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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15 (D) of the Securities
Exchange Act of 1934
For the fiscal year ended: December 31, 1998
or
[ ] Transition Report Pursuant to Section 13 or 15 (D) of the Securities
Exchange Act of 1934
Commission File Number: 1-13949
LOCAL FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 65-0424192
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3601 N. W. 63rd
Oklahoma City, OK 73116
(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code: (405) 841-2100
Securities registered pursuant to Section 12(b) of the Act:
COMMON STOCK (PAR VALUE $0.01 PER SHARE)
SENIOR NOTES DUE 2004
(Title of Class)
Securities registered pursuant to Section 12(g) of the Act:
NOT APPLICABLE
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of March 19, 1999, the aggregate value of the 20,032,429 shares of Common
Stock of the Registrant issued and outstanding on such date, which excludes
504,780 shares held by all directors and executive officers of the Registrant as
a group, was approximately $195 million. This figure is based on the last known
trade price of $9.75 per share of the Registrant's Common Stock on March 19,
1999.
Number of shares of Common Stock outstanding as of March 19, 1999: 20,537,209
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DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents incorporated by reference and the
Part of the Form 10-K into which the document is incorporated:
(1) Portions of the definitive proxy statement for the Annual Meeting of
Stockholders are incorporated into Part III.
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PART I
ITEM 1. BUSINESS
THE COMPANY
General. Local Financial Corporation ("Local Financial" or the
"Company") is the holding company for Local Federal Bank, F.S.B., a federally
chartered stock savings bank, ("Local" or the "Bank"). Effective March 31, 1999,
the Bank changed its name to Local Oklahoma Bank, F.S.B. The Company was
chartered in 1992 as a Delaware corporation. Local Financial and the Bank are
headquartered in Oklahoma City, Oklahoma. The Bank is the oldest and largest
savings institution in Oklahoma. It was organized in 1908 under the name Local
Building and Loan Association, changed to a federal mutual charter in 1935 and
converted to the stock form of organization in 1983. The Company and the Bank
have filed applications with the Federal Reserve System and the Comptroller of
the Currency, respectively, to cause the Bank to be converted to a national
bank. References to the "Bank" or "Local" refer to Local and its subsidiaries on
a consolidated basis, as the context requires.
At December 31, 1998, the Company had consolidated assets of $2.1
billion, substantially all of which is comprised of its 100% ownership interest
in the Bank, consolidated liabilities of $2.0 billion, including consolidated
deposits of $1.7 billion and consolidated stockholders' equity of $118.8
million.
On June 16, 1998, the Company's Board of Directors approved a change in
the Company's fiscal year end from June 30th to December 31st.
The Bank offers a full range of commercial banking products and related
financial services through 50 branch offices within the state of Oklahoma. Its
offices are primarily located in the State's major metropolitan areas of
Oklahoma City, Tulsa and Lawton. The Bank is the largest savings institution and
the fifth largest financial institution in Oklahoma based on deposits at May 20,
1998. Its deposits of $1.7 billion at December 31, 1998, represent approximately
five percent of the Oklahoma market.* Local is presently regulated and examined
by the Office of Thrift Supervision (the "OTS") and the Federal Deposit
Insurance Corporation ("FDIC") and its deposit accounts are insured up to
applicable limits by the FDIC.
The Company's executive offices are located at 3601 NW 63rd Street,
Oklahoma City, Oklahoma 73116-2087.
New Management's Initiatives. In August 1997, a group led by Mr. Edward
A. Townsend, the Company's present Chairman, negotiated a purchase of the
Company from the then owners. The Company financed the redemption of the prior
owners' interest in the Company through a private placement of $197.0 million of
common stock and $80.0 million of senior notes due 2004. The private placement
and redemption were closed in September 1997. The Company subsequently
registered the common stock and senior notes for public resale, and the common
stock and senior notes began publicly trading on April 22, 1998.
Strategy for Growth. Management believes the ongoing consolidation
among financial institutions in Oklahoma has created significant gaps in the
ability of large regional and nationwide banks to serve certain customers,
primarily the Bank's targeted customer base of small and medium sized
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* Information about institutional size and market share are based on data
from an independent statistical reporting service based on deposits at
May 20, 1998, the most recent data used by the reporting service.
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businesses (up to $100 million in annual sales), professionals and other
individuals. The Bank's business strategy is to provide its customers with the
range of banking products and services of a regional bank while retaining the
appeal and level of individualized service of a community bank. Management
believes that as a result of the Company's strong commitment to highly
personalized relationship-oriented customer service, its varied products, its
strategic branch locations and the long-standing community presence of its
managers, lending officers and branch personnel, it is well positioned to
attract new customers and to increase its market share of loans and deposits.
In pursuit of this strategy, the Bank has shifted its activities from
those of a traditional savings and loan to those generally associated with a
commercial bank. The Bank has increased its commercial and consumer lending and
expects further increases in these areas. To attract and serve its commercial
customers, the Bank in 1998 created a new corporate lending unit and added 38
commercial lending officers and supporting staff. The added lending officers
have an average of 18 years experience in the banking industry and most have
strong community ties and banking relationships. To increase consumer lending,
the Bank has increased its advertising and made internal changes to standardize
credit evaluations and reduce branch response times to customer loan
applications. The Bank also has targeted increases in non-interest income,
increases in lending activities rather than investing activities, and increases
in direct lending rather than indirect lending.
Local Financial also intends to grow through selective acquisitions. In
February 1998, the Company acquired Green Country Bank, FSB, with three
full-service locations in northeastern Oklahoma. In October 1998, the Bank
acquired Citizens Bank, with six branch offices including five in Lawton,
Oklahoma, which is in southwestern Oklahoma. Through these acquisitions, the
Company acquired assets of $281.5 million, $270.2 million of liabilities,
including $238.7 million of deposits, based on fair values as of the respective
acquisition dates. The Company will continue to make selective acquisitions to
increase its deposits and branch office locations.
The prior owners had operated the Bank by emphasizing traditional
savings institution products and services, indirect lending such as sub-prime
automobile financing, the acquisition of residential mortgage packages, and a
wholesale securities portfolio. New management has changed the Bank's activities
significantly. Since the change in ownership, management has reduced the level
of collateralized mortgage obligations ("CMOs") with interest rate adjustments
tied to the 11th District Cost of Funds Index ("COFI"), eliminated all swap and
hedging contracts which were used to manage interest rate risk and eliminated
the Bank's portfolio of sub-prime, indirect automobile loans. While these
measures reduced the Bank's assets by over $1 billion and resulted in
substantial losses on the sale and write-down of assets, management believes the
Bank's financial condition is greatly improved and it is better positioned for
future growth. For the year ended December 31, 1998, the first full year of
operations following management's restructuring initiatives, the Bank had net
income of $18.4 million, growth in assets of $247.6 million and growth in
stockholders' equity of $36.2 million. See Item 7 hereof, "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Results of Operations".
LENDING ACTIVITIES
General. As the Bank shifts its activities from those of a traditional
savings and loan to those generally associated with a commercial bank, it has
focused increasingly on the origination of commercial business loans within the
Oklahoma market. Because the amount of commercial loans that may be made by a
savings institution are limited to twenty percent of its total assets, the Bank
has chosen to convert to a national banking association in order to accommodate
the rapid growth of its commercial loan portfolio. See "--Regulation of Federal
Savings Institutions". It has pursued this market by adding experienced lending
officers with strong community ties and banking relationships, many of whom have
left regional
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or national banks in the growing industry consolidation and are attracted by the
Bank's relationship-oriented approach. The Bank will continue its historical
patterns of originating residential and consumer loans through its own branch
network and, in the case of commercial real estate loans, through a network of
real estate brokers, mortgage bankers and unaffiliated financial institutions.
The following table presents information on the Bank's consolidated
loan portfolio as of the dates indicated:
<TABLE>
<CAPTION>
December 31, June 30,
-------------------------- --------------------------------------------------------
1998 1997 1997 1996 1995 1994
----------- ----------- ----------- ----------- ----------- -----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Commercial (1) $ 927,682 $ 646,539 $ 627,295 $ 594,151 $ 485,979 $ 388,002
Residential real estate 344,565 281,565 281,606 280,264 281,986 291,706
Consumer 101,738 38,717 114,925 146,107 40,408 18,391
Held for sale 16,188 7,133 1,433 841 830 14,156
----------- ----------- ----------- ----------- ----------- -----------
Total loans 1,390,173 973,954 1,025,259 1,021,363 809,203 712,255
Less:
Allowance for loan (27,901) (20,484) (11,435) (3,228) (4,593) (3,689)
----------- ----------- ----------- ----------- ----------- -----------
losses
Loans receivable, net $ 1,362,272 $ 953,470 $ 1,013,824 $ 1,018,135 $ 804,610 $ 708,566
=========== =========== =========== =========== =========== ===========
</TABLE>
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(1) Includes loans secured by multi-family residential properties.
Loan Origination and Review. The lending activities of the Bank are
subject to the written, non-discriminatory underwriting standards and loan
origination procedures established by the Bank's Board of Directors and
management. Loan originations are obtained by a variety of sources, including
direct customer solicitations, referrals from real estate brokers, mortgage
bankers, unaffiliated financial institutions, existing customers, walk-in
customers and advertising. In its present marketing efforts, the Bank emphasizes
its customized personal service, competitive rates, and an efficient
underwriting and approval process.
The Bank has revised its underwriting procedures to streamline the
credit approval process. It historically utilized a loan committee review
procedure, which could take several weeks to approve a credit application. The
Bank's increasing emphasis on commercial and consumer loans and its desire to
meet customer needs require quicker response times. The Bank has implemented
procedures that rely, in the case of residential real estate and consumer loans,
on a credit scoring system and, in the case of commercial loans, on a peer or
senior officer approval process, depending on the size of the loan. The Bank has
also revised its credit review procedures to ensure the overall integrity of its
loan portfolio. Management believes its credit approval and review processes are
comparable to those used by other regional and national banks.
Commercial Business Loans. At December 31, 1998, the Bank's commercial
business loans amounted to $232.9 million or 16.8% of the total loan portfolio.
Management believes this lending segment affords the Bank the greatest
opportunity for market growth. At June 30, 1997, the Bank had no commercial
business loans. The portfolio increase results from the Bank's creation in 1998
of a new corporate lending unit and the addition of 38 commercial lending
officers and supporting staff. The added lending officers have an average of 18
years experience in the banking industry and most have strong community ties and
banking relationships.
Local's corporate lending activities are generally directed towards
small to medium size Oklahoma companies with annual sales up to $100 million.
Local's corporate lending division makes both secured and unsecured loans,
although the majority of such lending is done on a secured basis. The
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average loan amount for new commercial business loans ranges from $1 to $3
million. Such loans are generally secured by the receivables, inventory,
equipment, and/or general corporate assets of the borrowers. These loans are
originated on both a one year line of credit basis and on a fixed-term basis
ranging from one to five years. Commercial business loans generally have annual
maturities and prime-based interest rates.
The Bank imposes an in-house lending limit which is below the statutory
lending limit. While the OTS statutory limit is 15% of an institution's
unimpaired capital and surplus (or with respect to Bank, approximately $28.0
million at December 31, 1998), management of the Bank generally restricts single
loans to $15 million in size, but may have exposure to any single borrower up to
the legal lending limit.
Commercial lending entails different and significant risks when
compared to traditional thrift residential lending. These loans typically
involve large loan balances to single borrowers and payment is typically
dependent on the successful operation of the project or the borrower's business.
These loans are also more likely to be adversely affected by unfavorable
economic conditions. The Bank attempts to minimize its risk exposure by imposing
stringent underwriting standards and continually monitoring the operation and
physical condition of the collateral.
Commercial Real Estate Loans. Under prior management, the Bank
originated and purchased commercial real estate loans secured by properties
located throughout the United States. While new management expects to continue
the origination and purchase of commercial and multi-family residential loans
throughout the United States, it plans to emphasize the origination and purchase
of loans secured by multi-family and commercial real estate located within the
State of Oklahoma and surrounding states. The Bank recently added an experienced
commercial real estate lender with over 15 years of experience in the Oklahoma
City market. As a result, the Bank has expanded its origination of commercial
real estate loans within its local market area.
As of December 31, 1998, commercial real estate loans (which include
multi-family residential loans) amounted to $694.8 million or 50.0% of the
Bank's total loan portfolio. The Bank originates loans directly and through a
network of mortgage bankers and correspondent banks throughout the country with
whom the Bank has relationships. All originations and purchases undergo a
three-step underwriting and evaluation process. First, an initial review of the
loan is conducted by the originator to determine conformity to guidelines and
consistency with the Bank's lending philosophy. An indication of pricing and
terms may be issued in the case of loans which have already been originated.
Second, once the indication is accepted by the borrower and a completed
application submitted, a detailed underwriting is conducted in which both the
originator and the Bank's in-house appraiser conduct an onsite inspection and
analysis. Property valuations are performed by the Bank's staff as well as by
independent outside appraisers approved by the Bank's Board of Directors. The
Bank generally requires title, hazard and, to the extent applicable, flood
insurance on its security property. Rent rates are analyzed and compared to
market rents, reported occupancy is checked against evidence onsite,
environmental issues are identified and the appropriate level of investigation
is conducted and a final credit write-up is prepared. Finally, the Bank's
closing department reviews the totality of work, including completeness of
analysis and documentation, title searches, borrower background checks,
appraisal and environmental reports and other pertinent data. Only after these
three broad steps is a final approval and disbursement made.
The Bank originates both fixed-rate and adjustable-rate commercial real
estate loans. Fixed-rate commercial real estate loans generally have terms to
maturity of between five and ten years and amortize over a period of up to 30
years. Adjustable-rate commercial real estate loans have similar terms and
interest rates which generally adjust every six months, one-year, three years
and five years in accordance with a designated index (either the London
Interbank Offer Rate, the prime rate quoted in the Wall Street Journal or U.S.
Treasury rates).
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Loan-to-value ratios on commercial real estate loans are generally
limited to a maximum of 80% for apartments and manufactured housing communities
(loans on real estate as distinguished from manufactured homes), 75% on
mini-storage units and multi-tenant warehouses, 70% for offices and 65% for
hotels and retail properties.
Single-Family Residential Real Estate Loans. At December 31, 1998, the
Bank's single-family residential mortgage loan portfolio amounted to $344.6
million or 24.8% of the total loan portfolio. All of the Bank's single-family
residential mortgage loans are secured by properties located in the State of
Oklahoma. The majority of the single-family residential loan portfolio consist
of conforming loans (i.e., not insured or guaranteed by a federal agency) with
an average balance of below $100,000 per loan. The single-family residential
loan portfolio was originated through a centralized residential loan origination
center. The Bank intends to sell virtually all of its new single family loan
originations.
The loan-to-value ratio, maturity and other provisions of the loans
made by the Bank generally have reflected the policy of making less than the
maximum loan permissible under applicable regulations, in accordance with market
conditions and underwriting standards established by the Bank. The Bank's
lending policies on single-family residential mortgage loans generally limit the
maximum loan-to-value ratio to 95% of the lesser of the appraised value or
purchase price of the property and generally all single-family residential loans
in excess of an 80% loan-to-value ratio require private mortgage insurance.
The Bank offers fixed-rate and adjustable-rate single-family
residential loans with terms of 15 to 30 years. Such loans are amortized on a
monthly basis with principal and interest due each month and customarily include
"due-on-sale" clauses, which are provisions giving the Bank the right to declare
a loan immediately due and payable in the event the borrower sells or otherwise
disposes of the real property subject to the mortgage and the loan is not
repaid.
Consumer Loans. Consumer loans totaled $101.7 million or 7.3% of the
total loan portfolio as of December 31, 1998 and consisted of home equity loans,
deposit secured loans, guaranteed student loans, automobile finance loans and
property improvement and personal loans. Local originates consumer loans bearing
both fixed and prime-based interest rates, primarily with terms of up to five
years, other than second mortgage loans which may have longer terms. Under the
Bank's home equity underwriting guidelines, loans are restricted to not more
than $100,000, and the loan-to-value may not exceed 100% at origination
(although this is not typical of most loans). Loans are originated directly
through the branch network. Management expects increases in the volume of
consumer loans and has directed advertising campaigns and new products toward
this market segment, as well as making internal changes at the branch level to
increase customer responsiveness.
ASSET QUALITY
Loan Delinquencies. When a borrower fails to make a required payment on
a loan, the Bank attempts to cure the deficiency by contacting the borrower and
seeking payment. Contacts are generally made following the 15th day after a
payment is due (30th day in the case of commercial loans), at which time a late
payment is assessed. In most cases, deficiencies are cured promptly. If a
delinquency extends beyond 15 days (30 days in the case of commercial loans),
the loan and payment history are reviewed and efforts are made to collect the
loan. While the Bank generally prefers to work with borrowers to resolve such
problems, when it appears no other alternatives are available, legal action is
instituted.
Nonperforming Assets. All loans are reviewed on a regular basis and are
placed on non-accrual status when, in the opinion of management, the collection
of additional interest is deemed insufficient to warrant further accrual. As a
matter of policy, the Bank does not accrue interest on loans past due 90
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days or more except when the estimated value of the collateral and collection
efforts are deemed sufficient to ensure full recovery. Consumer loans generally
are written down when the loan becomes over 120 days delinquent. Interest
accrued and unpaid at the time a loan is placed on non-accrual status is charged
against interest income. Subsequent payments are either applied to the
outstanding principal balance or recorded as interest income, depending on the
assessment of the ultimate collectibility of the loan. See Item 7 hereof,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Non-performing Assets and Allowances for Loan Losses".
Assets acquired through foreclosure and repossession are recorded at
estimated fair value, net of estimated selling costs at the date of foreclosure
or repossession. The values of assets acquired through foreclosure and
repossession are monitored by the Bank continually through sales and rental
activities, and by updated appraisals and other valuation methods when needed.
The allowance for losses on assets acquired through foreclosure and repossession
represents an amount which management believes will be adequate to absorb losses
from the disposition and/or revaluation of these assets. Additions or reversals
of the allowance for losses on assets acquired through foreclosure and
repossession are provided as an expense or a benefit, respectively, through the
provisions for uninsured risks and losses on assets acquired through foreclosure
and repossession in the accompanying Consolidated Statements of Operations. The
allowance for losses is charged or reduced as losses through sales or
revaluations are incurred.
Classified Assets. The Bank adheres to internal procedures and controls
to review and classify its assets. All assets are reviewed on a periodic basis.
If warranted, all or a portion of any assets exhibiting the characteristics of
risk associated with specific classifications are assigned those
classifications. To monitor loans and to establish loss reserves, the Bank
classifies its assets into the following five categories: pass, special mention,
substandard, doubtful, and loss. Under federal regulations, each insured savings
institution must classify its assets on a regular basis. In connection with
examinations of insured institutions, federal examiners have authority to
identify problem assets and, if appropriate, classify them. Substandard assets
have one or more defined weaknesses and are characterized by the distinct
possibility that the insured institution will sustain some loss if the
deficiencies are not corrected. Doubtful assets have the weaknesses of
substandard assets, with the additional characteristic that the weaknesses make
collection or liquidation in full on the basis of currently existing facts,
conditions and values questionable, and there is a high possibility of loss. An
asset classified loss is considered uncollectible and of such little value that
continuance as an asset of the institution is not warranted. Special mention
assets is a category established and maintained for assets which do not
currently expose an insured institution to a sufficient degree of risk to
warrant classification as substandard, doubtful or loss. Assets classified as
substandard or doubtful require the institution to provide general allowances
for loan losses. If an asset or portion thereof is classified loss, the insured
institution must either establish specific allowances for loan losses in the
amount of 100% of the portion of the asset classified loss, or charge-off such
amount. General loss allowances established to cover possible losses related to
assets classified substandard or doubtful may be included in determining an
institution's regulatory capital up to certain amounts, while specific valuation
allowances for loan losses do not qualify as regulatory capital. Federal
examiners may disagree with an insured institution's classifications and amounts
reserved.
Allowance for Loan Losses. The Bank has established valuation
allowances for estimated inherent losses in its loan portfolio by charging
earnings for estimated losses on loans, including the related accrued interest,
using a specific and percentage reserve method. The allowance for loan losses is
established and maintained through a periodic review and evaluation of various
elements which affect the loans' collectibility and any additional allowances
required result in provisions for loan losses.
The Bank's allowance for loan loss is assessed on a loan-by-loan basis
for all commercial loans and on a portfolio basis for residential and consumer
loans based on delinquency status. As described above, each individual
commercial loan is assigned a risk classification by the responsible loan
manager.
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Depending upon their risk classification, these loans are placed on a review
cycle either annually or quarterly. All loans with risk classifications of
substandard or doubtful are reviewed quarterly and all large loans are reviewed
at least annually by officers of the loan review department. These officers are
independent of the loan origination and underwriting process. During this
review, the appropriateness of the assigned risk classification is assessed
giving consideration to numerous factors including a review of individual
borrowers' financial status, credit standing, available collateral and other
relevant factors. On a quarterly basis, loss factors are applied to the basic
risk classifications to determine the allowance for loan loss. The loss factors
are established by management through consideration of historical loss
experience, regulatory guidance, as well as other elements likely to cause
estimated credit losses to differ from historical losses. Although the risk
classification and loss factor process set forth above is used as a discipline
in the establishment of the minimum allowance required, it is not a substitute
for sound judgment. Prevailing and anticipated economic conditions, portfolio
trends and other relevant factors are considered in management's assessment of
the overall adequacy of the allowance. These other relevant factors include (i)
change in lending policies and procedures, including underwriting standards and
collection, charge-off and recovery practices, (ii) changes in the nature and
volume of the portfolio, (iii) changes in the experience, ability and depth of
lending management and staff, (iv) change in the quality of the Bank's loan
review system and the degree of oversight by the institution's board of
directors, (v) the existence and effect of any concentration of credit and
changes in the level of such concentration and (vi) the effect of external
factors such as competition on the Bank's current portfolio.
INVESTMENT ACTIVITIES
The Bank's securities portfolio is managed in accordance with a written
investment policy adopted by the Board of Directors and administered by the
Bank's Investment Committee. All transactions must be approved by the Investment
Committee and reported to the Board of Directors.
The Bank is authorized to invest in obligations issued or fully
guaranteed by the U.S. Government, certain federal agency obligations, certain
time deposits, negotiable certificates of deposit issued by commercial banks and
other insured financial institutions, investment grade corporate debt securities
and other specified investments such as mortgage-backed and related securities.
The Bank invests in mortgage-backed and related securities, including
mortgage participation certificates, which are insured or guaranteed by U.S.
Government agencies and government sponsored enterprises. Mortgage-backed
securities (which also are known as mortgage participation certificates or
pass-through certificates) represent a participation interest in a pool of
single-family or multi-family mortgages, the principal and interest payments on
which are passed from the mortgage originators, through intermediaries
(generally U.S. Government agencies and government sponsored enterprises) that
pool and repackage the participation interests in the form of securities, to
investors such as the Bank. Such U.S. Government agencies and government
sponsored enterprises, which guarantee the payment of principal and interest to
investors, primarily include the Federal Home Loan Mortgage Corporation
("FHLMC"), the Federal National Mortgage Association ("FNMA") and the Government
National Mortgage Association ("GNMA").
Mortgage-backed securities typically are issued with stated principal
amounts, and the securities are backed by pools of mortgages that have loans
with interest rates that are within a range and have varying maturities. The
characteristics of the underlying pool of mortgages, i.e., fixed-rate or
adjustable-rate, as well as prepayment risk, are passed on to the certificate
holder. The term of a mortgage-backed pass-through security thus approximates
the term of the underlying mortgages.
The Bank's mortgage-backed and related securities include CMOs, which
include securities issued by entities which have qualified under the Internal
Revenue Code of 1986, as amended (the
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"Code"), as real estate mortgage investment conduits ("REMICs"). CMOs and REMICs
(collectively CMOs) have been developed in response to investor concerns
regarding the uncertainty of cash flows associated with the prepayment option of
the underlying mortgagor and are typically issued by governmental agencies,
government sponsored enterprises and special purpose entities, such as trusts,
corporations or partnerships, established by financial institutions or other
similar institutions. A CMO can be collateralized by loans or securities which
are insured or guaranteed by FNMA, FHLMC or GNMA. In contrast to pass-through
mortgage-backed securities, in which cash flow is received pro rata by all
security holders, the cash flow from the mortgages underlying a CMO is segmented
and paid in accordance with a predetermined priority to investors holding
various CMO classes. By allocating the principal and interest cash flows from
the underlying collateral among the separate CMO classes, different classes of
bonds are created, each with its own stated maturity, estimated average life,
coupon rate and prepayment characteristics.
In late 1996 and in anticipation of the proposed sale of the Company,
prior management began reducing its securities, particularly its CMO holdings,
through periodic bulk sale transactions. During the year ended June 30, 1997,
the Bank sold $743.9 million of securities and recognized $29.6 million of
losses with respect to such sales. At June 30, 1997, the Bank's securities
portfolio amounted to $1.4 billion ($1.1 billion of which consisted of
COFI-based CMOs) or 53.1% of total assets. As of such date, the Bank had $32.0
million of unrealized losses with respect to its securities portfolio (net of
applicable tax benefits).
After the Company's purchase, new management determined that its CMO
portfolio was "other than temporarily impaired" and, in accordance with
generally accepted accounting principles ("GAAP"), wrote-down its remaining CMO
portfolio by $54.7 million. In addition, new management further reduced the
Bank's securities portfolio, particularly its COFI-based CMOs. See
"Business--The Company--Strategy for Growth" and Note 5 of the Notes to
Consolidated Financial Statements in Item 8 hereof.
SOURCES OF FUNDS
General. Deposits are the primary source of the Bank's funds for
lending and other investment purposes. In addition to deposits, the Bank derives
funds from loan principal repayments and advances from the Federal Home Loan
Bank of Topeka ("FHLB"). Loan repayments are a relatively stable source of
funds, while deposit inflows and outflows are significantly influenced by
general interest rates and money market conditions. Borrowings may be used on a
short-term basis to compensate for reductions in the availability of funds from
other sources. They may also be used on a longer-term basis for general business
purposes.
Deposits. As of December 31, 1998, the Bank accepted deposits through
its 50 branch offices. Deposits are solicited on a regular basis directly
through the Bank's customer base and through various advertising media within
its market. The Bank offers several savings account and checking account plans
to its customers. Among savings account plans, the Bank offers basic savings,
short-term and long-term certificates of deposit, a variable rate IRA/Keogh and
regular IRAs and Keoghs. The Bank offers checking account plans that range from
a no-fee, no-interest plan to a variable-fee, bundled product plan that includes
services or products such as personalized checks, ATM cards, overdraft
protection, no annual fee Visa/MasterCard membership, safe deposit box
discounts, cash management, lock box services and assistance with travelers
checks.
Interest rates paid, maturity terms, service fees and withdrawal
penalties are established by the Bank, on a periodic basis. Determination of
rates and terms are predicated on funds acquisition and liquidity requirements,
rates paid by competitors, growth goals and federal regulations.
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The Bank does not advertise for deposits outside its local market area
or utilize the services of deposit brokers.
As of December 31, 1998, the aggregate amount of outstanding time
certificates of deposit in amounts greater than or equal to $100,000, was
approximately $138.6 million. The following table presents the maturity of these
time certificates of deposit at such date:
<TABLE>
<CAPTION>
December 31, 1998
----------------------
(Dollars In Thousands)
<S> <C>
3 months or less $ 41,389
Over 3 months through 6 months 28,637
Over 6 months through 12 months 47,371
Over 12 months 21,208
-----------------
$ 138,605
=================
</TABLE>
Borrowings. The Bank is a member of the FHLB and is authorized to apply
for secured advances from the FHLB of Topeka. See "Regulation and Supervision".
