |
Equity compensation plans not approved by security holders | | | — | | | | — | | | | — | |
New equity compensation plans | | | 0 | | | | Not Applicable | | | | 800,000 | |
Total | | | 818,729 | | | | $23.76 | | | | 967,071 | |
| |
(1) | There are 102,000 shares available for future issuance for the 1996 Non-Employee Directors’ Stock Option Plan, 0 shares available for future issuance for the 1987 Employee Stock Option Plan,and 65,071 shares available for future issuance for the 1997 Employee Stock Option Plan. |
26
Retirement Plan for Employees of Rockland Trust Company The following table indicates the annual retirement benefit that would be payable under the plan upon retirement at age 65 to a participant electing to receive his retirement benefit in the standard form of benefit, assuming various specified levels of plan compensation and various specified years of credited service.
| | Years of Service
|
---|
Final Average Compensation
|
---|
| 10
| | 15
| | 20
| | 25
| | 30
| | 35
|
---|
$50,000 | | $ | 7,436 | | $ | 11,154 | | $ | 14,872 | | $ | 18,590 | | $ | 19,840 | | $ | 21,090 |
$100,000 | | $ | 17,436 | | $ | 26,154 | | $ | 34,872 | | $ | 43,590 | | $ | 46,090 | | $ | 48,590 |
$150,000 | | $ | 27,436 | | $ | 41,154 | | $ | 54,872 | | $ | 68,590 | | $ | 72,340 | | $ | 76,090 |
$160,000 | | $ | 29,436 | | $ | 44,154 | | $ | 58,872 | | $ | 73,590 | | $ | 77,590 | | $ | 81,590 |
$170,000 | | $ | 31,436 | | $ | 47,154 | | $ | 62,872 | | $ | 78,590 | | $ | 82,840 | | $ | 87,090 |
$200,000 and higher | | $ | 37,436 | | $ | 56,154 | | $ | 74,872 | | $ | 93,590 | | $ | 98,590 | | $ | 103,590 |
| | | | | | | | | | | | | | | | | | | | | | | | |
| | Years of Service | |
| | | |
Final Average Compensation | | 10 | | | 15 | | | 20 | | | 25 | | | 30 | | | 35 | |
| | | | | | | | | | | | | | | | | | |
$50,000 | | $ | 7,141 | | | $ | 10,711 | | | $ | 14,281 | | | $ | 17,851 | | | $ | 19,101 | | | $ | 20,351 | |
$100,000 | | $ | 17,141 | | | $ | 25,711 | | | $ | 34,281 | | | $ | 42,851 | | | $ | 45,351 | | | $ | 47,851 | |
$150,000 | | $ | 27,141 | | | $ | 40,711 | | | $ | 54,281 | | | $ | 67,851 | | | $ | 71,601 | | | $ | 75,351 | |
$200,000 and higher | | $ | 37,141 | | | $ | 55,711 | | | $ | 74,281 | | | $ | 92,851 | | | $ | 97,851 | | | $ | 102,851 | |
Defined Benefit Pension Plan. In 1994, the Rockland Trust Retirement Plan (the
"Defined“Defined Benefit
Plan"Plan”) formula was amended for participants who retired in 1995 and subsequent years of service. The annual normal retirement benefit under the Defined Benefit Plan is equal to (a) 2.0% of final average compensation less (b) .65% of covered compensation as defined for Social Security purposes
("(“Covered
Compensation"Compensation”) times (c) years of service to 25. For participants who had completed 20 or more years of service at December 31, 1994 an additional benefit of .5% times final average compensation times service in excess of 25 years, but not exceeding ten additional years, is provided.
Examples of approximate annual benefits at normal retirement under the formula are shown above using the
20022004 Covered Compensation amount of
$9,444for$43,992 for the offset percentages of the Defined Benefit Plan.
Benefits for
20022004 consider only the first
$200,003$205,000 of compensation earned by an executive.
As ofOn December 31,
2002, Messrs. Philipsen,2004 the CEO and four other most highly compensated current executive officers and retired executive officer Mr. Driscoll
Kelley, Seksay, and Sheahan had approximately 12, 12, 11, 2, and 6 years ofhave earned credit service
respectively.under the plan as follows:
| | | | |
Current Executive Officers | | Credited Service | |
| | | |
Christopher Oddleifson | | | 1 unvested | |
Ferdinand T. Kelley | | | 11 | |
Anthony A. Paciulli | | | 0.5 unvested | |
Edward H. Seksay | | | 3.5 unvested | |
Denis K. Sheahan | | | 7.5 | |
| | | | |
Retired Executive Officer | | Credited Service | |
| | | |
Richard F. Driscoll | | | 11 | |
The Defined Benefit Plan benefit formula for service prior to 1994 is equal to (a)
11/2%one and one-half percent (1.5%) of a
participant'sparticipant’s final average compensation times his credited service up to 10 years; plus (b)
2%two percent (2%) of his final average compensation times his credited service in excess of 10 years (provided that not more than 20 years of service shall be considered); plus (c)
1/2%one-half percent (0.5%) of his final average compensation times his credited service in excess of 30 years (provided that no more than 5 years of service over 30 years shall be considered), less the smaller of (i) or (ii) described as follows: (i)
.65%sixty-five hundredths of a percent (0.65%) times the
participant'sparticipant’s years of service up to 35, times the lesser of his average annual compensation or his Covered Compensation; or (ii)
1/2one-half (1/2) the sum of (a), (b) and (c) above, substituting the lesser of average annual compensation or Covered Compensation for final average compensation, if less. Defined Benefit Plan participants are eligible at normal retirement for the benefit derived from the current formula or, if greater, the benefit for service under the prior Defined Benefit Plan formula.
In January 1997, the Defined Benefit Plan was joined with The Financial Institutions Retirement Fund.Fund (“FIRF”). This merger has provided significant expense reductions which began impacting Rockland Trust in 1997 while continuing to provide the benefit structure discussed above. In 2004, the Company made a payment of $1,808,972 to FIRF to maintain continued full funding of its Defined Benefit Pension Plan.
1827
VIII. Ownership Of Common Stock And Related Matters
A.Common Stock Beneficially Owned By Any Entity With 5% Or More Of Common Stock And Owned By Directors And Executive Officers
| |
VIII. | Ownership of Common Stock and Related Matters |
| |
| A. Common Stock Beneficially Owned by any Entity with 5% or More of Common Stock and Owned by Directors and Executive Officers |
The following table sets forth the beneficial ownership of the Common Stock as of January 30, 2005, with respect to (i) any person or entity who is known to the Company to be the beneficial owner of more than 5% of the Common Stock, (ii) each Director,director, (iii) each of the namedcurrent executive officers, and (iv) all Directorsdirectors and current executive officers of the Company as a group. Unless otherwise indicated, the following beneficial owners can be reached at our principal address, 288 Union Street, Rockland, Massachusetts 02370.
| | | | | | | | | |
| | Amount and | | | |
| | Nature of | | | |
| | Beneficial | | | Percent of | |
Name of Beneficial Owner | | Ownership | | | Class(1) | |
| | | | | | |
Private Capital Management | | | 1,364,000 | (2) | | | 8.91 | % |
| 8889 Pelican Bay Blvd. Naples, Florida 34108 | | | | | | | | |
Richard S. Anderson | | | 28,837 | (3) | | | ** | |
W. Paul Clark | | | 180,986 | (4) | | | 1.18 | % |
Alfred L. Donovan | | | 44,862 | (5) | | | ** | |
Raymond G. Fuerschbach* | | | 58,550 | (6) | | | ** | |
Amy A. Geogan* | | | 8,552 | (7) | | | ** | |
Benjamin A. Gilmore, II | | | 14,147 | (8) | | | ** | |
E. Winthrop Hall | | | 25,210 | (9) | | | ** | |
Edward F. Jankowski* | | | 23,420 | (10) | | | ** | |
Kevin J. Jones | | | 85,610 | (11) | | | ** | |
Ferdinand T. Kelley* | | | 50,991 | (12) | | | ** | |
Jane L. Lundquist* | | | 3,334 | (13) | | | ** | |
Christopher Oddleifson* | | | 70,850 | (14) | | | ** | |
Anthony A. Paciulli* | | | 4,634 | (15) | | | ** | |
Edward H. Seksay* | | | 25,060 | (16) | | | ** | |
Denis K. Sheahan* | | | 52,130 | (17) | | | ** | |
Richard H. Sgarzi | | | 149,946 | (18) | | | ** | |
John H. Spurr, Jr. | | | 335,553 | (19) | | | 2.19 | % |
Robert D. Sullivan | | | 35,342 | (20) | | | ** | |
Brian S. Tedeschi | | | 89,732 | (21) | | | ** | |
Thomas J. Teuten | | | 325,030 | (22) | | | 2.12 | % |
directors and executive officers of the Company as a group (20 Individuals) | | | 1,312,163 | (23) | | | 8.55 | % |
| | |
| * | Executive Officer of the Company and/or Rockland Trust |
| | |
| (1) | Percentages are not reflected for individuals whose holdings represent less than 1%. The information contained herein is based on information provided by the respective individuals and filings pursuant to the Securities Exchange Act of 1934, as amended (“Exchange Act”) as of January 31, 2004. Shares are deemed to be beneficially owned by a person if he or she directly or indirectly has or shares (i) voting power, which includes the power to vote or to direct the voting of the shares, or (ii) investment power, which includes the power to dispose or to direct the disposition of the shares. Unless otherwise indicated, all shares are beneficially owned by the respective individuals. Shares of Common Stock which are subject to stock options exercisable within 60 days of January 31, 2005 are deemed to be outstanding for the purpose of computing the amount and percentage of outstanding Common Stock owned by such person. See section entitled “Summary Compensation Table And Stock Option Grants.” |
|
| (2) | Shares owned as of September 30, 2004. |
Name of Beneficial Owner
| | Amount and Nature of Beneficial Ownership
| | Percent of Class(1)
| |
---|
Private Capital Management. 8889 Pelican Bay Blvd. Naples, Florida 34108 | | 1,037,405 | (2) | 7.17 | % |
The Banc Funds Company, L.L.C 208 S. LaSalle Street Chicago, Illinois 60604 | | 784,286 | (2) | 5.42 | % |
John Hancock Advisers, LLC 101 Huntington Avenue Boston, Massachusetts 02199 | | 735,000 | (2) | 5.08 | % |
Richard S. Anderson | | 24,452 | (3) | ** | |
W. Paul Clark | | 177,986 | (4) | 1.23 | % |
Robert L. Cushing | | 77,600 | (5) | ** | |
Alfred L. Donovan | | 42,862 | (6) | ** | |
Richard F. Driscoll* | | 76,885 | (7) | ** | |
Raymond G. Fuerschbach* | | 57,300 | (8) | ** | |
Benjamin A. Gilmore, II | | 12,881 | (9) | ** | |
E. Winthrop Hall | | 23,210 | (10) | ** | |
Kevin J. Jones | | 81,043 | (11) | ** | |
Ferdinand T. Kelley* | | 83,335 | (12) | ** | |
Christopher Oddleifson* | | 51,000 | (13) | ** | |
Douglas H. Philipsen* | | 134,457 | (14) | ** | |
Edward H. Seksay* | | 33,325 | (15) | ** | |
Denis K. Sheahan* | | 46,676 | (16) | ** | |
Richard H. Sgarzi | | 147,946 | (17) | 1.02 | % |
William J. Spence | | 171,305 | (18) | 1.18 | % |
John H. Spurr, Jr. | | 332,203 | (19) | 2.29 | % |
Robert D. Sullivan | | 34,975 | (20) | ** | |
Brian S. Tedeschi | | 91,397 | (21) | ** | |
Thomas J. Teuten | | 326,363 | (22) | 2.25 | % |
Directors and executive officers of the Company as a group (20 Individuals) | | 2,017,401 | (23) | 13.9 | % |
28
*Executive Officer of the Company and/or Rockland Trust
19
| | |
| (3) | Includes 8,000 shares which Mr. Anderson has a right to acquire immediately through the exercise of stock options granted pursuant to the Company’s 1996 Non-Employee Directors’ Stock Option Plan (the “Directors’ Option Plan”). |
|
| (4) | Includes 44,752 shares owned by Paul Clark, Inc. and 5,556 shares owned by Paul Clark Trust, as to which Mr. Clark has sole voting and investment power, and 12,729 shares owned by Mr. Clark’s wife, as to which shares Mr. Clark has shared voting and investment power. Includes 13,000 shares which Mr. Clark has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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| (5)�� | Includes 13,000 shares which Mr. Donovan has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. Includes 2,674 shares held by Ellien L. Donovan Trust of which Mr. Donovan has a beneficial interest. |
|
| (6) | Includes 56,275 shares which Mr. Fuerschbach has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1987 Plan and the 1997 Plan. |
|
| (7) | Includes 759 shares owned by Ms. Geogan and her husband, jointly, and 792 shares owned by her husband’s law firm. Holdings also include 5,001 shares which Ms. Geogan has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
|
| (8) | Includes 873 shares owned by Mr. Gilmore and his wife, jointly, and 592 shares owned by his wife, individually. Mr. Gilmore shares voting and investment power with respect to such shares. Includes 7,000 shares which Mr. Gilmore has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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| (9) | Includes 13,000 shares which Mr. Hall has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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(10) | Includes 21,992 shares which Mr. Jankowski has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(11) | Includes 7,124 shares owned by his wife, individually and 30,000 shares owned by his children. Includes 5,000 shares owned by Plumbers’ Supply Company, of which Mr. Jones is Treasurer. Mr. Jones shares voting and investment power with respect to such shares. Includes 12,000 shares which Mr. Jones has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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(12) | Includes 120 shares owned by Mr. Kelley and his wife, jointly, and 3,916 shares held in the name of The Ferdinand T. Kelley Revocable Living Trust (dated December 29, 2004) on which Mr. Kelley is a trustee and his spouse is a beneficiary, and 38,102 shares which Mr. Kelley has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(13) | Includes 3,334 shares which Ms. Lundquist has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(14) | Includes 61,100 shares which Mr. Oddleifson has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(15) | Includes 3,634 shares which Mr. Paciulli has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(16) | Includes 22,500 shares which Mr. Seksay has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(17) | Includes 44,809 shares which Mr. Sheahan has a right to acquire within 60 days of January 31, 2005 through the exercise of stock options granted pursuant to the 1997 Plan. |
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(18) | Includes 13,000 shares which Mr. Sgarzi has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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(19) | Includes 12,995 shares held in various trusts, as to which Mr. Spurr is a trustee and, as such, has voting and investment power with respect to such shares. Includes 570 shares owned by Mr. Spurr’s wife, individually, and 300,613 shares owned of record by A. W. Perry Security Corporation, of which Mr. Spurr is President. |
29
**Less than 1% of the Common Stock.
(1)Percentages for entities owning more than 5% of the Common Stock are computed as of December 31, 2002. Percentages for Directors and executive officers are computed as of January 31, 2003. Percentages are not reflected for individuals whose holdings represent less than 1%. The information contained herein is based on information provided by the respective individuals and filings pursuant to the Securities Exchange Act of 1934, as amended ("Exchange Act"). Shares are deemed to be beneficially owned by a person if he or she directly or indirectly has or shares (i) voting power, which includes the power to vote or to direct the voting of the shares, or (ii) investment power, which includes the power to dispose or to direct the disposition of the shares. Unless otherwise indicated, all shares are beneficially owned by the respective individuals. Shares of Common Stock which are subject to stock options exercisable within 60 days of January 31, 2003 are deemed to be outstanding for the purpose of computing the amount and percentage of outstanding Common Stock owned by such person. See "Summary Compensation Table And Stock Option Grants."
(2)Share numbers based on Schedule 13G filings filed in February 2003 by each entity.
(3)Includes 11,000 shares which Mr. Anderson has a right to acquire immediately through the exercise of stock options granted pursuant to the Company's 1996 Non-Employee Directors' Stock Option Plan (the "Directors' Option Plan").
(4)Includes 44,752 shares owned by Paul Clark, Inc. and 5,556 shares owned by Paul Clark Trust, as to which Mr. Clark has sole voting and investment power, and 12,729 shares owned by Mr. Clark's wife, as to which shares Mr. Clark has shared voting and investment power. Includes 11,000 shares which Mr. Clark has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(5)Includes 7,200 shares held in name of trustee for Elizabeth D. Cushing 1997 Family Trust. Includes 20,000 shares owned by a non-profit organization of which Mr. Cushing is an officer and a director. Mr. Cushing has voting and dispositive power with respect to such shares. Includes 11,000 shares which Mr. Cushing has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(6)Includes 11,000 shares which Mr. Donovan has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan. Includes 2,674 shares held by Ellien L. Donovan Trust of which Mr. Donovan has a beneficial interest.
(7)Includes 2,196 shares owned by his wife, individually. Mr. Driscoll shares voting and investment power with respect to such shares. Includes 38,363 shares which Mr. Driscoll has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1987 Employee Stock Option Plan (1987 Plan) and the 1997 Employee Stock Option Plan (1997 Plan).
