SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 7, 2003 (March 5, 2003)
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ENTERPRISE BANCORP, INC.
(exact name of registrant as specified in charter)
Massachusetts 0-21021 04-3308902
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
222 Merrimack Street 01852
Lowell, Massachusetts (Zip Code)
(address of principal office)
(508) 459-9000
(Registrant's telephone number, including area code)
The Item 9 disclosure set forth below has been amended from the
disclosure included in this report as initially filed to revise the amount of
the one-time income tax expense that the Registrant will record in its first
quarter ending on March 31, 2003, in order to include the effect of the related
deferred tax asset.
Item 9. Regulation FD Disclosure.
On March 5, 2003, Massachusetts Governor Mitt Romney signed into law
legislation intended to close a projected $650 million state budget
deficit for the current fiscal year ending on June 30, 2003. The new
law includes, among other revenue enhancing provisions, changes to
the state's tax laws that are applied to banking organizations, such
as the Registrant, on a retroactive basis to include prior tax years
back to the year ended on December 31, 1999. This change in the law
affects the taxation of income earned by the Registrant's real estate
investment trust subsidiary, Enterprise Realty Trust, Inc. ("ERT"),
and as explained further below will result in the Registrant
recording a one-time income tax expense of $1.9 million, net of
federal income tax benefit and deferred tax asset. This expense will
not effect the Registrant's earnings for the year ended December 31,
2002, but will be included in the Registrant's first quarter ending
on March 31, 2003.
The Registrant is currently engaged in a dispute with the
Massachusetts Department of Revenue (the "DOR") as to whether income
earned by ERT and paid as dividends to the Registrant's banking
subsidiary, Enterprise Bank and Trust Company ("EBTC"), may be
substantially free of state income taxation based on ERT's
qualification as a real estate investment trust and EBTC's ability
to exclude 95% of all dividends received by it from subsidiaries,
including ERT, from state income taxation under applicable
Massachusetts tax law. The retroactive feature of the new law would
require the Registrant to pay the additional taxes that the DOR
seeks to collect for all tax years from 1999 through 2002.
The Registrant believes that it has complied fully with the
applicable Massachusetts tax laws in deducting 95% of the dividends
received by EBTC from ERT in calculating its taxable income for
Massachusetts tax purposes. The registrant also believes that ERT is
a properly qualified real estate investment trust and, as such, owes
no taxes to the Commonwealth of Massachusetts on any amounts that it
has paid as dividends to EBTC in prior years. Moreover, the
Registrant has been advised that the constitutionality of the
retroactive changes to the state's tax laws contained in the
recently passed legislation is questionable.
The $1.9 million one-time income tax expense referred to above
consists of $3.5 million of state income tax liability, net of $1.2
million in federal income tax benefit and $0.4 million in deferred
tax asset. The $3.5 million in state income tax liability consists
of the following:
(i) payment to the Commonwealth of Massachusetts of $1.2 million
as estimated state taxes due for the tax year ended December
31, 2002, which amount would be refunded if the Registrant
prevails in its current dispute with the DOR and if the
retroactive feature of the new legislation, as it applies to
2002, is held to be unconstitutional; and
(ii) a liability for state income taxes to be paid of $2.3 million
for the tax years ended December 31, 2001, 2000 and 1999,
which will become payable to the Commonwealth of Massachusetts
if the DOR prevails in its current dispute with the Registrant
or if the retroactive feature of the new legislation
withstands constitutional challenge.
In addition, the Registrant will record, in 2003 and for the periods
thereafter, state income tax liability on ERT's taxable income.
[Remainder of Page Intentionally Blank]
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENTERPRISE BANCORP, INC.
Date: March 7, 2003 By: /s/ George L. Duncan
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George L. Duncan
Chairman and Chief Executive Officer
(Principal Executive Officer)