The Bank uses advances from the FHLB to repay borrowings, meet deposit
withdrawals and expand its lending and short-term investment activities.
In a 1997 private placement, the Company issued $80.0 million of senior
notes which are due in September 2004 and which bear interest at the rate of
11.0%, payable semi-annually. Unamortized debt issuance costs of approximately
$3.7 million at December 31, 1998 was capitalized and is included in other
assets as of such date. For additional information, see Note 12 of the Notes to
Consolidated Financial Statements in Item 8 hereof.
COMPETITION AND THE COMPANY
As reported by an independent statistical reporting service, Local is
currently the largest savings bank and fifth largest financial institution in
Oklahoma based on deposits at May 20, 1998. Its deposits represent approximately
five percent of the state's deposit market share. Local's operating goal is to
provide a broad range of financial services with a strong emphasis on customer
service.
Local has substantial competition in lending funds and attracting and
retaining deposits. The primary factors in competing for loans are the range and
quality of lending services offered, interest rates and loan origination fees.
In competing for commercial loans, Local's targeted growth segment, it believes
that the personal relationships between lending officers and commercial
borrowers is a primary factor. Competition for the origination of real estate
loans normally comes from other savings and loans, commercial banks, mortgage
bankers, finance and insurance companies. The primary factors in competing for
deposits are the range and quality of financial services offered, the ability to
offer attractive rates and the availability of convenient locations. There is
direct competition for deposits from credit unions and commercial banks and
other savings and loans. Additional significant competition for savings deposits
comes from other investment alternatives, such as money market funds, credit
unions, and corporate and government securities.
Local expects increased competition. For a variety of reasons including
legislative developments relating to interstate branching and the ownership of
financial institutions, the consolidation within the financial services industry
will likely continue. For Local, this trend means that the number of
locally-owned financial institutions will decrease and that the Bank will
increasingly compete against larger regional and national banks. While these
larger regional and national banks will likely attract the largest
9
<PAGE> 12
Oklahoma businesses (sales over $100 million), Local believes that these large
banks are unable to provide the relationship-oriented, customer service that
Local provides its target customer base of small and medium-sized businesses,
professionals and other individuals. Although the Bank has been able to compete
effectively in its market areas to date, it can offer no assurance that the Bank
will continue to do so in the future, especially with the rapid changes
occurring within the financial services industry
Segments. The Company operates as one segment. The operating
information used by the Company's chief operating decision maker for purposes of
assessing performance and making operating decisions about the Company is the
consolidated financial statements presented herein. Local has one active
operating subsidiary, Local Securities Corporation ("Local Securities"), which
is a registered broker-dealer under the Securities Exchange Act of 1934 and
provides retail investment products to customers of Local. While Local
Securities qualifies as a separate operating segment, it is not considered
material to the consolidated financial statements for the purposes of making
operating decisions and does not meet the 10% threshold for disclosure under
Statement of Financial Accounting Standards ("SFAS") No. 131 "Disclosure About
Segments of an Enterprise and Related Information".
REGULATION--GENERAL
The Bank is currently a federally chartered and insured stock savings
bank subject to extensive regulation and supervision by the OTS, as the primary
federal regulator of savings institutions, and the FDIC, as the administrator of
the Savings Association Insurance Fund ("SAIF").
The federal banking laws contain numerous provisions affecting various
aspects of the business and operations of savings institutions and savings and
loan holding companies. The following description of statutory and regulatory
provisions and proposals, which is not intended to be a complete description of
these provisions or their effects on the Bank, is qualified in its entirety by
reference to the particular statutory or regulatory provisions or proposals.
REGULATION OF SAVINGS AND LOAN HOLDING COMPANIES
Holding Company Acquisitions. The Company is currently a registered
savings and loan holding company. The Home Owners' Loan Act, as amended (the
"HOLA"), and OTS regulations generally prohibit a savings and loan holding
company, without prior OTS approval, from acquiring, directly or indirectly, the
ownership or control of any other savings association or savings and loan
holding company, or all, or substantially all, of the assets or more than 5% of
the voting shares thereof. These provisions also prohibit, among other things,
any director or officer of a savings and loan holding company, or any individual
who owns or controls more than 25% of the voting shares of such holding company,
from acquiring control of any savings association not a subsidiary of such
savings and loan holding company, unless the acquisition is approved by the OTS.
Holding Company Activities. The Company currently operates as a unitary
savings and loan holding company. There are generally no restrictions on the
activities of a savings and loan holding company which holds only one subsidiary
savings institution. However, if the Director of the OTS determines that there
is reasonable cause to believe that the continuation by a savings and loan
holding company of an activity constitutes a serious risk to the financial
safety, soundness or stability of its subsidiary savings institution, the
Director may impose such restrictions as deemed necessary to address such risk,
including limiting (i) payment of dividends by the savings institution; (ii)
transactions between the savings institution and its affiliates; and (iii) any
activities of the savings institution that might create a serious risk that the
liabilities of the holding company and its affiliates may be imposed on the
savings institution. Notwithstanding the above rules as to permissible business
activities of unitary savings and loan holding companies, if the savings
institution subsidiary of such a holding company fails to meet a
10
<PAGE> 13
qualified thrift lender ("QTL") test, then such unitary holding company also
shall become subject to the activities restrictions applicable to multiple
savings and loan holding companies and, unless the savings institution
requalifies as a QTL within one year thereafter, shall register as, and become
subject to the restrictions applicable to, a bank holding company. See
"--Regulation of Federal Savings Institutions--Qualified Thrift Lender Test".
If the Company were to acquire control of another savings institution,
other than through merger or other business combination with the Bank, the
Company would thereupon become a multiple savings and loan holding company,
which is generally subject to further restrictions.
The HOLA requires every savings association subsidiary of a savings and
loan holding company to give the OTS at least 30 days' advance notice of any
proposed dividends to be made on its guaranteed, permanent or other
non-withdrawable stock, or else such dividend will be invalid. See "--Regulation
of Federal Savings Institutions--Capital Distribution Regulation".
Affiliate Restrictions. Transactions between a savings association and
its "affiliates" are subject to quantitative and qualitative restrictions under
Sections 23A and 23B of the Federal Reserve Act. Affiliates of a savings
association include, among other entities, the savings association's holding
company and companies that are under common control with the savings
association.
In general, Sections 23A and 23B and OTS regulations issued in
connection therewith limit the extent to which a savings association or its
subsidiaries may engage in certain "covered transactions" with affiliates to an
amount equal to 10% of the association's capital and surplus, in the case of
covered transactions with any one affiliate, and to an amount equal to 20% of
such capital and surplus, in the case of covered transactions with all
affiliates. In addition, a savings association and its subsidiaries may engage
in covered transactions and certain other transactions only on terms and under
circumstances that are substantially the same, or at least as favorable to the
savings association or its subsidiary, as those prevailing at the time for
comparable transactions with nonaffiliated companies. A "covered transaction" is
defined to include a loan or extension of credit to an affiliate; a purchase of
investment securities issued by an affiliate; a purchase of assets from an
affiliate, with certain exceptions; the acceptance of securities issued by an
affiliate as collateral for a loan or extension of credit to any party; or the
issuance of a guarantee, acceptance or letter of credit on behalf of an
affiliate.
In addition, under the OTS regulations, a savings association may not
make a loan or extension of credit to an affiliate unless the affiliate is
engaged only in activities permissible for bank holding companies; a savings
association may not purchase or invest in securities of an affiliate other than
shares of a subsidiary; a savings association and its subsidiaries may not
purchase a low-quality asset from an affiliate; and covered transactions and
certain other transactions between a savings association or its subsidiaries and
an affiliate must be on terms and conditions that are consistent with safe and
sound banking practices. With certain exceptions, each loan or extension of
credit by a savings association to an affiliate must be secured by collateral
with a market value ranging from 100% to 130% (depending on the type of
collateral) of the amount of the loan or extension of credit.
The OTS regulations generally exclude all non-bank and non-savings
association subsidiaries of savings associations from treatment as affiliates,
except to the extent that the OTS or the Federal Reserve Board decides to treat
such subsidiaries as affiliates. The regulations also requires savings
associations to make and retain records that reflect affiliate transactions in
reasonable detail, and provide that certain classes of savings associations may
be required to give the OTS prior notice of affiliate transactions.
11
<PAGE> 14
REGULATION OF FEDERAL SAVINGS INSTITUTIONS
Regulatory System. As a federally insured savings bank, lending
activities and other investments of the Bank must comply with various statutory
and regulatory requirements. The Bank is regularly examined by the OTS and must
file periodic reports concerning its activities and financial condition.
Although the OTS is the Bank's primary regulator, the FDIC has "backup
enforcement authority" over the Bank. The Bank's eligible deposit accounts are
insured by the FDIC under the SAIF, up to applicable limits.
Federal Home Loan Banks. The Bank is a member of the FHLB System. Among
other benefits, FHLB membership provides the Bank with a central credit
facility. The Bank is required to own capital stock in an FHLB in an amount
equal to the greater of: (i) 1% of its aggregate outstanding principal amount of
its residential mortgage loans, home purchase contracts and similar obligations
at the beginning of each calendar year, (ii) .3% of total assets, or (iii) 5% of
its FHLB advances (borrowings).
Liquid Assets. Under OTS regulations, for each calendar month, a
savings institution is required to maintain an average daily balance of liquid
assets (including cash, certain time deposits and savings accounts, bankers'
acceptances, certain government obligations and certain other investments) not
less than a specified percentage of the average daily balance of its net
withdrawable accounts plus short-term borrowings (its liquidity base) during the
preceding calendar month. This liquidity requirement, which is currently at 4%,
may be changed from time to time by the OTS to any amount between 4% to 10%,
depending upon certain factors. The Bank maintains liquid assets in compliance
with this regulation.
Regulatory Capital Requirements. OTS capital regulations require
savings institutions to satisfy minimum capital standards: risk-based capital
requirements, a leverage requirement and a tangible capital requirement. Savings
institutions must meet each of these standards in order to be deemed in
compliance with OTS capital requirements. In addition, the OTS may require a
savings institutions to maintain capital above the minimum capital levels.
All savings institutions are required to meet a minimum risk-based
capital requirement of total capital (core capital plus supplementary capital)
equal to 8% of risk-weighted assets (which includes the credit risk equivalents
of certain off-balance sheet items). In calculating total capital for purposes
of the risk-based requirement, supplementary capital may not exceed 100% of core
capital. Under the leverage requirement, a savings institution is required to
maintain core capital equal to a minimum of 3% of adjusted total assets. In
addition, under the prompt corrective action provisions of the OTS regulations,
all but the most highly-rated institutions must maintain a minimum leverage
ratio of 4% in order to be adequately capitalized. See "--Prompt Corrective
Action". A savings institution is also required to maintain tangible capital in
an amount at least equal to 1.5% of its adjusted total assets.
These capital requirements are viewed as minimum standards by the OTS,
and most institutions are expected to maintain capital levels well above the
minimum. In addition, the OTS regulations provide that minimum capital levels
higher than those provided in the regulations may be established by the OTS for
individual savings institutions, upon a determination that the savings
institution's capital is or may become inadequate in view of its circumstances.
The OTS regulations provide that higher individual minimum regulatory capital
requirements may be appropriate under certain circumstances. Local is not
subject to any such individual minimum regulatory capital requirement. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources--Capital Resources" in Item 7
hereof.
12
<PAGE> 15
Certain Consequences of Failure to Comply with Regulatory Capital
Requirements. A savings institution's failure to maintain capital at or above
the minimum capital requirements may be deemed an unsafe and unsound practice
and may subject the savings institution to enforcement actions and other
proceedings.
Prompt Corrective Action. The prompt corrective action regulation of
the OTS, promulgated under the Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA"), requires certain mandatory actions and authorizes
certain other discretionary actions to be taken by the OTS against a savings
institution that falls within certain undercapitalized capital categories
specified in the regulation.
The regulation establishes five categories of capital classification:
"well capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized," and "critically undercapitalized." Under the regulation, the
ratio of total capital to risk-weighted assets, core capital to risk-weighted
assets and the leverage ratio are used to determine an institution's capital
classification. At December 31, 1998, the Bank met the capital requirements of a
"well capitalized" institution under applicable OTS regulations.
In general, the prompt corrective action regulation prohibits an
insured depository institution from declaring any dividends, making any other
capital distribution, or paying a management fee to a controlling person if,
following the distribution or payment, the institution would be within any of
the three undercapitalized categories. In addition, adequately capitalized
institutions may accept brokered deposits only with a waiver from the FDIC and
are subject to restrictions on the interest rates that can be paid on such
deposits. Undercapitalized institutions may not accept, renew or roll-over
brokered deposits.
Enforcement Powers. The OTS and, under certain circumstances, the FDIC,
have substantial enforcement authority with respect to savings institutions,
including authority to bring various enforcement actions against a savings
institution and any of its "institution-affiliated parties" (a term defined to
include, among other persons, directors, officers, employees, controlling
stockholders, agents and stockholders who participate in the conduct of the
affairs of the institution). This enforcement authority includes, without
limitation: (i) the ability to terminate a savings institution's deposit
insurance, (ii) institute cease-and-desist proceedings, (iii) bring suspension,
removal, prohibition and criminal proceedings against institution-affiliated
parties, and (iv) assess substantial civil money penalties. As part of a
cease-and-desist order, the agencies may require a savings institution or an
institution-affiliated party to take affirmative action to correct conditions
resulting from that party's actions, including to make restitution or provide
reimbursement, indemnification or guarantee against loss; restrict the growth of
the institution; and rescind agreements and contracts.
Capital Distribution Regulation. In addition to the prompt corrective
action restriction on paying dividends, OTS regulations limit certain "capital
distributions" by OTS-regulated savings institutions. Capital distributions are
defined to include, in part, dividends and payments for stock repurchases and
cash-out mergers.
In January 1999, the OTS amended its capital distribution regulations
to bring such regulations into greater conformity with the other bank regulatory
agencies. Under the amended regulations, certain savings associations would not
be required to make any filings with the OTS in connection with a capital
distribution. Specifically, savings associations that would be well capitalized
following a capital distribution would not be subject to any requirement for
notice or application unless the total amount of all capital distributions,
including any proposed capital distribution, for the applicable calendar year
would exceed an amount equal to the savings association's net income for that
year to date plus the savings association's retained net income for the
preceding two years.
13
<PAGE> 16
Qualified Thrift Lender Test. In general, savings institutions are
required to maintain at least 65% of their portfolio assets in certain qualified
thrift investments (which consist primarily of loans and other investments
related to residential real estate and certain other assets). Credit card and
educational loans may now be made by savings associations without regard to any
percentage-of-assets limit, and commercial loans may be made in an amount up to
10 percent of total assets, plus an additional 10 percent for small business
loans. Loans for personal, family and household purposes (other than credit
card, small business and educational loans) are now included without limit with
other assets that, in the aggregate, may account for up to 20% of total assets.
A savings institution that fails the qualified thrift lender test is subject to
substantial restrictions on activities and to other significant penalties.
Savings associations may also qualify as a qualified thrift lender not only by
maintaining 65% of portfolio assets in qualified thrift investments (the "QTL
test") but also, in the alternative, by qualifying under the Code as a "domestic
building and loan association." The Bank is a domestic building and loan
associations as defined in the Code and, at December 31, 1998, met the QTL Test.
FDIC Assessments. The deposits of the Bank are insured to the maximum
extent permitted by the SAIF, which is administered by the FDIC, and are backed
by the full faith and credit of the U.S. Government. As insurer, the FDIC is
authorized to conduct examinations of, and to require reporting by, FDIC-insured
institutions. It also may prohibit any FDIC-insured institution from engaging in
any activity the FDIC determines by regulation or order to pose a serious threat
to the FDIC. The FDIC also has the authority to initiate enforcement actions
against savings institutions, after giving the OTS an opportunity to take such
action.
Under FDIC regulations, institutions are assigned to one of three
capital groups for insurance premium purposes--"well capitalized," "adequately
capitalized" and "undercapitalized"-- which are defined in the same manner as
the regulations establishing the prompt corrective action system, as discussed
below. These three groups are then divided into subgroups which are based on
supervisory evaluations by the institution's primary federal regulator,
resulting in nine assessment classifications. Effective January 1, 1997,
assessment rates for both SAIF-insured institutions and Bank Insurance Fund
("BIF")-insured institutions ranged from 0% of insured deposits for
well-capitalized institutions with minor supervisory concerns to .27% of insured
deposits for undercapitalized institutions with substantial supervisory
concerns. In addition, an additional assessment of 6.4 basis points and 1.3
basis points is added to the regular SAIF-assessment and the regular
BIF-assessment, respectively, until December 31, 1999 in order to cover
Financing Corporation debt service payments.
Both the SAIF and the BIF are required by law to attain and thereafter
maintain a reserve ratio of 1.25% of insured deposits. The BIF has achieved the
required reserve ratio, and as a result, the FDIC previously reduced the average
deposit insurance premium paid by BIF-insured banks to a level substantially
below the average premium previously paid by savings institutions. Banking
legislation was enacted on September 30, 1996 to eliminate the premium
differential between SAIF-insured institutions and BIF-insured institutions. The
legislation provided that all insured depository institutions with
SAIF-assessable deposits as of March 31, 1995 pay a special one-time assessment
to recapitalize the SAIF. Pursuant to this legislation, the FDIC promulgated a
rule that established the special assessment necessary to recapitalize the SAIF
at 65.7 basis points of SAIF-assessable deposits held by affected institutions
as of March 31, 1995. Based upon its level of SAIF deposits as of March 31,
1995, the Bank paid a special assessment of $10.3 million. The assessment was
accrued in the quarter ended September 30, 1996.
The FDIC may terminate the deposit insurance of any insured depository
institution, including the Bank, if it determines after a hearing that the
institution has engaged or is engaging in unsafe or unsound practices, is in an
unsafe or unsound condition to continue operations, or has violated any
applicable law, regulation, order or any condition imposed by an agreement with
the FDIC. It also may suspend deposit insurance temporarily during the hearing
process for the permanent termination of insurance, if the
14
<PAGE> 17
institution has no tangible capital. If insurance of accounts is terminated, the
accounts at the institution at the time of the termination, less subsequent
withdrawals, shall continue to be insured for a period of six months to two
years, as determined by the FDIC. There are no pending proceedings to terminate
the deposit insurance of the Bank.
Community Reinvestment Act and the Fair Lending Laws. Savings
institutions have a responsibility under the Community Reinvestment Act ("CRA")
and related regulations of the OTS to help meet the credit needs of their
communities, including low-and moderate-income neighborhoods. In addition, the
Equal Credit Opportunity Act and the Fair Housing Act (together, the "Fair
Lending Laws") prohibit lenders from discriminating in their lending practices
on the basis of characteristics specified in those statutes. An institution's
failure to comply with the provisions of CRA could, at a minimum, result in
regulatory restrictions on its activities, and failure to comply with the Fair
Lending Laws could result in enforcement actions by the OTS, as well as other
federal regulatory agencies and the Department of Justice.
Safety and Soundness Guidelines. The OTS and the other federal banking
agencies have established guidelines for safety and soundness, addressing
operational and managerial, as well as compensation matters for insured
financial institutions. Institutions failing to meet these standards are
required to submit compliance plans to their appropriate federal regulators. The
OTS and the other agencies have also established guidelines regarding asset
quality and earnings standards for insured institutions.
Change of Control. Subject to certain limited exceptions, no company
can acquire control of a savings association without the prior approval of the
OTS, and no individual may acquire control of a savings association if the OTS
objects. Any company that acquires control of a savings association becomes a
savings and loan holding company subject to extensive registration, examination
and regulation by the OTS. Conclusive control exists, among other ways, when an
acquiring party acquires more than 25% of any class of voting stock of a savings
association or savings and loan holding company, or controls in any manner the
election of a majority of the directors of the company. In addition, a
rebuttable presumption of control exists if, among other things, a person
acquires more than 10% of any class of a savings association or savings and loan
holding company's voting stock (or 25% of any class of stock) and, in either
case, any of certain additional control factors exist.
Companies subject to the Bank Holding Company Act that acquire or own
savings associations are no longer defined as savings and loan holding companies
under the HOLA and, therefore, are not generally subject to supervision and
regulation by the OTS. OTS approval is no longer required for a bank holding
company to acquire control of a savings association, although the OTS has a
consultative role with the Federal Reserve Board in examination, enforcement and
acquisition matters.
REGULATION--EFFECT OF POSSIBLE CHARTER CONVERSION
Bank Holding Company Regulation. In the event that the Bank completes
the conversion of its charter to that of a commercial bank, the Company would
become subject to the Bank Holding Company Act of 1956, as amended (the "BHCA"),
would be required to register as a bank holding company, and would be subject to
regulation and supervision by the Federal Reserve System and by the Comptroller
of the Currency (the "Comptroller"). The Company has filed it application with
the Federal Reserve Board in connection with the Bank's charter conversion. The
Company also would be required to file annually a report of its operations with,
and would be subject to examination by, the Federal Reserve System and the
Comptroller.
15
<PAGE> 18
The BHCA prohibits a bank holding company from acquiring direct or
indirect ownership or control of more than 5% of the voting shares of any bank,
or increasing such ownership or control of any bank, without prior approval of
the Federal Reserve Board. The BHCA also generally prohibits a bank holding
company from acquiring any bank located outside of the state in which the
existing bank subsidiaries of the bank holding company are located unless
specifically authorized by applicable state law. No approval under the BHCA is
required, however, for a bank holding company already owning or controlling 50%
of the voting shares of a bank to acquire additional shares of such bank.
The BHCA also prohibits a bank holding company, with certain
exceptions, from acquiring more than 5% of the voting shares of any company that
is not a bank and from engaging in any business other than banking or managing
or controlling banks. Under the BHCA, the Federal Reserve Board is authorized to
approve the ownership of shares by a bank holding company in any company, the
activities of which the Federal Reserve Board has determined to be so closely
related to banking or to managing or controlling banks as to be a proper
incident thereto. In making such determinations, the Federal Reserve Board is
required to weigh the expected benefit to the public, such as greater
convenience, increased competition or gains in efficiency, against the possible
adverse effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest or unsound banking practices.
The Federal Reserve Board has by regulation determined that certain
activities are closely related to banking within the meaning of the BHCA. These
activities include operating a mortgage company, finance company, credit card
company, factoring company, trust company or savings association; performing
certain data processing operations; providing limited securities brokerage
services; acting as an investment or financial advisor; acting as an insurance
agent for certain types of credit-related insurance; leasing personal property
on a full-payout, non-operating basis; providing tax planning and preparation
services; operating a collection agency; and providing certain courier services.
The Federal Reserve Board also has determined that certain other activities,
including real estate brokerage and syndication, land development, property
management and underwriting of life insurance not related to credit
transactions, are not closely related to banking and a proper incident thereto.
A thrift holding company is not subject to any regulatory capital
requirements. However, if the Company were to become a bank holding company, it
would become subject to the capital adequacy rules of the Federal Reserve Board.
The Federal Reserve Board has adopted capital adequacy guidelines pursuant to
which it assesses the adequacy of capital in examining and supervising a bank
holding company and in analyzing applications to it under the BHCA. The Federal
Reserve Board capital adequacy guidelines generally require bank holding
companies to maintain total capital equal to 8% of total risk-adjusted assets,
with at least one-half of that amount consisting of Tier I or core capital and
up to one-half of that amount consisting of Tier II or supplementary capital.
Tier I capital for bank holding companies generally consists of the sum of
common stockholders' equity and perpetual preferred stock (subject in the case
of the latter to limitations on the kind and amount of such stocks which may be
included as Tier I capital), less goodwill and, with certain exceptions,
intangibles. Tier II capital generally consists of hybrid capital instruments;
perpetual preferred stock which is not eligible to be included as Tier I
capital; term subordinated debt and intermediate-term preferred stock; and
subject to limitations, general allowances for loan losses. Assets are adjusted
under the risk-based guidelines to take into account different risk
characteristics, with the categories ranging from 0% (requiring no additional
capital) for assets such as cash to 100% for the bulk of assets which are
typically held by a bank holding company, including multi-family residential and
commercial real estate loans, commercial business loans and consumer loans.
Single-family residential first mortgage loans which are not past-due (90 days
or more) or non-performing and which have been made in accordance with prudent
underwriting standards are assigned a 50% level in the risk-weighing system, as
are certain privately-issued mortgage-backed securities representing indirect
ownership of such loans. Off-balance sheet items also are adjusted to take into
account certain risk characteristics.
16
<PAGE> 19
In addition to the risk-based capital requirements, the Federal Reserve
Board requires bank holding companies to maintain a minimum leverage capital
ratio of Tier I capital to total assets of 3.0%. Total assets for this purpose
does not include goodwill and any other intangible assets and investments that
the Federal Reserve Board determines should be deducted from Tier I capital. The
Federal Reserve Board has announced that the 3.0% Tier I leverage capital ratio
requirement is the minimum for the top-rated bank holding companies without any
supervisory, financial or operational weaknesses or deficiencies or those which
are not experiencing or anticipating significant growth. Other bank holding
companies will be expected to maintain Tier I leverage capital ratios of at
least 4.0% to 5.0% or more, depending on their overall condition.
The Company expects that upon conversion to a bank holding company it
will be in compliance with the above-described Federal Reserve Board regulatory
capital requirements.
Commercial Bank Regulation. In the event that the Bank completes the
conversion of its charter to that of a commercial bank, the Bank would become
subject to extensive regulation and examination by the Comptroller. The Bank
would continue to be subject to regulation and examination by the FDIC, which
will continue to insure the deposits of the Bank. Additionally,
contemporaneously with the Bank's conversion to a national banking association,
the Company will become subject to extensive regulation and examination by the
Federal Reserve System. At the same time, the Bank will become a member of the
Federal Reserve System. The Bank has not yet been notified of the cost of
acquiring its membership in the Federal Reserve System but does not believe it
will be material. The Comptroller will supervise and regulate all areas of the
Bank's operations including, without limitation, the making of loans, the
issuance of securities, the conduct of the bank's corporate affairs, merger with
or acquisition of other banks, capital adequacy requirements (which are very
similar to the OTS' capital adequacy requirements), the payment of dividends and
the establishment or closing of branches.
Upon its conversion to a commercial bank regulated by the Comptroller
of the Currency, the Bank will be required to maintain the minimum levels of
regulatory capital required for commercial banks which consists of (i) Tier 1
core capital to net risk weighted assets ratio of 4.00%; (ii) Total capital
(Tier 1 + Tier 2 [supplementary capital]) to net risk weighted assets ratio of
8.00%; and (iii) Leverage ratio (Tier 1 capital to total consolidated assets, as
defined) of 3.00%. The Company expects that, upon the Bank's conversion to a
commercial bank, the Bank will have capital which is well in excess of the
above-described Comptroller of the Currency regulatory capital requirements. See
Item 6 hereof, "--Selected Financial Data--Capital Resources".
TAXATION--FEDERAL
General. The Company and its subsidiaries, including the Bank, are
subject to federal income taxation under the Code in the same general manner as
other corporations with some exceptions discussed below. The following
discussion of federal taxation is intended only to summarize certain pertinent
federal income tax matters and is not a comprehensive description of the tax
rules applicable to the Bank. The Company's and its subsidiaries' consolidated
federal income tax returns have been audited or closed without audit by the
Internal Revenue Service ("IRS") through tax year 1993.
Method of Accounting. For federal income tax purposes, the Company and
its subsidiaries, including the Bank, currently report their income and expenses
on the accrual method of accounting and use a tax year ending June 30 for filing
their consolidated federal income tax returns. The Small Business Protection Act
of 1996 (the "1996 Act") eliminated the use of the reserve method of accounting
for bad debt reserves by savings institutions, effective for taxable years
beginning after 1995.