(8)Includes 42,025 shares which Mr. Fuerschbach has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1987 Plan and the 1997 Plan.
(9)Includes 858 shares owned by Mr. Gilmore and his wife, jointly, and 568 shares owned by his wife, individually. Mr. Gilmore shares voting and investment power with respect to such shares. Includes 5,000 shares which Mr. Gilmore has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(10)Includes 11,000 shares which Mr. Hall has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(11)Includes 6,838 shares owned by his wife, individually, and 30,000 shares owned by his children. Includes 5,000 shares owned by Plumbers' Supply Company, of which Mr. Jones is Treasurer. Mr. Jones shares voting and investment power with respect to such shares. Includes 9,000 shares which Mr. Jones has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
20
(12)Includes 115 shares owned by Mr. Kelley and his wife jointly, and 55,381 shares which Mr. Kelley has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1987 Plan and the 1997 Plan.
(13)Includes 50,000 shares which Mr. Oddleifson has a right to acquire immediately through the exercise of stock options granted pursuant to the 1997 Plan.
(14)Includes 25,519 shares owned by Mr. Philipsen's wife, as to which Mr. Philipsen may be deemed to have shared voting and investment power, and 22,940 shares which Mr. Philipsen has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1987 Plan and the 1997 Plan.
(15)Includes 21,625 shares which Mr. Seksay has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1997 Plan.
(16)Includes 28,059 shares which Mr. Sheahan has a right to acquire within 60 days of January 31, 2003 through the exercise of stock options granted pursuant to the 1987 Plan and the 1997 Plan.
(17)Includes 11,000 shares which Mr. Sgarzi has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(18)Includes 51,090 shares owned by Mr. Spence's wife. Mr. Spence may be deemed to have shared investment and voting power with respect to such shares. Mr. Spence disclaims beneficial ownership of such shares. Includes 10,000 shares which Mr. Spence has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(19)Includes 12,995 shares held in various trusts, as to which Mr. Spurr is a trustee and, as such, has voting and investment power with respect to such shares. Includes 548 shares owned by Mr. Spurr's wife, individually and 300,613 shares owned of record by A.W. Perry Security Corporation, of which Mr. Spurr is Executive Vice President and Treasurer.
(20)Includes 19,858 shares held in various trusts, as to which Mr. Sullivan is a trustee and, as such, has voting and investment power with respect to such shares. Includes 6,000 shares which Mr. Sullivan has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(21)Includes 1,200 shares owned by Mr. Tedeschi's wife individually. Includes 11,000 shares which Mr. Tedeschi has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(22)Includes 7,491 shares owned by Mr. Teuten's wife individually, 1,500 shares held in a trust of which Mr. Teuten is a co-trustee and his wife is a beneficiary, 2,000 shares held in a trust over which Mr. Teuten has investment power and his wife is a remainderman, and 300,613 shares owned of record by A.W. Perry Security Corporation, of which Mr. Teuten is President and a Director. Mr. Teuten shares investment and voting power with respect to such shares. Includes 11,000 shares which Mr. Teuten has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors' Option Plan.
(23)This total has been adjusted to eliminate any double counting of shares beneficially owned by more than one member of the group.
B.Compliance With Section 16(a) Of The Securities Exchange Act of 1934
| |
(20) | Includes 12,036 shares held in various trusts, as to which Mr. Sullivan is a trustee and, as such, has voting and investment power with respect to such shares. Includes 8,288 shares owned by Sullivan Companies Retirement Trust on which Mr. Sullivan is a Trustee. Includes 4,000 shares which Mr. Sullivan has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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(21) | Includes 1,200 shares owned by Mr. Tedeschi’s wife, individually, and 13,000 shares which Mr. Tedeschi has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
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(22) | Includes 7,658 shares owned by Mr. Teuten’s wife, individually, and 300,613 shares owned of record by A.W. Perry Security Corporation, of which Mr. Teuten is Chairman of the Board. Mr. Teuten shares investment and voting power with respect to such shares. Includes 13,000 shares which Mr. Teuten has a right to acquire immediately through the exercise of stock options granted pursuant to the Directors’ Option Plan. |
|
(23) | This total has been adjusted to eliminate any double counting of shares beneficially owned by more than one member of the group. |
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B. | Beneficial Ownership Reporting Compliance |
Section 16(a) of the Exchange Act requires the
Company'sCompany’s executive officers and directors to file reports on Forms 3, 4, and 5 to indicate ownership and changes in ownership of Common Stock with the
Securities and Exchange CommissionSEC and to furnish the Company with copies of such reports.
Based solely upon a review of the copies of such forms and amendments thereto and upon written representations that no Forms 55’s were required to be filed, the Company believes that during the year ending December 31, 2002,2004, the Company has complied with all Section 16(a) filing requirements applicable to the Company'sCompany’s executive officers and directors.
2130
C.Comparative Stock Performance Graph
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C. | Comparative Stock Performance Graph |
The stock performance graph below compares the cumulative total stockholdershareholder return of the Common Stock from December 31, 19971999 to December 31, 20022004 with the cumulative total return of the NASDAQ Market Index (U.S. Companies) and the NASDAQ Bank Stock Index. The lines in the table below represent monthly index levels derived from compounded daily returns that include all dividends. If the monthly interval, based on the fiscal year end was not a trading day, the preceding trading day was used. The index level for all series was set to 100.0 on December 31, 1997.1999.
| | | | | | | | | | | | | | | | | | | | | | | | |
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Period Ending | |
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Index | | 12/31/99 | | | 12/31/00 | | | 12/31/01 | | | 12/31/02 | | | 12/31/03 | | | 12/31/04 | |
| |
Independent Bank Corp. | | | 100.00 | | | | 103.49 | | | | 182.56 | | | | 197.77 | | | | 250.75 | | | | 304.65 | |
NASDAQ Composite | | | 100.00 | | | | 60.82 | | | | 48.16 | | | | 33.11 | | | | 49.93 | | | | 54.49 | |
NASDAQ Bank Index* | | | 100.00 | | | | 114.23 | | | | 123.68 | | | | 126.65 | | | | 162.92 | | | | 186.45 | |
SNL NASDAQ Bank Index | | | 100.00 | | | | 115.45 | | | | 125.66 | | | | 129.25 | | | | 166.83 | | | | 191.21 | |
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* | Source: CRSP, Center for Research in Security Prices, Graduate School of Business, The University of Chicago 2005. Used with permission. All rights reserved. crsp.com. |
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IX. | Shareholder Communications to Board, Shareholder Proposals for Next Annual Meeting, and Submission of Shareholder Director Nominations |
The Board will give appropriate attention to written communications on issues that are submitted by shareholders and will respond if and as appropriate. Absent unusual circumstances or as expressly contemplated by committee charters, the general counsel of the Company will (1) be primarily responsible for monitoring communications from shareholders and (2) will provide copies or summaries of such communications to the Board as he considers appropriate.
Communications will be forwarded to all directors if they relate to substantive matters and include suggestions or comments that the general counsel of the Company considers to be important for the Board to know. In general, communications relating to corporate governance and long-term corporate strategy are more likely to be forwarded than communications relating to personal grievances and matters as to which the Company tends to receive repetitive or duplicative communications.
31
Shareholders who wish to send communications on any topic to the Board should submit them, in writing, to the Clerk, Independent Bank Corp.
Total Return Performance
| | Period Ending
|
---|
Index
| | 12/31/97
| | 12/31/98
| | 12/31/99
| | 12/31/00
| | 12/31/01
| | 12/31/02
|
---|
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Independent Bank Corp. | | 100.00 | | 96.68 | | 71.62 | | 74.12 | | 130.75 | | 141.64 |
NASDAQ—Total US* | | 100.00 | | 140.99 | | 261.48 | | 157.42 | | 124.89 | | 86.33 |
NASDAQ Bank Index* | | 100.00 | | 99.36 | | 95.51 | | 108.95 | | 117.97 | | 120.61 |
*Source: CRSP, Center, 288 Union Street, Rockland, Massachusetts 02370.
In accordance with the Company’s By-Laws and its Charter, the nominating committee considers director nominees submitted by shareholders. The Company’s By-Laws, a complete copy of which are attached as an Exhibit to the Company’s Annual Report to the SEC on Form 10-K for Researchthe year ended December 31, 2004, require shareholders to submit director nominations to the Company not less than 75 days nor more than 125 days prior to the anniversary date of the immediately preceding annual meeting. The nomination must set forth the name, age, business address, residence address, occupation, and amount of Common Stock held by the director nominee, as well as the written consent of the nominee. The shareholder must also include his or her name, record address, and amount of Common Stock held in Security Prices, Graduate Schoolthe nomination. The shareholder must make certain further representations, as set forth in the Company’s By-Laws. Shareholders should submit any director nominations, in writing, to the Clerk, Independent Bank Corp., 288 Union Street, Rockland, Massachusetts 02370.
If you are interested in submitting a proposal for inclusion in the proxy statement for the 2006 annual meeting, you need to follow the procedures outlined in Rule 14a-8 of
Business, The University of Chicago 2003. Used with permission. All rights reserved. crsp.com.IX. Submission Of Stockholder Proposals For The 2004 Annual Meeting
the Exchange Act. Any stockholdershareholder who wishes to present a proposal for consideration by all of the Company's stockholdersCompany’s shareholders at the next annual meeting2006 Annual Meeting (which is tentatively scheduled for April 20, 2006) will be required, pursuant to Rule 14a-8, under the Exchange Act, to deliver the proposal to the Company between December 8, 200318, 2005 and January 27, 2004.February 6, 2006. In the event the Company receives notice of a stockholdershareholder proposal to take action at next year'syear’s annual meeting of stockholdersshareholders that is not submitted for inclusion in the Company'sCompany’s proxy material, or is submitted for inclusion but is properly excluded from the proxy material, the persons named in the proxy sent by the Company to its stockholdersshareholders intend to exercise their discretion to vote on the stockholdershareholder proposal in accordance with their best judgment if notice of the proposal is not received at the Company'sCompany’s principal executive offices by January 27, 2004.February 6, 2006. Please forward any stockholdershareholder proposals, in writing, to the Clerk, Independent Bank Corp., 288 Union Street, Rockland, Massachusetts 02370.
22
X. Expenses Of Solicitation
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X. | Solicitation of Proxies and Expenses of Solicitation |
The Proxy accompanying this Proxy Statement is solicited by the Board of the Company. Proxies may be solicited by officers, directors, and regular supervisory and executive employees of the Company, none of whom will receive any additional compensation for their services. Also, Georgeson Shareholder Communications may solicit proxies at an approximate cost of $8,000.00 plus reasonable expenses. Such solicitations may be made personally or by mail, facsimile, telephone, telegraph, messenger, or via the Internet. The Company will bear the costpay persons holding shares of preparing, assembling, and mailing the Notice Of Annual Stockholders Meeting, this Proxy Statement, and form of proxy for the Annual Meeting. Solicitation of proxies will be made primarily through the use of mails, but regular employees of Rockland Trust may solicit proxies by personal interview or by telephone without additional compensation therefore. The Company will also provide persons, firms, banks and corporations holding sharescommon stock in their names or in the names of nominees, but not owning such shares beneficially, such as brokerage houses, banks, and other fiduciaries, for the expense of forwarding solicitation materials to their nominees,principals. All of the costs of solicitation of proxies will be paid by the Company.
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XI. | Annual Report and Form 10-K |
A copy of the Company’s Annual Report to Shareholders for the year ended December 31, 2004, which includes the Company’s Annual Report to the SEC on Form 10-K for the year ended December 31, 2004 (without attached exhibits), is being mailed with this Proxy Statement to all shareholders of the Company. The Form 10-K is not part of the proxy solicitation material.
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| By Order of the Board of Directors |
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| Linda M. Campion |
| Clerk |
32
Exhibit A
INDEPENDENT BANK CORP.
2005 EMPLOYEE STOCK PLAN
, 2005
The purpose of this plan (the“Plan”) is to secure for Independent Bank Corp. (the“Company”) and its shareholders the benefits arising from common stock ownership by employees of the Company and its subsidiary corporations who are expected to contribute to the Company’s future growth and success through the granting of stock options or Restricted Stock Awards (as defined below). Except where the context otherwise requires, the term “Company” shall include the parent and all present and future subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to time (the“Code”). Those provisions of the Plan which make express reference to Section 422 shall apply only to Incentive Stock Options (as that term is defined in the Plan).
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2. | Type of Options and Administration. |
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| (a) Types of Options. Options granted pursuant to the Plan may be either incentive stock options(“Incentive Stock Options”) meeting the requirements of Section 422 of the Code or non-statutory options which are not intended to meet the requirements of Section 422 of the Code(“Non-Statutory Options”). All options shall be separately designated Incentive Stock Options or Non-Statutory Options at the time of grant, and in such form as issued pursuant to Section 5, and as separate certificate or certificates will be issued for shares purchased on exercise of each type of option. |
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| (b) Administration. |
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| (i) The Plan will be administered by the Board of Directors of the Company (the“Board of Directors”), whose construction and interpretation of the terms and provisions of the Plan shall be final and conclusive. The Board of Directors may in its sole discretion grant options to purchase shares of the Company’s Common Stock(“Common Stock”) and issue shares upon exercise of such options as provided in the Plan. The Board of Directors shall have authority, subject to the express provisions of the Plan, to construe the respective option agreements (each an“Option Agreement”) representing options issued hereunder and the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the terms and provisions of the respective Option Agreements, which need not be identical, and to make all other determinations which are, in the judgment of the Board of Directors, necessary or desirable for the administration of the Plan. The Board of Directors may correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Option Agreement or Restricted Stock Agreement (as defined below) in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency. No director or person acting pursuant to authority delegated by the Board of Directors shall be liable for any action or determination under the Plan made in good faith. |
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| (ii) The Board of Directors may, to the full extent permitted by or consistent with applicable laws or regulations and Section 3(b) of this Plan delegate any or all of its powers under the Plan to a committee (the“Committee”) appointed by the Board of Directors, subject to such resolutions as may be adopted from time to time by the Board of Directors not inconsistent with the provisions of the Plan, and if the Committee is so appointed all references to the Board of Directors in the Plan shall mean and relate to such Committee. Such Committee, if so appointed, shall consist of two or more Directors, each of whom is an “outside director” within the meaning of Section 162(m) of the Code and a “non-employee director” within the meaning of Rule 16b-3 (as defined below). The foregoing notwithstanding, the Board of Directors may abolish such Committee at any time and re-vest in the Board of Directors the administration of the Plan. |
A-1
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| (c) Applicability of Rule 16b-3. Those provisions of the Plan which make express reference to Rule 16b-3 promulgated under the Securities Exchange Act of 1934 (the“Exchange Act”), or any successor rule(“Rule 16b-3”), or which are required in order for certain option transactions to qualify for exemption under Rule 16b-3, shall apply only to such persons as are required to file reports under Section 16(a) of the Exchange Act (a“Reporting Person”). |
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| (a) General. Options and Restricted Stock Awards may be granted to persons who are, at the time of grant, employees of the Company or any of its direct or indirect subsidiaries. A person who has been granted an option or Restricted Stock Award may, if he or she is otherwise eligible, be granted additional options or Restricted Stock Awards if the Board of Directors shall so determine. Options or Restricted Stock Awards may be granted separately or in any combination to any individual eligible under the Plan. |
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| (b) Grant of Options to Officers. The selection of an officer (as the term “officer” is defined for purposes of Rule 16b-3) as a recipient of an option, the timing of the option grant, the exercise price of the option and the number of shares subject to the option shall be determined in advance of any grant thereof either (i) by the Board of Directors, or (ii) by the Committee, if so appointed. |
Subject to adjustment as provided in Section 15 below, the maximum number of shares of Common Stock which may be issued and sold under the Plan is 800,000 shares. Such shares may be authorized but unissued shares, reacquired shares, shares acquired in the open market specifically for distribution under the Plan, or any combination thereof. If an option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for subsequent option grants under the Plan. If shares issued upon exercise of an option under the Plan are tendered to the Company in payment of the exercise price of an option granted under the Plan, such tendered shares shall not be available for subsequent option grants under the Plan.
The number of shares of Common Stock for which options may be granted under the Plan in any single fiscal year of the Company to any participant in the Plan shall not exceed 75,000 shares. Such limitation shall be construed and applied consistently with Section 162(m) of the Code. For purposes of the foregoing limitation, if any option granted under the Plan is cancelled, the cancelled option shall continue to be counted against such individual limit. If after grant, the purchase price of an option granted under the Plan is modified, the transaction shall be treated as the cancellation of the option and grant of a new option; in any such case, both the option that is deemed to be cancelled and the option that is deemed to be granted shall be counted against such individual limit.
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5. | Forms of Option Agreements. |
As a condition to the grant of an option under the Plan, each recipient of an option shall execute an Option Agreement in such form not inconsistent with the Plan as may be approved by the Board of Directors. Such Option Agreements may differ among recipients.
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| (a) General. Subject to Section 3(b), the purchase price per share of stock deliverable upon the exercise of an option shall be determined by the Board of Directors,provided,however that in the case of an Incentive Stock Option, the exercise price shall not be less than 100% of the fair market value of such stock on the date of grant of such option, or less than 110% of such fair market value in the case of options described in Section 11(b). Notwithstanding the foregoing, the Board may grant an Incentive Stock Option with an exercise price lower than that set forth above if such option is granted as part of a transaction to which Section 424(a) of the Code applies. Fair market value of the Common Stock shall be the mean between the following prices, as applicable, for the date as of which fair market value is to be determined as quoted inThe Wall Street Journal(or in such other reliable publication as the Board of |
A-2
| |
| Directors, in its discretion, may determine to rely upon): (i) if the Common Stock is listed on the National Association of Securities Dealers Automated Quotation System or any successor system then in use(“NASDAQ”), the highest and lowest sales prices per share of the Common Stock for such date on the NASDAQ or (ii) if the Common Stock is not listed on such exchange, the highest and lowest sales prices per share of Common Stock for such date on (or on any composite index including) the principal United States securities exchange registered under the 1934 Act on which the Common Stock is listed. If the fair market value of the Common Stock cannot be determined on the basis previously set forth in this Section 6(a) for the date as of which fair market value is to be determined, the Board of Directors shall in good faith determine the fair market value of the Common Stock on such date. Fair market value shall be determined without regard to any restriction other than a restriction which, by its terms, will never lapse. |
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| (b) Payment of Purchase Price. Options granted under the Plan may provide for the payment of the exercise price by delivery of cash or a check to the order of the Company in an amount equal to the exercise price of such options, or, to the extent provided in the applicable Option Agreement, (i) by delivery to the Company of shares of Common Stock of the Company already owned by the optionee having a fair market value equal in amount to the exercise price of the options being exercised or (ii) by any other means which the Board of Directors determines are consistent with the purpose of the Plan and with applicable laws and regulations (including, without limitation, the provisions of Regulation T promulgated by the Federal Reserve Board). The fair market value per share of any shares of the Company’s Common Stock which may be delivered upon exercise of an option shall be the fair market value as determined in accordance with the provisions of Section 6(a) above for the day immediately preceding the date of delivery of the purchase price to the Company. The fair market value of any other non-cash consideration which may be delivered upon exercise of an option shall be determined by the Board of Directors. |
Each option and all rights thereunder shall expire on such date as shall be set forth in the applicable Option Agreement, except that, in the case of an Incentive Stock Option, such date shall not be later than ten years after the date on which the option is granted and, in all cases, options shall be subject to earlier termination as provided in the Plan.
Each option granted hereunder may be exercisable as determined by the Board of Directors, which terms shall be set forth in the applicable Option Agreement and shall otherwise be in accordance with the provisions of the Plan.
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9. | Nontransferability of Options. |
Options shall not be assignable or transferable by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution, and, during the life of the optionee, shall be exercisable only by the optionee; provided, however, that Non-Statutory Options may be transferred (a) pursuant to a qualified domestic relations order (as defined in Rule 16b-3), (b) by will or the laws of intestacy, or (c) to any member of the optionee’s Family (as defined herein). “Family” shall mean an optionee’s spouse and lineal descendants by birth or adoption and trusts for the exclusive benefit of the optionee and/or the foregoing individuals.
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10. | Effect of Termination of Employment or Other Relationship. |
Except as provided in Section 11(d) with respect to Incentive Stock Options, and subject to the provisions of the Plan, the Board of Directors shall determine the period of time during which an optionee may exercise an option following (i) the termination of the optionee’s employment or other relationship with the
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Company or (ii) the death or disability of the optionee. Such periods shall be set forth in the applicable Option Agreement.
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11. | Incentive Stock Options. |
Options granted under the Plan which are intended to be Incentive Stock Options shall be subject to the following additional terms and conditions:
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| (a) Reference to Incentive Stock Options. The applicable Option Agreement covering any Incentive Stock Options granted under the Plan shall, at the time of grant, indicate that Incentive Stock Options are being granted thereby. |
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| (b) 10% Shareholder. If any employee to whom an Incentive Stock Option is to be granted under the Plan is, at the time of the grant of such option, the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code), then the following special provisions shall be applicable to the Incentive Stock Option granted to such individual: |
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| (i) The purchase price per share of the Common Stock subject to such Incentive Stock Option shall not be less than 110% of the fair market value of one share of Common Stock at the time of grant; and |
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| (ii) the option exercise period shall not exceed five years from the date of grant. |
To the extent required by applicable law, the provisions of this Section 11(b) shall also apply to the grant of a Non-Statutory Option granted to the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code).
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| (c) Dollar Limitation. For so long as the Code shall so provide, options granted to any employee under the Plan (and any other incentive stock option plans of the Company) which are intended to constitute Incentive Stock Options shall not constitute Incentive Stock Options to the extent that such options, in the aggregate, become exercisable for the first time in any one calendar year for shares of Common Stock with an aggregate fair market value (determined as of the respective date or dates of grant) of more than $100,000. The balance of any options granted hereunder which do not constitute Incentive Stock Options by reason of the foregoing, shall be Non-Statutory Options. |
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| (d) Termination of Employment, Death or Disability. No Incentive Stock Option may be exercised unless, at the time of such exercise, the optionee is, and has been continuously since the date of grant of his or her option, employed by the Company, except that: |
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| (i) an Incentive Stock Option may be exercised, to the extent exercisable by the optionee on the date the optionee ceases to be an employee of the Company, within the period of three months after the date the optionee ceases to be an employee of the Company (or within such lesser period as may be specified in the applicable Option Agreement), provided, that the applicable Option Agreement may designate a longer exercise period and that the exercise after such three-month period shall be treated as the exercise of a Non-Statutory Option under the Plan; |
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| (ii) if the optionee dies while in the employ of the Company, or within three months after the optionee ceases to be such an employee, an Incentive Stock Option may be exercised by a legatee or legatees of the optionee under his last will, or by his personal representatives or distributees, at any time after his death to the expiration date of such Incentive Stock Option to the extent such Incentive Stock Option was exercisable by the optionee at the time of his death (or within such lesser period as may be specified in the applicable Option Agreement); and |
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| (iii) if the optionee becomes disabled (within the meaning of Section 22(e) (3) of the Code or any successor provision thereto) while in the employ of the Company, an Incentive Stock Option may be exercised, to the extent exercisable by the optionee on the date the optionee ceases to be an employee by |
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| reason of such disability, within the period of one year after the date the optionee ceases to be such an employee because of such disability (or within such lesser period as may be specified in the applicable Option Agreement). |
For all purposes of the Plan and any option granted hereunder, “employment” shall be defined in accordance with the provisions of Section 1.421-7(h)(1) of the Income Tax Regulations (or any successor regulations). Notwithstanding the foregoing provisions, no option issued pursuant to the Plan, including no Incentive Stock Option, may be exercised after its expiration date.
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12. | Restricted Stock Awards. |
(a) General. Employees may be granted rights to purchase Restricted Shares (as defined below) of Common Stock(“Restricted Stock Awards”) pursuant to a restricted stock purchase agreement(“Restricted Stock Agreement”), either alone, in addition to, or in tandem with options granted under the Plan and/or other benefits or awards made outside of the Plan. After the Board of Directors determines that it will offer a Restricted Stock Award under the Plan, the Company shall advise the employee in writing of the terms, conditions and restrictions related to the offer, including the number of shares of Common Stock subject to the Restricted Stock Award, the purchase price and the terms and conditions of Repurchase Right (as defined below) applicable thereto, and the time within which such employee must accept such offer. Each Restricted Stock Award, and the acceptance of the terms thereof by the Company and the employee, shall be evidenced by a Restricted Stock Agreement. Each Restricted Stock Agreement shall contain such terms, provisions and conditions not inconsistent with the Plan as may be determined by the Board of Directors, in its sole discretion. Restricted Stock Awards may be granted as Time Vesting Restricted Stock Awards (as defined below) or Performance Vesting Restricted Stock Awards (as defined below).
(b) Time Vesting Restricted Stock Awards. The Board of Directors or the Committee, if so appointed, may provide that shares of Common Stock issued to an employee in connection with a Restricted Stock Award shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, except as set forth in the Plan, for such period beginning on the date on which such Restricted Stock Award is granted and ending on the date that is the third anniversary of such grant, or for any greater period of time as the Board of Directors or the Committee, if so appointed, shall determine (the“Time Vesting Restricted Period”). Restricted Stock Awards that contain the restrictions set forth in this Section 12(b) of the Plan are referred to as“Time Vesting Restricted Stock Awards”.
(c) Performance Vesting Restricted Stock Awards. The Board of Directors, or the Committee, if so appointed, may provide that shares of Common Stock issued to an employee in connection with a Restricted Stock Award may not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, except as set forth in the Plan, for such period beginning on the date on which such Restricted Stock Award is granted and ending on the date that is the first anniversary of such grant, or for any greater period of time as the Board of Directors or the Committee, if so appointed, shall determine (the“Performance Vesting Restricted Period”) and that the Performance Vesting Restricted Period applicable to such Restricted Stock Award shall lapse (if at all) only if certain preestablished objectives are attained. Performance goals may be based on any of the following criteria: (i) earnings or earnings per share, (ii) return on equity, (iii) return on assets, (iv) revenues, (v) expenses, (vi) one or more operating ratios, (vii) stock price, (viii) shareholder return, (ix) market share, (x) charge-offs, (xi) credit quality, (xii) reductions in non-performing assets, (xiii) customer satisfaction measures, (xiv) the accomplishment of mergers, acquisitions, dispositions or similar extraordinary business transactions, (xv) cash flow, (xvi) division, department, unit or group performance, (xvii) business plan performance, (xviii) product performance and (xix) such other restrictions and conditions as the Board of Directors, or the Committee, if so appointed, deems appropriate (collectively, the“Performance Objectives”). The Board of Directors or the Committee, if so appointed, shall establish one or more Performance Objective goals for each such Restricted Stock Award on the date of grant. The Performance Objective goals selected in any case need not be applicable across the Company, but may be particular to an individual’s function or business unit. The Performance Objective goals may include positive results, maintaining the status quo, or limiting economic losses. The Board of Directors or the Committee, if so appointed, shall determine whether such Performance Objective goals are beneficiallyattained and such determination
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shall be final and conclusive. In the event that the Performance Objective goals are not met, such Restricted Stock shall be forfeited and transferred to, and reacquired by, the Company at no cost to the Company. Restricted Stock Awards that only contain the restrictions set forth in this Section 12(c) of the Plan are referred to as“Performance Vesting Restricted Stock Awards”. Performance Vesting Restricted Stock Awards are intended to qualify as performance-based for the purposes of Section 162(m) of the Code.
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13. | Repurchase Rights and Restricted Shares. |
(a) Each Option Agreement may, and, unless the Board of Directors determines otherwise, each Restricted Stock Agreement shall, grant the Company a right of repurchase(“Repurchase Right”) exercisable upon the termination of the employee’s continuous employment with the Company for any reason (including death or disability) or upon the failure to satisfy any Performance Objective goals or other conditions specified in the applicable Option Agreement or Restricted Stock Agreement. The Repurchase Right shall lapse upon such conditions or at such rate as the Board of Directors may determine and as shall be set forth in the applicable Option Agreement or Restricted Stock Agreement. Shares of Common Stock issued pursuant to exercise of an Option Agreement or a Restricted Stock Award and subject to a Repurchase Right (the“Restricted Shares”) may not be sold, assigned, transferred, pledged or otherwise disposed of, except by will or the laws of descent and distribution, or as otherwise determined by the Board of Directors and set forth in the applicable Option Agreement or Restricted Stock Agreement. Any attempt to dispose of Restricted Shares in contravention of the Repurchase Right shall be null and void and without effect.
(b) The per share purchase price for Restricted Shares repurchased pursuant to a Repurchase Right shall be the purchase price paid by the employee for such Restricted Shares, and may be paid by cancellation of any indebtedness of the employee to the Company. Notwithstanding the foregoing, the applicable Option Agreement or Restricted Stock Agreement may provide that the per share purchase price for Restricted Shares repurchased pursuant to a Repurchase Right shall be less than the purchase price for such shares if the employee’s continuous employment is terminated by the Company or an affiliate for Cause (as defined in the applicable Option Agreement or Restricted Stock Agreement).
(c) Each certificate for Restricted Shares shall bear an appropriate legend referring to the Repurchase Right, together with any other applicable legends, and, upon issuance, shall be deposited by the shareholder with the Company together with a stock power and such other instruments of transfer as may be reasonably requested by the Company, duly endorsed in blank, if appropriate;provided, however, that the failure of the Company or its transfer agent to place such a legend on a certificate for Restricted Shares shall have no effect on the Repurchase Right applicable to such shares. If the Company does not exercise the Repurchase Right within the time and in the manner specified in the applicable Option Agreement or Restricted Stock Agreement, such Repurchase Right shall terminate and be of no further force and effect.
(d) The Board of Directors may, in its sole discretion, waive the Company’s Repurchase Right applicable to any Restricted Shares. Such waiver shall result in the immediate vesting of the employee’s interest in the Restricted Shares as to which the waiver applies. Such waiver may be effected at any time, whether before or after the termination of the Participant’s continuous Status as an employee of the Company or the attainment or non-attainment of the applicable conditions.
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14. | Additional Provisions. |
(a) Additional Option Provisions. The Board of Directors may, in its sole discretion, include additional provisions in any Option Agreements covering options granted under the Plan, including without limitation restrictions on transfer, or such other provisions as shall be determined by the Board of Directors;provided thatsuch additional provisions shall not be inconsistent with any other term or condition of the Plan and such additional provisions shall not cause any Incentive Stock Option granted under the Plan to fail to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code.
(b) Acceleration, Extension, Etc. The Board of Directors may, in its sole discretion, (i) accelerate the date or dates on which all or any particular option or options granted under the Plan may be exercised or
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(ii) extend the dates during which all, or any particular, option or options granted under the Plan may be exercised.
(c) Repricing. The Board of Directors or the Committee, if so appointed, shall not, without further approval of the shareholders of the Company, (i) authorize the amendment of any outstanding Option Agreement or Restricted Stock Agreement to reduce the exercise price of the option or Restricted Stock Award evidenced thereby or (ii) issue a replacement Option Agreement or Restricted Stock Agreement upon the surrender and cancellation of a previously granted Option Agreement or Restricted Stock Agreement for the purpose of reducing the exercise price of the option or Restricted Stock Award evidenced thereby. Nothing contained in this section shall affect the Committee’s right to make the adjustment permitted under Section 17.
(a) Investment Representations. The Company may require any person to whom an option is granted, as a condition of exercising such option, to give written assurances in substance and form satisfactory to the Company to the effect that such person is acquiring the Common Stock subject to the option for his or her own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with federal and applicable state securities laws, or with covenants or representations made by the Company in connection with any public offering of its Common Stock.
(b) Compliance With Securities Laws. Each option shall be subject to the requirement that if, at any time, counsel to the Company shall determine that the listing, registration or qualification of the shares subject to such option upon any securities exchange or under any state or federal law, or the consent or approval of any governmental or regulatory body, or that the disclosure of non-public information or the satisfaction of any other condition is necessary as a condition of, or in connection with, the issuance or purchase of shares thereunder, such option may not be exercised, in whole or in part, unless such listing, registration, qualification, consent or approval, or satisfaction of such condition shall have been effected or obtained on conditions acceptable to the Board of Directors. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification, or to satisfy such condition.
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16. | Rights as a Shareholder. |
The holder of an option shall have no rights as a shareholder with respect to any shares covered by the option (including, without limitation, any rights to receive dividends or non-cash distributions with respect to such shares) until the date of issue of a stock certificate to him or her for such shares. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.
The holder of a Restricted Stock Award shall have any and all right of a shareholder with respect to the shares covered by such Restricted Stock Award, subject to the restrictions set forth in this Plan and the Restricted Stock Agreement under which it was granted. Such rights include, without limitation, any rights to receive dividends or non-cash distribution with respect to such shares and the right to vote such shares at any meeting of the Company’s shareholders.
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17. | Adjustment Provisions for Recapitalizations and Related Transactions. |
(a) General. If, through or as a result of any merger, consolidation, sale of all or substantially all of the assets of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction, (i) the outstanding shares of Common Stock are increased, decreased or exchanged for a different number or kind of shares or other securities of the Company, or (ii) additional shares or new or different shares or other securities of the Company or other non-cash assets are distributed with respect to such shares of Common Stock or other securities, an appropriate and proportionate adjustment may be made in (1) the maximum number and kind of shares reserved for issuance under the Plan, (2) the number and kind of shares or other securities subject to any then outstanding options under the Plan, (3) the price for each share subject to any then outstanding options under the Plan, and (4) the individual limit set
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forth in Section 4, without changing the aggregate purchase price as to which such options remain exercisable. Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 17 if such adjustment would cause the Plan to fail to comply with Section 422 of the Code.