17
<PAGE> 20
Bad Debt Reserves. Prior to the 1996 Act, the Bank was permitted to
establish a reserve for bad debts and to make annual additions to the reserve.
These additions could, within specified formula limits, be deducted in arriving
at the Bank's taxable income. As a result of the 1996 Act, the Bank must use the
specific chargeoff method in computing its bad debt deduction beginning with its
1996 Federal tax return. In addition, the 1996 Act requires the recapture (over
a six year period) of the excess of tax bad debt reserves at June 30, 1996 over
those established as of June 30, 1988. The amount of the Bank's reserves subject
to recapture as of December 31, 1998 amounted to approximately $17.2 million.
Taxable Distributions and Recapture. Prior to the 1996 Act, bad debt
reserves created prior to July 1, 1988 were subject to recapture into taxable
income should the Bank fail to meet certain thrift asset and definitional tests.
Federal legislation eliminated these thrift related recapture rules. However,
under current law, pre-1988 reserves remain subject to recapture should the Bank
make certain non-dividend distributions or cease to maintain a bank charter.
At December 31, 1998, the Bank's total federal pre-1988 reserves was
approximately $13.3 million. This reserve reflects the cumulative effects of
federal tax deductions by the Bank for which no Federal income tax provision has
been made.
Minimum Tax. The Code imposes an alternative minimum tax ("AMT") at a
rate of 20% on a base of regular taxable income plus certain tax preferences
("alternative minimum taxable income" or "AMTI"). The AMT is payable to the
extent such AMTI is in excess of an exemption amount. Net operating losses can
offset no more than 90% of AMTI. Certain payments of alternative minimum tax may
be used as credits against regular tax liabilities in future years. The Bank has
not been subject to the alternative minimum tax and has no such amounts
available as credits for carryover.
Net Operating Loss Carryovers. A corporation may carry back net
operating losses to the preceding three taxable years and forward to the
succeeding 15 taxable years. This provision applies to losses incurred in
taxable years beginning after 1986. At December 31, 1998, the Company and its
subsidiaries had $19.1 million of net operating loss carryforwards for federal
income tax purposes which expire in 2013. For taxable years beginning after
August 5, 1997, a corporation may carry back net operating losses to the two
preceding taxable years and carry forward and deduct from taxable income for the
20 succeeding taxable years.
Consummation of the private placement and the redemption in September
1997 caused an "ownership change" with respect to the Company for federal income
tax purposes. As a result, the Company is subject to certain limitations in its
ability to use any unrealized built-in losses and any net operating losses it
may have had immediately prior to the ownership change to offset taxable income
generated in taxable periods ending after the ownership change. Specifically,
the Company's ability to use (i) any net unrealized built-in-losses possessed by
the Company immediately before the ownership change to offset taxable income
generated in taxable periods ending after the ownership change will be subject
to an annual limitation (as described below) (the "Annual Limitation"), and (ii)
any net operating losses, tax credits, or certain other losses and deductions
possessed by the Company immediately before the ownership change to offset
taxable income generated in taxable periods ending after the ownership change
will be similarly subject to the Annual Limitation. The Annual Limitation is
generally equal to the product of the value of the Company's outstanding stock
immediately before the Private Placement (less certain capital contributions and
after taking into account the value of certain redemptions or other corporate
contractions that occur in connection with the ownership change) and the
"long-term tax-exempt rate" (as defined in Section 382(f) of the Code).
At the present time, the Company believes that it will be able to apply
any tax attributes described in (i) and (ii) above that were possessed by the
Company immediately before the ownership change in
18
<PAGE> 21
their entirety against taxable income in the succeeding taxable years. As such,
the Company does not believe it will be subject to the Annual Limitation.
Corporate Dividends-Received Deduction. The Company may exclude from
its income 100% of dividends received from its subsidiaries, including the Bank,
as a member of the same affiliated group of corporations. The corporate
dividends-received deduction is 80% in the case of dividends received from
corporations with which a corporate recipient does not file a consolidated tax
return, and corporations which own less than 20% of the stock of a corporation
distributing a dividend may deduct only 70% of dividends received or accrued on
their behalf.
TAXATION--STATE AND LOCAL
Oklahoma State Taxation. The Company and its subsidiaries, including
the Bank, are subject to an annual Oklahoma corporate income tax of 6% of their
federal taxable income as computed under the Code, subject to certain prescribed
adjustments. In addition to the Oklahoma corporate income tax, the Company and
its subsidiaries are subject to an annual Oklahoma franchise tax, which is
imposed at a rate of .125% on the capital used, invested or employed in
Oklahoma, with a maximum franchise tax equal to $20,000 per annum. At December
31, 1998, the Company had approximately $176.4 million of net operating loss
carryforwards available for Oklahoma state income tax purposes. The state net
operating loss carryforwards expire in varying amounts between 2006 and 2013.
Delaware State Taxation. As a Delaware holding company not earning
income in Delaware, the Company is exempt from Delaware corporate income tax but
is required to file an annual report with and pay an annual franchise tax to the
State of Delaware. The Delaware franchise tax is based on the Company's
authorized capital stock or on its assumed par and no-par capital, whichever
yields a lower result. Under the authorized capital method, each share is taxed
at a graduated rate based on the number of authorized shares with a maximum
aggregate tax of $150,000 per year. Under the assumed par value capital method,
Delaware taxes each $1,000,000 of assumed par-capital at the rate of $200.
PERSONNEL
As of December 31, 1998, the Company (on a consolidated basis) has 694
full-time employees and 133 part-time employees. The employees are not
represented by a collective bargaining agreement and the Company believes that
it has good relations with its employees.
FORWARD LOOKING STATEMENTS
Certain statements contained in this Annual Report on Form 10-K which
are not statements of historical fact constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform Act (the "Act"),
including, without limitation, the statements specifically identified as
forward-looking statements within this document. In addition, certain statements
in future filings by the Company with the SEC, in press releases, and in oral
and written statements made by or with the approval of the Company which are not
statements of historical fact constitute forward-looking statements within the
meaning of the Act. Examples of forward-looking statements include, but are not
limited to: (i) projections of revenues, income or loss, earnings or loss per
share, the payment or nonpayment of dividends, capital structure and other
financial items, (ii) statements of plans and objectives of the Company or its
management or Board of Directors, including those relating to products or
services, (iii) statements of future economic performance and (iv) statements of
assumptions underlying such statements. Words such as "believes," "anticipates,"
"expects," "intends," "targeted" and similar expressions are intended to
identify forward-looking statements but are not the exclusive means of
identifying such statements.
19
<PAGE> 22
In particular, this Annual Report on Form 10-K contains forward-looking
statements which include but are not limited to: management's efforts to refocus
the Company's operations and implement new initiatives; the adequacy of the
allowance for credit losses; interest rate risk management; Year 2000 data
systems compliance issues; and the effect of legal proceedings on the Company's
consolidated financial position, liquidity or results of operations.
Forward-looking statements involve risks and uncertainties which may
cause actual results to differ materially from those in such statements. Factors
that could cause actual results to differ from those discussed in the
forward-looking statements include, but are not limited to: (i) the strength of
the U.S. economy in general and the strength of the local economies in which
operations are conducted; (ii) the effects of and changes in trade, monetary and
fiscal policies and laws, including interest rate policies of the Federal
Reserve Board; (iii) inflation, interest rate, market and monetary fluctuations;
(iv) the timely development of and acceptance of new products and services and
perceived overall value of these products and services by users; (v) changes in
consumer spending, borrowing and savings habits; (vi) technological changes
(including Year 2000 data systems compliance issues); (vii) acquisitions and
integration of acquired businesses; (viii) the ability to increase market share
and control expenses; (ix) the effect of changes in laws and regulations
(including laws and regulations concerning taxes, banking, securities and
insurance) with which the Company and its subsidiaries must comply; (x) the
effect of changes in accounting policies and practices, as may be adopted by the
regulatory agencies as well as the Financial Accounting Standards Board; (xi)
changes in the Company's organization, compensation and benefit plans; (xii) the
costs and effects of litigation and of unexpected or adverse outcomes in such
litigation; and (xiii) the success of the Company at managing the risks involved
in the foregoing.
Such forward-looking statements speak only as of the date on which such
statements are made, and the Company undertakes no obligation to update any
forward-looking statement to reflect events or circumstances after the date on
which such statement is made to reflect the occurrence of unanticipated events.
20
<PAGE> 23
ITEM 2. PROPERTIES
OFFICES AND OTHER MATERIAL PROPERTIES
The following table provides information on the Company's consolidated
branch network as of December 31, 1998:
<TABLE>
<CAPTION>
BRANCH OFFICE INFORMATION Net Book Value of
Property and
Leasehold
Ownership Size Deposits as of Improvements at
Status Lease Terms (Square Feet) 12/31/1998 December 31, 1998
------------- ----------------- -------------- ---------------- ---------------------
(Dollars In Thousands)
<S> <C> <C> <C> <C> <C>
OKLAHOMA CITY METRO:
Bethany Office Owned - 2,650 $ 45,742 $ 75
7723 N.W. 23rd Street
Bethany, OK 73008
Corporate Headquarters Owned - 70,000 48,521 5,139
3601 N.W. 63rd
Oklahoma City, OK 73116
Crown Heights Office Owned - 1,800 20,566 149
4716 North Western
Oklahoma City, OK 73118
Downtown Office Leased $1,358.00/mo. 1,164 15,846 7
100 West Park Avenue 5 Years
Oklahoma City, OK 73102 Expires 1/31/04
Edmond Office Leased $1,530/mo. 2,160 30,666 88
301 South Bryant 10 Years
Edmond, OK 73034 Expires
1/31/2008
Santa Fe Office - Note (1) - - - - 196
412 S. Santa Fe
Edmond, OK 73003
May Avenue Office Owned - 14,090 71,673 305
5701 North May Avenue
Oklahoma City, OK 73112
Midwest City Office Owned - 5,500 83,385 412
414 North Air Depot
Midwest City, OK 73110
Moore Office Owned - 1,500 18,496 62
513 Northeast 12th Street
Moore, OK 73160
Norman Office Leased Rent-See Note 2,740 60,397 575
2403 West Main Street (2)
Norman, OK 73069-6499 10 Years
Expires 3/31/05
Norman Office - Note (6) Owned - 5,000 - 170
2201 West Main Street
Norman, OK 73069-6499
Penn South Office Owned - 2,650 44,393 52
8700 South Pennsylvania
Oklahoma City, OK 73159
Portland Office Owned - 1,800 40,057 221
1924 North Portland
Oklahoma City, OK 73107
</TABLE>
21
<PAGE> 24
<TABLE>
<CAPTION>
BRANCH OFFICE INFORMATION Net Book Value of
Property and
Leasehold
Ownership Size Deposits as of Improvements at
Status Lease Terms (Square Feet) 12/31/1998 December 31, 1998
------------- ----------------- -------------- ---------------- ---------------------
(Dollars In Thousands)
<S> <C> <C> <C> <C> <C>
Quail Creek Office Owned - 3,250 $ 29,959 $ 629
12241 North May Avenue
Oklahoma City, OK 73120
Springbrook Office Owned - 5,200 43,104 282
6233 N.W. Expressway
Oklahoma City, OK 73132
Yukon Office Leased $1,500/mo. 1,500 18,783 4
1203 Cornwell 5 Years
Yukon, OK 73099 Expires 6/30/99
TULSA:
Downtown Office Leased $2,418.00/mo 3,316 13,099 4
111 West 5th Street 5 Years
Tulsa, OK 74103 Expires
01/31/04 Note
(3)
Harvard Office Leased $2,291.67/mo 2,500 42,608 89
3332 East 51st Street Note (4)
Tulsa, OK 74135 5 Years
Expires 5/31/03
Hudson Office Leased $6,676.17/mo. 6,374 24,417 -
5801 East 41st Street Note(4)
Tulsa, OK 74135 5 Years
Expires 6/30/99
Lewis Office Leased Rent: See Note 4,685 20,967 -
2250 East 73rd Street (5)
Tulsa, OK 74136 5 Years
Expires 11/30/01
Memorial Office Leased $3,060/mo. 3,060 25,682 34
8202 East 71st Street 5 Years
Tulsa, OK 74133 Expires 5/31/02
Yale Office Leased $1,300/mo. 2,400 63,398 -
2118 South Yale 5 Years
Tulsa, OK 74114 Expires 2/28/00
OTHER LOCATIONS:
Ardmore Office Owned - 7,066 38,933 133
313 W. Broadway
Ardmore, OK 73401
Broken Arrow Office Leased $2,020/mo. 2,424 25,891 6
3359 South Elm Place 3 Years
Broken Arrow, OK 74012 Expires 5/31/99
Chandler Office Owned - 1,600 16,297 141
1804 East First Street
Chandler, OK 74834
Chickasha Office Owned - 3,143 41,855 102
628 Grand Avenue
Chickasha, OK 73018
Claremore Office Owned - 15,100 52,079 865
1050 Lynn Riggs Blvd.
Claremore, OK 74017
</TABLE>
22
<PAGE> 25
<TABLE>
<CAPTION>
BRANCH OFFICE INFORMATION Net Book Value of
Property and
Leasehold
Ownership Size Deposits as of Improvements at
Status Lease Terms (Square Feet) 12/31/1998 December 31, 1998
------------- ----------------- -------------- ---------------- ---------------------
(Dollars In Thousands)
<S> <C> <C> <C> <C> <C>
Clinton Office Owned - 2,000 $ 34,882 $ 49
1002 West Frisco
Clinton, OK 73601
Commerce Office Owned - 4,608 21,180 696
101 N. Mickey Mantle Blvd.
Commerce, OK 74339
Duncan Downtown Office Owned - 2,500 46,051 112
1006 West Main Street
Duncan, OK 73533
Duncan North Office Owned - 3,000 26,370 84
2210 North Highway 81
Duncan, OK 73533
Elk City Office Owned - 10,300 52,847 192
200 Broadway
Elk City, OK 73644
Grove Office Owned - 8,300 25,770 1,339
100 East Third
Grove, OK 74344
Lawton Downtown Office Leased $5,156/mo. 5,320 81,893 -
1 S. W. 11th Street 10 Years 6,000
Lawton, OK 73501 Expires 3/31/03
Lawton Mall Office Leased $2,744.61/mo. 3,330 21,517 83
#10 Central Mall 10 Year
Lawton, OK 73501 Extension
Expires 6/30/04
Lawton Financial Centre Owned - 18,283 58,344 2,919
6425 NW Cache Road 7,570
Lawton, OK 73505
Lawton Lee Blvd. Owned - 14,000 65,689 1,129
1420 West Lee Blvd.
Lawton, OK 73501
Lawton Cache Road Office Leased $2,500/mo. 2,500 14,754 50
2601 Cache Road 25 Years
Lawton, OK 73505 Expires 5/01/05
Lindsay Office Owned - 1,200 19,441 16
420 South Main
Lindsay, OK 73052
Miami Office Owned - 7,410 34,860 887
123 East Central
Miami, OK 74354
Monkey Island Office - Note (1) Leased $2,625/mo. 3,600 - -
Rt 3, Box 1133, Hwy 125 5 Years
Monkey Island, OK 74331 Expires: 4/15/04
Muskogee Office Leased $3,200/mo. 3,400 26,659 -
2401 East Chandler 5 Years
Muskogee, OK 74403 Expires 7/31/03
Owasso Office Owned - 1,100 15,473 84
201 East 2nd Street
Owasso, OK 74055
</TABLE>
23
<PAGE> 26
<TABLE>
<CAPTION>
BRANCH OFFICE INFORMATION Net Book Value of
Property and
Leasehold
Ownership Size Deposits as of Improvements at
Status Lease Terms (Square Feet) 12/31/1998 December 31, 1998
------------- ----------------- -------------- ---------------- ---------------------
(Dollars In Thousands)
<S> <C> <C> <C> <C> <C>
Pauls Valley Office Owned - 2,280 $ 22,562 $ 95
700 West Grant
Pauls Valley, OK 73075
Purcell Office Leased $600/mo. 722 16,153 -
422 West Main 2 Years
Purcell, OK 73080 Expires 7/31/99
Sand Springs Office Leased $2,167.50/mo. 3,214 41,285 1
800 East Charles Page Blvd. 10 Years
Sand Springs, OK 74063 Expires 3/31/03
Springs Village Leased $1,368.50/mo. 1,642 15,238 2
3973 South Highway 97 3 Years
Sand Springs, OK 74063 Expires 5/31/99
Shawnee Office Owned - 2,650 30,947 78
2512 North Harrison
Shawnee, OK 74801
Sulphur Office Owned - 3,000 17,320 74
2009 West Broadway
Sulphur, OK 73086
Sapulpa Office Owned - 1,300 24,353 466
911 East Taft
Sapulpa, OK 74066
Weatherford Office Owned - 3,000 15,672 100
109 East Franklin
Weatherford, OK 73096
</TABLE>
- -------------------------
(1) These branches are currently under construction. The Afton branch is
scheduled to open in April 1999.
(2) Monthly rent derived as follows: $4,000.00 (1st five years) and
$4,200.00 (2nd five years).
(3) Monthly rent derived as follows: $2,418.00 (from 01/01/99 to 01/31/01);
$2,556.00 (from 02/01/01 to 01/31/03) and $2,695.00 (from 02/01/03 to
01/31/04).
(4) Subject to rent increases each year on July 1.
(5) Monthly rent derived as follows: $3,768 (1st year); $4,003.50 (2nd
year); $4,239 (3rd year); $4,474.50 (4th year) and $4,710 (5th year).
(6) This branch is scheduled for closure in early 1999.
ITEM 3. LEGAL PROCEEDINGS
The Company and the Bank are involved in two significant legal
proceedings. The first legal proceeding is pending between the Bank and the
Federal Deposit Insurance Corporation ("FDIC") and concerns claims and
liabilities arising out of an Assistance Agreement which was entered into by the
Bank in conjunction with its acquisition of a predecessor institution during
1989 ("FDIC Case"). The second legal proceeding is pending between the Company
and the two individuals who were formerly the sole stockholders of the Company
("Selling Stockholders"), prior to the redemption of all their stock by the
Company (the "Redemption") in September 1997 pursuant to the terms and
conditions of a Redemption Agreement (the "Redemption Agreement"), and concerns
certain disputes and claims which have arisen with regard to the terms and
conditions of the Redemption Agreement ("Redemption Agreement Case"). Each of
these legal proceedings is discussed below.
24
<PAGE> 27
FDIC Case. The Bank's predecessor entities entered into an Assistance
Agreement with the Federal Savings and Loan Insurance Corporation ("FSLIC"), the
former government agency which administered the fund which previously insured
all savings bank deposits, in December 1989 ("Assistance Agreement"). Federal
law subsequently abolished the FSLIC and established a fund to assume all
reserve, assets, debts, obligations and other liabilities of the FSLIC. The FDIC
manages that fund and accordingly, assumed all of FSLIC's rights and obligations
under the Assistance Agreement.
In 1996, the Bank filed a lawsuit against the United States in the
United States Court of Federal Claims in which it asserted that the United
States had breached the terms of the Assistance Agreement and other related
agreements by, among other things, pursuing and attaining the enactment of
Section 13224 of the Omnibus Budget Reconciliation Act of 1993 ("OBRA"). Section
13224 of OBRA changed certain federal income tax laws that had provided
financial assistance and incentives to the Bank in connection with the
Assistance Agreement (and possibly certain related agreements). In the lawsuit,
the Bank seeks to recover for the loss of these tax benefits and for certain
other claims relating to OBRA (the "FDIC Claim").
Under the provisions of the Assistance Agreement, the FDIC is entitled
to receive payments from the Bank for certain portions of tax benefits
attributable to the acquired net operating loss carry forwards and other tax
benefits which were realized by the Bank from certain items for which the
FSLIC/FDIC provided assistance to the Bank under the Assistance Agreement. The
FDIC has filed a counterclaim against the Bank in the FDIC Case ("FDIC
Counterclaim") claiming that the Bank owes the FDIC a substantial amount of
money with regard to the tax benefits realized by the Bank for which it has
failed to make payment to the FDIC pursuant to the terms of the Assistance
Agreement ("Tax Benefits Payment"). Management, after consultation with legal
counsel and based on available proceedings to date, has determined that the Bank
will have some significant liability to the FDIC with respect to the FDIC
Counterclaim. At December 31, 1998, the Company estimated this liability to be
approximately $13 million, which has been reserved and is included in other
liabilities in the Consolidated Statements of Financial Condition included in
Item 8 hereof (the "FDIC Reserve Amount").
The Company believes that as of December 31, 1998, the FDIC's estimate
of this liability was approximately $23.0 million. Pursuant to the terms of the
Redemption Agreement, the Selling Stockholders have agreed to indemnify the
Company with respect to the Assistance Agreement to the extent the Company is
found to be liable to the FDIC on the FDIC Counterclaim for the Tax Benefits
Payment in an amount in excess of the FDIC Reserve Amount. As an express term of
the Redemption Agreement, upon consummation of the Redemption, the Company
deposited $10 million of the purchase price to be paid to the Selling
Stockholders for the Redemption of their stock into an escrow account to be
available for such payment by the Selling Stockholders of the FDIC Counterclaim,
if necessary.
Since the Selling Stockholders have ultimate liability on the FDIC
Counterclaim for the Tax Benefits Payment, the Redemption Agreement requires
that all actions taken by the Company with regard to the litigation of the FDIC
Case be consented to by the Selling Stockholders and that any settlement of the
FDIC Case and/or of the FDIC Counterclaim be mutually agreed to by the Company
and the Selling Stockholders. Because of the ongoing litigation between the
Company and the Selling Stockholders with regard to the Redemption Agreement and
certain positions taken by the Selling Stockholders concerning the resolution of
the FDIC Counterclaim, as described below, this requirement for mutual consent
has made it unfeasible for a settlement of the FDIC Case to be obtained, to
date.
In response to the Company's efforts to pursue a settlement proposal
with the FDIC, the Selling Stockholders recently informed the Company that they
believe that the more than $3.1 million amount, which is still owing by the FDIC
to the Bank as an additional assistance payment under the terms and
25
<PAGE> 28
provisions of the Assistance Agreement (the "Remaining Assistance Amount"),
should be offset against any net liability ultimately owing to the FDIC on the
FDIC Counterclaim and thereby used to reduce the ultimate obligation of the
Selling Stockholders to pay any amount of that liability which is in excess of
the FDIC Reserve Amount. The Company vigorously disputes the position taken by
the Selling Stockholders in this regard as the amount of the liability reflected
in the FDIC Reserve Amount was determined without regard to (or any
corresponding credit for) the FDIC Remaining Assistance Amount receivable and
thus the purchase price which was paid by the Company to the Selling
Stockholders was determined on the basis of a stockholders' equity which
included the value of this Remaining Assistance Amount receivable of the
Company. As a result, the Company has sought to amend its complaint in the
Redemption Agreement Case, as described below, to add a cause of action seeking
a declaratory judgment by the court that the Company is entitled to receive the
payment of the Remaining Assistance Amount and that the Selling Stockholders are
not entitled to receive the economic benefit of offsetting that sum against
their indemnity obligation. Settlement discussions of the FDIC Case may be
delayed until that matter is resolved.
Redemption Agreement Case. The Company has filed a lawsuit against the
Selling Stockholders in the United States District Court for the Western
District of Oklahoma pertaining to certain disputes and issues which have arisen
under the Redemption Agreement. Initially, the lawsuit was filed by the Company
in order to collect amounts which the Selling Stockholders owe to the Company
pursuant to the Redemption Agreement with regard to excess losses experienced by
the Company in the liquidation of the Company's hedging contracts which the
Selling Stockholders are required to pay for pursuant to the terms and
provisions of the Redemption Agreement. Subsequently, a cause of action was
added to that lawsuit in order to have the court appoint an arbitrator to
resolve disagreements between the Company and the Selling Stockholders as to the
final closing date balance sheet of the Company. The final closing balance sheet
was needed in order to be able to finally determine the "Adjusted Closing
Equity" of the Company, as defined, as of the closing date of the Redemption,
and thus calculate the purchase price adjustment which the Redemption Agreement
requires be made based on that Adjusted Closing Equity.
Pursuant to the Redemption Agreement, if the Company's unaudited
consolidated stockholders' equity on the closing date of the Redemption (after
adding back to total stockholders' equity, as determined on the final closing
date balance sheet, certain amounts specified in the Redemption Agreement) i.e.
the "Adjusted Closing Equity," is determined to be less than $144.5 million,
then the purchase price paid to the Selling Stockholders would be reduced by the
amount of such shortfall and the Selling Stockholders would, in such event, have
to pay to the Company the amount of such shortfall. Five million dollars of the
purchase price to be paid to the Selling Stockholders by the Company for the
Redemption of their stock was deposited by the Company into an escrow account to
be available to pay any amount that might be owing by the Selling Stockholders
to the Company for such purchase price adjustment. If, on the other hand, the
Adjusted Closing Equity is finally determined to be greater than $144.5 million,
then the purchase price payable by the Company to the Selling Stockholders for
the redemption would be increased by the amount of such excess, and the Company
would be required to pay the Selling Stockholders such excess amount.
The Company and Selling Stockholders were unable to agree on the amount
of total stockholders' equity in the closing date balance sheet prepared by the
Company and, in accordance with the procedures set forth in the Redemption
Agreement, those disagreements were referred to binding arbitration before an
independent certified public accountant who was ultimately designated for that
purpose by the United States District Judge presiding over the Redemption
Agreement Case. The arbitrator rendered his decision to the court and the
parties on September 18, 1998 determining the amount of the total stockholders'
equity in the final closing date balance sheet of the Company as of September 8,
1997. If, upon final determination by the court, the Adjusted Closing Equity is
calculated on the basis of the amount of total stockholders' equity as
determined by the arbitrator, the Company would anticipate that it
26
<PAGE> 29
would be obligated to pay an amount of less than $400,000 to the Selling
Stockholders as additional purchase price under the Redemption Agreement.
However, because of the positions taken by the Selling Stockholders (i) in
defense of the Company's claim against them for recovery of the excess open
hedges losses, and (ii) with regard to their entitlement to receive the economic
benefit of the Remaining Assistance Amount, as discussed above, the Company
contends that there can be no proper final determination of Adjusted Closing
Equity until such time as all of these issues have been finally resolved by the
court in the Redemption Agreement Case and thus that there should be no purchase
price adjustment payment made, or related escrow account distributed, to the
Selling Stockholders until then.
In furtherance of that position, the Company has sought to amend its
complaint in the Redemption Agreement Case to add as causes of action (i) the
dispute as to whether the Company or the Selling Stockholders are entitled to
the economic benefit of the Remaining Assistance Amount and (ii) that the court
should make the final determination of Adjusted Closing Equity after all of the
interrelated disputes under the Redemption Agreement are fully resolved. The
Selling Stockholders have objected to the Company's proposed amendments to its
complaint and have moved for partial summary judgment seeking to calculate
Adjusted Closing Equity now in a manner that would result in a payment to them
by the Company of an amount of less than $400,000, as additional purchase price,
and the release to them of the $5 million escrow account. The Company has
vigorously contested the Selling Stockholders' motion for partial summary
judgment and their objections to the Company's amended complaint. As of this
date, the United States District Judge has not ruled upon either the Company's
or the Selling Stockholders' pending motions.