(b) Board Authority to Make Adjustments. Any adjustments under this Section 17 shall be made by the Board of Directors, whose determination as to such adjustments, if any, shall be final, binding and conclusive. No fractional shares will be issued under the Plan on account of any such adjustments.
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18. | Merger, Consolidation, Asset Sale, Liquidation, etc. |
(a) General. In the event of a consolidation or merger or sale of all or substantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity or in the event of a liquidation of the Company, the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to outstanding options: (i) provide that such options shall be assumed, or equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof),providedthat any such options substituted for Incentive Stock options shall meet the requirements of Section 424(a) of the Code, (ii) upon written notice to the optionees, provide that all unexercised options will terminate immediately prior to the consummation of such transaction unless exercised by the optionee within a specified period following the date of such notice, (iii) in the event of a merger under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the merger (the“Merger Price”), make or provide for a cash payment to the optionees equal to the difference between (A) the Merger Price times the number of shares of Common Stock subject to such outstanding options (to the extent then exercisable at prices not in excess of the Merger Price), and (B) the aggregate exercise price of all such outstanding options in exchange for the termination of such options, and (iv) provide that all or any outstanding options shall become exercisable in full immediately prior to such event.
(b) Substitute Options. The Company may grant options under the Plan in substitution for options held by employees of another corporation who become employees of the Company, or a subsidiary of the Company, as the result of a merger or consolidation of the employing corporation with the Company or a subsidiary of the Company, or as a result of the acquisition by the Company, or one of its subsidiaries, of property or stock of the employing corporation. The substitute options may be granted on such terms and conditions as the Board of Directors considers appropriate in the circumstances.
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19. | No Special Employment Rights. |
Nothing contained in the Plan or in any Option Agreement or Restricted Stock Agreement shall confer upon any individual any right with respect to the continuation of his or her employment by the Company or interfere in any way with the right of the Company at any time to terminate such employment or to increase or decrease the compensation of the optionee.
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20. | Other Employee Benefits. |
Except as to plans which by their terms include such amounts as compensation, the amount of any compensation deemed to be received by an employee as a result of the exercise of an option or the sale of shares received upon such exercise will not constitute compensation with respect to which any other employee benefits of such employee are determined, including, without limitation, benefits under any bonus, pension, profit-sharing, life insurance or salary continuation plan, except as otherwise specifically determined by the Board of Directors.
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21. | Amendment of the Plan. |
(a) The Board of Directors may at any time, and from time to time, modify or amend the Plan in any respect, except that if at any time the approval of the shareholders of the Company is required under Section 422 of the Code or any successor provision with respect to Incentive Stock Options, under Rule 16b-3,
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or under National Association of Securities Dealers Rule 4350(i)(1)(A), the Board of Directors may not effect such modification or amendment without such approval.
(b) The termination or any modification or amendment of the Plan shall not, without the consent of an optionee, affect his or her rights under an option previously granted to him or her. With the consent of the optionee affected, the Board of Directors may amend outstanding Option Agreements in a manner not inconsistent with the Plan. The Board of Directors shall have the right to amend or modify (i) the terms and provisions of the Plan and of any outstanding Incentive Stock Options granted under the Plan to the extent necessary to qualify any or all such options for such favorable federal income tax treatment (including deferral of taxation upon exercise) as may be afforded incentive stock options under Section 422 of the Code and (ii) the terms and provisions of the Plan and of any outstanding Option Agreement to the extent necessary to ensure the qualification of the Plan under Rule 16b-3.
(a) The Company shall deduct from payments of any kind otherwise due to the optionee any federal, state or local taxes of any kind required by law to be withheld with respect to any shares issued upon exercise of options under the Plan. Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, the optionee may elect to satisfy such obligations, in whole or in part, (i) by causing the Company to withhold shares of Common Stock otherwise issuable pursuant to the exercise of an option or (ii) by delivering to the Company shares of Common Stock already owned by others, proxy material for transmittalthe optionee. The shares so delivered or withheld shall have a fair market value equal to such beneficial ownerswithholding obligation. The fair market value of the shares used to satisfy such withholding obligation shall be determined in accordance with provisions of Section 6(a) hereof as of the day immediately preceding the date that the amount of tax to be withheld is to be determined. An optionee who has made an election pursuant to this Section 22(a) may only satisfy his or her withholding obligation with shares of Common Stock which are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting Person, no election to use shares for the payment of withholding taxes shall be effective unless made in compliance with any applicable requirements of Rule 16b-3 (unless it is intended that the transaction not qualify for exemption under Rule 16b-3).
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23. | Cancellation and New Grant of Options, Etc. |
The Board of Directors shall have the authority to effect, at any time and from time to time, with the consent of the affected optionees, (i) the cancellation of any or all outstanding options under the Plan and the grant in substitution therefor of new options under the Plan covering the same or different numbers of shares of Common Stock and having an option exercise price per share which may be lower or higher than the exercise price per share of the cancelled options or (ii) the amendment of the terms of any and all outstanding options under the Plan to provide an option exercise price per share which is higher or lower than the then-current exercise price per share of such outstanding options.
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24. | Effective Date and Duration of the Plan. |
(a) Effective Date. The Plan shall become effective when adopted by the Board of Directors, but no option granted under the Plan shall become exercisable unless and until the Plan shall have been approved by the Company’s shareholders. If such shareholder approval is not obtained within twelve months after the date of the Board’s adoption of the Plan, options previously granted under the Plan shall not vest and shall terminate and no options shall be granted thereafter. Amendments to the Plan not requiring shareholder approval shall become effective when adopted by the Board of Directors; amendments requiring shareholder approval (as provided in Section 21) shall become effective when adopted by the Board of Directors, but no option granted after the date of such amendment shall become exercisable (to the extent that such amendment to the Plan was required to enable the Company to grant such option to a particular person) unless and until such amendment shall have been approved by the Company’s shareholders. If such shareholder approval is not obtained within twelve months of the Board’s adoption of such amendment, any
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options granted on or after the date of such amendment shall terminate to the extent that such amendment was required to enable the Company to grant such option to a particular optionee. Subject to this limitation, options may be granted under the Plan at any time after the effective date and before the date fixed for termination of the Plan.
(b) Termination. Unless sooner terminated in accordance with Section 18, the Plan shall terminate upon the close of business on the day next preceding the tenth anniversary of the date of its adoption by the Board of Directors. Options outstanding on such date shall continue to have force and effect in accordance with the provisions of the instruments evidencing such options.
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Exhibit B
The Commonwealth of Massachusetts
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
Restated Articles of Organization
(General Laws Chapter 156D, Section 10.07; 950 CMR 113.34)
1.Exact name of corporation: Independent Bank Corp.
2.Registered office address: 288 Union Street, Rockland MA 02370
3.Date restated articles of organization adopted:
4.Please check appropriate box
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| oThe restated articles were adopted by the directors without shareholder approval and shareholder approval was not required; |
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| OR |
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| þThe restated articles were approved by the board of directors and the shareholders in the manner required by General Laws, Chapter 156D and the articles of organization. |
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5. | The following is all the information required to be in the original articles of organization except that the supplemental information provided for in Article VIII of the articles of organization is not required. Any change to Article VIII must be made by filing a Statement of Change of Supplemental Information. |
ARTICLE I
The exact name of the corporation is:
Independent Bank Corp.
ARTICLE II
Unless the articles of organization otherwise provide, all corporations formed pursuant to
G.L. C165D have the purpose of engaging in any lawful business. If you wish to specify more
limited purposes, state them below.
To purchase, own, and hold the stock of other corporations, including banks, and to do every act and thing covered generally by the denomination “holding corporation”, and especially to direct the operations of other corporations through the ownership of stock therein; to purchase, subscribe for, acquire, own, hold, sell, exchange, assign, transfer, create security interests in, pledge, or otherwise dispose of shares or voting trust certificates for shares of the capital stock, or any bonds, notes, securities, or evidences of indebtedness created by any bank, or other corporation or corporations organized under the laws of this Commonwealth or any other state or district or country, nation, or government and also bonds, or evidence of indebtedness of the United States or of any state, district, territory, dependency or country or subdivision or municipality thereof; to issue in exchange therefor shares of the capital stock, bonds, notes, or other obligations of this Corporation and while the owner thereof to exercise all the rights, powers, and privileges of ownership including the right to vote on any shares of stock or voting trust certificates so owned; to promote, lend money to, and guarantee the dividends, stocks, bonds, notes, evidences of indebtedness, contracts, or other obligations of, and otherwise aid in any manner which shall be lawful, any corporation or association of which any bonds, stocks, voting trust certificates or other securities or evidences of indebtedness shall be held by or for this Corporation, or in which, or in the welfare of which, this Corporation shall have any interest, and to do any acts and things permitted by law and designed to protect, preserve, improve or enhance the value of any such bonds, stocks, or other securities or evidences of indebtedness or the property of this Corporation.
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To purchase, lease, or otherwise acquire and to hold, use, lease, manage, operate, equip, maintain, sell, mortgage, pledge, deal in or with any and all kinds of properties, real, personal, or mixed, tangible or intangible.
To carry on any other lawful business permitted to a corporation organized under Chapter 156D of the General Laws of the Commonwealth of Massachusetts.
ARTICLE III
State the total number of shares and par value, if any of each class of stock that the corporation
is authorized to issue. If only one class of series is authorized, it is not necessary to specify any
particular designation.
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Without Par Value | | | With Par Value | |
| | | | |
Type | | Number of Shares | | | Type | | Number of Shares | | | Par Value | |
| | | | | | | | | | | |
| | | | | | Common | | | 30,000,000 | | | $ | 0.01 | |
| | | | | | Preferred | | | 1,000,000 | | | $ | 0.01 | |
ARTICLE IV
Prior to the issuance of shares of any class or series, the articles of organization must set forth the preferences, limitations and relative rights of that class or series. The articles may also limit the type or specify the minimum amount of consideration for which shares of any class or series may be issued. Please set forth the preferences, limitations and relative rights of each class or series and, if desired, the required type and minimum amount of consideration to be received.
A. COMMON STOCK
Section 1. There shall be a class of Common Stock having a par value of $0.01 per share consisting of 30,000,000 shares. The holders of record of such Common Stock shall have one vote for each share of such Common Stock held by them, respectively. Such Common Stock of the Corporation shall have unlimited voting rights, subject to the provisions of these Articles Upon the liquidation, distribution or winding up of the Corporation, the holders of record of such Common Stock shall be entitled to the net assets of the Corporation, subject to the restrictions set forth in these Articles.
B. PREFERRED STOCK
Section 1. There shall be a class of Preferred Stock consisting of 1,000,000 shares, $0.01 par value per share. The shares of the Preferred Stock are to be issuable at any time or from time to time in one or more series as and when established by the Board of Directors, each such series to have such designation or title as may be fixed by the Directors prior to the issuance of any shares thereof, and each such series may differ from every other series already outstanding as may be determined by the Directors prior to the issuance of any shares thereof, in any or all of the following, but in no other respects:
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| (a) the rate of dividend (cumulative or non-cumulative) to which holders of the Preferred Stock of any such series shall be entitled; |
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| (b) the terms and manner of the redemption by the Corporation of the Preferred Stock of any such series; |
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| (c) the special or relative rights of the holders of the Preferred Stock of any such series in the event of the voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding-up of the Corporation; |
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| (d) the terms of the sinking fund or redemption or purchase account, if any, to be provided for the Preferred Stock of any such series; |
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| (e) the right, if any, of the holder of Preferred Stock of any such series to convert the same into stock of any other class or classes or into other securities of the Corporation, and the terms and conditions of such conversion; and |
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| (f) the voting rights, if any of the holders of any such series, provided however, that no voting rights shall be extended to holders of any such series (i) which give such holders the right, on any matters requiring the approval or vote of the holders of Common Stock of this Corporation, to more than one vote per share without regard to any distinction between such series and the class of Common Stock of this Corporation, so that, except as otherwise required by applicable law, if the voting rights of the Preferred Stock (or any series thereof) include the rights to vote on any matters requiring the approval or vote of the Common Stock, then the Preferred Stock and Common Stock shall vote as a single class, or (ii) which give to such holders the right to elect more than two Directors of this Corporation, or (iii) which give to such holders, together with all other holders of Preferred Stock, the right to elect in the aggregate more than six Directors of this Corporation. |
C. SERIES B JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
Section 1.Designation and Amount. The shares of such series shall be designated as “Series B Junior Participating Cumulative Preferred Stock” (the “Series B Preferred Stock”), and the number of shares constituting such series shall be 15,000.
Section 2.Dividends and Distributions.
(a) (i) Subject to the rights of the holders of any shares of any series of preferred stock (or any similar stock) ranking prior and superior to the Series B Preferred Stock with respect to dividends, the holders of shares of Series B Preferred Stock, in preference to the holders of shares of common stock and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of March, June, September and December in each year (each such date being referred to herein as a “Series B Quarterly Dividend Payment Date”), commencing on the first Series B Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series B Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the provisions for adjustment hereinafter set forth, 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of common stock or a subdivision of the outstanding shares of common stock (by reclassification or otherwise), declared on the common stock since the immediately preceding Series B Quarterly Dividend Payment Date, or, with respect to the first Series B Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series B Preferred Stock. The multiple of cash and non-cash dividends declared on the common stock to which holders of the Series B Preferred Stock are entitled, which shall be 1,000 initially but which shall be adjusted from time to time as hereinafter provided, is hereinafter referred to as the “Series B Dividend Multiple.” In the event the Corporation shall at any time after May 3, 2001 (the “Series B Rights Declaration Date”) (i) declare or pay any dividend on common stock payable in shares of common stock, or (ii) effect a subdivision or combination or consolidation of the outstanding shares of common stock (by reclassification or otherwise than by payment of a dividend in shares of common stock) into a greater or lesser number of shares of common stock, then in each such case the Series B Dividend Multiple thereafter applicable to the determination of the amount of dividends which holders of shares of Series B Preferred Stock shall be entitled to receive shall be the Series B Dividend Multiple applicable immediately prior to such event multiplied by a fraction, the numerator of which is the number of shares of common stock outstanding immediately after such event and the denominator of which is the number of shares of common stock that were outstanding immediately prior to such event.
(ii) Notwithstanding anything else contained in this paragraph (a), the Corporation shall, out of funds legally available for that purpose, declare a dividend or distribution on the Series B Preferred Stock as provided in this paragraph (a) immediately after it declares a dividend or distribution on the common stock (other than a dividend payable in shares of common stock); provided that, in the event no dividend or distribution shall have been declared on the common stock during the period between any Series B Quarterly
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Dividend Payment Date and the next subsequent Series B Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series B Preferred Stock shall nevertheless be payable on such subsequent Series B Quarterly Dividend Payment Date.
(b) Dividends shall begin to accrue and be cumulative on outstanding shares of Series B Preferred Stock from the Series B Quarterly Dividend Payment Date next preceding the date of issue of such shares of Series B Preferred Stock, unless the date of issue of such shares is prior to the record date for the first Series B Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Series B Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series B Preferred Stock entitled to receive a quarterly dividend and before such Series B Quarterly Dividend Payment Date. In either of which events such dividends shall begin to accrue and be cumulative from such Series B Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series B Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix in accordance with applicable law a record date for the determination of holders of shares of Series B Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than such number of days prior to the date fixed for the payment thereof as may be allowed by applicable law.
Section 3.Voting Rights. In addition to any other voting rights required by law, the holders of shares of Series B Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series B Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Corporation. The number of votes which a holder of a share of Series B Preferred Stock is entitled to cast, which shall initially be 1,000 but which may be adjusted from time to time as hereinafter provided, is hereinafter referred to as the “Series B Vote Multiple.” In the event the Corporation shall at any time after the Series B Rights Declaration Date (i) declare or pay any dividend on common stock payable in shares of common stock, or (ii) effect a subdivision or combination or consolidation of the outstanding shares of common stock (by reclassification or otherwise than by payment of a dividend in shares of common stock) into a greater or lesser number of shares of common stock, then in each case the Series B Vote Multiple thereafter applicable to the determination of the number of votes per share to which holders of shares of Series B Preferred Stock shall be entitled shall be the Series B Vote Multiple immediately prior to such event multiplied by a fraction, the numerator of which is the number of shares of common stock outstanding immediately after such event and the denominator of which is the number of shares of common stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders of shares of Series B Preferred Stock and the holders of shares of common stock and the holders of shares of any other capital stock of this Corporation having general voting rights, shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(c) Except as otherwise required by applicable law or as set forth herein, holders of Series B Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of common stock as set forth herein) for taking any corporate action.
Section 4.Certain Restrictions.
(a) Whenever dividends or distributions payable on the Series B Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series B Preferred Stock outstanding shall have been paid in full the Corporation shall not:
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| (i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock; |
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| (ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except dividends paid ratably on the Series B Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled. |
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| (iii) except as permitted in subsection 4(a)(iv) below, redeem, purchase or otherwise acquire for consideration shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series B Preferred Stock; or |
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| (iv) purchase or otherwise acquire for consideration any shares of Series B Preferred Stock, or any shares of any stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. |
(b) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under subsection (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner.
Section 5.Reacquired Shares. Any shares of Series B Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of preferred stock and may be reissued as part of a new series of preferred stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.
Section 6.Liquidation, Dissolution or Winding-Up. Upon any liquidation (voluntary or otherwise), dissolution or winding up of the Corporation, no distribution shall be made (x) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series B Preferred Stock unless, prior thereto, the holders of shares of Series B Preferred Stock shall have received an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, plus an amount equal to the greater of (1) $1,000.00 per share or (2) an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to be distributed per share to holders of common stock, or (y) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series B Preferred Stock, except distributions made ratably on the Series B Preferred Stock and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after the Series B Rights Declaration Date (i) declare or pay any dividend on common stock payable in shares of common stock, or (ii) effect a subdivision or combination or consolidation of the outstanding shares of common stock (by reclassification or otherwise than by payment of a dividend in shares of common stock) into a greater or lesser number of shares of common stock, then in each such case the aggregate amount per share to which holders of shares of Series B Preferred Stock were entitled immediately prior to such event under clause (x) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of common stock outstanding immediately after such event and the denominator of which is the number of shares of common stock that were outstanding immediately prior to such event.
Neither the consolidation of nor merging of the Corporation with or into any other corporation or corporations, nor the sale or other transfer of all of substantially all of the assets of the Corporation, shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6.
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Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of common stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of Series B Preferred Stock shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of common stock is changed or exchanged, plus accrued and unpaid dividends, if any, payable with respect to the Series B Preferred Stock. In the event the Corporation shall at any time after the Series B Rights Declaration Date (i) declare or pay any dividend on common stock payable in shares of common stock, or (ii) effect a subdivision or combination or consolidation of the outstanding shares of common stock (by reclassification or otherwise than by payment of a dividend in shares of common stock) into a greater or lesser number of shares of common stock, then in each such case the amount ser forth in the preceding sentence with respect to the exchange or change of shares of Series B Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of common stock outstanding immediately after such event and the denominator of which is the number of shares of common stock that were outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series B Preferred Stock shall not be redeemable.
Section 9. Ranking. Unless otherwise provided in the Articles of Organization of the Corporation relating to a subsequently-designated series of preferred stock of the Corporation, the Series B Preferred Stock shall rank junior to any other series of the Corporation’s preferred stock subsequently issued, as to the payment of dividends and the distribution of assets on liquidation, dissolution or winding up and shall rank senior to the common stock.
Section 10. Amendment. The Articles of Organization of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series B Preferred Stock so as to affect them adversely without the affirmative vote of the holders of two-thirds or more of the outstanding shares of Series B Preferred Stock, voting separately as a class.
Section 11.Fractional Shares. Series B Preferred Stock may be issued in whole shares or in any fraction of a share that is one one-thousandth(1/1,000th) of a share of any integral multiple of such fraction, which shall entitle the holder, in proportion to such holder’s fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series B Preferred Stock. In lieu of fractional shares, the Corporation may elect to make a cash payment as provided in the Rights Agreement for fractions of a share other than one-thousandth(1/1,000th) of a share of any integral multiple thereof.
ARTICLE V
The restriction, if any, imposed by the articles or organization upon the
transfer of shares of any class or series of stock are:
None.
ARTICLE VI
Other Lawful Provisions
Section 1. By-laws. The Board of Directors may alter, amend, repeal, adopt or otherwise modify the By-laws of the Corporation, except as may be prohibited or otherwise provided by the By-laws, these Articles of Organization, or by law.
Section 2. Stockholder Meetings. Annual and Special Meetings of Stockholders may be held anywhere in the United States. No business may be transacted at a meeting of the Stockholders except that which is (a) specified in the notice thereof given by or at the direction of the Board of Directors or in a
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supplemental notice given by or at the direction of the Board of Directors and otherwise in compliance with the provisions of the By-laws, (b) brought before the meeting by or at the direction of the Board of Directors or the presiding officer or (c) properly brought before the meeting by or on behalf of any stockholder who shall have been a stockholder of record at the time of giving notice by such stockholder provided for in this paragraph and who shall continue to be entitled at the time of such meeting to vote thereat and who complies with the notice procedures set forth in the By-laws with respect to any business sought to be brought before the meeting by or on behalf of such stockholder other than the election of Directors.
Section 3. Partnerships. The Corporation may be a partner in any business enterprise which it would have the power to conduct by itself.
Section 4. No Preemptive Rights. No holder of the capital stock of this Corporation shall be entitled as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of capital stock of any class whatsoever of this Corporation, or of securities convertible into or exchangeable for any capital stock of any class whatsoever of this Corporation, or of any warrants or other instruments evidencing rights or options to subscribe for, purchase or otherwise acquire shares of capital stock of any class whatsoever of this Corporation, whether now or hereafter authorized, or whether issued for cash or other consideration or by way of a dividend.
Section 5. Amendments to Articles of Organization.
(a) The provisions of Sections 4 and 5 of this Article VI of these Articles of Organization may be amended or repealed only at a meeting of the Corporation’s stockholders called at least in part for the purpose of considering the proposed amendment, and only by the affirmative vote of a two-thirds majority of all shares outstanding and entitled to vote thereon.
(b) Except as stated in paragraph (a) hereinabove, and except as otherwise provided by the Massachusetts Business Corporation Act or these Articles of Organization, these Articles of Organization may be amended or repealed only at a meeting of the Corporation’s stockholders called at least in part for the purpose of considering the proposed amendment, and only by the affirmative vote of a majority of all shares outstanding and entitled to vote thereon.
Section 6. Directors.
(a) The number of directors of the Corporation shall be not less than three nor more than twenty-five. The number shall be fixed from time to time within such limits set by or pursuant to the By-laws of the Corporation. The directors other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the By-laws of the Corporation, one class (“Class I Directors”) to hold office until the Annual Meeting of Stockholders to be held in 1991 and until their successors are duly elected and qualified; another class (“Class II Directors”) to hold office until the Annual Meeting of Stockholders to be held in 1992 and until their successors are duly elected and qualified; and another class (“Class III Directors) to hold office until the Annual Meeting of Stockholders to be held in 1993 and until their successors are duly elected and qualified. At each annual meeting of stockholders of the Corporation, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election and when their successors have been duly elected and qualified. No director shall continue to serve on the Corporation’s Board of Directors once he or she attains the age of 72 years.
(b) Newly created directorships resulting from any increases in the number of directors and any vacancies on the Board of Directors resulting from death, disqualification, removal or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until such director’s successors shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
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(c) Any director or directors or the entire Board of Directors may be removed from office (i) for cause, by the affirmative vote of the holders of a majority of the shares outstanding and then entitled to vote generally in the election of directors or (ii) for cause, by the affirmative vote of a majority of the directors then in office.
(d) Notwithstanding anything contained elsewhere in these Articles of Organization to the contrary, the affirmative vote of the holders of at least a two-thirds majority of all shares of the Corporation outstanding and then entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Section 6 of this Article VI of these Articles of Organization or to adopt any provision inconsistent therewith.
Section 7. Limitation On Liability of Directors and Officers.
(a) A Director or Officer of this Corporation shall not be personally liable to this Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director or Officer notwithstanding any statutory provision or other law imposing such liability, provided, however, that this provision shall not eliminate or limit the liability of a Director or Officer (i) for any breach of the Director’s or Officer’s duty of loyalty to this 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) for improper distributions under Section 6.40 of Chapter 156D of the General Laws of Massachusetts, or (iv) for any transaction from which the Director or Officer derived an improper personal benefit, it being the intention of this provision to limit the liability of a Director or Officer to the maximum extent allowed by law. If the Massachusetts Business Corporation Act hereafter is amended to authorize the further elimination of, or limitation on, the liability of directors or officers, then the liability of a Director or Officer of this Corporation, in addition to the limitation of personal liability provided herein, shall be limited to the fullest extent permitted by such amendment or amendments. Any repeal or modification of this provision by the stockholders of this Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a Director or Officer of this Corporation existing at the time of such repeal or modification.
(b) A Director’s or Officer’s conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in, and the beneficiaries of, the plan is conduct that satisfies the requirement that his or her conduct was at least not opposed to the best interests of the Corporation.
(c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, is not, of itself, determinative that the Director or Officer did not meet the relevant standard of conduct described in this Section.
(d) Unless ordered by a court, the Corporation may not indemnify a Director or Officer under this Section if his or her conduct did not satisfy the standards set forth in subsection (a) or subsection (b).
Section 8. Advance for Expenses. The Corporation shall, before final disposition of a proceeding, advance funds to pay for or reimburse such record holders for theirthe reasonable expenses incurred by a Director or Officer who is a party to a proceeding because he or she is a Director or Officer if he or she delivers to the Corporation:
(a) a written affirmation of his or her good faith belief that he or she has met the relevant standard of conduct described in so doing.Section 7 of this Article VI or that the proceeding involves conduct for which liability has been eliminated under a provision of the Articles of Organization as authorized by Section 2.02(b)(4) of chapter 156D or any successor provision to such Section; and
(b) his or her written undertaking to repay any funds advanced if he or she is not wholly successful, on the merits or otherwise, in the defense of such proceeding and it is ultimately determined pursuant to Section 9 of this Article VI or by a court of competent jurisdiction that he or she has not met the relevant standard of conduct described in Section 7 of this Article VI. Such undertaking must be an unlimited obligation of the Director or Officer but need not be secured and shall be accepted without reference to the financial ability of the Director or Officer to make repayment.
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Section 9. Determination of Indemnification. The determination of whether a Director or Officer has met the relevant standard of conduct set forth in Section 7 shall be made:
(a) if there are two or more disinterested Directors, by the Board of Directors by a majority vote of all the disinterested Directors, a majority of whom shall for such purpose constitute a quorum, or by a majority of the members of a committee of two or more disinterested Directors appointed by vote;
(b) by special legal counsel (1) selected in the manner prescribed in clause (a); or (2) if there are fewer than two disinterested Directors, selected by the Board of Directors, in which selection Directors who do not qualify as disinterested Directors may participate; or
(c) by the shareholders, but shares owned by or voted under the control of a Director who at the time does not qualify as a disinterested Director may not be voted on the determination.
Section 10. Notification and Defense of Claim; Settlements.
(a) In addition to and without limiting the Company has retained Georgeson Shareholder Communications, Inc., Carlstadt, New Jersey,foregoing provisions of this Article VI and except to the extent otherwise required by law, it shall be a professional proxy solicitation firm,condition of the Corporation’s obligation to assistindemnify under Section 7 of this Article VI (in addition to any other condition provide in the solicitationBy-laws or by law) that the person asserting, or proposing to assert, the right to be indemnified, must notify the Corporation in writing as soon as practicable of proxies. The feeany action, suit, proceeding or investigation involving such person for which indemnity will or could be sought, but the failure to so notify shall not affect the Corporation’s objection to indemnify except to the extent the Corporation is adversely affected thereby. With respect to any proceeding of which the Corporation is so notified, the Corporation 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 such person. After notice from the Corporation to such person of its election so to assume such defense, the Corporation shall not be liable to such person for any legal or other expenses subsequently incurred by such person in connection with such action, suit, proceeding or investigation other than as provided below in this subsection (a). Such person shall have the right to employ his or her own counsel in connection with such action, suit, proceeding or investigation, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of such person unless (1) the employment of counsel by such person has been authorized by the Corporation, (2) counsel to such person shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Corporation and such person in the conduct of the defense of such action, suit, proceeding or investigation or (3) the Corporation shall not in fact have employed counsel to assume the defense of such action, suit, proceeding or investigation, in each of which cases the fees and expenses of counsel for such servicesperson shall be at the expense of the Corporation, except as otherwise expressly provided by this Article VI . The Corporation shall not be entitled, without the consent of such person, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for such person shall have reasonably made the conclusion provided for in clause (2) above.
(b) The Corporation shall not be required to indemnify such person under this Article VI for any amounts paid in settlement of any proceeding unless authorized in the same manner as the determination that indemnification is permissible under Section 9 of this Article VI, except that if there are fewer than two disinterested Directors, authorization of indemnification shall be made by the Board of Directors, in which authorization Directors who do not qualify as disinterested directors may participate. The Corporation shall not settle any action, suit, proceeding or investigation in any manner which would impose any penalty or limitation on such person without such person’s written consent. Neither the Corporation nor such person will unreasonably withhold their consent to any proposed settlement.
Section 11.Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is a Director or Officer of the Corporation, or who, while a Director or Officer of the Corporation, serves at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity, against liability asserted against or incurred by him or her in that capacity or arising from his or her
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status as a Director or Officer, whether or not the Corporation would have power to indemnify or advance expenses to him or her against the same liability under Sections 7, 8, 9, and 10 of this Article VI.
Section 12.Application of Sections 7, 8, 9, 10 and 11 of this Article VI.
(a) The Corporation shall not be obligated to indemnify or advance expenses to a Director or Officer of a predecessor of the Corporation, pertaining to conduct with respect to the predecessor, unless otherwise specifically provided.
(b) Sections 7, 8, 9, 10 and 11 of this Article VI shall not limit the Corporation’s power to (1) pay or reimburse expenses incurred by a Director or an Officer in connection with his or her appearance as a witness in a proceeding at a time when he or she is not a party or (2) indemnify, advance expenses to or provide or maintain insurance on behalf of an employee or agent.
(c) The indemnification and advancement of expenses provided by, or granted pursuant to, Sections 7, 8, 9, 10 and 11 of this Article VI shall not be considered exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled.
(d) Each person who is or becomes a Director or Officer shall be deemed to have served or to have continued to serve in such capacity in reliance upon the indemnity provided for in Sections 7, 8, 9, 10 and 11 of this Article VI. All rights to indemnification under Sections 7, 8, 9, 10 and 11 of this Article VI shall be deemed to be provided by a contract between the Corporation and the person who serves as a Director or Officer of the Corporation at any time while Sections 7, 8, 9, 10 and 11 of this Article VI and the relevant provisions of chapter 156D are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing.
(e) If the laws of the Commonwealth of Massachusetts are hereafter amended from time to time to increase the scope of permitted indemnification, indemnification hereunder shall be provided to the fullest extent permitted or required by any such amendment.
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ARTICLE VII
Unless otherwise provided in the articles of organization, the effective date
of organization of the corporation is the date and time the articles were
received for filing if the articles are not rejected within the time prescribed
by law. If a later effective date is desired, specify such date, which may not
be later than the 90th day after the articles are received for filing:
Specify the number of articles being amended:
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ARTICLE II | | — | | Deletion of references to c.156B and replacement with references to c.156D. |
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ARTICLE IV | | — | | Format changes and definition updates; addition of last 2 sentences of Section A.1.; deletion of references to c.156B and replacement with references to c.156D; terms and designation of Series A Junior Participating Preferred Stock have been rescinded. |
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ARTICLE VI | | — | | | Format changes and deletion of references to c.156B and replacement with references to c.156D; addition of last sentence of Section 2; removal of provisions relating to acquiring entities, non acquiring stockholders and non acquiring directors; addition of last sentence of Section 6 | (a); addition of terms in 6(c) to allow a majority of the board of directors to remove a director for cause; addition of provisions relating to Indemnification of Directors and Officers permitted by c.156D §§ 8.50-8.59. |
(signature of authorized individual)
(Please check appropriate box)
o Chairman of the Board of Directors
o President
o Other Officer
o Court-appointed fiduciary,
Signed on this day of of .
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| COMMONWEALTH OF MASSACHUSETTS |
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| William Francis Galvin |
| Secretary of the Commonwealth |
| One Ashburton Place, Boston, Massachusetts 02108-1512 |
|
| Restated Articles of Organization |
| (General Laws, Chapter 156D, Section 10.07) |
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| I hereby certify that upon examination of these Restated Articles of Organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $ having been paid, said articles are deemed to have been filed with me the day of 20 at a.m./p.m. |
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| Effective date: |
| (must be within 90 days of date submitted) |
Examiner
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| WILLIAM FRANCIS GAVLIN |
| Secretary of the Commonwealth |
Name approval
C
M
TO BE FILLED IN BY CORPORATION
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| Contact Information: |
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| Telephone: |
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| Email: |
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| A copy of this filing will be available on-line atwww.sec.state.ma.us/cor one the document is file. |
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Exhibit C
AMENDED AND RESTATED
BY-LAWS
of
INDEPENDENT BANK CORP.
, 2005
ARTICLE FIRST
The fiscal year of the corporation shall be the year ending with the last day of December in each year.