In the ordinary course of business, the Company is subject to other
legal actions and complaints. Management, after consultation with legal counsel,
and based on available facts and proceedings to date, believes the ultimate
liability, if any, arising from such legal actions or complaints, will not have
a material adverse effect on the Company's consolidated financial position or
future results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders during the periods
covered by this report.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
Local Financial Corporation's common stock (AMEX symbol LO) is traded
on the American Stock Exchange. The following table sets forth the range of high
and low closing prices for the period indicated:
<TABLE>
<CAPTION>
Year Ended
December 31, 1998
------------------------
High Low
---------- ----------
<S> <C> <C>
First quarter $ -- $ --
Second quarter 13.75 12.63
Third quarter 13.06 8.50
Fourth quarter 9.56 6.94
</TABLE>
Local Financial common stock began trading on April 22, 1998. The Board
of Directors of the Company does not presently intend to implement a policy of
paying dividends on the common stock. Rather the Company expects to retain
earnings to increase capital.
27
<PAGE> 30
ITEM 6. SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
The selected consolidated financial data of the Company set forth below
should be read in conjunction with, and is qualified in its entirety by, the
Consolidated Financial Statements of the Company, including the related Notes,
included in Item 8 herein.
<TABLE>
<CAPTION>
December 31, June 30,
----------------------- -------------------------------------------------
1998 1997 1997 1996 1995 1994
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET AND OTHER DATA:
Total assets $2,128,979 $1,881,365 $2,625,181 $3,278,511 $3,264,850 $3,325,613
Cash and due from banks 27,180 34,152 15,904 13,640 14,497 11,678
Loans receivable, net 1,362,272 953,470 1,013,824 1,018,135 804,610 708,566
Securities available for sale 570,964 518,107 985,565 1,741,725 361,402 373,532
Securities and other
investments
held to maturity -- -- 408,207 392,324 1,983,756 2,078,748
Equity securities available
for sale -- -- -- 11,604 12,287 17,076
Non-performing assets(1) 4,270 921 12,570 16,185 10,889 10,961
Deposits 1,668,074 1,602,533 1,644,356 1,602,460 1,577,821 1,474,171
Securities sold under
agreements to
repurchase -- -- 310,801 1,079,194 779,626 381,829
Promissory note payable -- -- 7,010 14,020 21,030 28,040
Senior notes payable 80,000 80,000 -- -- -- --
FHLB advances 220,033 80,136 531,161 439,011 703,202 1,287,377
Total liabilities 2,010,173 1,798,740 2,522,552 3,170,452 3,121,631 3,198,925
Stockholders' equity 118,806 82,625 102,629 108,059 143,219 126,688
Number of full service customer
facilities 50 41 41 41 41 41
Approximate number of full-time
equivalent employees 694 525 546 536 471 423
</TABLE>
<TABLE>
<CAPTION>
Six Months
Years Ended December 31, Ended December 31, Years Ended June 30,
------------------------ ---------------------- ---------------------------------------------
1998 1997 1997 1996 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- --------- ---------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
OPERATIONS DATA:
Interest and dividend
income $ 147,204 $ 188,768 $ 85,204 $ 119,100 $ 222,664 $ 236,156 $ 214,558 $ 175,143
Interest expense 92,438 137,022 59,823 92,562 169,761 187,488 162,590 104,496
--------- --------- --------- --------- --------- --------- --------- ---------
Net interest income 54,766 51,746 25,381 26,538 52,903 48,668 51,968 70,647
Provision for loan losses (1,450) (44,272)(2) (25,578)(2) (9,734) (28,428)(2) (5,117) (1,157) (1,764)
--------- --------- --------- --------- --------- --------- --------- ---------
Net interest income
(loss) after
provision for loan
losses 53,316 7,474 (197) 16,804 24,475 43,551 50,811 68,883
Noninterest income (loss) 14,782 (126,458) (107,149)(3) 2,185 (17,124)(3) 10,316 16,632 29,916
Noninterest expense 39,407 42,569 22,685 29,372 49,256 35,427 46,460 25,089
--------- --------- --------- --------- --------- --------- --------- ---------
Income (loss) before
provision (benefit) for income
taxes and cumulative effect
of change in accounting
principle 28,691 (161,553) (130,031) (10,383) (41,905) 18,440 20,983 73,710
Provision (benefit) for
income taxes 10,254 (52,362) (44,075) (3,573) (11,860) 4,872 6,568 27,516
--------- --------- --------- --------- --------- --------- --------- ---------
Income (loss) before
cumulative effect of
change in accounting
principle 18,437 (109,191) (85,956) (6,810) (30,045) 13,568 14,415 46,194
Cumulative effect of
change in accounting principle -- -- -- -- -- -- -- 6,266
--------- --------- --------- --------- --------- --------- --------- ---------
Net income (loss) $ 18,437 $(109,191) $ (85,956) $ (6,810) $ (30,045) $ 13,568 $ 14,415 $ 52,460
========= ========= ========= ========= ========= ========= ========= =========
Basic net income (loss)
per share (4) $ 0.90 $ (6.52) $ (4.76) $ (0.44) $ (1.95) $ 0.88 $ 0.94 $ 3.40
========= ========= ========= ========= ========= ========= ========= =========
Diluted net income
(loss) per share (4) $ 0.89 $ (6.52) $ (4.76) $ (0.44) $ (1.95) $ 0.88 $ 0.94 $ 3.40
========= ========= ========= ========= ========= ========= ========= =========
Dividends declared per
share(4) $ -- $ -- $ -- $ 0.03 $ 0.03 $ 0.69 $ 1.28 $ 0.99
========= ========= ========= ========= ========= ========= ========= =========
</TABLE>
28
<PAGE> 31
<TABLE>
<CAPTION>
At or For the Years At or For the Six
Ended Months Ended
December 31, December 31, At or for the Years Ended June 30,
------------------- -------------------- ------------------------------------------
1998 1997 1997 1996 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- -------- --------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PERFORMANCE RATIOS(5):
Return on assets 0.93% (4.35)% (3.84)% (0.21)% (0.98)% 0.41% 0.43% 1.58%
Return on common equity 17.73 (117.17) (101.45) (6.35) (28.77) 10.00 10.59 41.41
Dividend payout ratio(6) -- -- -- -- -- 77.98 137.38 29.09
Net interest spread(7) 2.57 1.91 2.13 1.45 1.57 1.36 1.32 1.80
Net interest margin(8) 2.91 2.13 2.34 1.62 1.78 1.52 1.59 2.46
Noninterest expense to
average assets(9) 1.90 1.64 0.99 0.87 1.56 1.04 1.36 0.75
Efficiency ratio(10)(11) 54.61 64.46 N/A 56.14 56.14 57.07 72.75 28.67
CAPITAL RATIOS(12):
Tangible 7.61 6.89 6.89 4.99 5.17 4.94 4.89 4.45
Core 7.63 6.98 6.98 5.07 5.25 5.04 5.03 4.60
Risk-based 13.08 14.14 14.14 12.59 12.34 12.71 13.22 13.60
ASSET QUALITY RATIOS:
Nonperforming assets to total 0.20 0.05 0.05 0.93 0.48 0.49 0.33 0.33
assets at end of period(1)
Nonperforming loans to total 0.26 0.06 0.06 0.82 0.38 0.51 0.38 0.46
loans at end of period(1)
Allowance for loan losses to 2.00 2.09 2.09 0.50 1.10 0.31 0.56 0.51
total loans at end of period
Allowance for loan losses to
nonperforming loans at 7.80x 32.72x 32.72x 0.56x 2.91x 0.60x 1.48x 1.10x
end of period(1)
</TABLE>
- -------------------------
(1) Nonperforming loans consist of nonaccrual loans and loans delinquent 90
days or more but still accruing interest, and nonperforming assets
consist of nonperforming loans, real estate acquired through
foreclosure or deed-in-lieu thereof and repossessions, net of
writedowns and reserves.
(2) Primarily reflects provisions established by management to cover
realized and inherent losses with respect to the Company's portfolio of
indirect automobile receivables which were sold as of December 31,
1997. See "Management's Discussion and Analysis of Financial condition
and Results of Operations--Results of Operations--Provision for Loan
Losses" in Item 7 hereof.
(3) Primarily reflects losses incurred by the Company relating to the
liquidation or disposition of certain hedging contracts and the
disposition of investment securities and adjustments to reflect market
values. See "Business--The Company--Strategy for Growth" in Item 1
hereof and "Management's Discussion and Analysis of Financial Condition
and Results of Operations--Results of Operations" in Item 7 hereof.
(4) Net income (loss) per share and dividends per share are based upon the
weighted average number of shares outstanding during the period. As a
result of the private placement and the redemption transactions
described under "Business--The Company--New Management Initiatives",
the weighted average number of shares used in the computation of income
(loss) per share and dividends per share is 15,400,000 for each of the
years in the four-year period ended June 30, 1997 (based on an
equivalent number of shares for the 60 shares outstanding prior to the
recapitalization). For the years ended December 31, 1998 and 1997, the
weighted average number of shares are 20,431,698 and 16,754,795,
respectively. For the six months ended December 31, 1997, the weighted
average number of shares is 18,066,000. See also Note 1 of the Notes to
Consolidated Financial Statements in Item 5 hereof.
(5) With the exception of end of period ratios, all ratios are based on
average monthly balances during the periods presented. All ratios are
annualized where appropriate.
(6) The dividend payout ratio represents dividends declared per share
divided by net income per share.
(7) Net interest spread represents the difference between the weighted
average yield on interest-earning assets and the weighted average cost
of interest-bearing liabilities.
(8) Net interest margin represents net interest income as a percent of
average interest-earning assets.
(9) Noninterest expense excludes the amortization of intangibles.
(10) Represents noninterest expense (exclusive of amortization of
intangibles) divided by the aggregate of net interest income before
provision for loan losses and noninterest income (exclusive of gains
and losses on sales of assets).
(11) For the year ended June 30, 1997 and the six months ended December 31,
1996, the efficiency ratio does not reflect the $10.3 million one-time
special assessment (before applicable tax benefits) to recapitalize the
SAIF which was accrued during the quarter ended September 30, 1996. See
"Business--Regulation" in Item 1 hereof.
(12) The tangible and core capital ratios are calculated as a percent of
adjusted total assets and the risk-based capital ratio is calculated as
a percent of total risk-weighted assets. See "Business--Regulation" in
Item 1 hereof for information with respect to the Bank's regulatory
capital requirements.
29
<PAGE> 32
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements of the Company and the Notes thereto, included
in Item 8 hereof.
CHANGES IN FINANCIAL CONDITION
GENERAL
Local Financial's primary asset is the capital stock of Local, formerly
Local Federal Bank, F.S.B. In August 1997, a group led by Mr. Edward A.
Townsend, the Company's present Chairman, undertook to redeem all of the stock
of the Selling Shareholders. The Company financed the redemption through a
private placement of $197.0 million of common stock and $80.0 million of senior
notes due 2004. The private placement and redemption were closed in September
1997. The Company subsequently registered the common stock and senior notes for
public resale, and the common stock and senior notes began publicly trading on
April 22, 1998.
The prior owners operated the Bank as a low cost institution,
emphasizing traditional savings institution products and services, indirect
lending of sub-prime automobile financing, residential mortgage products and a
wholesale securities portfolio. New management has changed the Bank's activities
significantly. As described more fully below, management has reduced the level
of CMOs with interest rate adjustments tied to the COFI, eliminated all swap and
hedging contracts and eliminated the Bank's portfolio of sub-prime, indirect
automobile loans. While these measures reduced the Bank's assets by over $1
billion and resulted in substantial losses on the sale and write-down of assets,
management believes the Bank's financial condition is greatly improved and it is
better positioned for future growth.
In pursuit of new management's growth strategy, the Bank has shifted
its activities from those of a traditional savings and loan to those generally
associated with a commercial bank. The Bank has increased its commercial and
consumer lending and expects further increases in those areas. The Bank also has
targeted increases in non-interest income, increases in lending activities
rather than investing activities, and increases in direct lending rather than
indirect lending.
The Bank's business strategy is to provide its customers with a range
of banking products and services of a regional bank while retaining the appeal
and level of individualized service of a community bank. Management believes
that as a result of the Company's strong commitment to highly personalized
relationship-oriented customer service, its varied products, its strategic
branch locations and the long-standing community presence of its managers,
lending officers and branch personnel, it is well positioned to attract new
customers and to increase its market share of loans and deposits.
CHANGES IN FINANCIAL CONDITION FROM DECEMBER 31, 1997 TO DECEMBER 31, 1998
General. On October 22, 1997, the Company and the Bank's former
subsidiary bank, Local America Bank of Tulsa, FSB ("Local America"), entered
into an Agreement and Plan of Merger (the "Merger Agreement") with Green Country
Banking Corporation ("Green Country") and its wholly-owned subsidiary, Green
Country Bank, FSB ("Green Country Bank"), pursuant to which Green Country would
be merged with and into the Company, with the Company as the surviving
corporation, and in connection therewith, Green Country Bank would be merged
with and into Local America with Local America as the surviving bank
(collectively, the "Merger"). The Merger was consummated on February 16, 1998,
and in connection therewith, each outstanding share of common stock and
preferred stock of Green Country was
30
<PAGE> 33
converted into 4,150.27 and 27.907 newly-issued shares, respectively, of the
Company's Common Stock. As a result of the foregoing, an aggregate of 837,209
shares of the Company's Common Stock were issued in connection with the Merger
to the three existing shareholders of Green Country, which included Edward A.
Townsend, Chairman and Chief Executive Officer of the Company, and Jan A.
Norton, President and Chief Operating Officer of the Company. The Merger was
accounted for under the purchase method of accounting. On February 16, 1998,
Green Country Bank operated out of three full-service offices located in Miami,
Grove and Commerce, Oklahoma and had consolidated assets, liabilities, deposits
and stockholders' equity of $105.1 million, $103.2 million, $79.0 million and
$1.9 million, respectively.
On June 18, 1998, the Company announced that the Bank had entered into
a definitive agreement to acquire BankSouth Corporation, a Lawton, Oklahoma bank
holding company, for approximately $20.3 million in cash, which includes the
redemption of its outstanding preferred stock. BankSouth was the holding company
of Citizens Bank, which had five branches in Lawton, Oklahoma and one in Norman,
Oklahoma. BankSouth had total assets, liabilities, deposits and stockholders'
equity of approximately $176.5 million, $167.0 million, $159.7 million and $9.5
million, respectively, as of September 30, 1998. The acquisition was accounted
for under the purchase method of accounting and included in the financial
statements as of September 30, 1998.
Effective November 30, 1998, Local America was merged with and into its
parent bank, Local, with Local as the surviving bank. Since, for financial
statement purposes, the Company, Local and its wholly owned subsidiary bank,
Local America, were presented on a consolidated basis, this merger of Local
America with and into Local had no effect on the consolidated financial
statements.
Excluding the effect of the acquired institutions, the Company's total
assets, deposits and total liabilities declined $33.6 million or 1.79%, $173.1
million or 10.8% and $59.2 million or 3.3%, respectively, during the period.
Stockholders' equity increased $36.2 million or 43.8% from December 31, 1997 to
December 31, 1998 as a result of net income during the period, an increase in
additional paid-in capital of $9.0 million which resulted from the shares issued
in connection with the Company's acquisition of Green Country, as discussed
above, and the increase in accumulated other comprehensive income.
Cash and Cash Equivalents. Cash and cash equivalents (consisting of
cash, cash due from banks and interest-bearing deposits with other banks)
amounted to $54.9 million and $54.2 million at December 31, 1998 and December
31, 1997, respectively. The Company manages its cash and cash equivalents based
upon the Company's operating, investing and financing activities. See
"--Liquidity and Capital Resources".
Securities. During the fiscal year ended December 31, 1998, the Company
substantially liquidated its short-term investment portfolio and reinvested a
portion of those funds in mortgage securities available for sale. The remainder
of the proceeds from the sale of its short-term investments was used to help
fund the growth in loans. The Company views both the short-term investment
portfolio and the securities available for sale as a source of asset liquidity.
Liquidity is derived from this source by receipt of interest and principal
payments and prepayments; by the ability to sell these securities at market
prices; and by utilizing unpledged securities as collateral for borrowings.
Management intends to emphasize lending activities as opposed to investing
activities in order to enhance the weighted average yield on its
interest-earning assets and thus, its results of operations. Future changes in
the securities accounts will be determined by, among other things, liquidity
guidelines established by the Company and applicable regulatory rules; pledging
requirements to retain public funds; and by the rate at which the Company can
grow its loan portfolio through originations.
31
<PAGE> 34
The following table sets forth information regarding the carrying and
market value of the Company's securities at the dates indicated.
<TABLE>
<CAPTION>
December 31, June 30,
----------------------------------------------------------------------------------------------
1998 1997 1997 1996
---------------------- ---------------------- ---------------------- ----------------------
Carrying Market Carrying Market Carrying Market Carrying Market
Value Value Value Value Value Value Value Value
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Available for sale (at market):
U.S. Government
and agency
securities $ 39,092 $ 39,092 $ 6,000 $ 6,000 $ -- $ -- $ -- $ --
Municipal securities 965 965 -- -- -- -- -- --
Collateralized
mortgage
obligations 522,128 522,128 428,876 428,876 957,519 957,519 1,700,551 1,700,551
Mortgage-backed
securities 8,779 8,779 83,231 83,231 28,046 28,046 41,174 41,174
Equity securities -- -- -- -- -- -- 11,604 11,604
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
$ 570,964 $ 570,964 $ 518,107 $ 518,107 $ 985,565 $ 985,565 $1,753,329 $1,753,329
========== ========== ========== ========== ========== ========== ========== ==========
Held to maturity:
U.S. Government
and agency
securities $ -- $ -- $ -- $ -- $ 74,119 $ 74,219 $ -- $ --
Collateralized
mortgage
obligations -- -- -- -- 156,159 149,484 163,883 156,760
Mortgage-backed
securities -- -- -- -- 177,929 175,214 228,441 222,244
---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
$ -- $ -- $ -- $ -- $ 408,207 $ 398,917 $ 392,324 $ 379,004
========== ========== ========== ========== ========== ========== ========== ==========
</TABLE>
Loans Receivable. Net loans receivable amounted to $1.4 billion and
$953.5 million at December 31, 1998 and December 31, 1997, respectively. Net
loans receivable increased by $408.8 million or 42.9% during the year ended
December 31, 1998. Under its new management, the Bank strategically focused its
commercial lending efforts towards growth of its Oklahoma-based commercial
portfolio, hiring 38 experienced commercial lending officers and supporting
staff and forming a new corporate lending unit. During 1998, the Bank's total
commercial lending portfolio experienced growth of $281.1 million or 43.5%, with
virtually all of that growth occurring from loans made in Oklahoma. Much of this
growth occurred late in the year as the newly-hired officers moved some of their
existing customer relationships to the Bank. Residential real estate loans grew
from $281.6 million to $344.6 million, an increase of $63.0 million or 22.4%.
While most of this increase was due to acquisitions, the Bank continued to
originate adjustable-rate and 15-year fixed-rate loans for its own portfolio. In
addition, consumer loans grew from $38.7 million to $101.7 million, an increase
of $63.0 million or 162.8%. Again, most of this increase was attributable to
acquisitions, but the Bank has heavily promoted its consumer loan products in
the media and intends to better utilize its existing branch locations to
originate consumer loans. The Bank also continues to originate and sell a
variety of mortgage and consumer loan products. Approximately $83 million of
loans were sold during 1998 and the Bank intends to originate and sell even more
loans during 1999 as part of a program to control exposure to longer-term
interest rate risk and improve profitability of the more labor-intensive lending
functions. Management intends to continue its emphasis on lending activities,
and consequently, expects its loan portfolio to grow over the next several
years. For additional information, see "Business--Lending Activities" in Item 1
hereof and Note 6 of the Notes to Consolidated Financial Statements in Item 8
hereof.
Contractual Principal Repayments and Interest Rates. The following
table sets forth scheduled contractual amortization of the Company's total loan
portfolio at December 31, 1998, as well as the dollar
32
<PAGE> 35
amount of such loans which are scheduled to mature after one year which have
fixed or adjustable interest rates. Demand loans, loans having no schedule of
repayments and no stated maturity and overdraft loans are reported as due in one
year or less.
<TABLE>
<CAPTION>
Total at Principal Repayments Contractually Due or Repricing
Total at In Years Ended December 31,
December 31, ----------------------------------------------------------------------
1998(1) 1999 2000 2001 2002 2003 Thereafter
---------- ---------- ---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Residential real estate $ 353,796 $ 19,744 $ 17,483 $ 18,111 $ 17,488 $ 18,255 $ 262,715
Commercial 927,682 140,266 87,406 83,743 60,908 138,737 416,622
Consumer 108,695 38,128 17,888 14,107 10,452 7,063 21,057
---------- ---------- ---------- ---------- ---------- ---------- ----------
Total(1) $1,390,173 $ 198,138 $ 122,777 $ 115,961 $ 88,848 $ 164,055 $ 700,394
========== ========== ========== ========== ========== ========== ==========
</TABLE>
- -------------------------
(1) Of the $1.2 billion of loan principal repayments contractually due
after December 31, 1999, $696.0 million have fixed rates of interest
and $496.1 million have adjustable rates of interest. Commercial,
consumer and total loans are presented net of undistributed loan
proceeds.
Scheduled contractual principal repayments do not reflect the actual
maturities of loans. The average maturity of loans is substantially less than
their contractual terms because of prepayments and, in the case of conventional
mortgage loans, due-on-sale clauses, which generally give the Bank the right to
declare a loan immediately due and payable in the event, among other things,
that the borrower sells the real property subject to the mortgage and the loan
is not repaid. The average life of mortgage loans tends to increase when current
mortgage loan rates are substantially higher than rates on existing mortgage
loans and, conversely, decrease when rates on existing mortgages are
substantially lower than current mortgage loan rates (due to refinancings of
adjustable-rate and fixed-rate loans at lower rates).
Nonperforming Assets and Allowance for Loan Losses. Nonperforming
assets (consisting of non-accruing loans, accruing loans greater than 90 days
delinquent and foreclosed assets) have increased primarily due to nonperforming
assets acquired in the acquisitions of Green Country and BankSouth. At December
31, 1998, nonperforming assets amounted to $4.3 million or .20% of total assets,
as compared to $921,000 or .05% at December 31, 1997.
The following table presents information on the Company's nonperforming
assets at the dates indicated.
<TABLE>
<CAPTION>
December 31, June 30,
--------------------- ---------------------------------------------
1998 1997 1997 1996 1995 1994
--------- --------- --------- --------- --------- ---------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Non-accruing loans $ 2,203 $ 626 $ 3,508 $ 3,794 $ 3,107 $ 3,342
Accruing loans greater than
90 days delinquent: 1,374 -- 415 1,548 -- --
Foreclosed assets 693 295 8,647 10,843 7,782 7,619
--------- --------- --------- --------- --------- ---------
Total nonperforming assets $ 4,270 $ 921 $ 12,570 $ 16,185 $ 10,889 $ 10,961
========= ========= ========= ========= ========= =========
Total nonperforming assets
as a percentage of total
assets 0.20% 0.05% 0.48% 0.49% 0.33% 0.33%
========= ========= ========= ========= ========= =========
</TABLE>
33
<PAGE> 36
The decline in nonperforming assets from June 30, 1997 to December 31,
1997 reflected a $2.9 million decline in non-accrual loans (primarily commercial
real estate loans) and an $8.4 million decline in foreclosed assets (which was
primarily due to a transfer of a $6.0 million retail shopping center from real
estate owned to real estate held for investment during the period).
At December 31, 1997, the allowance for loan loss amounted to $20.5
million, representing 2.09% of total loans. The Company's allowance for loan
loss rose $7.4 million or 36% during the year ended December 31, 1998, primarily
as a result of the allowance acquired in the acquisitions of Green Country and
BankSouth, which aggregated $7.3 million.
During 1998, the Bank continued to focus on commercial loan growth. As
a result, the Bank's total loan portfolio grew $416.2 million or 42.7%, with the
majority of this growth occurring in the newly formed commercial business
lending area as described herein. During the year the Company was very
successful in its formation of a corporate lending unit focused on commercial
business lending within the state of Oklahoma. During 1998, the Bank's
commercial business portfolio grew $232.9 million or 16.8% of the total loan
portfolio. This lending unit was staffed with area lenders with many years of
experience and established customer relationships in the Oklahoma market. Many
of these relationships were moved to the Bank during 1998 from competitor
institutions within the market. To support this function, the Bank added
professionals in the credit administration and loan review area to strengthen
and expand the Bank's credit policies to accommodate the new array of loan
products and services being offered. In light of the magnitude of changes which
have occurred in the Bank's loan portfolio and lending staff, there is no
assurance that these changes will not result in losses in excess of those
historically experienced by this institution.
The Bank also grew its loan portfolio through acquisitions amounting to
$211.0 million or 21.7%. The Bank pays particular attention to the loan
portfolios acquired but recognizes that the acquired portfolios are more mature
than its own, and therefore, may contain more non-performing loans. The increase
in the Bank's non-performing assets from $921,000 at December 31, 1997 to $4.3
million at December 31, 1998 was largely attributable to the BankSouth
acquisition. In connection with that acquisition, the Bank acquired a $22.1
million portfolio of indirect automobile receivables. Management believes the
loss experience on the acquired indirect receivables will be better than
historical losses experienced by the Bank on such portfolios in the past due to
the fact that these loans were originated within the Bank's local market and
through dealers with whom the Bank had established relationships.
As part of its periodic review and analysis of the loss factors
utilized in the Bank's allowance methodology (see "Business--Asset
Quality--Allowance for Loan Loss" in Item 1 hereof), the Bank during 1998
revised those loss factors to comply with regulatory guidance resulting in a
reallocation of the Bank's existing reserves. Due to the significant changes in
the nature and volume of the Bank's loan portfolio, it was recognized that
historical loss experience upon which the Bank's loss factors had been based
would not be a representative indicator of losses inherent in the portfolio.
34
<PAGE> 37
The following table provides information on the Company's allowance for
loan losses as of the dates indicated (Dollars in Thousands):
<TABLE>
<CAPTION>
Years Ended Six Months Ended
December 31, December 31, Years Ended June 30,
------------------- ------------------- -----------------------------------------
1998 1997 1997 1996 1997 1996 1995 1994
-------- -------- -------- -------- -------- -------- -------- --------
(unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ 20,484 $ 5,475 $ 11,435 $ 3,228 $ 3,228 $ 4,593 $ 3,689 $ 2,172
Loans charged off:
Residential real estate (31) (8) (5) -- (3) (143) (191) (320)
Commercial (545) (14) (14) -- -- (1,368) (4) (48)
Consumer (928) (29,298) (16,535) (8,083) (20,290) (5,026) (167) (11)
Recoveries 187 57 25 596 72 55 109 132
-------- -------- -------- -------- -------- -------- -------- --------
Net loans charged off (1,317) (29,263) (16,529) (7,487) (20,221) (6,482) (253) (247)
Allowances acquired 7,284 -- -- -- -- -- -- 1,764
Provision for loan losses 1,450 44,272 25,578 9,734 28,428 5,117 1,157 --
-------- -------- -------- -------- -------- -------- -------- --------
Balance at end of period $ 27,901 $ 20,484 $ 20,484 $ 5,475 $ 11,435 $ 3,228 $ 4,593 $ 3,689
======== ======== ======== ======== ======== ======== ======== ========
Allowance for loan losses to total
nonperforming loans at end of 7.80x 32.72x 32.72x 0.56x 2.91x 0.60x 1.48x 1.10x
======== ======== ======== ======== ======== ======== ======== ========
period
Allowance for loan losses to total loans
at end of period 2.00% 2.09% 2.09% 0.50% 1.10% 0.31% 0.57% 0.52%
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
35
<PAGE> 38
The following table sets forth information concerning the allocation of
the Company's allowance for loan losses by loan category at the dates indicated.