ARTICLE SECOND
Stockholders
Section 1. Annual Meeting. The annual meeting of stockholders shall be held on such date and at such hour as shall be fixed by the Directors or the Chairman of the Board each year and stated in the notice of the meeting, which date and hour may subsequently be changed at any time, including the year any such determination occurs. The purposes for which the annual meeting is to be held, in addition to those prescribed by law, by the Articles of Organization or by these By-Laws, may be specified by the Directors or the President. If no annual meeting is held in accordance with the foregoing provisions, a special meeting may be held in lieu thereof, and any action taken at such meeting shall have the same effect as if taken at the annual meeting.
Section 2. Special Meeting. Special meetings of the stockholders may be called by the Chairman of the Board, if any, the President, or by a majority of the Directors acting by vote or by written instrument or instruments signed by such a majority of them. Special meetings of the stockholders 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 beneficially at least $6,500 plus certain additional chargestwo-thirds of the capital stock of the Corporation entitled to vote at the meeting, stating the time, place and reimbursementpurposes of the meeting. No call of a special meeting of the stockholders shall be required if such notice of the meeting shall have been waived either in writing or by a telegram, or other means of electronic transmission, by every stockholder entitled to notice thereof, or by his attorney thereunto authorized.
Section 3. Place of Meetings; Adjournments. All meetings of stockholders shall be held at the principal office of the corporation unless a different place (within the United States) is fixed by the Directors or the Chairman of the Board and stated in the notice of the meeting, provided, that, when any meeting is convened, the presiding officer, if directed by the Board of Directors, may adjourn the meeting for
out-of-pocket expenses.XI. Notice Of By-Laws Amendments Approved Bya period of time not to exceed 30 days if (a) no quorum is present for the transaction of business or (b) the Board
of Directors determines that adjournment is necessary or appropriate to enable the stockholders (i) to consider fully information which the Board of Directors determines has not been made sufficiently or timely available to stockholders or (ii) otherwise to exercise effectively their voting rights. The Board has sincepresiding officer in such event shall announce the last Annual Meeting approved amendmentsadjournment and date, hour and place of reconvening and shall cause notice thereof to be posted at the place of meeting designated in the notice which was sent to the Company's By-Lawsstockholders, and if such date is more than 10 days after the original date of the meeting the Clerk shall give notice thereof in the manner provided in Section 4 of this Article Second. In addition to the foregoing procedures for adjournment, any meetings of the stockholders may be adjourned in accordance with the procedures set forth in Section 5 of this Article Second.
Section 4. Notices. Notice of all meetings of stockholders shall be given as follows:follows, to wit: — A written notice, stating the place, day and hour thereof, shall be given by the Clerk or an Assistant Clerk or the person or persons calling the meeting, at least seven days before the meeting, to each stockholder entitled to vote thereat and to each stockholder who, by law, the Articles of Organization, or these By-laws, is entitled to such notice, by leaving such notice with him or his residence or usual place of business, or by mailing it, postage prepaid, and addressed to such stockholder at his address as it appears upon the books of the corporation. Notices of all meetings of stockholders shall state the purposes for which the meetings are called.
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No notice need be given to any stockholder if a waiver of notice in writing or by telegram, or other means of electronic transmission, executed before or after the meeting by the stockholder or his attorney thereunto authorized is filed with the records of the meeting. It shall be the duty of every stockholder to furnish to the Clerk of the corporation or to the transfer agent, if any, of the class of stock owned by such stockholder, his or her post office address and to notify the Clerk or the transfer agent of any change therein.
No business may be transacted at a meeting of the stockholders except that which is (a) specified in the notice thereof given by or at the direction of the Board amendedof Directors or in a supplemental notice given by or at the direction of the Board of Directors and otherwise in compliance with the provisions hereof, (b) brought before the meeting by or at the direction of the Board of Directors or the presiding officer or (c) properly brought before the meeting by or on behalf of any stockholder who shall have been a stockholder of record at the time of giving notice by such stockholder provided for in this paragraph and who shall continue to be entitled at the time of such meeting to vote thereat and who complies with the notice procedures set forth in this paragraph with respect to any business sought to be brought before the meeting by or on behalf of such stockholder other than the election of Directors and with the notice provisions set forth in Section 2(a)3 of Article Third with respect to the election of Directors. In addition to any other applicable requirements, for business to be properly brought before a meeting by or on behalf of a stockholder (other than a stockholder proposal included in the corporation’s proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the stockholder must have given timely notice thereof in writing to the Clerk of the corporation. In order to be timely given, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the corporation (a) not less than 75 nor more than 125 days prior to the anniversary date of the immediately preceding annual meeting of stockholders of the corporation or (b) in the case of a special meeting or in the event that the annual meeting is called for a date (including any change in a date determined by the Board of Directors pursuant to Section 1 of this Article Second) more than 75 days prior to such anniversary date, notice by the stockholder to be timely given must be so received not later than the close of business on the 20th day following the date on which notice of the date of such meeting was mailed or public disclosure of the date of such meeting was made, whichever first occurs. Such stockholder’s notice to the Clerk shall set forth as to each matter the stockholder proposes to bring before the meeting (a) a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting, (b) the name and record address of the stockholder proposing such business, (c) the class and number of shares of capital stock of the corporation held of record, owned beneficially and represented by proxy by such stockholder as of the record date for the meeting (if such date shall then have been made publicly available) and as of the date of such notice by the stockholder and (d) all other information which would be required to be included in a proxy statement or other filings required to be filed with the Securities and Exchange Commission if, with respect to any such item of business, such stockholder were a participant in a solicitation subject to Regulation 14A under the Exchange Act (the “Proxy Rules”). In the event the proposed business to be brought before the meeting by or on behalf of a stockholder relates or refers to a proposal or transaction involving the stockholder or a third party which, if it were to have been consummated at the time of the meeting, would have required of such stockholder or third party or any of the affiliates of either of them any prior notification to, filing with, or any orders or other action by, any governmental authority, then any such notice to the Clerk shall be accompanied by appropriate evidence of the making of all such notifications or filings and the issuance of all such orders and the taking of all such actions by all such governmental authorities.
Notwithstanding anything in these By-Laws to add the contrary, no business shall be conducted at any meeting except in accordance with the procedures set forth in this Section 4; provided, however, that nothing in this Section 4 shall be deemed to preclude discussion by any stockholder of any business properly brought before such meeting.
The presiding officer of the meeting may, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the foregoing procedures, and if he or she should so determine, he or she shall so declare to the meeting and that business shall be disregarded.
Section 5. Quorum. At any meeting of stockholders a quorum for the transaction of business shall consist of one or more individuals appearing in person and/or as proxies and owning and/or representing a
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majority of the shares of the corporation then outstanding and entitled to vote. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present, and the meeting may be held as adjourned without further notice.
Section 6. Voting and Proxies. Each stockholder shall have one vote for each share of stock entitled to vote and a proportionate vote for any fractional share entitled to vote, held by him of record according to the records of the corporation, unless otherwise provided by the Articles of Organization. Stockholders may vote either in person or by written proxy dated not more than six months before the meeting named therein. Proxies shall be filed with the Clerk or other person responsible for recording the proceedings before being voted at any meeting or any adjournment thereof. Except as otherwise limited therein, proxies shall entitle the persons named therein to vote at the meeting specified therein and at any adjourned session of such meeting but shall not be valid after final adjournment of the meeting. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them unless at or prior to exercise of the proxy the corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise and the burden of proving invalidity shall rest on the challenger.
Section 7. Action at Meeting. When a quorum is present, the action of the stockholders on any matter properly brought before such meeting shall be decided by the stockholders of a majority of the stock present or represented and entitled to vote and voting on such matter, except where a different vote is required by law, the Articles of Organization or these By-Laws. Any election by stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote at the election. No ballot shall be required for such election unless requested by a stockholder present or represented at the meeting and entitled to vote in the election.
Section 8. Special Action. Any action to be taken by stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action by a writing filed with the records of the meetings of stockholders. Such consent shall be treated for all purposes as a vote at a meeting.
Section 9. Record Date. The Directors may fix in advance a time which shall be not more than sixty days prior to (a) the date of any meeting of stockholders, (b) the date for the payment of any dividend or the making of any distribution to stockholders, or (c) 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, the right to receive such dividend or distribution, or the right to give such consent or dissent. 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. Without fixing such record date the Directors may for any such purposes close the transfer books for all or any part of such period.
ARTICLE THIRD
Directors
Section 1. Powers. The business of the corporation shall be managed by a Board of Directors who shall have and may exercise all the powers of the corporation except as otherwise reserved to the stockholders by law, by the Articles of Organization or by these By-laws.
Section 2. Number; Term of office and Qualification.
(a) The number of Directors of the corporation shall be not less than three nor more than twenty-five as shall be fixed within the limits provided by the Articles of Organization, by vote of the Board of Directors taken at any regular or special meeting thereof. Within the limits above specified, the Board of Directors may at any meeting increase or decrease the number of Directors in one or more classes as may be appropriate whenever it increases or decreases the number of Directors in order to ensure that the three classes shall be as nearly equal as possible.
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The Directors other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation (“Preference Stock Directors”) shall be classified with respect to the time for which they severally hold office, into three classes, as provided by law or in the Articles of Organization. At each annual meeting of stockholders of the corporation, the successors of the class of Directors whose term expires at that meeting shall be elected by the stockholders to hold office for a term expiring at the annual meeting of stockholders held in the third year following
sentence: (b) Except for Preference Stock Directors, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause, shall be filled by the affirmative vote of a majority of the remaining Directors then in office, even though less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
Section 3. Nominating Committee; Nominations for Directors. Only persons who
have already reachedare nominated in accordance with the
agefollowing procedures shall be eligible for election as Directors of
72 yearsthe corporation, except as
provided in the Articles of
February 11, 1993."The Board approved this amendment to formalize the 1993 Board vote takenOrganization with respect to mandatory retirement.
On January 9, 2003nominations by holders of preferred stock in certain circumstances. Nominations of persons for election to the Board amended Article Fourthof Directors at the annual meeting of stockholders may be made at the annual meeting of stockholders (a) by the Board of Directors or at the direction of the Board of Directors by any nominating committee or person appointed by the Board of Directors or designated in the Articles of organization or these By-Laws or (b) by deletingany stockholder of record at the time of giving notice provided for in this Section 3 and who shall continue to be entitled at the time of the meeting to vote for the election of Directors at the meeting who complies with the notice procedures set forth in this Section 3 rather than the notice procedures with respect to other business set forth in Section 4 of Article Second. Nominations by stockholders shall be made only after timely notice by such stockholder in writing to the Clerk of the corporation. In order to be timely given, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than 75 nor more than 125 days prior to the anniversary date of the immediately preceding annual meeting of stockholders of the corporation; provided, however, that in the event that the meeting is called for a date, including any change in a date determined by the Directors pursuant to Section 1 of Article Second, more than 75 days prior to such anniversary date, notice by the stockholder to be timely given must be so received not later than the close of business on the 20th day following the day on which notice of the date of the meeting was mailed or public disclosure of the date of the meeting was made, whichever first occurs. Such stockholder’s notice to the Clerk shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a Director, (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the corporation, if any, which are beneficially owned by the person, (iv) any other information regarding the nominee as would be required to be included in a proxy statement or other filings required to be filed pursuant to the Proxy Rules, and (v) the consent of each nominee to serve as a Director of the corporation if so elected; and (b) as to the stockholder giving notice, (i) the name and record address of the stockholder, (ii) the class and number of shares of capital stock of the corporation which are beneficially owned by the stockholder as of the record date for the meeting (if such date shall then have been made publicly available) and as of the date of such notice, (iii) a representation that the stockholder intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, (iv) a representation that the stockholder (and any party on whose behalf or in concert with whom such stockholder is acting) is qualified at the time of giving such notice to have such individual serve as the nominee of such stockholder (and any party on whose behalf or in concert with whom such stockholder is acting) if such individual is elected, accompanied by copies of any notification or filings with, or orders or other actions by, any governmental authority which are required in order for such stockholder (and any party on whose behalf such stockholder is acting) to be so qualified, (v) a description of all arrangements or understandings between such stockholder and each such nominee and any other person or
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persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such stockholder and (vi) such other information regarding such stockholder as would be required to be included in a proxy statement or other filings required to be filed pursuant to the Proxy Rules. The corporation may require any proposed nominee to furnish such other information as may reasonably be required by the corporation to determine the eligibility or qualification of such proposed nominee to serve as a Director. No person shall be eligible for election as a Director unless nominated in accordance with the procedures set forth herein.
The presiding officer of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedures, and if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.
Section4. Election of Directors. At each meeting of the stockholders for the election of Directors at which a quorum is present, the persons receiving a plurality of the votes among the nominees for the vacancies then being filled shall be the Directors. Such election shall be by ballot whenever requested by any person entitled to vote at such meeting; but unless so requested, such election may be conducted in any way approved at such meeting.
Section5. Removal of Directors. Subject to the provisions of the Articles of Organization, any Director may be removed (i) for cause, by the affirmative vote of the holders of a majority of the shares outstanding and then entitled to vote generally in the election of directors or (ii) for cause, by the affirmative vote of a majority of the Directors then in office.
Section6. Annual Meeting. Immediately after each annual meeting of stockholders, or the special meeting held in lieu thereof, and at the place thereof, if a quorum of the Directors elected at such meeting were present thereat, there shall be a meeting of the Directors without notice; but if such a quorum of the Directors elected thereat were not present at such meeting, or if present do not proceed immediately thereafter to hold a meeting of the Directors, the annual meeting of the Directors shall be called in the manner hereinafter provided with respect to the call of special meetings of Directors.
Section7. Regular Meetings. Regular meetings of the Directors may be held at such times and places as shall from time to time be fixed by resolution of the Board and no notice need be given of regular meetings held at times and places so fixed, PROVIDED, HOWEVER, that any resolution relating to the holding of regular meetings shall remain in force only until the next annual meeting of stockholders, or the special meeting held in lieu thereof, and that if at any meeting of Directors at which a resolution is adopted fixing the times or place or places for any regular meetings any Director is absent, no meeting shall be held pursuant to such resolution until either each such absent Director has in writing or by telegram, or other means of electronic transmission, approved the resolution or seven days have elapsed after a copy of the resolution certified by the Clerk has been mailed, postage prepaid, addressed to each such absent Director at his last known home or business address.
Section8. Special Meetings. Special meetings of the Directors may be called by the Chairman of the Board, by the President or by the Treasurer or by any two Directors and shall be held at the place designated in the call thereof.
Section9. Notices. Notices of any special meeting of the Directors shall be given by the Clerk or any Assistant Clerk to each Director, by mailing to him, postage prepaid, to the address, as registered on the books of the corporation, or if not so registered at his last known home or business address, a written notice of such meeting at least four days before the meeting or by delivering such notices to him at least forty-eight hours before the meeting or by sending to him at least forty-eight hours before the meeting, by prepaid telegram, by facsimile, by email, or by other means of electronic transmission, addressed to him at such address, facsimile number, email address or other electronic contact information, as registered on the books of the corporation, notice of such meeting. If the Clerk refuses or neglects for more than twenty-four hours after receipt of the call to give notice of such special meeting, or if the office of Clerk is vacant or the Clerk is absent from the Commonwealth of Massachusetts, or incapacitated, such notice may be given by the officer or one of the Directors calling the meeting. Notice need not be given to any Director if a waiver of notice in writing or by
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electronic transmission, executed by him before or after the meeting, is filed with the records of the meeting, or to any Director who is present in person at the meeting without protesting prior thereto or at its commencement the lack of notice to him. A notice or waiver of notice of a Directors’ meeting need not specify the purposes of the meeting.
Section10. Quorum. At any meeting of the Directors a majority of the number of Directors required to constitute a full Board, as fixed in or determined pursuant to these By-laws as then in effect, shall constitute a quorum for the transaction of business. Whether or not a quorum is present, any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question and the meeting may be held as adjourned without further notice.
Section11. Action at Meeting. Except as otherwise provided herein or in the Articles of organization, at any meeting of the Directors at which a quorum is present, the action of the Directors on any matter brought before the meeting shall be decided by the vote of a majority of those present and voting, unless a different vote is required by law, the Articles of Organization, or these By-laws.
Section12. Participation by Telephone at a Meeting. Any Director or member of any committee designated by the Directors may participate in a meeting of the Directors or committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at a meeting for all purposes, including, without limitation, for purposes of Sections 69, 10, 11 and 714 of this Article.
Section13. Special Action. Any action by the Directors may be taken without a meeting if a written consent thereto is signed by all the Directors and filed with the records of the Directors’ meetings. Such consent shall be treated as a vote of the Directors for all purposes.
Section14. Committees. The Directors may, by vote of a majority of the number of Directors required to constitute a full Board as fixed in or determined pursuant to these By-laws as then in effect, elect from their number an executive or other committees and may by like vote delegate thereto some or all of their powers except those which by law, the Articles of organization or these By-laws they are prohibited from delegating. Except as the Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Directors or in such rules, its business shall be conducted as nearly as may be in the same manner as is provided by these By-laws for the Directors.
Section15. Honorary Directors. The Board of Directors may include such number of honorary directors among the Board of Directors as shall be fixed from time to time by the Board of Directors. Honorary directors shall be elected and removed in the same manner and shall have the same tenure of office as other Directors in their entiretyclassification as determined by the Board of Directors. Honorary directors shall not be included in any calculation to determine a quorum of Directors for transaction of business at a meeting. The Board of Directors shall fix from time to time the compensation to be paid, if any, to honorary directors by a vote of a majority of the Board of Directors. Honorary directors shall not be entitled to vote on or consent to any matters on or to which Directors shall vote or consent but shall otherwise enjoy all privileges of Directors.
ARTICLE FOURTH
Officers
Section1. Enumeration. The officers of the corporation shall be a Chief Executive Officer, a President, a Treasurer, a Clerk, and substitutinga Chairman of the Board and such Vice Chairmen of the Board, Vice Presidents, Assistant Treasurers, Assistant Clerks, and other officers as may from time to time be determined by the Directors.
Section2. Election. The Chairman of the Board, Chief Executive Officer, President, Treasurer and Clerk shall be elected annually by the Directors at their first meeting following the annual meeting of stockholders, or the special meeting held in their place:lieu thereof. Other officers may be chosen by the Directors.
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Section3. Qualification. Any officer may, but need not be, a Director or a stockholder. Any two or more offices may be held by the same person. The Clerk shall be a resident of Massachusetts unless the corporation has a resident agent appointed for the purpose of service process. Any officer may be required by the Directors to give bond for the faithful performance of his duties to the corporation in such amount and with such sureties as the Directors may determine.
Section4. Tenure. Except as otherwise provided by law, by the Articles of organization or by these By-laws, the Chairman of the Board, Chief Executive Officer, President, Treasurer and Clerk shall hold office until the first meeting of the Directors following the annual meeting of stockholders, or the special meeting held in lieu thereof, and thereafter until his successor is chosen and qualified. Other officers shall hold office until the first meeting of the Directors following the annual meeting of stockholders, or the special meeting held in lieu thereof, unless a shorter term is specified in the vote choosing or appointing them. Any officer may resign by delivering his written resignation to the corporation at its principal office or to the President or Clerk, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
Section5. Removal. The Directors may remove any officer with or without cause by a vote of a majority of the entire number of Directors then in office, provided, that an officer may be removed for cause only after reasonable notice and opportunity to be heard by the Board of Directors prior to action thereon.
Section 6.Chief Executive OfficerOfficer.. The Board shall designate which officer shall serve as the Chief Executive Officer, who shall have the primary authority among the officers of the corporation for the conduct of the business and affairs of the corporation, subject always to the control and direction of the Board of Directors. It shall be the duty of the Chief Executive Officer and he or she shall have the power to see that all orders and resolutions of the Directors are carried into effect. The Chief Executive Officer, as soon as reasonably possible after the close of each fiscal year, shall submit to the Directors a report of the operations of the corporation for such year and a statement of its affairs and shall from time to time report to the Directors all matters within his or her knowledge which the interests of the corporation may require to be brought to its notice. Section 7.Chairman of the BoardBoard.. The Chairman of the Board shall preside at all meetings of the stockholders and at all meetings of the Directors. The Chairman of the Board shall perform such other duties and have such other powers as the Directors may designate. The Chairman of the Board may also be the Chief Executive Officer of the corporation.
Section 8. The Board approved this amendment to changePresident. In the requirement that the Company's Chairman and Chief Executive Officer be the same person. The amendment was necessary to enable Mr. Oddleifson to assume the roleabsence of Chief Executive Officer of the Company on February 24, 2003 while Mr. Philipsen remains as Chairman.
A complete copy of the By-Laws, as amended, in the manner described are attached as an Exhibit to the Company's Annual Report to the SEC on Form 10-K for the year ended December 31, 2002. Shareholders have the right to amend or repel By-Law changes approved by the Board.
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XII. Annual Report And Form 10-K
A copy of the Company's Annual Report to Stockholders for the year ended December 31, 2002, which includes the Company's Annual Report to the SEC on Form 10-K for the year ended December 31, 2002 (without attached exhibits), is being mailed with this Proxy Statement to all stockholders of the Company. The Form 10-K is not part of the proxy solicitation material.
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Exhibit A
INDEPENDENT BANK CORP./ROCKLAND TRUST COMPANY
JOINT AUDIT COMMITTEE CHARTER
February 13, 2003
The Audit Committee is appointed by the Board to assist the Board in monitoring (1) the integrity of the financial statements of the Company, (2) the compliance by the Company with legal and regulatory requirements, and (3) the independence and performance of the Company's internal and external auditors.
The members of the Audit Committee shall meet the independence and experience requirements of applicable regulations. In particular, the Chairman of the Audit CommitteeBoard, the President shall preside at all stockholders’ meetings. The President shall perform such other duties and have such other powers as the Directors may designate.
Section 9. Vice Chairman of the Board. Each Vice Chairman of the Board shall have accounting or related financial management expertise.such powers and perform such duties as the Directors shall from time to time designate.
Section 10. Treasurer. The membersTreasurer shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Audit Committeecorporation in such depositories as shall be appointeddesignated by the Board.Directors or in the absence of such designation in such depositories as he shall from time to time deem proper. He shall disburse the funds of the corporation as shall be ordered by the Directors, taking proper vouchers for such disbursements. He shall promptly render to the Chief Executive Officer and to the Directors such statements of his transactions and accounts as the Chief Executive Officer and Directors respectively may from time to time require. The Treasurer shall perform such duties and have such powers additional to the foregoing as the Directors may designate and shall report to the Board of Directors.
Section11. Assistant Treasurers. In the absence or disability of the Treasurer, his powers and duties shall be performed by the Assistant Treasurer, if only one, or, if more than one, by the one designated for the purpose by the Directors. Each Assistant Treasurer shall have such other powers and perform such other duties as the Directors shall from time to time designate.
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Section12. Clerk/ Secretary. The Audit Committee hasClerk shall record in books kept for the purposes all votes and proceedings of the stockholders and, if there be no Secretary or Assistant Secretary, the Clerk may be referred to as Secretary and shall record as aforesaid all votes and proceeding of the Directors at their meetings. Unless the Directors shall appoint a transfer agent and/or registrar or other officer or officers for the purpose, the Clerk shall be charged with the duty of keeping, or causing to be kept, accurate records of all stock outstanding, stock certificates issued and stock transfers; and, subject to such other or different rules as shall be adopted from time to time by the Directors, such records may be kept solely in the stock certificate books. The Clerk shall perform such duties and have such powers additional to the foregoing as the Directors shall designate.
Section13. Assistant Clerks. In the absence or disability of the Clerk or in the event of a vacancy in such office, the Assistant Clerk, if one be elected, or, if there be more than one, the one designated for the purpose by the Directors, shall perform the duties of the Clerk. Each Assistant Clerk shall have such other powers and perform such other duties as these By-laws may provide or as the Directors may from time to time designate. A temporary Clerk designated by the person presiding shall perform the duties of the Clerk in the absence of the Clerk and Assistant Clerks from any meeting of stockholders or Directors.
Section14. Secretary and Assistant Secretaries. If a Secretary is elected, he shall keep a record of the meetings of the Directors and in his absence, an Assistant Secretary, if one be elected, or, if there be more than one, the one designated for the purpose by the Directors, otherwise the Clerk/ Secretary, or, in his absence, a Temporary Clerk/ Secretary designated by the person presiding at the meeting, shall perform the duties of the Secretary. Each Assistant Secretary shall have such other powers and perform such other duties as the Directors may from time to time designate.
ARTICLE FIFTH
Provisions Relating to Capital Stock
Section 1. Unissued Stock. Subject to such limitations as may be contained in the Articles of Organization of the corporation, the Board of Directors shall have the authority to retain special legal, accounting,issue from time to time the whole or any part of any unissued balance of the authorized stock of the corporation to such persons, for such consideration, whether cash, property, services or expenses, and on such terms as the Directors may from time to time determine without first offering the same for subscription to stockholders of the corporation.
Section 2. Certificates of Stock. Each stockholder shall be entitled to a certificate or certificates representing in the aggregate the shares owned by him and certifying the number and class thereof, which shall be in such form as the Directors shall adopt. Each certificate of stock shall be signed by the President or a vice President and by the Treasurer or an Assistant Treasurer, but when a certificate is countersigned by a transfer agent or a registrar, other consultants to advise the Committee. The Audit Committee may request anythan a Director, officer or employee of the Companycorporation, such signatures may be facsimiles. 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's outside counselcorporation 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 pursuant to the Articles of Organization, the By-laws or independent auditorany agreement to attendwhich the corporation is a party, shall have the restriction noted conspicuously on the certificate and shall also set forth on the face or back either the full text of the restriction or a statement of the existence of such restriction and a statement that the corporation will furnish a copy to the holder of such certificate upon written request and without charge. Every certificate issued when the corporation is authorized to issue more than one class or series of stock shall set forth on its face or back either the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series authorized to be issued or a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge.
Section 3. Transfer of Stock. The stock of the corporation shall be transferable, so as to affect the rights of the corporation, only by transfer recorded on the books of the corporation, in person or by duly authorized attorney, and upon the surrender of the certificate or certificates properly endorsed or assigned.
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Section 4. Equitable Interests Not Recognized. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact hereof and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person except as may be otherwise expressly provided by law.
Section 5. Lost or Destroyed Certificates. The Directors of the corporation may, subject to Massachusetts General Laws, Chapter 106 Section 8-405, as amended from time to time, determine the conditions upon which a new certificate of stock may be issued in place of any certificate alleged to have been lost, destroyed, or mutilated.
Section 6. Control Share Acquisitions. Until such time as this Section 6 shall be repealed or these By-Laws shall be amended to provide otherwise, in each case in accordance with Article Tenth of the By-Laws, the provisions of Chapter 110D of the Massachusetts General Laws shall not apply to “control share acquisitions” of the corporation within the meaning of said Chapter 110D.
ARTICLE SIXTH
Stock in Other Corporation
Except as the Directors may otherwise designate, the Chief Executive Officer may waive notice of, and appoint any person or persons to act as proxy or attorney in fact for this corporation (with or without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities of which may be held by this corporation.
ARTICLE SEVENTH
[Intentionally Omitted]
ARTICLE EIGHTH
Checks, Notes, Drafts and Other Instruments
Checks, notes, drafts and other instruments for the payment of money drawn or endorsed in the name of the corporation may be signed by any officer or officers or person or persons authorized by the Directors to sign the same. No officer or person shall sign such instrument as aforesaid unless authorized by the Directors to do so.
ARTICLE NINTH
Seal
The seal of the corporation shall be circular in form, bearing its name, the word “Massachusetts”, and the year of its incorporation. The Clerk or any Assistant Clerk may affix the seal (as may any other officer if authorized by the Directors) to any instrument requiring the corporate seal.
ARTICLE TENTH
Amendments
These By-laws may at any time be amended by the stockholders provided that notice of the substance of the proposed amendment is stated in the notice of the meeting. If authorized by the Articles of Organization, the Directors may also make, amend, or repeal these By-laws in whole or in part, except with respect to any provision thereof which by law, the Articles of organization, or these By-laws requires action by the stockholders. Not later than the time of giving notice of the meeting of stockholders next following the making, 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. Any By-laws adopted by the Directors may be amended or repealed by the stockholders.
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ARTICLE ELEVENTH
Transactions With Related Parties
The corporation may enter into contracts or transact business with one or more of its Directors, officers, or stockholders or with any corporation, association, trust company, organization or other concern in which any one or more of its Directors, officers or stockholders are Directors, officers, trustees, shareholders, beneficiaries or stockholders or otherwise interested and other contracts or transactions in which any one or more of its Directors, officers or stockholders is in any way interested; and in the absence of fraud, no such contract or transaction shall be invalidated or in any way affected by the fact that such Directors, officers or stockholders of the corporation have or may have interests which are or might be adverse to the interest of the corporation even though the vote or action of Directors, officers or stockholders having such adverse interests may have been necessary to obligate the corporation upon such contract or transaction. At any meeting of the CommitteeBoard of Directors of the corporation (or any duly authorized committee thereof) which shall authorize or ratify any such contract or transaction, any such Director or Directors, may vote or act thereat with like force and effect as if he had no such interest, provided, in such case the nature of such interest (though not necessarily the extent or details thereof) shall be disclosed or shall have been known to the Directors or a majority thereof. A general notice that a Director or officer is interested in any corporation or other concern of any kind above referred to shall be a sufficient disclosure as to such Director or officer with respect to all contracts and transactions with such corporation or other concern. No Director shall be disqualified from holding office as Director or officer of the corporation by reason of any such adverse interests. In the absence of fraud, no Director, officer or stockholder having such adverse interest shall be liable to the corporation or to meet with any membersstockholder or creditor thereof or to any other person for any loss incurred by it under or by reason of such contract or transaction, nor shall any such Director, officer or stockholder be accountable for any gains or profits realized thereon.
ARTICLE TWELFTH
Indemnification of Directors, Officers and Others
Section 1. Limitation On Liability of Directors and Officers.
(a) Except as otherwise provided in these By-laws or the Articles of Organization, a Director or Officer of this Corporation shall not be personally liable to this Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director or Officer notwithstanding any statutory provision or other law imposing such liability, provided, however, that this provision shall not eliminate or limit the liability of a Director or Officer (i) for any breach of the Director’s or Officer’s duty of loyalty to this 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) for improper distributions under Section 6.40 of Chapter 156D of the General Laws of Massachusetts, or (iv) for any transaction from which the Director or Officer derived an improper personal benefit, it being the intention of this provision to limit the liability of a Director or Officer to the maximum extent allowed by law. If the Massachusetts Business Corporation Act hereafter is amended to authorize the further elimination of, or
consultantslimitation on, the liability of directors or officers, then the liability of a Director or Officer of this Corporation, in addition to the
Committee. The Audit Committeelimitation of personal liability provided herein, shall make regular reportsbe limited to the Board.
The Audit Committee shall:
1.Review and reassess the adequacyfullest extent permitted by such amendment or amendments. Any repeal or modification of this Charter annuallyprovision by the stockholders of this Corporation shall be prospective only, and recommendshall not adversely affect any proposed changeslimitation on the personal liability of a Director or Officer of this Corporation existing at the time of such repeal or modification.
(b) A Director’s or Officer’s conduct with respect to an employee benefit plan for a purpose he or she reasonably believed to be in the interests of the participants in, and the beneficiaries of, the plan is conduct that satisfies the requirement that his or her conduct was at least not opposed to the Boardbest interests of the Corporation.
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(c) The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea ofnolo contendereor its equivalent, is not, of itself, determinative that the Director or Officer did not meet the relevant standard of conduct described in this Section.
(d) Unless ordered by a court, the Corporation may not indemnify a Director or Officer under this Section if his or her conduct did not satisfy the standards set forth in subsection (a) or subsection (b).
Section 2. Advance for approval.
2.ReviewExpenses. The Corporation shall, before final disposition of a proceeding, advance funds to pay for or reimburse the annual audited financial statements with management, includingreasonable expenses incurred by a Director or Officer who is a party to a proceeding because he or she is a Director or Officer if he or she delivers to the Corporation:
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| (a) a written affirmation of his or her good faith belief that he or she has met the relevant standard of conduct described in Section 1 or that the proceeding involves conduct for which liability has been eliminated under a provision of the By-laws or Articles of Organization as authorized by Section 2.02(b)(4) of chapter 156D or any successor provision to such Section; and |
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| (b) his or her written undertaking to repay any funds advanced if he or she is not wholly successful, on the merits or otherwise, in the defense of such proceeding and it is ultimately determined pursuant to Section 3 or by a court of competent jurisdiction that he or she has not met the relevant standard of conduct described in Section 1. Such undertaking must be an unlimited obligation of the Director or Officer but need not be secured and shall be accepted without reference to the financial ability of the Director or Officer to make repayment. |
Section 3. Determination of Indemnification. The determination of whether a Director or Officer has met the relevant standard of conduct set forth in Section 1 shall be made:
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| (a) if there are two or more disinterested Directors, by the Board of Directors by a majority vote of all the disinterested Directors, a majority of whom shall for such purpose constitute a quorum, or by a majority of the members of a committee of two or more disinterested Directors appointed by vote; |
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| (b) by special legal counsel (1) selected in the manner prescribed in clause (a); or (2) if there are fewer than two disinterested Directors, selected by the Board of Directors, in which selection Directors who do not qualify as disinterested Directors may participate; or |
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| (c) by the shareholders, but shares owned by or voted under the control of a Director who at the time does not qualify as a disinterested Director may not be voted on the determination. |
Section 4. Notification and Defense of Claim; Settlements.