<TABLE>
<CAPTION>
December 31, June 30,
----------------------------------------------------- --------------------------
1998 1997 1997
------------------------ ------------------------ ------------------------
Percent to Percent to Percent to
Total Total Total
Amount Allowance Amount Allowance Amount Allowance
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Residential real estate $ 3,311 11.87% $ 412 2.01% $ 427 3.73%
Commercial 18,798 67.37 10,459 51.06 2,836 24.80
Consumer 5,792 20.76 6,203 30.28 8,172 71.47
General unallocated -- -- 3,410 16.65 -- --
---------- ---------- ---------- ---------- ---------- ----------
Total $ 27,901 100.00% $ 20,484 100.00% $ 11,435 100.00%
========== ========== ========== ========== ========== ==========
<CAPTION>
June 30,
----------------------------------------------------------------------------------
1996 1995 1994
------------------------ ------------------------ ------------------------
Percent to Percent to Percent to
Total Total Total
Amount Allowance Amount Allowance Amount Allowance
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Residential real estate $ 407 12.61% $ 411 8.95% $ 467 12.66%
Commercial 2,624 81.29 3,644 79.34 3,023 81.95
Consumer 197 6.10 538 11.71 199 5.39
General unallocated -- -- -- -- -- --
---------- ---------- ---------- ---------- ---------- ----------
Total $ 3,228 100.00% $ 4,593 100.00% $ 3,689 100.00%
========== ========== ========== ========== ========== ==========
</TABLE>
36
<PAGE> 39
Deposits. At December 31, 1998, deposits totaled $1.7 billion, as
compared to $1.6 billion at December 31, 1997. One of the Company's strategies
is to promote retail deposit growth as a cost-efficient funding source as well
as a source of fee income and cross-selling opportunities. In connection with
the acquisition of Green Country, the Company acquired three branch offices and
assumed $79.0 million of Green Country Bank's deposits (as of February 16,
1998). Likewise, in connection with the acquisition of BankSouth, the Company
acquired six branch offices and assumed $159.7 million of deposits (as of
September 30, 1998). However, three branches of the combined institution had
overlapping markets and at December 31, 1998, two of these branches have been
closed with the remaining one scheduled for closure. Local Federal has received
OTS approval to open de novo branch offices in Edmond, Oklahoma and in Afton,
Oklahoma. The Company expects to continue to focus on improving its retail
deposit franchise. For additional information, see "Business--Sources of
Funds--Deposits" in Item 1 hereof and Note 9 of the Notes to Consolidated
Financial Statements in Item 8 hereof.
37
<PAGE> 40
The following table presents the average balance of each deposit type
and the average rate paid on each deposit type of the Company for the periods
indicated.
<TABLE>
<CAPTION>
Year Ended Six Months Ended
December 31, 1998 December 31, 1997
-------------------------------------- --------------------------------------
Average Average
Average Rate Average Rate
Balance Interest Paid Balance Interest Paid
---------- ---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Noninterest-
bearing deposits $ 72,215 $ -- - % $ 57,778 $ -- - %
Passbook accounts 73,068 2,110 2.89 78,731 1,009 2.56
NOW and money
market accounts 225,740 4,892 2.17 187,381 2,594 2.77
Term certificates 1,253,482 67,741 5.40 1,301,703 37,069 5.70
----------
Total deposits $1,624,505 $ 74,743 4.60% $1,625,593 $ 40,672 5.00%
========== ========== ========== ========== ========== ==========
<CAPTION>
Years Ended June 30,
---------------------------------------------------------------------------------
1997 1996
-------------------------------------- --------------------------------------
Average Average
Average Rate Average Rate
Balance Interest Paid Balance Interest Paid
---------- ---------- ---------- ---------- ---------- ----------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Noninterest-
bearing deposits $ 52,087 $ -- - % $ 46,791 $ -- - %
Passbook accounts 72,441 2,092 2.89 75,359 2,190 2.91
NOW and money
market accounts 195,606 5,381 2.75 204,752 5,638 2.75
Term certificates 1,329,463 75,618 5.69 1,271,079 73,345 5.77
---------- ---------- ---------- ----------
Total deposits $1,649,597 $ 83,091 5.04% $1,597,981 $ 81,173 5.08%
========== ========== ========== ========== ========== ==========
</TABLE>
38
<PAGE> 41
Other Assets. Other assets declined by $38.9 million from December 31,
1997 to December 31, 1998, primarily due to the collection of a receivable from
the sale of the indirect lending portfolio.
Borrowings. Other than deposits, the Company utilized advances from the
Federal Home Loan Bank of Topeka ("FHLB") to fund its operations. Advances from
the FHLB increased $139.9 million from December 31, 1997 to December 31, 1998.
The increase came as the Company took advantage of favorable rates available at
the FHLB to fund earning assets and offset rate-sensitive movement of funds
within the deposit portfolio.
The following table sets forth certain information regarding the
short-term borrowings of the Company at or for the dates indicated.
<TABLE>
<CAPTION>
At or For the Years At or For the Six At or For the Years
Ended December 31, Months Ended December 31, Ended June 30,
------------------------ ------------------------ ------------------------
1998 1997 1997 1996 1997 1996
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
FHLB OF TOPEKA ADVANCES:
Average balance outstanding $ 132,659 $ 549,465 $ 391,711 $ 987,618 $ 848,733 $ 869,568
Maximum amount outstanding at any
month-end during the period 220,033 874,356 839,347 1,311,735 1,311,735 1,588,618
Balance outstanding at end of period 220,033 80,136 80,136 371,612 531,161 439,011
Average interest rate during the period 5.69% 7.12% 7.09% 6.50% 6.77% 6.71%
Average interest rate at end of period 4.77% 6.06% 6.06% 5.59% 5.73% 5.70%
SECURITIES SOLD UNDER AGREEMENTS TO
PURCHASE
Average balance outstanding $ -- $ 161,988 $ 55,235 $ 567,000 $ 418,784 $ 686,558
Maximum amount outstanding at any
month-end during the period -- 543,683 239,914 942,325 942,315 1,079,194
Balance outstanding at end of period -- -- -- 942,325 310,801 1,079,194
Average interest rate during the period(1) -- 7.31% 7.44% 6.45% 6.73% 6.76%
Average interest rate at end of period -- -- -- 5.38% 5.55% 5.36%
</TABLE>
- -------------------------
(1) Average interest rate during the period reflects the effect of the
Company's interest rate swaps.
Pursuant to the private placement, the Company issued $80.0 million of
Senior Notes which are due in September 2004 and which bear interest at the rate
of 11.0%, payable semi-annually. During fiscal 1997, as anticipated in the
Purchase Agreement, the Company established an interest reserve account with an
independent trustee which contained $8.8 million, sufficient to pay the
aggregate interest payments scheduled to be made with respect to the first two
interest payment dates on the senior notes. Debt issuance costs of approximately
$4.3 million at December 31, 1997 were capitalized and are reflected as Other
Assets in the Consolidated Statement of Financial Condition. The Company intends
to fund the semiannual interest payments through dividends paid to the Company
from the Bank. For additional information, see "Business--Sources of
Funds--Borrowings" in Item 1 hereof and Note 12 of the Notes to Consolidated
Financial Statements in Item 8 hereof.
Stockholders' Equity. Stockholders' equity increased from $82.6 million
at December 31, 1997 to $118.8 million at December 31, 1998. The increase in
stockholders' equity came primarily as a result of net income during the period
and an increase in additional paid-in-capital of $9.0 million which resulted
from the shares issued in connection with the Company's acquisition of Green
Country on February 16, 1998 at which point the Company issued 837,209 new
shares of Common Stock to purchase the assets of Green Country. Accumulated
other comprehensive income rose $8.7 million or 374.0% during fiscal 1998, as
the Company marked its available-for-sale security portfolio to market net of
taxes in accordance with GAAP. At December 31, 1998, the ratio of the Company's
stockholders' equity to total assets amounted to 5.58% and the Bank exceeded its
minimum regulatory capital requirements. See "--Liquidity and Capital
Resources".
39
<PAGE> 42
RESULTS OF OPERATIONS
General. The Company's results of operations depend substantially on
its net interest and dividend income, which is the difference between interest
and dividend income on interest-earning assets, consisting primarily of loans
receivable, mortgage-backed and investment securities and various other
short-term investments, and interest expense on interest-bearing liabilities,
consisting primarily of deposits and borrowings. In prior periods the Company's
results of operations have been significantly affected by the net costs of
hedging its interest rate exposure. On an ongoing basis, the Company's results
of operations will be affected by the level of its noninterest income including
deposit related income; loan fees and service charges; net gains (losses) on
sales of assets; the level of its noninterest expense, such as compensation and
employee benefits, deposit insurance premiums, provisions for losses on
foreclosed assets, equipment and data processing expense and occupancy expense;
its provisions for losses on loans resulting from the Company's assessment of
the adequacy of its allowance for losses on loans; and provisions (benefits) for
income taxes.
Net Income (Loss). The Company reported net income (loss) of $18.4
million, ($86.0) million, ($30.0) million and $13.6 million during the year
ended December 31, 1998, the six months ended December 31, 1997, and the years
ended June 30, 1997 and 1996, respectively. The net income reported for the year
ended December 31, 1998 is reflective of the Company's first full fiscal year of
operations since the restructuring initiatives contemplated by the private
placement and redemption. The net loss reported for the six months ended
December 31, 1997 is attributable to deliberate actions taken by the Company's
new management subsequent to the private placement and redemption to restructure
the Company's balance sheet. Specifically, the Company incurred $125.5 million
of losses on the sale and write-down of assets, of which an aggregate loss of
$53.4 million was incurred in connection with the liquidation or write-off of
the hedging contracts which the Company had entered into in order to reduce its
exposure to interest rates. See "Quantitative and Qualitative Disclosure about
Market Risk--Asset and Liability Management" in Item 7A hereof. These losses
also included a loss of $72.1 million on the sale and mark-to-market of the
Company's securities portfolio (which primarily related to the sale and
mark-to-market of the Company's COFI-based CMOs). Further the Company recorded a
$25.4 million provision for loan losses during the three-months ended September
30, 1997, primarily to cover realized and inherent losses with respect to the
Company's portfolio of indirect automobile receivables which had been sold as of
December 31, 1997. See "Business--Lending Activities--Consumer Loans" in Item 1
hereof. The market for fixed income securities improved during the three-month
period ended December 31, 1997 and the Company sold $330.6 million of the
remaining COFI-based CMO portfolio for a gain of $12.7 million in furtherance of
its plan to accelerate the disposition of the COFI-based CMOs. The effect of
these transactions on the Company's operating results for the six months ended
December 31, 1997 is shown below.
<TABLE>
<CAPTION>
Three Months Ended
---------------------------------------- Six Months Ended
September 30, 1997 December 31, 1997 December 31, 1997
------------------ ------------------ ------------------
<S> <C> <C> <C>
Net interest income $ 12,272 $ 13,109 $ 25,381
Provision for loan losses (25,353) (225) (25,578)
------------------ ------------------ ------------------
Net interest income (loss) after provision for loan
losses (13,081) 12,884 (197)
Net gains (losses) on sale of assets (125,485) 12,816 (112,669)
Other noninterest income 2,888 2,632 5,520
------------------ ------------------ ------------------
Total noninterest income (loss) (122,597) 15,448 (107,149)
Total noninterest expense 13,568 9,117 22,685
------------------ ------------------ ------------------
Income (loss) before provision (benefit) for income
taxes (149,246) 19,215 (130,031)
Provision (benefit) for income taxes (50,795) 6,720 (44,075)
------------------ ------------------ ------------------
Net income (loss) $ (98,451) $ 12,495 $ (85,956)
================== ================== ==================
</TABLE>
The Company recognized a net loss of $30 million during the fiscal year
ended June 30, 1997 as compared to net income of $13.6 million during the year
ended June 30, 1996. The net loss during fiscal year
40
<PAGE> 43
ended June 30, 1997 was primarily attributable to a $28.4 million provision for
loan losses, which was principally associated with the Company's indirect
automobile finance receivables, $29.9 million of losses which were related to
the sale of CMOs with interest rate adjustments tied to COFI, and a
non-recurring $10.3 million special assessment (before applicable tax benefits)
which was recorded in connection with legislation in 1996 which recapitalized
the SAIF.
Net Interest and Dividend Income. Net interest and dividend income is
determined by the Company's net interest spread (i.e., the difference between
the yields earned on its interest-earning assets and the rates paid on its
interest-bearing liabilities) and the relative amounts of interest-earning
assets and interest-bearing liabilities.
Net interest and dividend income totaled $54.8 million, $25.4 million,
$52.9 million and $48.7 million during the year ended December 31, 1998, six
months ended December 31, 1997, and years ended June 30, 1997 and 1996,
respectively. Net interest and dividend income increased by $3.0 million or 5.8%
during the year ended December 31, 1998, as compared to the year ended December
31, 1997, due to an increase in the Company's net interest earnings assets
(interest-earnings assets less interest-bearing liabilities) and a corresponding
66 basis point rise in the Company's interest rate spread during the period. Net
interest and dividend income decreased by $1.2 million or 4.4% during the six
months ended December 31, 1997 as compared to the six months ended December 31,
1996 due to a significant decline of $1.1 billion in the average balance of
securities during the period, which is attributable to the sale and writedown of
such securities in connection with the restructuring activities described above.
Net interest and dividend income increased by $4.2 million or 8.7% during the
year ended June 30, 1997 due to a $22.1 million increase in net interest-earning
assets and a 21 basis point increase in the Company's interest rate spread.
41
<PAGE> 44
AVERAGE BALANCES, NET INTEREST INCOME, YIELDS EARNED AND RATES PAID
The following table sets forth, for the periods indicated, information
regarding (i) the total dollar amount of interest income of the Company from
interest-earning assets and the resultant average yields, (ii) the total
dollar amount of interest expense on interest-bearing liabilities and the
resultant average rates, (iii) net interest income, (iv) interest rate
spread, and (v) net interest margin. Information is based on average daily
balances during the indicated periods (Dollars in Thousands).
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------------------------------------
1998 1997
------------------------------------------------------------------------------
Average Average
Average Yield/ Average Yield/
Balance Interest Cost Balance Interest Cost
------- -------- ---- ------- -------- ----
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable(1) $1,162,514 $ 96,851 8.33% $1,036,300 $104,324 10.07%
Securities(2) 577,526 41,862 7.25% 1,289,822 78,354 6.07%
Securities purchased under
agreements to resell 70,368 3,947 5.61% 37,657 2,159 5.73%
Other earning assets(3) 73,004 4,544 6.22% 64,707 3,931 6.08%
---------- ------- ---------- --------
Total interest-earning
assets 1,883,412 147,204 7.81% 2,428,486 188,768 7.77%
-------- ===== -------- ======
Noninterest-earning
assets 93,316 84,115
---------- ----------
Total assets $1,976,728 $2,512,601
========== ==========
Interest-bearing liabilities:
Deposits:
Transaction accounts(4) $298,808 $ 7,002 2.34% $266,569 $ 7,300 2.74%
Term certificates of deposit 1,253,482 67,741 5.40% 1,326,371 75,244 5.67%
--------- ------ ------- --------
Total deposits 1,552,290 74,743 4.82% 1,592,940 82,544 5.18%
Borrowings:
FHLB advances 132,659 7,547 5.69% 549,465 39,095 7.12%
Securities sold under
agreements to repurchase
and other 64 678 - 161,988 11,848 7.31%
Promissory note payable - - - 7,087 583 8.23%
Senior notes 80,000 9,470 11.81% 24,986 2,952 11.81%
---------- ------- ---------- --------
Total interest-bearing
liabilities 1,765,013 92,438 5.24% 2,336,466 137,022 5.86%
-------- ===== -------- ======
Noninterest-bearing liabilities 107,718 82,945
---------- ----------
Total liabilities 1,872,731 2,419,411
Stockholders' equity 103,997 93,190
---------- ----------
Total liabilities and
stockholders' equity $1,976,728 $2,512,601
========== ==========
Net interest-earning assets $ 118,399 $ 92,020
========== ==========
Net interest income/interest
rate spread $ 54,766 2.57% $ 51,746 1.91%
======== ====== ========== ======
Net interest margin 2.91% 2.13%
====== ======
Ratio of average interest-
earning assets to average
interest-bearing liabilities 106.71% 103.94%
====== ======
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended December 31,
-------------------------------------------------------------------------------
1997 1996
-------------------------------------------------------------------------------
Average Average
Average Yield/ Average Yield/
Balance Interest Cost Balance Interest Cost
------- -------- ---- ------- -------- ----
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable(1) $1,009,843 $ 49,788 9.78% $ 1,020,534 $ 53,179 10.34%
Securities(2) 1,000,808 31,306 6.21% 2,107,408 62,176 5.85%
Securities purchased under
agreements to resell 60,000 1,711 5.66% 38,921 1,040 5.30%
Other earning assets(3) 76,415 2,399 6.23% 78,544 2,705 6.83%
---------- -------- ----------- ---------
Total interest-earning
assets 2,147,066 85,204 7.87% 3,245,407 119,100 7.28%
-------- ======= ----------- --------- =======
Noninterest-earning
assets 92,823 55,873
------ -----------
Total assets $2,239,889 $ 3,301,280
========== ===========
Interest-bearing liabilities:
Deposits:
Transaction accounts(4) $ 266,112 $ 3,603 2.69% $ 269,044 3,776 2.78%
Term certificates of deposit 1,301,703 37,069 5.65% 1,308,314 37,443 5.68%
---------- -------- ----------- ---------
Total deposits 1,567,815 40,672 5.15% 1,577,358 41,219 5.18%
Borrowings:
FHLB advances 391,711 14,005 7.09% 987,618 32,353 6.50%
Securities sold under
agreements to repurchase
and other 55,235 2,073 7.44% 567,000 18,426 6.45%
Promissory note payable 2,591 108 8.27% 14,020 564 7.98%
Senior notes 49,565 2,965 11.87% - - -
---------- -------- ----------- ---------
Total interest-bearing
liabilities 2,066,917 59,823 5.74% 3,145,996 92,562 5.84%
-------- ======= ----------- --------- =======
Noninterest-bearing liabilities 88,248 48,071
---------- -----------
Total liabilities 2,155,165 3,194,067
Stockholders' equity 84,724 107,213
---------- -----------
Total liabilities and
stockholders' equity $2,239,889 $ 3,301,280
========== ===========
Net interest-earning assets $ 80,149 $ 99,411
========== ===========
Net interest income/interest
rate spread $ 25,381 2.13% $ 26,538 1.44%
======== ====== ========= =======
Net interest margin 2.34% 1.62%
====== =======
Ratio of average interest-
earning assets to average
interest-bearing liabilities 103.88% 103.16%
====== ======
</TABLE>
<TABLE>
<CAPTION>
Year Ended June 30,
-------------------------------------------------------------------------------
1997 1996
-------------------------------------------------------------------------------
Average Average
Average Yield/ Average Yield/
Balance Interest Cost Balance Interest Cost
------- -------- ---- ------- -------- ----
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable(1) $1,041,342 107,715 10.34% $ 867,151 $ 95,839 11.05%
Securities(2) 1,845,179 109,224 5.92% 2,255,318 134,761 5.98%
Securities purchased under
agreements to resell 27,174 1,488 5.48% 4,467 322 7.21%
Other earning assets(3) 65,903 4,237 6.43% 79,847 5,234 6.56%
---------- -------- ----------- --------
Total interest-earning 2,979,598 222,664 7.47% 3,206,783 236,156 7.36%
assets -------- ====== -------- ======
Noninterest-earning
assets 92,630 89,147
------ -----------
Total assets $3,072,228 $ 3,295,930
========== ===========
Interest-bearing liabilities:
Deposits:
Transaction accounts(4) $ 268,047 $ 7,473 2.79% $280,111 $ 7,828 2.79%
Term certificates of deposit 1,329,463 75,618 5.69% 1,271,079 73,345 5.77%
---------- -------- ----------- --------
Total deposits 1,597,510 83,091 5.20% 1,551,190 81,173 5.23%
Borrowings:
FHLB advances 848,733 57,442 6.77% 869,568 58,309 6.71%
Securities sold under
agreements to repurchase
and other 418,784 28,202 6.73% 686,558 46,400 6.76%
Promissory note payable 12,852 1,026 7.98% 19,862 1,606 8.09%
Senior notes - - - - - -
---------- -------- ----------- --------
Total interest-bearing
liabilities 2,877,879 169,761 5.90% 3,127,178 187,488 6.00%
-------- ====== -------- ======
Noninterest-bearing liabilities 89,914 33,075
---------- -----------
Total liabilities 2,967,793 3,160,253
Stockholders' equity 104,435 135,677
---------- -----------
Total liabilities and
stockholders' equity $3,072,228 $ 3,295,930
========== ===========
Net interest-earning assets $ 101,719 $ 79,605
========== ===========
Net interest income/interest
rate spread $ 52,903 1.57% $ 48,668 1.36%
======== ====== ======== ======
Net interest margin 1.78% 1.52%
====== ======
Ratio of average interest-
earning assets to average
interest-bearing liabilities 103.53% 102.55%
====== ======
</TABLE>
- -------------------------
(1) The average balance of loans receivable includes nonperforming loans,
interest on which is recognized on a cash basis, and excludes the
allowance for loan losses which is included in noninterest-earning
assets.
(2) Includes all securities classified as held to maturity and available
for sale, including the market valuation accounts.
(3) Includes cash and due from banks, equity securities, interest bearing
deposits and FHLB stock.
(4) Includes demand, passbook, NOW, and money market accounts.
42
<PAGE> 45
RATE/VOLUME ANALYSIS
The following table sets forth the effects of changing rates and volumes on
net interest income of the Company. Information is provided with respect to
(i) effects on interest income attributable to changes in volume (changes in
volume multiplied by prior rate); (ii) effects on interest income
attributable to changes in rate (changes in rate multiplied by prior
volume); and (iii) changes in rate/volume (change in rate multiplied by
change in volume).
<TABLE>
<CAPTION>
Year Ended December 31, 1998 compared to 1997
---------------------------------------------------
Increase (decrease) due to
--------------------------------------
Total Net
Increase
Rate Volume Rate/Volume (Decrease)
------------ ----------- ----------- -----------
<S> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable $(17,988) $12,706 $(2,191) $(7,473)
Securities 15,139 (43,271) (8,360) (36,492)
Securities purchased under
agreements to resell (46) 1,875 (41) 1,788
Other earning assets 97 504 12 613
------- ------- ------- -------
Total net change in income
on interest-earning assets (2,798) (28,186) (10,580) (41,564)
------- ------- ------- -------
Interest-bearing liabilities:
Deposits:
Transaction accounts (1,053) 883 (128) (298)
Term certificates of
deposit (3,564) (4,135) 196 (7,503)
------- ------- ------- --------
Total deposits (4,617) (3,252) 68 (7,801)
Borrowings:
FHLB advances (7,836) (29,656) 5,944 (31,548)
Securities sold under
agreements (11,848) (11,843) 12,521 (11,170)
to repurchase
Promissory note payable (583) (583) 583 (583)
Senior notes (2) 6,500 20 6,518
-------- ------- ------- -------
Total net change in expense
on interest-bearing
liabilities (24,886) (38,834) 19,136 (44,584)
------- ------- ------- -------
Change in net interest income $22,088 $10,648 $(29,716) $ 3,020
======= ======= ======== =======
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended December 31, 1997 compared to
1996
---------------------------------------------------
Increase (decrease) due to
--------------------------------------
Total Net
Increase
Rate Volume Rate/Volume (Decrease)
------------ ------------ ------------ -----------
(Dollars in Thousands)
<S> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable $(2,864) $ (557) $ 30 $(3,391)
Securities 3,745 (32,649) (1,966) (30,870)
Securities purchased under
agreements to resell 70 563 38 671
Other earning assets (239) (73) 6 (306)
------- ------- ------- --------
Total net change in income
on interest-earning assets 712 (32,716) (1,892) (33,896)
------- ------- ------- -------
Interest-bearing liabilities:
Deposits:
Transaction accounts (133) (41) 1 (173)
Term certificates of
deposit (186) (189) 1 (374)
------- ------- ------- --------
Total deposits (319) (230) 2 (547)
Borrowings:
FHLB advances 2,958 (19,521) (1,785) (18,348)
Securities sold under
agreements to
repurchase 2,854 (16,631) (2,576) (16,353)
Promissory note payable 20 (460) (16) (456)
Senior notes - - 2,965 2,965
------- ------- ------- -------
Total net change in expense
on interest-bearing
liabilities 5,513 (36,842) (1,410) (32,739)
------- ------- ------- -------
Change in net interest income $(4,801) $ 4,126 $ (482) $(1,157)
======= ======= ======== ========
</TABLE>
<TABLE>
<CAPTION>
Year Ended June 30, 1997 compared to 1996
---------------------------------------------------
Increase (decrease) due to
--------------------------------------
Total Net
Increase
Rate Volume Rate/Volume (Decrease)
----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
Interest-earning assets:
Loans receivable $(6,142) $19,252 $(1,234) $11,876
Securities (1,259) (24,507) 229 (25,537)
Securities purchased under
agreements to resell (77) 1,637 (394) 1,166
Other earning assets (101) (914) 18 (997)
-------- -------- ------- --------
Total net change in income
on interest-earning assets (7,579) (4,532) (1,381) (13,492)
------- ------- ------- -------
Interest-bearing liabilities:
Deposits:
Transaction accounts (19) (337) 1 (355)
Term certificates of
deposit (1,048) 3,369 (48) 2,273
-------- ------- -------- -------
Total deposits (1,067) 3,032 (47) 1,918
Borrowings:
FHLB advances 543 (1,397) (13) (867)
Securities sold under
agreements (165) (18,098) 65 (18,198)
to repurchase
Promissory note payable (20) (567) 7 (580)
Senior notes - - - -
------- ------- ------- -------
Total net change in expense
on interest-bearing liabilities (709) (17,030) 12 (17,727)
------- ------- ------- -------
Change in net interest income $(6,870) $12,498 $(1,393) $ 4,235
======== ======= ======== =======
</TABLE>
43
<PAGE> 46
Interest Income. Total interest and dividend income decreased by $41.6
million or 22.0% during the year ended December 31, 1998 as compared to the year
ended December 31, 1997. Total interest and dividend income decreased by $33.9
million or 28.5% during the six months ended December 31, 1997, as compared to
the same period in the prior year, and decreased by $13.5 million or 5.7% during
the year ended June 30, 1997 compared to 1996. Interest income on loans
receivable declined $7.5 million or 7.2% during the year ended December 31, 1998
as compared to the year ended December 31, 1997. Interest income on loans
receivable decreased by $3.4 million or 6.4% during the six months ended
December 31, 1997, as compared to the same period in the prior year, and
increased by $11.9 million or 12.4% during the year ended June 30, 1997 compared
to 1996. The decrease in interest income on loans during both the year ended
December 31, 1998 and the six months ended December 31, 1997 comparative periods
was due to a decline in the average yield earned on the Company's loan portfolio
of 1.74% in the twelve month comparative periods and 56 basis points in the six
month comparative periods. This decline in the average yield reflected, in part,
the discontinuance of the Company's third-party automobile loan purchase
activity, which generally carried higher yields than traditional real estate
secured loans. The increase in interest on loans receivable during the year
ended June 30, 1997 as compared to June 30, 1996 was primarily due to an
increase in the average balance of loans outstanding of $174.2 million. During
the year ended June 30, 1997, prior management significantly increased its
originations of third-party automobile loans and continued its emphasis on the
origination and purchase of commercial real estate loans.