(a) In addition to and without limiting the foregoing provisions of this Article Twelfth and except to the extent otherwise required by law, it shall be a condition of the Corporation’s obligation to indemnify under Section 1 (in addition to any
major issues regarding accounting and auditing principles and practicesother condition provide in the By-laws or by law) that the person asserting, or proposing to assert, the right to be indemnified, must notify the Corporation in writing as
wellsoon as
practicable of any action, suit, proceeding or investigation involving such person for which indemnity will or could be sought, but the
adequacy of internal controls that could significantlyfailure to so notify shall not affect the
Company's financial statements.3.Review an analysis preparedCorporation’s objection to indemnify except to the extent the Corporation is adversely affected thereby. With respect to any proceeding of which the Corporation is so notified, the Corporation 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 such person. After notice from the Corporation to such person of its election so to assume such defense, the Corporation shall not be liable to such person for any legal or other expenses subsequently incurred by management and the independent auditor of significant financial reporting issues and judgments madesuch person in connection with such action, suit, proceeding or investigation other than as provided below in this subsection (a). Such person shall have the preparationright to employ his or her own counsel in connection with such action, suit, proceeding or investigation, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the Company's financial statements, including an analysisdefense thereof shall be at the expense of such person unless (1) the effectemployment of alternative GAAP methods on the Company's financial statements.
4.Review with management and the independent auditor the effect of regulatory and accounting initiatives as well as any off-balance sheet structures on the Company's financial statements.
5.Review with management and the independent auditor the Company's quarterly financial statements prior to the filing of its Form 10-Q, including the results of the independent auditors' reviews of the quarterly financial statements.
6.Review major changes to the auditing and accounting principles and practices as suggestedcounsel by such person has been authorized by the independent auditor, internal auditors,Corporation, (2) counsel to such person shall have reasonably concluded that there may be a conflict of interest or management.
7.Recommend toposition on any significant issue between the Board the appointment of the independent auditor, which firm is ultimately accountable to the Audit CommitteeCorporation and the Board.
8.Review the experience and qualifications of the senior members of the independent auditor team and the quality control procedures of the independent auditor.
9.Approve the fees to be paid to the independent auditor for audit services.
10.Approve the retention of the independent auditor for any non-audit service.A-1
11.Receive periodic reports from the independent auditor regarding the auditor's independence, discuss such reports with the auditor, and consider whether the provision of non-audit services is compatible with maintaining the auditor's independence.
12.Evaluate together with the Board, the performance of the independent auditor. If so determined by the Audit Committee, recommend that the Board replace the independent auditor.
13.Periodically review and approve the Internal Audit Department Charter.
14.Review the Internal Audit Department's Annual Audit Plan.
15.Review the Appointment of the Chief Internal Auditor. Review the performance of the Chief Internal Auditor annually.
16.Review the significant reports to management prepared by the internal auditing department and management's responses.
17.Meet with the independent auditor to review and approve the engagement letter and audit fees.
18.Review the quarterly Loan Review Reports completed by the outside loan review firm and management's responses.
19.Discuss with the independent auditor the matters required to be discussed by Statement on Auditing Standards No. 61 relating toperson in the conduct of the audit.
20.Reviewdefense of such action, suit, proceeding or investigation or (3) the Corporation shall not in fact have employed counsel to assume the defense of such action, suit, proceeding or
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investigation, in each of which cases the fees and expenses of counsel for such person shall be at the expense of the Corporation, except as otherwise expressly provided by this Article Twelfth. The Corporation shall not be entitled, without the consent of such person, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for such person shall have reasonably made the conclusion provided for in clause (2) above.
(b) The Corporation shall not be required to indemnify such person under this Article Twelfth for any amounts paid in settlement of any proceeding unless authorized in the same manner as the determination that indemnification is permissible under Section 3, except that if there are fewer than two disinterested Directors, authorization of indemnification shall be made by the Board of Directors, in which authorization Directors who do not qualify as disinterested directors may participate. The Corporation shall not settle any action, suit, proceeding or investigation in any manner which would impose any penalty or limitation on such person without such person’s written consent. Neither the Corporation nor such person will unreasonably withhold their consent to any proposed settlement.
Section 5. Insurance. The Corporation may purchase and maintain insurance on behalf of an individual who is a Director or Officer of the Corporation, or who, while a Director or Officer of the Corporation, serves at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign corporation, partnership, joint venture, trust, employee benefit plan, or other entity, against liability asserted against or incurred by him or her in that capacity or arising from his or her status as a Director or Officer, whether or not the Corporation would have power to indemnify or advance expenses to him or her against the same liability under this Article Twelfth.
Section 6. Application of Article Twelfth.
(a) The Corporation shall not be obligated to indemnify or advance expenses to a Director or Officer of a predecessor of the Corporation, pertaining to conduct with managementrespect to the predecessor, unless otherwise specifically provided.
(b) This Article Twelfth shall not limit the Corporation’s power to (1) pay or reimburse expenses incurred by a Director or an Officer in connection with his or her appearance as a witness in a proceeding at a time when he or she is not a party or (2) indemnify, advance expenses to or provide or maintain insurance on behalf of an employee or agent.
(c) The indemnification and advancement of expenses provided by, or granted pursuant to, this Article Twelfth shall not be considered exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled.
(d) Each person who is or becomes a Director or Officer shall be deemed to have served or to have continued to serve in such capacity in reliance upon the indemnity provided for in this Article Twelfth. All rights to indemnification under this Article Twelfth shall be deemed to be provided by a contract between the Corporation and the
independent auditorperson who serves as a Director or Officer of the Corporation at any
correspondence with regulators or governmental agencies that raise material issues regarding the Company's financial statements or accounting policies.21.Review with the independent auditor any problems or difficulties the auditor may have encountered and any management letter provided by the auditortime while this Article Twelfth and the response to that letter. Such review should include:
a.- relevant provisions of chapter 156D are in effect. Any
difficulties encountered inrepeal or modification thereof shall not affect any rights or obligations then existing.
(e) The Corporation may, upon the courseaffirmative vote of a majority of the audit work, includingDirectors then in office, indemnify or advance expenses to any restrictions onperson who has served at its request as a Director, trustee, officer, employee or other agent of another organization, or at its request in any capacity with respect to any employee benefit plan.
(f) If the laws of the Commonwealth of Massachusetts are hereafter amended from time to time to increase the scope of
activitiespermitted indemnification, indemnification hereunder shall be provided to the full extent permitted or
access to required information, and any disagreements with management.b.Any changes required in the planned scope of the internal audit.
c.The internal audit department responsibilities, budget and staffing.23.Review the Audit Committee report required by the rules of the Securities and Exchange Commission to be included in the annual proxy statement.
24.Monitor compliance with the Code of Ethics and Insider Trading Policy on a quarterly basis.
25.Review with the General Counsel legal matters that may have a material impact on the financial statements, the Company's compliance policies, and any material reports or inquiries received from regulators or governmental agencies.
26.Meet quarterly with the Chief Internal Auditor and the independent auditor in executive sessions.
27.Review the Regulatory Examination Reports and management's response to ensure that management has taken appropriate actions.
28.Review assessment of compliance with laws and regulations as presented by the Compliance Officer and ensure that management has taken appropriate actions.
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While the Audit Committee has the responsibilities and powers set forth in this Charter, it is not the duty of the Audit Committee to plan or conduct audits or to determine that the financial statements are complete and accurate and are in accordance with generally accepted accounting principles. This is the responsibility of management and the independent auditor.such amendment.
RECOMMENDED BY THE AUDIT COMMITTEE
OF THE BOARD OF DIRECTORS
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INDEPENDENT BANK CORP./ROCKLAND
C/O EQUISERVE TRUST COMPANY, N.A.
P.O. BOX 8694
EDISON, NJ 08818-8694
DATE: |
February 6, 2003 |
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John H. Spurr, Jr.
Chairman, Audit Committee
Independent Bank Corp. |
DATE: |
February 6, 2003 |
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Robert D. Sullivan
Chairman, Audit Committee
Rockland Trust Company |
Your vote is important. Please vote immediately.
Vote-by-Internet
APPROVED BY THE BOARD OF DIRECTORSLog on to the Internet and go tohttp://www.eproxyvote.com/indb
Vote-by-Telephone
Call toll-free
1-877-PRX-VOTE (1-877-779-8683)
If you vote over the Internet or by telephone, please do not mail your card.
[3671 — INDEPENDENT BANK CORP./ROCKLAND TRUST COMPANY] [FILE NAME: ZINB91.ELX] [VERSION — (3)] [02/07/05] [orig.02/04/05]
DETACH HERE IF YOU ARE RETURNING YOUR PROXY CARD BY MAIL
DATE: |
February 13, 2003 |
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Douglas H. Philipsen
Chairman, Board of Directors
Independent Bank Corp. |
DATE:ý |
February 13, 2003 | Please mark
| votes as in
Douglas H. Philipsen
Chairman, Board of Directors
Rockland Trust Companythis example. |
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| | | | Independent Bank Corp.
Annual Meeting of Shareholders
Thursday, April 10, 2003
3:30 pm, local time
At the Plimoth Plantation
137 Warren Avenue on Route 3A
Plymouth, Massachusetts |
THERE ARE THREE WAYS TO VOTE YOUR PROXYThe Board of Directors recommends that you vote “FOR” the following proposals: |
INTERNET VOTING |
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TELEPHONE VOTING |
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VOTING BY MAIL |
Visit the Internet voting website athttp://proxy.georgeson.com. Enter the COMPANY NUMBERand CONTROL NUMBER shown below and follow the instructions on your screen.You will incur only your usual Internet charges. Available until 5:00 p.m. Eastern Time on Wednesday, April 9, 2003. |
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This method of voting is available for residents of the U.S. and Canada. On a touch tone telephone, callTOLL FREE 1-877-381-4017, 24 hours a day, 7 days a week.You will be asked to enterONLY the CONTROL NUMBER shown below. Have your Proxy Card ready, then follow the prerecorded instructions. Your vote will be confirmed and cast as you directed. Available until 5:00 p.m. Eastern Time on Wednesday, April 9, 2003. |
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Simply mark, sign and date your Proxy Card and return it in the postage-paid envelope. Any mailed Proxy Card must be received prior to the vote at the meeting. If you are voting by telephone or the Internet, please do not mail your card. |
COMPANY NUMBER
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CONTROL NUMBER
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PLEASE DETACH PROXY HERE
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ýPlease mark your
votes as in this example.
1. | | Reelection Of Class IElection of Directors. | | FOR
all nominees | | WITHHELD
from all nominees | | FOR
all except | | |
| | Whether to reelect (01) Richard S. Anderson,Alfred L. Donovan, (02) Kevin J. Jones,E. Winthrop Hall, (03) Richard H. Sgarzi,Robert D. Sullivan, and (04) Thomas J. TeutenBrian S. Tedeschi to serve as Class I directors.III Directors.The Nominating Committee of the Independent Bank Corp. Board of Directors recommends that you vote "FOR“FOR ALL NOMINEES"NOMINEES”. | | o |
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| | | | FOR
NOTE: If you do not wish your shares voted "For" a particular nominee, Mark the "FOR ALL EXCEPT" box and strike a line through the name(s) of any nominee(s) you do not wish to vote for. Your shares will be voted for the remaining nominee(s). NOMINEES | | o | | | | o | | WITHHELD FROM ALL NOMINEES | | |
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| | | | For all nominees except as noted above |
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| | INDEPENDENT BANK CORP. | | FOR | | AGAINST | | ABSTAIN | | |
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2. | | To ratify the selection of KPMG LLP as the independent auditor of Independent Bank Corp. for 2005. | | o | | o | | o | | |
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3. | | To approve the 2005 Independent Bank Corp. Employee Stock Plan. | | o | | o | | o | | |
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4. | | To approve the Restated Articles of Organization for Independent Bank Corp. | | o | | o | | o | | |
5. | | To consider and act upon any matters incidental to any of the foregoing purposes, and any other business which may properly come before the Annual Meeting or any other adjournments thereof. |
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| | SHARES OF THE COMPANY'SCOMPANY’S COMMON STOCK WILL BE VOTED AS SPECIFIED. IF RETURNED BUT NOT OTHERWISE SPECIFIED, THIS PROXY WILL BE VOTED FOR THE ELECTION OF THE BOARD OF DIRECTORS'DIRECTORS’ NOMINEES TO THE BOARD OF DIRECTORS, FOR RATIFYING THE SELECTION OF KPMG LLP AS THE INDEPENDENT AUDITOR FOR THE COMPANY FOR 2005, FOR APPROVAL OF THE 2005 EMPLOYEE STOCK PLAN, FOR APPROVAL OF REVISED CORPORATE CHARTER, AND OTHERWISE AT THE DISCRETION OF THE PROXIES. YOU MAY REVOKE THIS PROXY AT ANY TIME PRIOR TO THE TIME IT IS VOTED AT THE ANNUAL MEETING. |
PLEASE VOTE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. | | | | | | | | | | |
| | o | | Mark here for address change. |
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| Please be sure to sign and date this Proxy. |
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| | NOTE: Please sign exactly as name appears hereon. Joint owners should each sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. |
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Date: |
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, 2003 |
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SIGNATURE |
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SIGNATURE |
PLEASE DETACH PROXY HERE
P
R
O
X
Y | | INDEPENDENT BANK CORP.
THIS PROXY IS SOLICITED BY THE INDEPENDENT BANK CORP. BOARD OF DIRECTORS |
| | The undersigned stockholder, having received a Notice of Meeting and Proxy Statement of the Board of Directors dated February 25, 2003 (hereinafter the "Proxy Statement"), hereby appoint(s) Linda M. Campion and Tara M. Villanova, or any one or more of them, attorneys or attorney of the undersigned (with full power of substitution in them and in each of them), for and in the name(s) of the undersigned to attend the Annual Meeting of Stockholders of Independent Bank Corp. to be held at the Plimoth Plantation, 137 Warren Avenue on Route 3A, Plymouth, Massachusetts on Thursday, April 10, 2003 at 3:30 p.m., local time, and any adjournment or adjournments thereof, and there to vote and act in regard to all powers the undersigned would possess, if personally present, and especially (but without limiting the general authorization and power hereby given) to vote and act in accordance with the instructions set forth below. Attendance at the Annual Meeting or any adjournments thereof will not be deemed to revoke this proxy unless the undersigned shall, prior to the voting of shares, give written notice to the Clerk of the Company of his or her intention to vote in person. If a fiduciary capacity is attributed to the undersigned, this proxy is signed in that capacity. | | | | | | | | | | | | |
Signature: | |
The undersigned hereby confer(s) upon Linda M.Campion and Tara M.Villanova, and each of them, discretionary authority to vote (a) on any other matters or proposals not known at the time of solicitation of this proxy which may properly come before the Annual Meeting, and (b) with respect to the selection of directors in the event any nominee for director is unable to stand for election due to death, incapacity, or other unforeseen emergency. | | Date: | | | | Signature: | | | | Date: | | |
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SEE REVERSE
SIDE
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QuickLinks
NOTICE OF ANNUAL STOCKHOLDERS MEETING
[3671 — INDEPENDENT BANK CORP.] [FILE NAME: ZINB92.ELX] [VERSION — (1)] [02/04/05] [orig.02/04/05]
DETACH HERE IF YOU ARE RETURNING YOUR PROXY CARD BY MAIL
INDEPENDENT BANK CORP.
THIS PROXY IS SOLICITED BY THE INDEPENDENT BANK CORP. PROXY STATEMENT TABLEBOARD OF CONTENTS
INDEPENDENT BANK CORP. PROXY STATEMENT
Total Return Performance
DIRECTORS
The undersigned stockholder, having received a Notice of Meeting and Proxy Statement of the Board of Directors dated March 11, 2005 (hereinafter the “Proxy Statement”), hereby appoint(s) Linda M. Campion and Tara M. Villanova, or any one or more of them, attorneys or attorney of the undersigned (with full power of substitution in them and in each of them), for and in the name(s) of the undersigned to attend the Annual Meeting of Stockholders of Independent Bank Corp. to be held at the Plimoth Plantation, 137 Warren Avenue on Route 3A, Plymouth, Massachusetts on Thursday, April 21, 2005, at 3:30 p.m., local time, and any adjournment or adjournments thereof, and there to vote and act in regard to all powers the undersigned would possess, if personally present, and especially (but without limiting the general authorization and power hereby given) to vote and act in accordance with the instructions set forth below. Attendance at the Annual Meeting or any adjournments thereof will not be deemed to revoke this proxy unless the undersigned shall, prior to the voting of shares, give written notice to the Clerk of the Company of his or her intention to vote in person. If a fiduciary capacity is attributed to the undersigned, this proxy is signed in that capacity.
The undersigned hereby confer(s) upon Linda M. Campion and Tara M. Villanova, and each of them, discretionary authority to vote (a) on any other matters or proposals not known at the time of solicitation of this proxy which may properly come before the Annual Meeting, and (b) with respect to the selection of directors in the event any nominee for director is unable to stand for election due to death, incapacity, or other unforeseen emergency.
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SEE REVERSE | | CONTINUED AND TO BE SIGNED ON REVERSE SIDE | | SEE REVERSE |
SIDE | | | | SIDE |