Interest income on securities and other interest-earning assets (which
include mortgage-backed and related securities, including CMOs, U.S. Government
and agency securities, FHLB stock and, during fiscal 1997, interest rate caps
and floors and Student Loan Marketing Association preferred stock) declined by
$34.1 million or 40.4% and $30.5 million or 46.3% during the year ended December
31, 1998 and the six months ended December 31, 1997, respectively, as compared
to the same periods in the prior years. During the year ended June 30, 1997,
interest income on securities and other interest earning assets declined $25.4
million or 18.1%. The decline in interest income on such investments during the
twelve and six month comparative periods and during the year ended June 30, 1997
was primarily due to the decreases in the average balance of such investments of
$671.3 million, $1.1 billion and $401.4 million during each respective
comparative period. During the year ended June 30, 1997, the Company began
reducing its securities holdings (primarily its COFI-based CMOs) through
periodic bulk sale transactions which resulted in the sale of $743.9 million of
securities during the year. During the six months ended December 31, 1997 and in
connection with the private placement and the redemption, new management of the
Company determined that its remaining CMO portfolio was "other than temporarily
impaired" in accordance with SFAS No. 115 and, pursuant to GAAP, wrote-down the
portfolio by $54.7 million and sold $865.1 million of its COFI-based CMOs.
Interest Expense. Total interest expense decreased by $44.6 million or
32.5% and $32.7 million or 35.4% during the year ended December 31, 1998 and the
six months ended December 31, 1997, respectively, as compared to the same
periods in the prior years. Total interest expense decreased by $17.7 million or
9.5% during the year ended June 30, 1997 compared to 1996. Interest expense on
deposits is the largest component of the Company's interest-bearing liabilities.
Interest expense on deposits declined by $7.8 million or 9.5% and $547,000 or
1.3% during the year ended December 31, 1998 and the six months ended December
31, 1997, respectively, when compared to the same periods in prior years. During
the fiscal year ended June 30, 1997, interest expense on deposits rose $1.9
million or 2.4%. Average balance declines of interest-bearing deposits in both
the twelve and six month comparative periods, coupled with declines in the costs
of those funds, led to the declines in interest expense noted in those periods.
During fiscal year ended June 30, 1997, average balance of interest-bearing
deposits rose $46.3 million while the rates paid remained relatively stable
causing a corresponding increase in interest expense during the year.
44
<PAGE> 47
Interest expense on FHLB advances declined $31.5 million or 80.7% and
$18.3 million or 56.7% during the year ended December 31, 1998 and the six
months ended December 31, 1997 due to the 75.9% and 60.3% respective decline in
the average balance of those borrowings, when compared to the same periods in
the prior years. Similarly, interest expense on reverse repurchase agreements
declined $11.2 million or 94.3% and $16.4 million or 88.8% during the twelve and
six month comparative periods. During the fiscal year ended June 30, 1997,
interest expense on reverse repurchase agreements declined by $18.2 million or
39.2% and interest expense on FHLB advances declined by $867,000 or 1.5%. The
significant declines in interest expense during all of the above comparative
periods is due to the strategic balance sheet restructuring begun by the Company
after the private placement and the redemption and continuing through December
31, 1997. During this period, the Company began to reduce its securities
holdings through periodic bulk sale transactions and utilized those proceeds to
pay off its reverse repurchase agreements and pay down FHLB advances. Prior to
this time, the Company's strategy had been to finance the purchase of
mortgage-backed and related securities primarily through FHLB borrowings and
reverse repurchase agreements.
During the periods presented, interest expense on notes payable
consisted of interest paid on a promissory note payable to the mother of the
Selling Stockholders and, since September 8, 1997, interest accrued with respect
to the Senior Notes. Interest expense on the promissory note amounted to
$108,000, $1.0 million and $1.6 million during six months ended December 31,
1997 and years ended June 30, 1997 and 1996, respectively. On September 8, 1997,
in connection with the closing of the private placement and the redemption, the
Company issued $80.0 million of the Senior Notes (which are due in September
2004 and bear interest at the rate of 11.0% payable semi-annually) and prepaid
the promissory note held by the mother of the Selling Stockholders at a price
equal to the principal amount thereof plus accrued and unpaid interest thereon.
Interest expense and amortization of issuance costs on the Senior Notes (which
began to accrue on September 8, 1997) amounted to $9.5 million and $3.1 million
during the year ended December 31, 1998 and six months ended December 31, 1997,
respectively.
Provision for Loan Losses. The provision for loan losses is charged to
earnings to bring the total allowance for loan losses to a level considered
appropriate by management based on (i) an estimate by management of loan losses
that occurred during the current period and (ii) an ongoing adjustment of prior
estimates of losses occurring in prior periods. To serve as a basis for making
this provision each quarter, the Company maintains an extensive credit risk
monitoring process that considers several factors, including among other things,
current economic conditions affecting the Company's customers, the payment
performance of individual large loans and pools of homogeneous small loans,
portfolio seasoning, changes in collateral values, and detailed reviews of
specific large loan relationships. For large loans deemed to be impaired due to
an expectation that all contractual payments will probably not be received,
impairment is measured by comparing the Company's recorded investment in the
loan to the present value of expected cash flows discounted at the loan's
effective interest rate, the fair value of the collateral or the loan's
observable market price. While management endeavors to use the best information
available in making its evaluations, future adjustments to the allowance for
loan losses may be necessary if economic conditions change substantially from
the assumptions used in making the evaluations. In addition, regulatory
examiners may require the Bank to recognize additions to its allowance based
upon their judgments about information available to them at the time of their
examination.
The Company established provisions for loan losses of $1.5 million,
$25.6 million, $28.4 million and $5.1 million during the year ended December 31,
1998, the six months ended December 31, 1997 and the years ended June 30, 1997
and 1996, respectively. During such respective periods, loan charge-offs (net of
recoveries) amounted to $1.3 million, $16.5 million, $20.2 million and $6.5
million. The $25.6 million and $28.4 million provisions established during the
six months ended December 31, 1997 and the year ended June 30, 1997 were
intended primarily to cover realized and inherent losses with respect to the
Company's portfolio of indirect automobile receivables. At December 31, 1997,
the Company's portfolio of such indirect automobile loans had been sold. See
"Business--Lending Activities--Consumer Loans" in Item 1 hereof.
45
<PAGE> 48
Noninterest Income. Total noninterest income (loss) amounted to $14.8
million, $(107.1) million, $(17.1) million and $10.3 million during the year
ended December 31, 1998, the six months ended December 31, 1997 and the years
ended June 30, 1997 and 1996, respectively. The components of noninterest income
consist of deposit-related income, loan fees and loan service charges, net gains
(losses) on sale of assets and other miscellaneous income. The noninterest
income (losses) recognized during the year ended June 30, 1997 and the six
months ended December 31, 1997 primarily related to losses incurred on the sale
of securities and the liquidation of related hedges. During the three month
period ended September 30, 1997, such sales resulted in $125.5 million of
losses. These sales continued through December 31, 1997 as new management
dramatically restructured the balance sheet of the Company. Specifically, during
the quarter ended September 30, 1997, the Company (1) liquidated the hedging
contracts previous management had entered into in an attempt to reduce the
Company's exposure to interest rates, (2) sold the majority of its COFI-based
CMO portfolio and (3) wrote-down the remaining COFI-based CMO portfolio to
reflect market values. The market for fixed income securities improved during
the three month period ended December 31, 1997 and continued sales from this
portfolio resulted in a gain of $12.7 million reducing the loss to $112.8
million for the six months ended December 31, 1997. Net gains on sale of assets
recognized during the year ended December 31, 1998 of $932,000 came as a result
of the Company's sale of COFI-based CMOs, mortgages and consumer loans. The
Company routinely sells mortgages and other longer-term loans with and without
servicing released in order to manage interest-rate risk. See "Qualitative and
Quantitative Disclosure about Market Risk--Asset and Liability Management" in
Item 7A hereof. The noninterest income recognized during the year ended December
31, 1998 is reflective of the core noninterest income potential of the Company
as this was the first year of operations occurring subsequent to the balance
sheet restructuring discussed above.
Noninterest Expense. Total noninterest expense declined $3.2 million or
7.4% during the year ended December 31, 1998 as compared to the year ended
December 31, 1997. Similarly, total noninterest expense decreased by $6.7
million or 22.8% during the six months ended December 31, 1997, as compared to
the same period in the prior year, while increasing $13.8 million or 39.0%
during the year ended June 30, 1997. During the year ended June 30, 1997, the
increase in noninterest expense came as a result of the one-time special SAIF
assessment, as discussed below. In addition, during the year ended June 30,
1997, the Company's provision for uninsured risk and losses increased by $1.9
million or 140.5% due to the Company's reassessment of its potential liability
with respect to the FDIC Case. See "Legal Proceedings" in Item 3 hereof. The
decrease in noninterest expense during the year ended December 31, 1998 as
compared to the year ended December 31, 1997 was due primarily to nonrecurring
charges associated with the private placement. The decrease in noninterest
expenses attributable to the private placement was partially offset by increases
in compensation and employee benefits during the year ended December 31, 1998
resultant from the Company's strategic development of a commercial business
lending line of business. The decrease in noninterest expense during the six
months ended December 31, 1996 was primarily due to the absence of the $10.3
million (before applicable tax benefits) special assessment which was recognized
by the Company in September 1996 in connection with the recapitalization of the
SAIF. Pursuant to legislation effective September 30, 1996, all SAIF member
institutions were required to pay a one-time special assessment equal to 65.7
basis points for all SAIF-assessable deposits as of March 31, 1995. This
legislation resulted in the recapitalization of the SAIF and, consequently,
during the fourth calendar quarter of 1996, the FDIC lowered the Bank's
assessment rates. See "Business--Regulation of Federal Savings
Institutions--FDIC Assessments" in Item 1 hereof.
46
<PAGE> 49
Provision (Benefit) for Income Taxes. During the year ended December
31, 1998, the six months ended December 31, 1997 and the years ended June 30,
1997 and 1996, the Company recognized $10.3 million, $(44.1) million, $(11.9)
million and $4.9 million, respectively, of provisions (benefits) for income
taxes. At December 31, 1998, the Company had approximately $19.1 million and
$176.4 million of net operating loss carryforwards available for federal and
state income tax purposes, respectively. The state net operating loss
carryforwards expire in varying amounts between 2006 and 2013. The federal net
operating loss carryforwards expire in 2013. At December 31, 1997 and 1998, a
valuation allowance for all available state net operating loss carryforwards was
established as it was determined to be more likely than not that the benefit of
the deferred tax asset would not be realized. Historically, the Company has
generated income for federal income tax purposes. Based on the current strategy
of new management, no valuation allowance for other deferred tax assets has been
established as the Company believes it is more likely than not that sufficient
income for federal income tax purposes will be realized. The change in ownership
of the Company did not result in a limitation on the utilization of the net
operating losses. See "Business--Taxation" in Item 1 hereof and Note 15 of the
Notes to Consolidated Financial Statements in Item 8 hereof.
LIQUIDITY AND CAPITAL RESOURCES
Liquidity. Liquidity refers to the Company's ability to generate
sufficient cash to meet the funding needs of current loan demand, savings
deposit withdrawals, principal and interest payments with respect to outstanding
borrowings and to pay operating expenses. It is management's policy to maintain
greater liquidity than required in order to be in a position to fund loan
originations, to meet withdrawals from deposit accounts, to make principal and
interest payments with respect to outstanding borrowings and to make investments
that take advantage of interest rate spreads. The Company monitors its liquidity
in accordance with guidelines established by the Company and applicable
regulatory requirements. The Company's need for liquidity is affected by loan
demand, net changes in deposit levels and the scheduled maturities of its
borrowings. The Company can minimize the cash required during the times of heavy
loan demand by modifying its credit policies or reducing its marketing effort.
Liquidity demand caused by net reductions in deposits are usually caused by
factors over which the Company has limited control. The Company derives its
liquidity from both its assets and liabilities. Liquidity is derived from assets
by receipt of interest and principal payments and prepayments, by the ability to
sell assets at market prices and by utilizing unpledged assets as collateral for
borrowings. Liquidity is derived from liabilities by maintaining a variety of
funding sources, including deposits, advances from the FHLB of Topeka and other
short and long-term borrowings.
The Company's liquidity management is both a daily and long-term
function of funds management. Liquid assets are generally invested in short-term
investments such as overnight money funds and short-term government agency
securities. If the Company requires funds beyond its ability to generate them
internally, various forms of both short and long-term borrowings provide an
additional source of funds. At December 31, 1998, the Company had $130 million
in borrowing capacity under a collateralized line of credit with the FHLB of
Topeka, none of which was outstanding as of such date. The Bank does not
currently accept brokered deposits as a source of liquidity, and does not
anticipate a change in this practice in the foreseeable future.
At December 31, 1998, the Company had outstanding commitments
(including unused lines of credit) to originate mortgage and non-mortgage loans
of $133.3 million. Certificates of deposit which are scheduled to mature within
one year totaled $961.4 million at December 31, 1998, and the Company did not
have borrowings that are scheduled to mature within the same period. The Company
anticipates that it will have sufficient funds available to meet its current
loan commitments and that, based upon past experience and current pricing
policies, it can adjust the rates of certificates of deposit to retain a
substantial portion of its maturing certificates and also, to the extent deemed
necessary, refinance any maturing borrowings.
47
<PAGE> 50
During the year ended December 31, 1998, the Company began making
interest payments on the Senior Notes, which were to be initially funded through
an interest reserve account established with an independent trustee and
subsequently through dividends from the Bank. The Senior Notes have an annual
debt service requirement of $8.8 million (or $4.4 million for each semi-annual
period). During the year ending December 31, 1999, the Company intends to fund
the interest payments scheduled to be made on March 1, 1999 and September 1,
1999 through dividends from the Bank.
Capital Resources. Federally insured savings institutions such as the
Bank are required to maintain minimum levels of regulatory capital. See
"Business--Regulation of Federal Savings Institutions--Regulatory Capital
Requirements" in Item 1 hereof. The following table reflects the Bank's actual
levels of regulatory capital and applicable regulatory capital requirements at
December 31, 1998.
<TABLE>
<CAPTION>
Minimum Required Actual Excess
-------------------------- -------------------------- --------------------------
Percent Amount Percent Amount Percent Amount
------------ ------------ ------------ ------------ ------------ ------------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Tangible capital 1.50% $ 31,218 7.61% $ 158,362 6.11% $ 127,144
Core capital (1) 3.00 62,448 7.63 158,786 4.63 96,338
Risk-based capital(2)(3) 8.00 106,669 13.08 174,398 5.08 67,729
</TABLE>
(1) Does not reflect amendments which were proposed by the OTS in April
1991, which would increase this requirement to between 4% and 5%.
(2) Does not reflect the interest-rate risk component to the risk-based
capital requirement, the effective date of which has been postponed.
(3) Tangible and core capital are computed as a percentage of adjusted
total assets and risk-based capital is computed as a percentage of
adjusted risk-weighted assets.
INFLATION AND CHANGING PRICES
The Consolidated Financial Statements and related data presented in
Item 8 hereof have been prepared in accordance with generally accepted
accounting principles, which require the measurement of financial position and
operating results in terms of historical dollars (except with respect to
available for sale securities which are carried at market value), without
considering changes in the relative purchasing power of money over time due to
inflation. Unlike most industrial companies, substantially all of the assets and
liabilities of the Company are monetary in nature. As a result, interest rates
have a more significant impact on the Company's performance than the effects of
general levels of inflation. Interest rates do not necessarily move in the same
direction or in the same magnitude as the prices of goods and services.
RECENT ACCOUNTING PRONOUNCEMENTS
Set forth below are recent accounting pronouncements which may have a
future effect on the Company's operations. These pronouncements should be read
in conjunction with the significant accounting policies which the Company has
adopted that are set forth in the Company's Notes to Consolidated Financial
Statements in Item 8 hereof.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities". SFAS No. 133 establishes accounting and
reporting standards for derivative instruments, including certain derivative
instruments embedded in other contracts and for hedging activities. It requires
that an entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. If
certain conditions are met, a derivative may be specifically designated as (a) a
hedge of the exposure to changes in the fair value of a recognized asset or
liability or an unrecognized firm commitment, (b) a hedge of the exposure to
variable
48
<PAGE> 51
cash flows of a forecasted transaction, or (c) a hedge of the foreign currency
exposure of a net investment in a foreign operation, an unrecognized firm
commitment, an available-for-sale security, or a foreign-currency-denominated
forecasted transaction.
SFAS No. 133 is effective for all fiscal quarters of fiscal years
beginning after June 15, 1999 with earlier application permitted. Management
does not anticipate that this Statement will have a material adverse impact on
the consolidated financial position or the future results of operations of the
Company.
YEAR 2000 COMPLIANCE
The Year 2000 could have a broad impact on the business environment in
which the Company operates due to the possibility that many computerized systems
across all industries will be unable to process information containing dates
beginning in the Year 2000. The Company has established an enterprise-wide
program to prepare its computer systems and applications for the Year 2000 and
is utilizing both internal and external resources to identify, correct and test
the systems for Year 2000 compliance. The Company had completed its
reprogramming as of December 31, 1998 and testing efforts will be substantially
concluded by April 30, 1999. Further validation through testing will be
conducted throughout calendar year 1999.
The Company does not rely on in-house data processing or computer
programming for its main frame banking applications. The Company's primary data
processing vendor, AllTel, Inc., has a history of producing high quality banking
applications and has assured the Company that its core applications will be
capable of handling the Year 2000. The Company has been testing these
applications in its own environment to validate these assurances.
Because third party failures could have a material impact on the
Company's ability to conduct business, questionnaires have been sent to
substantially all of the Company's vendors and large commercial borrowers to
certify that plans are being developed to address the Year 2000 issue. The
returned questionnaires are currently being assessed by the Company, and are
being categorized based upon readiness for the Year 2000 issues and prioritized
in order of significance to the business of the Company. To the extent that
business-critical vendors do not provide the Company with satisfactory evidence
of their readiness to handle Year 2000 issues, contingency plans will be
developed. Furthermore, information has been provided to large commercial
borrowers regarding the potential business risks associated with the Year 2000
issue. The Company intends to make every reasonable effort to assess the Year
2000 readiness of these critical business partners and to create action plans to
address the identified risks.
The Company believes that it has substantially completed an assessment
of the Year 2000 compliance status of all its information technology and
non-information technology equipment as of December 31, 1998 and is now in the
process of addressing the Year 2000 compliance of such equipment.
Testing and remediation of all of the Company's systems and
applications is expected to incrementally cost approximately $500,000 in 1999,
excluding costs of Company employees involved in Year 2000 compliance
activities, from inception in calendar year 1997 through completion in calendar
year 1999. All estimated costs have been budgeted and are expected to be funded
by cash flows from operations.
The Company does not believe the costs and efforts related to the Year
2000 compliance project will be material to its financial position or results of
operations. However, the cost of the project and the date on which the Company
plans to complete the Year 2000 modifications are based on management's best
estimates, which were derived utilizing numerous assumptions of future events
including the
49
<PAGE> 52
continued availability of certain resources, third party modification plans and
other factors. Unanticipated failures by critical vendors and large commercial
borrowers, as well as the failure by the Company to execute its own remediation
efforts, could have a material adverse effect on the cost of the project and its
completion date. As a result, there can be no assurance that these
forward-looking estimates will be achieved and the actual cost and vendor
compliance could differ materially from those plans, resulting in material
financial risk.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ASSET AND LIABILITY MANAGEMENT
Asset and liability management is concerned with the timing and
magnitude of the repricing of assets and liabilities. It is the objective of the
Company to attempt to control risks associated with interest rate movements. In
general, management's strategy is to match asset and liability balances within
maturity categories to limit the Company's exposure to earnings variations and
variations in the value of assets and liabilities as interest rates change over
time. The Company's asset and liability management strategy is formulated and
monitored by the Asset/Liability Management Committee, which is comprised of the
Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer, the Director of Retail Operations and the Director of Commercial Real
Estate of the Company, in accordance with policies approved by the Board of
Directors of the Company. The Asset/Liability Management Committee meets monthly
or as needed to review, among other things, the sensitivity of the Company's
assets and liabilities to interest rate changes, the book and market values of
assets and liabilities, unrealized gains and losses, including those
attributable to hedging transactions, purchase and sale activity, and maturities
and prepayments of loans, investments and borrowings. The Asset/Liability
Management Committee also approves and establishes pricing and funding decisions
with respect to overall asset and liability composition and reports to the full
Board of Directors.
One of the primary goals of the Company's Asset/Liability Management
Committee is to effectively increase the duration of the Company's liabilities
and/or effectively contract the duration of the Company's assets so that the
respective durations are matched as closely as possible. This duration
adjustment can be accomplished either internally by restructuring the Company's
balance sheet, or externally by adjusting the duration of the Company's assets
and/or liabilities through the use of hedging contracts, such as interest rate
swaps, caps and floors. Although the Company has in the past hedged its interest
rate exposure externally through the use of various hedging contracts, the
Company's current strategy is to hedge internally through the use of core
transaction deposit accounts which are not as rate sensitive as other deposit
instruments and FHLB advances, together with an emphasis on investing in
shorter-term or adjustable rate assets which are more responsive to changes in
interest rates, such as adjustable rate U.S. Government agency mortgage-backed
securities, short-term U.S. Government agency securities and commercial and
consumer loans. The foregoing strategies are more fully described below.
A commonly used method for evaluating interest rate risk includes an
analysis of the interest rate sensitivity "gap", which is defined as the
difference between interest-earning assets and interest-bearing liabilities
maturing or repricing within a given time period. A gap is considered positive
when the amount of interest-rate sensitive assets exceeds the amount of
interest-rate sensitive liabilities. A gap is considered negative when the
amount of interest-rate sensitive liabilities exceeds interest-rate sensitive
assets. Normally, during a period of falling interest rates, a negative gap
would tend to result in an increase in net interest income, while a positive gap
would tend to affect net interest income adversely. Due to differences between
institution's balance sheets, these variances may affect institutions
differently. Because different types of assets and liabilities with the same or
similar maturities may react differently to changes in overall market rates or
conditions, changes in interest rates may affect net interest income positively
or negatively even if an institution were perfectly matched in each maturity
category.
50
<PAGE> 53
The following table summarizes the anticipated maturities or repricing
of the Company's interest-earning assets and interest-bearing liabilities as of
December 31, 1998, based on the information and assumptions set forth in the
notes below.
<TABLE>
<CAPTION>
More Then
Three to More Than Three Years
Within Three Twelve One Year to to Five Over Five
Months Months Three Years Years Years Total
------------- ------------- ------------- ------------- ------------- -------------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
Interest-earning assets (1):
Loans receivable (2) $ 473,474 $ 277,424 $ 269,513 $ 193,037 $ 174,522 $1,387,970
Securities (3) 324,859 83,496 103,307 31,809 10,445 553,916
Other interest-earning assets(4) 97,573 - - - - 97,573
---------- ---------- ---------- ---------- ---------- ----------
Total $ 895,906 $ 360,920 $ 372,820 $ 224,846 $ 184,967 $2,039,459
========= ========= ========= ========= ========= =========
Interest-bearing liabilities:
Deposits (5):
Money market and NOW
accounts $ 30,117 $ 36,581 $ 66,466 $ 40,455 $ 74,061 $ 247,680
Passbook accounts 2,611 7,832 16,723 12,389 35,408 74,963
Certificates of deposit 345,484 611,773 232,099 23,354 605 1,213,315
Borrowings:
FHLB advances (6) - 155,000 25,000 40,000 33 220,033
Senior notes - - - - 80,000 80,000
---------- ---------- ---------- ---------- ---------- ----------
Total $ 378,212 $ 811,186 $ 340,288 $ 116,198 $ 190,107 $1,835,991
========= ========= ========= ========= ========= =========
Excess (deficiency) of
interest-earning
assets over interest-bearing
liabilities $ 517,694 $ (450,266) $ 32,532 $ 108,648 $ (5,140) $ 203,468
========= ========== ========= ========= ========== =========
Cumulative excess (deficiency) of
interest-earning assets over
interest-bearing liabilities $ 517,694 $ 67,428 $ 99,960 $ 208,608 $ 203,468 $ 203,468
========= ========= ========= ========= ========= =========
Cumulative excess (deficiency) of
interest-earning assets over
interest-bearing liabilities
as a percent of total assets 24.32% 3.17% 4.70% 9.80% 9.56% 9.56%
========== ========== ========== ========== ========== ==========
</TABLE>
- -------------------------
(1) Adjustable-rate loans and securities are included in the period in
which interest rates are next scheduled to adjust rather than in the
period in which they mature and fixed-rate loans and securities are
included in the periods in which they are scheduled to be repaid, based
on scheduled amortization, in each case as adjusted to take into
account estimated prepayments based on, among other things, historical
performance.
(2) Balances have been reduced for nonaccrual loans.
(3) Does not include unrealized gain on securities classified as available
for sale.
(4) Comprised of cash and due from banks, deposits with other banks and
FHLB stock.
(5) Adjusted to take into account assumed annual decay rates which were
applied against money market, NOW and passbook accounts.
(6) Maturity based on call date rather than actual maturity date.
Although interest rate sensitivity gap is a useful measurement and
contributes toward effective asset and liability management, it is difficult to
predict the effect of changing interest rates based solely on that measure. As a
result, the Asset/Liability Management Committee also regularly reviews interest
rate risk by forecasting the impact of alternative interest rate environments on
net interest income and net portfolio value ("NPV"), which is defined as the net
present value of an institution's existing assets, liabilities and off-balance
sheet instruments, and evaluating such impacts against the maximum potential
changes in net interest income and NPV that is authorized by the Board of
Directors of the Company.
51
<PAGE> 54
The following tables set forth for the indicated dates the estimated
dollar and percentage change in the Company's net interest income over a four
quarter period and NPV based on the indicated changes in interest rates.
<TABLE>
<CAPTION>
December 31, 1998 December 31, 1997
Net Interest Income Net Interest Income
(next four quarters) (next four quarters)
- ------------------------- --------------------------------------------- --------------------------------------------
Estimated Change Estimated Change
Change (in Basis From Base % Change from Base % Change
Points) in (000's) from Base (000's) from Base
Interest Rates (1)
- ------------------------- -------------------- -------------------- -------------------- --------------------
<S> <C> <C> <C> <C>
+300 ($ 9,058) (14) ($ 1,985) (4)
+200 (5,494) (8) (947) (2)
+100 (1,259) (2) (341) (1)
0 66,895(2) - 47,508(2) -
-100 14,141 21 129 -
-200 17,474 26 467 1
-300 15,924 24 2,408 5
</TABLE>
<TABLE>
<CAPTION>
December 31, 1998 December 31, 1997
NPV NPV
--------------------------------------------- --------------------------------------------
Estimated Change Estimated Change
Change (in Basis From Base % Change From Base % Change
Points) in (000's) from Base (000's) from Base
Interest Rates (1)
- ------------------------- -------------------- -------------------- -------------------- --------------------
<S> <C> <C> <C> <C>
+300 ($ 58,018) (43) ($ 38,218) (25)
+200 (34,595) (26) (20,141) (13)
+100 (13,739) (10) (7,101) (5)
0 134,252 - 153,545 -
-100 3,755 3 2,606 2
-200 1,973 1 (2,235) (1)
-300 (6,771) (5) (8,469) (6)
</TABLE>
- -------------------------
(1) Assumes an instantaneous uniform change in interest rates at all
maturities.
(2) The base net interest income is an estimate made by utilizing yields
and rates on assets and liabilities in the existing balance sheet as of
the dates shown adjusted for assumptions based on, among other things,
future loan and deposit changes and estimated loan prepayment speeds.
At December 31, 1998, the rate of change in net interest income is
affected by an increase in loan prepayment speeds, which is reinvested in lower
yielding short-term investments during down shocks. Also, lower rate-paying
deposit accounts such as passbooks, money market and NOW accounts do not drop
below 0% in 300 basis points down shocks. These factors cause the rate of change
to be relatively flat in the down shocks. Conversely, the rate of change in net
interest income in up shocks is affected by a decrease in loan prepayment speeds
while all deposit accounts are able to reprice fully in each 100 basis point
increment. The differences between December 31, 1997 and December 31, 1998 net
interest income in the base case are mainly due to the acquisition of two
financial institutions, increased loan
52
<PAGE> 55
growth, higher investment yields and reduced cost of deposits and borrowings.
The difference within the down shocks is mainly due to December 31, 1998 down
shocks taking into consideration the higher prepayment speeds that would result
from reductions in the already relatively low interest rates that existed at
that date.
The differences between December 31, 1997 and December 31, 1998 NPV in
the base case are mainly due to the goodwill (which is considered to have no
market value) that was booked in 1998 from the two acquisitions; and shorter
duration on deposit accounts as of December 31, 1998 reducing NPV; and net
income for 1998. The differences in NPV between the up shocks at December 31,
1998 versus December 31, 1997 is mainly due to the shorter duration of deposit
accounts.
The model reflects only the effects of assumptions made by management
while running the different interest rate shocks. The only variables between the
different rate shocks are the interest rates and the prepayment speeds.
The prepayment assumptions used in the model are based on historical
and market estimates. Standard present value calculation methodology is used to
discount the estimated future cash flows of assets and liabilities at
appropriate discount rates. The market value for COFI-indexed CMOs is obtained
through the Bloomberg calculator designated by the OTS.
Management of the Company believes that the assumptions used by it to
evaluate the vulnerability of the Company's operations to changes in interest
rates are reasonable; however, the interest rate sensitivity of the Company's
assets and liabilities and the estimated effects of changes in interest rates on
the Company's net interest income and NPV could vary substantially if different
assumptions were used or actual experience differs from the historical
experience on which they are based.
The preceding discussion about the Company's risk management activities
includes "forward-looking statements" that involve risks and uncertainties.
Actual results could differ materially from those projected in the
forward-looking statements.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Consolidated Financial statements at F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
There were no changes in and/or disagreements with accountants on
accounting and financial disclosure during the year ended December 31, 1998.
On October 8, 1997, pursuant to authorization of its Board of
Directors, the Company dismissed the firm of Arthur Andersen LLP ("Arthur
Andersen") as its auditors and retained KPMG LLP. Arthur Andersen's report for
each of the three fiscal years ended June 30, 1997 did not contain an adverse
opinion or a disclaimer of opinion and was not qualified or modified as to audit
scope or accounting principles.
During the Company's two most recent fiscal years and the subsequent
interim period immediately preceding the change in accountants, there were no
disagreements with Arthur Andersen on any matter of accounting principles or
practice, financial statement disclosure, or auditing scope or procedure, which
if not resolved to the satisfaction of Arthur Andersen would have caused them to
make reference to the subject matter of the disagreement in connection with
their reports on the Company's
53
<PAGE> 56
financial statements. During the Company's two most recent fiscal years and the
subsequent interim period immediately preceding the change in accountants, there
was one reportable event (as that term is used in Regulation S-K, Item
304(a)(1)(v)(A) through (D) of the Exchange Act), as discussed in the next
paragraph.
In connection with its audit of the Company's consolidated financial
statements as of and for the year ended June 30, 1997, Arthur Andersen reported
to the audit committee of the Company's board of directors that a material
weakness existed in the system of internal control, specifically that an
adequate system of control was not in effect at June 30, 1997, to provide
reasonable assurance that Local Federal was able to estimate and establish an
adequate allowance for loan losses with respect to its indirect automobile loan
portfolio. Management reported and Arthur Andersen concurred with management's
assertion in the reports required by the FDICIA that Local Federal maintained an
effective internal control structure over financial reporting as of June 30,
1997, except for the internal control structure over estimating and establishing
an adequate allowance for loan losses with respect to its indirect automobile
loan portfolio. This portfolio had been sold as of December 31, 1997.
During fiscal 1997 and 1996, prior to their appointment as certifying
accountants, the Company did not consult KPMG LLP regarding any of the matters
or events set forth in Item 304(a)(2)(i) and (ii) of Regulation S-K.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Except for the information provided below regarding the Company's
executive officers, the information required in response to this Item is
incorporated herein by reference to the Company's proxy statement to be filed
with the Securities and Exchange Commission pursuant to Regulation 14A, not
later than 120 days after the end of the fiscal year covered by this report.
The following table sets forth the name and age of each executive
officer, his principal position with the Company, and the year he became an
officer.
<TABLE>
<CAPTION>
Officer
Name Age Since Position
---- --- ----- --------
<S> <C> <C> <C>
Edward A. Townsend 57 1997 Chief Executive Officer
Jan A. Norton 52 1997 President
Robert L. Vanden 52 1990 Executive Vice President of the Bank
Richard L. Park 67 1997 Executive Vice President
and Chief Financial Officer
Christopher C. Turner 40 1983 Executive Vice President
James N. Young 50 1998 Executive Vice President, President
Tulsa Regional, and Manager of
Commercial Lending of the Bank
Harold L. Bowers 55 1998 Executive Vice President
and Chief Credit Officer of the Bank
William C. Lee 59 1998 Executive Vice President
Operations Division of the Bank
</TABLE>
54
<PAGE> 57
Biographical information regarding Messrs. Edward A. Townsend, Jan A.
Norton and Robert L. Vanden are incorporated herein by reference to the
Company's proxy statement to be filed with the Securities and Exchange
Commission pursuant to Regulation 14A, not later than 120 days after the end of
the fiscal year covered by this report. Biographical information regarding
Messrs. Richard L. Park, Christopher C. Turner, James N. Young, Harold L. Bowers
and William C. Lee are set forth below.
The executive officers serve until their successors are elected and
qualified. No executive officer is related to any director or other executive
office of the Company by blood, marriage or adoption. There are no arrangements
or understandings between any director of the Company and any other person
pursuant to which such person was elected an executive officer.
Richard L. Park. Mr. Park, who is 67 years old, began serving as
Executive Vice President and Chief Financial Officer of the Company and the Bank
in charge of finance following consummation of the Private Placement. Mr. Park
has served as Chief Financial Officer of Green Country Bank since October 1996.
From January 1991 through May 1996, Mr. Park was Chief Financial Officer of
Western Farm Credit Bank in Sacramento, California, the Eleventh District Bank
in the Federal Farm Credit System. Mr. Park is a Certified Public Accountant.
Christopher C. Turner. Mr. Turner, who is 40 years old, has served as
Executive Vice President of the Bank in charge of residential and consumer
lending, branch administration and marketing since October 1996. Prior to
October 1996, Mr. Turner held various positions in the Internal Audit Department
of the Company which he joined in November 1980.
James N. Young. Mr. Young, who is 50 years old, serves as President,
Tulsa Region and manager of Commercial Lending for the Tulsa and Oklahoma City
markets. From 1973 to 1994, Mr. Young served in various commercial lending
capacities with Bank of Oklahoma in both Tulsa and Oklahoma City, his last
assignment being President, Oklahoma City. From 1994 to January 1998, he served
as Senior Commercial Lending Manager for BankIV and its successors, Boatmen's
Bank and NationsBank in Oklahoma City. His last position with NationsBank was
President, Oklahoma City, and Senior Commercial Lending Manager for the state of
Oklahoma. Mr. Young joined Local Federal in February 1998.
Harold L. Bowers. Mr. Bowers, who is 55 years old, serves as Executive
Vice President and Chief Credit Officer. After serving four years as an officer
in the United States Air Force, Mr. Bowers started his banking career with
Liberty National Bank, Oklahoma City, OK. From 1970 to 1980 he served in various
credit capacities ultimately serving 6 years as Manager of Loan Administration.
In 1980-81 he managed the Credit Department for Bank of Oklahoma, Tulsa, OK.
From 1981 to 1998, Mr. Bowers served with NationsBank and its predecessor banks
with both senior credit and commercial lending management responsibilities.
William C. Lee. Mr. Lee, who is 59 years old, serves as Executive Vice
President and is the Banks' principal Operations Officer. Mr. Lee joined Local
Federal in May 1998. Prior to joining the Bank, Mr. Lee was Executive Vice
President and Chief Financial Officer of the Annuity Board of the Southern
Baptist Convention, a pension and insurance management company, joining that
institution in July 1991. Mr. Lee is a Director of Ultrak, Inc. and is a
Certified Public Accountant.
ITEM 11. EXECUTIVE COMPENSATION
The information required in response to this Item is incorporated
herein by reference to the Company's proxy statement to be filed with the
Securities and Exchange Commission pursuant to Regulation 14A, not later than
120 days after the end of the fiscal year covered by this report.
55
<PAGE> 58
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required in response to this Item is incorporated
herein by reference to the Company's proxy statement to be filed with the
Securities and Exchange Commission pursuant to Regulation 14A, not later than
120 days after the end of the fiscal year covered by this report.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required in response to this Item is incorporated
herein by reference to the Company's proxy statement to be filed with the
Securities and Exchange Commission pursuant to Regulation 14A, not later than
120 days after the end of the fiscal year covered by this report.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON
FORM 8-K
(a)(1) Financial Statements. The following financial statements for the Year
Ended December 31, 1998, Six Months Ended December 31, 1997 and Years Ended June
30, 1997 and 1996 are filed as part of this report:
Independent Auditors' Report
Report of Independent Public Accountants
Consolidated Statements of Financial Condition as of December 31, 1998
and December 31, 1997.
Consolidated Statements of Operations for the Year Ended December 31,
1998, Six Months Ended December 31, 1997 and for the Years Ended June
30, 1997 and 1996.
Consolidated Statements of Stockholders' Equity for the Year Ended
December 31, 1998, Six Months Ended December 31, 1997 and for the Years
Ended June 30, 1997 and 1996.
Consolidated Statements of Cash Flows for the Year Ended December 31,
1998, Six Months Ended December 31, 1997 and for the Years Ended June
30, 1997 and 1996.
Notes to Consolidated Financial Statements
(a)(2) Financial Statement Schedules.
No financial statement schedules are included because they are not
required, not applicable, or the required information is contained
elsewhere.
(a)(3) Management Contracts or Compensatory Plan Arrangements
See exhibits marked with a double asterisk in Item 14(c) below.
56
<PAGE> 59
(b) Reports on Form 8-K
On October 21, 1998, the Company filed a Form 8-K current report to
report third quarter earnings and to announce the successful completion
of its acquisitions of BankSouth Corporation, the Lawton, Oklahoma bank
holding company for Citizens Bank.
57
<PAGE> 60
(c) List of Exhibits.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
3.1* Certificate of Incorporation of Local Financial Corporation
("Local Financial")
3.2* Certificate of Amendment or Certificate of Incorporation of
Local Financial
3.3* Bylaws of Local Financial
4.1* Purchase Agreement among Local Financial, Friedman Billings,
Ramsey & Co., Inc. ("FBR") and the Purchasers Named therein,
dated September 8, 1997
4.2* Registration Rights Agreement between Local Financial, FBR and
the Purchasers, named therein, dated September 8, 1997
4.3* Indenture between Local Financial and The Bank of New York
("BONY"), as Trustee, dated September 8, 1997
4.4* Form of Common Stock certificate of Local Financial
4.5* Form of Senior Note (included in Exhibit 4.3)
10.1* Redemption Agreement between Local Financial and Barron
Collier and Miles Collier (collectively, the "Selling
Stockholders") Dated August 25, 1997
10.2* Amendment to Redemption Agreement between Local Financial and
the Selling Stockholders, dated September 5, 1997
10.3* Security Agreement between Local Financial and BONY, as
Trustee, dated September 8, 1997
10.4* Escrow Agreement between Local Financial, the Selling
Stockholders and BONY, as Escrow Agent, dated September 8,
1997
10.5* Common Interest Agreement between Local America, Inc., Local
America Bank of Tulsa, F.S.B., Local Federal Bank, F.S.B. and
the Selling Stockholders, dated September 8, 1997
10.6* Warrant of Local Financial to FBR to purchase 591,000 shares
of Common Stock, dated September 8, 1997
10.7* Employment Agreement between Local Financial and Edward A.
Townsend, dated September 8, 1997**
10.8* Employment Agreement between Local Financial and Jan A.
Norton, dated September 8, 1997**
10.9* Local Financial Stock Option Plan**
10.10* Local Financial Stock Option Agreement between Local Financial
and Edward A. Townsend, dated September 8, 1997**
10.11 Local Financial Corporation 1998 Stock Option Plan
10.12 Form of Severance Agreement, dated January 1, 1999
10.13 First Amendment to Employment Agreement between Local
Financial and Edward A. Townsend dated November 6, 1998
10.14 First Amendment to Employment Agreement between Local
Financial and Jan A. Norton dated November 6, 1998
10.15 1998 Non-qualified Stock Option Agreement between Local
Financial and Edward A. Townsend dated September 23, 1998
10.16 1998 Non-qualified Stock Option Agreement between Local
Financial and Jan A. Norton dated September 23, 1998
58
<PAGE> 61
16.0* Letter re: Change in certifying Accountant
21.0* Subsidiaries of the Registrant (see "Business--Subsidiaries"
in the Prospectus)
27.0 Financial Data Schedule
- -------------------------
*These exhibits were filed with the Company's Registration Statement Form S-1,
Registration No. 333-43727 and are incorporated by reference herein:
**Exhibits identified with a double asterisk (**) are management contracts or
are compensatory plans or arrangements.
59
<PAGE> 62
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
LOCAL FINANCIAL CORPORATION
Date March 30, 1999 By: /s/ Edward A. Townsend
------------------------------------
Chairman and Chief Executive Officer
Date March 30, 1999 By: /s/ Richard L. Park
------------------------------------
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Date March 30, 1999 By: /s/ Robert A. Kotecki
------------------------------------
Robert A. Kotecki, Director
Date March 30, 1999 By: /s/ Joseph A. Leone
------------------------------------
Joseph A. Leone, Director
Date March 30, 1999 By: /s/ George Nigh
------------------------------------
George Nigh, Director
Date March 30, 1999 By: /s/ Jan A. Norton
------------------------------------
Jan A. Norton, Director
Date March 30, 1999 By: /s/ Edward A. Townsend
------------------------------------
Edward A. Townsend, Director
Date March 30, 1999 By: /s/ Kenneth W. Townsend
------------------------------------
Kenneth W. Townsend, Director
Date March 30, 1999 By: /s/ J. David Rosenberg
------------------------------------
J. David Rosenberg, Director
60
<PAGE> 63
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Independent Auditors' Report...........................................F-1
Report of Independent Public Accountants...............................F-2
Audited Consolidated Financial Statements:
Consolidated Statements of Financial Condition
as of December 31, 1998 and 1997....................................F-3
Consolidated Statements of Operations
for the Year Ended December 31, 1998,
Six Months Ended December 31, 1997
and the Years Ended June 30, 1997 and 1996..........................F-4
Consolidated Statements of Stockholders' Equity
for the Year Ended December 31, 1998,
Six Months Ended December 31, 1997
and the Years Ended June 30, 1997 and 1996..........................F-5
Consolidated Statements of Cash Flows
for the Year Ended December 31, 1998,
Six Months Ended December 31, 1997
and the Years Ended June 30, 1997 and 1996..........................F-6
Notes to Consolidated Financial Statements
for December 31, 1998 and 1997 and June 30, 1997 and 1996...........F-9
</TABLE>
61
<PAGE> 64
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Local Financial Corporation:
We have audited the accompanying consolidated statements of financial condition
of Local Financial Corporation and subsidiary (the Company) as of December 31,
1998 and 1997, and the related consolidated statements of operations,
stockholders' equity, and cash flows for the year ended December 31, 1998 and
for the six months ended December 31, 1997. These consolidated financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Local Financial
Corporation and subsidiary as of December 31, 1998 and 1997, and the results of
their operations and their cash flows for the year ended December 31, 1998 and
for the six months ended December 31, 1997, in conformity with generally
accepted accounting principles.
KPMG LLP
Oklahoma City, Oklahoma
February 4, 1999
F-1
<PAGE> 65
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders
of Local Financial Corporation:
We have audited the accompanying consolidated statements of operations,
stockholders' equity and cash flows of Local Financial Corporation and
subsidiary (the "Company"), for each of the two years in the period ended June
30, 1997. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated statements of operations, stockholders' equity
and cash flows referred to above present fairly, in all material respects, the
results of operations and cash flows of Local Financial Corporation and
subsidiary for each of the two years in the period ended June 30, 1997, in
conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
August 27, 1997 (except with
respect to the matter discussed
in Note 2, as to which the date
is September 8, 1997)
F-2
<PAGE> 66
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Financial Condition
December 31, 1998 and 1997
(Dollars in thousands, except share data)
<TABLE>
<CAPTION>
ASSETS 1998 1997
---- ----
<S> <C> <C>
Cash and due from banks $ 27,180 34,152
Interest bearing deposits with other banks 27,700 20,000
Securities purchased under agreements to resell -- 178,000
Securities available for sale 570,964 518,107
Loans receivable, net of allowance for loan losses of $27,901
at December 31, 1998 and $20,484 at December 31, 1997 1,362,272 953,470
Federal Home Loan Bank of Topeka stock, at cost 42,693 45,147
Premises and equipment, net 23,959 10,646
Assets acquired through foreclosure and repossession, net 693 260
Intangible assets, net 17,843 1,779
Deferred tax asset, net 10,959 26,058
Current income taxes receivable 18,291 28,427
Other assets 26,425 65,319
----------- -----------
Total assets $ 2,128,979 1,881,365
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Deposits:
Demand $ 379,796 247,264
Savings 74,963 68,937
Time 1,213,315 1,286,332
----------- -----------
Total deposits 1,668,074 1,602,533
Advances from borrowers for taxes and insurance 4,400 5,046
Advances from the Federal Home Loan Bank of Topeka 220,033 80,136
Senior notes 80,000 80,000
Other liabilities 37,666 31,025
----------- -----------
Total liabilities 2,010,173 1,798,740
Commitments and contingencies
Stockholders' equity:
Common stock, $0.01 par value, 25,000,000 shares authorized; 20,537,269
shares issued and 20,537,209 shares outstanding at December 31, 1998;
19,700,060 shares issued and
19,700,000 shares outstanding at December 31, 1997 205 197
Preferred stock, $0.01 par value, 5,000,000 shares authorized;
none outstanding -- --
Additional paid-in capital 206,758 197,766
Retained earnings 50,197 31,760
Treasury stock, 60 shares, at cost (149,436) (149,436)
Accumulated other comprehensive income 11,082 2,338
----------- -----------
Total stockholders' equity 118,806 82,625
----------- -----------
Total liabilities and stockholders' equity $ 2,128,979 1,881,365
=========== ===========
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-3
<PAGE> 67
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Operations
(Dollars in thousands, except share data)
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------------
1998 1997 1997 1996
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Interest and dividend income:
Loans $ 96,851 49,788 107,715 95,839
Securities available for sale 41,862 28,113 81,861 61,939
Securities held to maturity -- 3,193 27,363 72,822
Federal Home Loan Bank of Topeka stock 3,474 1,677 3,658 3,220
Other investments 5,017 2,433 2,067 2,336
--------- --------- --------- ---------
Total interest and dividend income 147,204 85,204 222,664 236,156
Interest expense:
Deposit accounts 74,743 40,672 83,091 81,173
Advances from the Federal Home Loan
Bank of Topeka 7,547 14,005 57,442 58,309
Securities sold under agreements to
repurchase 678 2,073 28,202 46,400
Notes payable 9,470 3,073 1,026 1,606
--------- --------- --------- ---------
Total interest expense 92,438 59,823 169,761 187,488
Net interest and dividend income 54,766 25,381 52,903 48,668
Provision for loan losses (1,450) (25,578) (28,428) (5,117)
--------- --------- --------- ---------
Net interest and dividend income (loss)
after provision for loan losses 53,316 (197) 24,475 43,551
--------- --------- --------- ---------
Noninterest income:
Deposit related income 10,389 4,105 7,410 5,800
Loan fees and loan service charges 1,737 981 2,730 2,197
Net gains (losses) on sale of assets 932 (112,669) (29,183) 1,248
Other 1,724 434 1,919 1,071
--------- --------- --------- ---------
Total noninterest income (loss) 14,782 (107,149) (17,124) 10,316
--------- --------- --------- ---------
Noninterest expense:
Compensation and employee benefits 19,287 7,731 14,588 14,177
Deposit insurance premiums 1,323 522 12,470 3,617
Provision for uninsured risk -- -- 3,300 1,372
Equipment and data processing 4,276 1,485 3,080 2,847
Occupancy 3,029 1,416 2,873 2,595
Advertising 2,080 522 1,556 1,131
Professional fees 2,142 984 1,152 825
Other 7,270 10,025 10,237 8,863
--------- --------- --------- ---------
Total noninterest expense 39,407 22,685 49,256 35,427
--------- --------- --------- ---------
Income (loss) before provision (benefit) for income taxes 28,691 (130,031) (41,905) 18,440
Provision (benefit) for income taxes 10,254 (44,075) (11,860) 4,872
--------- --------- --------- ---------
Net income (loss) $ 18,437 (85,956) (30,045) 13,568
========= ========= ========= =========
Basic net income (loss) per share $ 0.90 (4.76) (1.95) 0.88
========= ========= ========= =========
Diluted net income (loss) per share $ 0.89 (4.76) (1.95) 0.88
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-4
<PAGE> 68
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Stockholders' Equity
For the Year ended December 31, 1998, Six Months ended December 31, 1997
and For the Years ended June 30, 1997 and 1996
(Dollars in thousands)
<TABLE>
<CAPTION>
ACCUMULATED
ADDITIONAL OTHER TOTAL
COMMON PAID-IN RETAINED TREASURY COMPREHENSIVE STOCKHOLDERS'
STOCK CAPITAL EARNINGS STOCK INCOME (LOSS) EQUITY
----- ------- -------- ----- ------------- ------
<S> <C> <C> <C> <C> <C> <C>
Balance, June 30, 1995 $ -- 8,797 134,193 -- 229 143,219
Comprehensive income (loss):
Net income -- -- 13,568 -- -- 13,568
Unrealized losses on securities
transferred from held to maturity to available for sale,
net of income tax -- -- -- -- (10,831) (10,831)
Net change in unrealized losses on securities available
for sale, net of reclassification adjustment -- -- -- -- (37,897) (37,897)
--------
Comprehensive income (loss) (35,160)
-------- -------- -------- -------- -------- --------
Balance, June 30, 1996 -- 8,797 147,761 -- (48,499) 108,059
Comprehensive income (loss):
Net loss -- -- (30,045) -- -- (30,045)
Net change in unrealized gains on securities available
for sale, net of reclassification adjustment -- -- -- -- 16,516 16,516
--------
Comprehensive income (loss) (13,529)
Capital contribution -- 8,099 -- -- -- 8,099
-------- -------- -------- -------- -------- --------
Balance, June 30, 1997 -- 16,896 117,716 -- (31,983) 102,629
Comprehensive income (loss):
Net loss -- -- (85,956) -- -- (85,956)
Net change in unrealized gains on securities available
for sale, net of reclassification adjustment -- -- -- -- 34,321 34,321
--------
Comprehensive income (loss) (51,635)
Issuance of common stock 197 180,870 -- -- -- 181,067
Purchase of treasury stock -- -- -- (149,436) -- (149,436)
-------- -------- -------- -------- -------- --------
Balance, December 31, 1997 197 197,766 31,760 (149,436) 2,338 82,625
Comprehensive income:
Net income -- -- 18,437 -- -- 18,437
Net change in unrealized gains on securities available
for sale, net of reclassification adjustment -- -- -- -- 8,744 8,744
--------
Comprehensive income 27,181
Issuance of common stock 8 8,992 -- -- -- 9,000
-------- -------- -------- -------- -------- --------
Balance, December 31, 1998 $ 205 206,758 50,197 (149,436) 11,082 118,806
======== ======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE> 69
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Cash Flows
(Dollars in thousands)
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31, YEARS ENDED JUNE 30,
------------------------
1998 1997 1997 1996
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Cash provided by operating activities:
Net income (loss) $ 18,437 (85,956) (30,045) 13,568
Adjustments to reconcile net income
(loss) to net cash provided by
operating activities:
Provisions for loan losses and
uninsured risk and losses on
assets acquired through
foreclosure and repossession 1,450 25,641 31,804 6,673
Deferred income tax expense (benefit) 11,259 (27,585) (1,429) 1,961
Accretion of discounts on loans
acquired (2,836) (2,963) (6,019) (4,281)
Amortization of deferred (gains)
losses on interest rate swaps -- 806 73 (671)
Amortization (accretion) of
premium (discount) on securities
available for sale, net (5,390) (95) 8,265 11,905
Net amortization of premium on
securities held to maturity -- 97 2,090 --
Depreciation and amortization 3,448 1,347 2,688 2,450
Proceeds from the sales of loans 82,890 11,416 12,132 15,155
(Gain) loss on sale of assets (932) 112,669 29,183 (1,248)
Stock dividends received from
Federal Home Loan Bank stock (3,474) (1,677) (3,658) --
Change in other assets 20,862 (15,299) (5,332) (1,504)
Change in other liabilities (1,140) 9,282 (9,296) (3,013)
--------- --------- --------- ---------
Net cash provided by
operating activities 124,574 27,683 30,456 40,995
--------- --------- --------- ---------
Cash provided (absorbed) by investing activities:
Proceeds from sales of securities
available for sale 47,764 865,146 730,957 50,321
Proceeds from principal collections
on securities available for sale 233,323 52,735 13,245 80,977
Proceeds from principal collections
on securities held to maturity -- 28,054 52,161 --
Purchase of securities available for sale (272,937) (6,001) -- (5,320)
Purchase of securities held to maturity -- (74,440) (73,389) --
Purchase of interest rate caps -- -- -- (3,720)
Payments on termination of interest
rate swap agreements -- (47,283) -- (3,344)
Proceeds from termination of interest
rate swap agreements -- -- -- 3,637
Proceeds from sales of equity
securities available for sale -- -- 12,986 --
</TABLE>
(Continued)
F-6
<PAGE> 70
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Cash Flows
(Dollars in thousands)
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31, YEARS ENDED JUNE 30,
------------------------------
1998 1997 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Purchases of securities under
agreements to resell $ (1,139,462) (424,000) -- --
Proceeds from maturity of securities
purchased under agreements to resell 1,317,462 246,000 -- --
Purchases of Federal Home Loan
Bank stock -- (3,424) (80,850) (71,425)
Proceeds from the sale of Federal
Home Loan Bank stock 8,797 -- 67,883 83,400
Loans made by non-bank subsidiary -- (26) (29,213) (133,914)
Repayments of loans made by
non-bank subsidiary -- 13,710 49,755 39,411
Proceeds from the sales of loans 29,592 -- -- --
Change in loans receivable, net (276,251) (24,814) (63,247) (142,412)
Proceeds from disposal of assets
acquired through foreclosure and
repossession 738 6,381 18,257 5,806
Purchases of premises and equipment (4,923) (465) (1,480) (1,649)
Proceeds from sales of premises and
equipment 130 25 9 72
Cash acquired in acquisition of
Green Country Banking Corporation 2,512 -- -- --
Cash paid in acquisition of BankSouth
Corporation, net of cash and
cash equivalents received (12,966) -- -- --
------------ ------------ ------------ ------------
Net cash provided
(absorbed) by
investing activities (66,221) 631,598 697,074 (98,160)
------------ ------------ ------------ ------------
Cash provided (absorbed) by financing activities:
Change in transaction accounts 39,809 (3,697) 7,635 (20,256)
Change in time deposits (212,923) (38,126) 34,261 44,894
Change in securities sold under
agreements to repurchase -- (312,774) (770,223) 299,568
Preceeds from advances from the
Federal Home Loan Bank 918,905 1,303,599 9,978,290 4,679,967
Repayments of advances from the
Federal Home Loan Bank (799,608) (1,757,377) (9,886,271) (4,941,297)
Proceeds from issuance of common
stock -- 181,067 -- --
Proceeds from issuance of senior notes -- 80,000 -- --
Payments of debt issuance costs -- (4,344) -- --
Repayments of note payable -- (7,010) -- (7,010)
Purchase of treasury stock -- (149,436) -- --
Payment of liability assumed from
Green Country Banking Corporation (3,162) -- -- --
Change in advances by borrowers for
taxes and insurance (646) (2,435) 542 442
------------ ------------ ------------ ------------
Net cash provided
(absorbed) by
financing activities (57,625) (710,533) (635,766) 56,308
------------ ------------ ------------ ------------
(Continued)
</TABLE>
F-7
<PAGE> 71
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Consolidated Statements of Cash Flows
(dollars in thousands)
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31, YEARS ENDED JUNE 30,
------------------------------
1998 1997 1997 1996
---------------- ---------------- ---------------- ----------
<S> <C> <C> <C> <C>
Net change in cash and cash equivalents $ 728 (51,252) 91,764 (857)
Cash and cash equivalents at beginning of
period 54,152 105,404 13,640 14,497
---------------- ---------------- ---------------- ----------
Cash and cash equivalents at end of period $ 54,880 54,152 105,404 13,640
================ ================ ================ ==========
Supplemental disclosures of cash flow information:
Cash paid (received) during the period for:
Interest $ 90,636 60,190 173,920 186,052
================ ================ ================ ==========
Income taxes $ (12,042) (1,631) -- 9,250
================ ================ ================ ==========
Supplemental schedule of noncash
investing and financing activities:
Loans made to facilitate the sale of
assets acquired through
foreclosure and repossession $ -- -- 79 592
================ ================ ================ ==========
Transfers of loans to assets acquired
through foreclosure and repossession $ 797 4,273 16,000 8,137
================ ================ ================ ==========
Transfer of investments from held to
maturity to available for sale at
estimated market value (amortized
cost of $454,496 for the six months
ended December 31, 1997 and $1,500,793
for the year ended June 30, 1996) $ -- 448,180 -- 1,484,130
================ ================ ================ ==========
Transfer of debt securities to
available for sale loans $ -- 1,425 -- --
================ ================ ================ ==========
Repayment of note payable and
accrued interest by shareholders $ -- -- 8,099 --
================ ================ ================ ==========
Transfer of assets acquired through
foreclosure and repossessions to
other assets $ -- 6,045 -- --
================ ================ ================ ==========
Receivable on loans sold in other
assets $ -- 34,594 -- --
================ ================ ================ ==========
Stock issued in acquisition of Green
Country Banking Corporation
(See note 3) $ 9,000 -- -- --
================ ================ ================ ==========
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
F-8
<PAGE> 72
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(1) ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Local Financial Corporation (Local Financial) is a thrift holding company
which owns 100% of the outstanding common stock of Local Federal Bank,
F.S.B. (Local). Subsequent to December 31, 1998, Local's name was changed
to Local Oklahoma Bank, F.S.B. On November 30, 1998, Local Financial
merged Local America Bank of Tulsa (LAB) into its parent company, Local,
and they now operate under one name as Local Oklahoma Bank. The merger
was accounted for at historical cost as a combination of entities under
common control similar to a pooling of interests. The accounting and
reporting practices of Local Financial and its subsidiary reflect
industry practices and are in accordance with generally accepted
accounting principles. The more significant policies are described below.
(a) PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include the
accounts of Local Financial and its wholly owned subsidiary,
Local, as well as Local's subsidiaries, Local Acceptance Company
(Local Acceptance), Star Financial Services Corporation (Star
Financial), Local Mortgage Corporation (Local Mortgage), Local
Securities Corporation (Local Securities), and Star Properties,
Incorporated (Star Properties). Local is an insured depository
institution which obtains deposit funds primarily through retail
branches throughout the State of Oklahoma and lends those funds
throughout the United States. Local Acceptance's and Star
Financial's principal activities were originating auto loan
contracts through dealerships in Florida and Oklahoma,
respectively (operations ceased as of December 31, 1997). Local
Mortgage and Star Properties are currently inactive. Local
Securities is a registered broker-dealer under the Securities
Exchange Act of 1934 and provides retail investment products to
customers of Local. Local Financial and its subsidiary, Local, are
collectively referred to as the Company. All significant
intercompany accounts and transactions have been eliminated in the
accompanying consolidated financial statements.
In preparing the consolidated financial statements, management is
required to make estimates and assumptions. Those estimates and
assumptions relate principally to the determination of the
allowance for loan losses, income taxes, the valuation of assets
acquired through foreclosure and repossession and the fair value
of financial instruments. Actual results could differ from those
estimates. The accounting policies for these items and other
significant accounting policies are presented below.
(b) STATEMENTS OF CASH FLOWS
For the purpose of the consolidated statements of cash flows, the
Company defines cash and cash equivalents as cash and due from
banks and interest bearing deposits with other banks.
F-9
<PAGE> 73
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(c) SECURITIES
Federal regulations require Local to maintain average monthly
liquid assets, primarily cash and U. S. Government and other
approved securities, in an amount at least equal to 4% of deposit
accounts (net of loans on deposit accounts) plus short-term
borrowings. For the year ended December 31, 1998 and the six
months ended December 31, 1997, Local's average liquidity totaled
approximately 41% and 10%, respectively.
The Company's securities consist primarily of mortgage-backed
certificates and U. S. Government and agencies securities.
Mortgage-backed certificates consist of mortgage-backed
pass-through certificates (MBS) and mortgage-derivative securities
(MDS) such as collateralized mortgage obligations and real estate
mortgage investment conduits. The Company does not own any
principal only, interest only or residual tranches of
mortgage-backed certificates. The Company classifies its
securities as held to maturity, available for sale and held for
trading. Trading securities are bought and held principally for
the purpose of selling them in the near term. Held to maturity
securities are those securities for which the Company has the
ability and intent to hold until maturity. No investment
securities within the portfolio are considered trading or held to
maturity at December 31, 1998 and 1997. The Company has classified
all of its securities as available for sale. At the time of
purchase, the Company classifies securities as available for sale
when such securities may be sold at a future date or if there are
foreseeable circumstances under which the Company would sell such
securities prior to maturity.
Securities classified as available for sale are recorded at their
estimated market value. Changes in the estimated market value of
securities available for sale are included in stockholders'
equity, net of deferred taxes, as accumulated other comprehensive
income. Unrealized losses on available for sale securities, which
are judged to be other than temporary, are charged to earnings in
the consolidated statements of operations (see Note 5). Gains and
losses on available for sale securities are computed on a specific
identification basis. Premiums and discounts are amortized or
accreted in the consolidated statements of operations to
approximate a level yield over the life of the related security.
(d) LOANS RECEIVABLE
Loans receivable are recorded at the contractual amounts owed by
borrowers, less deferred fees, unearned interest, the allowance
for loan losses, undisbursed funds, and discounts on loans
acquired or originated. Interest on loans is credited to income as
earned, to the extent deemed collectible. Discounts on loans and
unearned interest on consumer loans are accreted into interest
income to approximate a level yield over the contractual lives of
the loans, adjusted for actual prepayments.
Loans are placed on nonaccrual status when they become 90 days
past due. Previously accrued but uncollected interest on loans
placed on nonaccrual status is reversed unless determined to be
F-10
<PAGE> 74
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
fully collectible. Payments received on nonaccrual loans are
generally applied to principal as they are received. Upon full
collection of the principal balance or determination that future
collection of principal is probable, interest income is recognized
as received.
(e) PROVISION AND ALLOWANCE FOR LOAN LOSSES
Each period the provision for loan losses in the consolidated
statements of operations results from the combination of a) an
estimate by management of loan losses that occurred during the
current period and b) the ongoing adjustment of prior estimates of
losses occurring in prior periods.
To serve as a basis for making this provision each quarter, the
Company maintains an extensive credit risk monitoring process that
considers several factors including: current economic conditions
affecting the Company's customers, the payment performance of
individual large loans and pools of homogeneous small loans,
portfolio seasoning, changes in collateral values, and detailed
reviews of specific large loan relationships. For large loans
deemed to be impaired due to an expectation that all contractual
payments will probably not be received, impairment is measured by
comparing the Company's recorded investment in the loan to the
present value of expected cash flows discounted at the loan's
effective interest rate, the fair value of the collateral or the
loan's observable market price.
The provision for loan losses increases the allowance for loan
losses, a valuation account which is netted against loans on the
consolidated statements of financial condition. As the specific
customer and amount of a loan loss is confirmed by gathering
additional information, taking collateral in full or partial
settlement of the loan, bankruptcy of the borrower, etc., the loan
is written down, reducing the allowance for loan losses. If,
subsequent to a writedown, the Company is able to collect
additional amounts from the customer or obtain control of
collateral worth more than previously estimated, a recovery is
recorded, thus increasing the allowance for loan losses.
(f) LOAN ORIGINATION FEES, LOAN COMMITMENT FEES AND RELATED COSTS
The Company defers loan origination fees, loan commitment fees and
the incremental direct costs (principally compensation and
benefits relating to successful underwriting efforts) relative to
loans originated. These deferred fees and costs are amortized into
interest income to approximate a level yield over the life of the
related loans, adjusted for actual prepayments.
Other loan fees such as loan servicing fees, late payment fees and
prepayment penalties are included as a component of noninterest
income in the accompanying consolidated statements of operations.
F-11
<PAGE> 75
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(g) LOANS HELD FOR SALE AND GAINS AND LOSSES FROM THE SALE OF LOANS
Loans originated and intended for sale are carried at the lower of
cost or estimated market value in the aggregate. Net unrealized
losses are recognized through a valuation allowance by charges to
income. There were no loans other than residential real estate and
student loans held for sale at December 31, 1998. At December 31,
1997, there were no loans other than student loans held for sale.
Gains and losses resulting from the sale of loans are determined
by the specific identification method and reflect the extent that
sales proceeds exceed or are less than the carrying value of the
loans sold. In some cases, the Company sells loans and continues
to service such loans for the investor. In these cases, the
Company recognizes either a servicing asset, at its allocated
previous carrying amount based on relative fair value, or a
servicing liability at fair value. Any servicing assets recognized
as part of the sale are amortized as a deduction from servicing
income in proportion to and over the period of estimated net
servicing income. To the extent sales of loans involve the sale of
part of a loan or a pool of loans, the cost basis is allocated
based upon the relative fair value of the portion sold and the
portion retained. Impairment of servicing assets is assessed based
on the fair value of those assets. Fair values are estimated using
discounted cash flows based on a current market interest rate. At
December 31, 1998 and 1997, the carrying value of servicing assets
was not impaired.
(h) LOAN SERVICING
Loans serviced by the Company for others are primarily the result
of the Company selling loans while retaining the servicing of
those loans. These loans are not included with loans receivable or
any other asset in the accompanying consolidated statements of
financial condition. Fees earned for servicing loans owned by
investors are reported as income when the related loan payments
are collected. Loan servicing costs are charged to expense as
incurred. Loans serviced for others totaled approximately
$121,232,000 and $124,525,000, at December 31, 1998 and 1997,
respectively. Servicing fees earned totaled approximately
$466,000, $291,000, $521,000, and $581,000 for the year ended
December 31, 1998, the six months ended December 31, 1997, and for
the years ended June 30, 1997 and 1996, respectively, and are
included as a component of loan fees and loan service charges in
the accompanying consolidated statements of operations.
At December 31, 1998 and 1997, unamortized servicing assets were
approximately $1,924,000 and $1,363,000, respectively, and are
included in other assets. Amortization of these assets totaling
approximately $1,024,000, $363,000, $1,006,000, and $1,262,000 was
charged against loan servicing income for the year ended December
31, 1998, the six months ended December 31, 1997, and the years
ended June 30, 1997 and 1996, respectively.
F-12
<PAGE> 76
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(i) PREMISES AND EQUIPMENT
Buildings, building improvements, furniture, fixtures and
equipment are stated at cost, less accumulated depreciation and
amortization. Depreciation and amortization is computed using the
straight-line method over the estimated useful lives of the
related assets. Estimated lives range from 25 to 30 years for
buildings and building improvements and 3 to 10 years for
furniture, fixtures and equipment.
Maintenance and repairs are charged to expense as incurred and
building improvements are capitalized. The costs and accumulated
depreciation relating to premises and equipment retired or
otherwise disposed of are eliminated from the accounts and any
resulting gains or losses are credited or charged to income.
(j) ASSETS ACQUIRED THROUGH FORECLOSURE AND REPOSSESSION
Assets acquired through foreclosure and repossession are recorded
at estimated fair value, net of estimated selling costs at the
date of foreclosure or repossession. The values of assets acquired
through foreclosure and repossession are monitored by the Company
continually through sales and rental activities, and by updated
appraisals and other valuation methods when needed. The allowance
for losses on assets acquired through foreclosure and repossession
is an amount which management believes will be adequate to absorb
losses from the disposition and/or revaluation of these assets.
Additions or reversals of the allowance for losses on assets
acquired through foreclosure and repossession are provided as an
expense or a benefit, respectively, through other expense in the
accompanying consolidated statements of operations. The allowance
for losses is charged or reduced as losses through sales or
revaluations are incurred.
(k) DEBT ISSUANCE COSTS
The Company capitalizes all costs related to the issuance of debt.
Unamortized debt issuance costs at December 31, 1998, of
approximately $3,689,000, are included in other assets in the
consolidated statements of financial condition. Debt issuance
costs are amortized over the life of the senior notes as a yield
adjustment to notes payable interest expense in the consolidated
statements of operations.
(l) INTANGIBLE ASSETS
Intangible assets consist of goodwill and core deposit premiums.
Goodwill represents the excess cost over fair value of net assets
acquired in 1998 and is being amortized on a straight-line basis
over a 15-year period. Core deposit premiums were paid in the
acquisitions of other depository institutions and are capitalized
and amortized over the expected lives of the core deposits,
estimated to be eight to ten years, using the straight-line
method. The Company evaluates the recoverability of these
intangible assets by assessing whether the amortization of the
asset
F-13
<PAGE> 77
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
balances over their remaining lives can be recovered through
projected cash flows. The amount of impairment, if any, is
measured based on projected discounted cash flows. No impairment
was recognized at December 31, 1998 and 1997.
Amortization expense totaled approximately $1,934,000 for the year
ended December 31, 1998, $619,000 for the six months ended
December 31, 1997, and $1,238,000 for each of the years ended June
30, 1997 and 1996. Accumulated amortization of goodwill and core
deposit premiums at December 31, 1998 and 1997, totaled
approximately $11,473,000 and $9,539,000, respectively.
(m) INTEREST RATE SWAP, CAP AND FLOOR AGREEMENTS
Interest rate swap, cap and floor agreements are entered into as a
hedge to stabilize the Company's funding cost and to stabilize the
Company's yield on floating rate debt securities, and as part of
the Company's overall asset/liability management program. The most
frequently used derivative products are various types of interest
rate swaps. However, interest rate caps and floors are also
utilized. These derivatives are typically classified as either
hedges or synthetic alterations. The criteria that must be
satisfied for each of these classifications are as follows: (i)
Hedge-the asset or liability to be hedged exposes the Company, as
a whole, to interest rate risk; (ii) Synthetic alteration - the
asset or liability converted exposes the Company, as a whole, to
interest rate risk and the derivative is designed and effective as
a synthetic alteration of a statement of financial condition item.
Net interest income or expense from the interest rate swap, cap
and floor agreements is recorded as an adjustment to the interest
income/expense of the hedged asset/liability, respectively.
Premiums paid for caps and floors are amortized over their
contractual lives using the straight-line method. When interest
rate swap agreements are sold or settled without the simultaneous
disposition of a hedged item, any gain or loss is deferred and
amortized into interest income or expense over the remaining term
of the swap agreement or until disposition of the hedged item. As
the assets or liabilities being hedged are sold or liquidated, a
proportionate amount of the deferred gain or loss and unamortized
premiums is also recognized. Deferred gains or losses and
unamortized premiums are reflected as an adjustment to the
carrying value of the hedged item in the accompanying consolidated
statements of financial condition. There were no such agreements
outstanding at December 31, 1998 and 1997.
(n) INCOME TAXES
Deferred tax assets and liabilities are reflected at currently
enacted income tax rates applicable to the period in which the
deferred tax assets or liabilities are expected to be realized or
settled. As changes in tax laws or rates are enacted, deferred tax
assets and liabilities are adjusted through the provision for
income taxes.
F-14
<PAGE> 78
(o) NET INCOME (LOSS) PER SHARE
Basic net income (loss) per share is based upon the weighted
average number of shares outstanding during the period. Stock
options and warrants to purchase common stock are considered in
diluted income per share calculations, if dilutive, and are
computed using the treasury stock method. As a result of the
recapitalization discussed in Note 2, the weighted average number
of shares used in the computation of income (loss) per share is
15,400,000 for the years ended June 30, 1997 and 1996 (based on an
equivalent number of shares for the 60 shares outstanding prior to
the recapitalization). For the six months ended December 31, 1997
the weighted average number of shares is 18,066,000. Stock options
and warrants to purchase common stock discussed in Notes 2 and 18
were outstanding during the six months ended December 31, 1997,
but were not included in the computation of diluted income (loss)
per share because of the net loss for the six months ended
December 31, 1997.
The following table reconciles the net income and weighted average
shares outstanding used in the calculation of basic and diluted
net income per share for the year ended December 31, 1998.
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
SHARES PER SHARE
NET INCOME OUTSTANDING AMOUNT
----------- ----------- ----
<S> <C> <C> <C>
Basic net income per share $18,437,000 20,431,698 $.90
====
Effect of dilutive securities:
Warrants -- 52,599
Options -- 122,822
----------- ----------- ----
Diluted net income per share $18,437,000 20,607,119 $.89
=========== =========== ====
</TABLE>
(p) NEW ACCOUNTING PRONOUNCEMENTS
The Company adopted Statement of Financial Accounting Standards
(SFAS) No. 130, "Reporting Comprehensive Income," in 1998. SFAS
No. 130 establishes standards for reporting and presentation of
comprehensive income and its components in a full set of financial
statements. Comprehensive income (loss) consists of net income
(loss) and net unrealized gains (losses) on securities available
for sale and is presented in the consolidated statements of
stockholders' equity. SFAS No. 130 requires only additional
disclosures in the consolidated financial statements; it does not
affect the Company's financial position or results of operations.
Prior year financial statements have been reclassified to conform
to the requirements of SFAS No. 130.
F-15
<PAGE> 79
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
In July 1997, the Financial Accounting Standards Board (FASB)
issued SFAS No. 131, "Disclosure About Segments of an Enterprise
and Related Information." This statement requires disclosure for
each segment that are similar to those required under previous
standards with the addition of quarterly disclosure requirements
and a finer partitioning of geographic disclosures. It requires
limited segment data on a quarterly basis. It also requires
geographic data by country, as opposed to broader geographic
regions as permitted under previous standards. The Company
operates as one segment and the adoption of this statement in 1998
had no impact on the Company's disclosures.
On January 1, 1998, the Company adopted SFAS No 132, "Employers'
Disclosures about Pension and Other Postretirement Benefits." SFAS
No. 132 revises employers' disclosures about pension and other
postretirement benefit plans. SFAS No. 132 does not change the
method of accounting for such plans. Prior year disclosures in the
notes to the financial statements have been revised to conform to
the requirements of SFAS No. 132.
In June 1998, the FASB issued SFAS No. 133, "Accounting for
Derivative Instruments and Hedging Activities." This statement
establishes accounting and reporting standards for derivative
instruments and hedging activities. It requires that a company
recognize all derivatives as either assets or liabilities in the
statement of financial condition and measure those instruments at
fair value. This statement is required to be adopted by the
Company in 2000. Management does not anticipate this statement to
have a material adverse impact on the consolidated financial
position or the future results of operations of the Company.
(2) CHANGE IN OWNERSHIP AND MANAGEMENT
On September 8, 1997, the Company completed a securities offering in
which, after increasing the number of authorized shares from 2,000 to
25,000,000, 19,700,000 shares of common stock totaling $197,000,000 and
$80,000,000 of 11% Senior Notes were issued to individual investors. Of
the total net proceeds received in the offering ($257,300,000),
$7,200,000 was used to repay the note payable and associated accrued
interest and approximately $154,000,000 was used to redeem all of the
previously issued and outstanding shares of the Company's common stock.
The redemption amount is subject to adjustment under terms set forth in
the Redemption Agreement, as defined. Subsequent to September 8, 1997,
adjustments totaling approximately $5,000,000 were assessed against the
Selling Shareholders and were reflected as a reduction to the cost of
treasury stock with a corresponding receivable from the Selling
Shareholders of approximately $5,000,000 recorded in other assets in the
consolidated statements of financial condition. The remainder of the
proceeds was used to make capital contributions to Local of approximately
$83,839,000, establish an interest reserve account for the Senior Notes
of approximately $8,800,000 and establish a cash account of approximately
$3,000,000.
F-16
<PAGE> 80
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
In connection with the securities offering and redemption, the existing
board of directors resigned and a new board of directors was appointed.
In addition, a new chief executive officer and a new president of the
Company were appointed. Prior to the securities offering and change in
management, the Company's strategy had been to operate a low cost
institution structured around the following areas: (i) a nationally
diversified wholesale commercial real estate mortgage portfolio; (ii) a
retail deposit franchise within Oklahoma operated on a low-overhead basis
delivering a traditional set of thrift products and services, including
conforming single-family residential home loans, equity, student
guaranteed, direct automobile and installment loans through its branch
network; (iii) a wholesale securities portfolio involving derivative
mortgage securities funded both by retail, as well as, wholesale funding
through advances from the Federal Home Loan Bank of Topeka (FHLB) and
securities sold under agreements to repurchase; and (iv) origination of
indirect subprime automobile finance contracts through dealerships in
Oklahoma and Florida (originations ceased in fiscal 1997). New management
has among other things, (i) ceased the wholesale securities strategy
previously employed by the Company and caused the Company to sell all or
a substantial portion of its derivative mortgage portfolio and (ii)
utilized the proceeds to repay outstanding advances from the FHLB and
securities sold under agreements to repurchase, as well as terminated and
liquidated the Company's interest rate contracts associated with the
derivative mortgage portfolio and the advances from the FHLB and
securities sold under agreements to repurchase.
In connection with the securities offering, warrants to buy 591,000
shares of common stock of the Company were issued to the placement agent.
The warrants will be exercisable for a five year period commencing upon
the date of consummation, September 8, 1997, at an exercise price of $10
per share.
The issuance of new shares of common stock and Senior Notes and
redemption of all previously issued common stock have been accounted for
as a recapitalization with no adjustments to the carrying amounts of
assets and liabilities since none of the new investors individually or in
concert control the Company. Regulatory approval of the change in
ownership was not required as the Office of Thrift Supervision (OTS) does
not require regulatory approval unless an investor or group of investors
in concert own more than 9.9% of the voting common stock.
(3) ACQUISITIONS
On February 16, 1998, Green Country Banking Corporation (Green Country)
and its subsidiary, Green Country Bank, F.S.B., were acquired and merged
into the Company. The acquisition was accounted for as a purchase in
which the purchase price was allocated to the net assets acquired based
upon their fair market values at the date of acquisition. Concurrent with
the acquisition, the Company issued 837,209 shares of its Common Stock
for approximately $9,000,000 to the three existing shareholders of Green
Country; two of the Green Country shareholders are officers and directors
of the Company.
F-17
<PAGE> 81
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
On October 9, 1998, the Company acquired BankSouth Corporation
(BankSouth) for approximately $20,334,000 in cash, which included the
redemption of its preferred stock. This acquisition was accounted for
under the purchase method of accounting in which the purchase price was
allocated to the net assets acquired based upon their fair market values
at the date of acquisition.
Unaudited combined balance sheet information for Green Country and
BankSouth, at fair value, on the dates of acquisition is as follows (in
thousands):
<TABLE>
<S> <C>
Cash and due from banks $ 9,880
Securities available for sale 39,982
Loans receivable, net 211,040
Premises and equipment, net 10,251
Assets acquired through foreclosure and repossession, net 374
Federal Home Loan Bank of
Topeka stock 2,869
Current tax receivable 901
Deferred tax asset, net 867
Other assets 5,370
--------
Total assets 281,534
--------
Deposits 238,655
Advances from the Federal
Home Loan Bank of Topeka 20,600
Other liabilities 10,943
--------
Total liabilities 270,198
--------
Net assets at fair value $ 11,336
========
</TABLE>
The excess of the purchase price of approximately $29,334,000 over the
net assets acquired of approximately $11,336,000, was allocated to
goodwill. The resulting goodwill of approximately $17,998,000 is being
amortized on a straight-line basis over 15 years.
The following unaudited pro forma information presents the combined
results of operations as if the acquisitions had occurred as of July 1,
1997, after giving effect to amortization of goodwill. The pro forma
financial information does not necessarily reflect the results of
operations that would have occurred had the companies been combined
during such periods.
F-18
<PAGE> 82
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
DECEMBER 31, DECEMBER 31,
1998 1997
-------------------- -------------
<S> <C> <C>
Net income (loss) $ 19,287,000 (85,131,000)
==================== =============
Basic net income (loss) per share $ .94 (4.71)
==================== =============
Diluted net income (loss) per share $ .93 (4.71)
==================== =============
</TABLE>
(4) SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL
Securities purchased under agreements to resell at December 31, 1998 and
1997, are summarized as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------------- --------------
<S> <C> <C>
Average outstanding balance $ 70,369 60,000
Maximum month-end balance 231,000 178,000
Mortgage-backed securities securing the
agreements at period-end:
Carrying value -- 178,000
Estimated market value -- 184,000
</TABLE>
Securities purchased under agreements to resell are held by the
broker-dealers who arranged the transactions. The agreements generally
mature within one month.
F-19
<PAGE> 83
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(5) SECURITIES
A comparative summary of securities available for sale is as follows (in
thousands):
<TABLE>
<CAPTION>
GROSS GROSS ESTIMATED
AMORTIZED UNREALIZED UNREALIZED MARKET
COST GAINS LOSSES VALUE
---- ----- ------ -----
<S> <C> <C> <C> <C>
December 31, 1998:
U.S. Government and agency
securities $ 38,988 104 -- 39,092
Municipal securities 965 -- -- 965
Collateralized mortgage obligations 505,310 17,231 413 522,128
Mortgage-backed securities 8,653 128 2 8,779
------------- ------ --- -------
$ 553,916 17,463 415 570,964
============= ====== === =======
</TABLE>
<TABLE>
<CAPTION>
GROSS GROSS ESTIMATED
AMORTIZED UNREALIZED UNREALIZED MARKET
COST GAINS LOSSES VALUE
---- ----- ------ -----
<S> <C> <C> <C> <C>
December 31, 1997:
U.S. Government and agency
securities $ 6,001 -- 1 6,000
Collateralized mortgage obligations 425,835 4,221 1,180 428,876
Mortgage-backed securities 82,674 559 2 83,231
------------- ------ ----- -------
$ 514,510 4,780 1,183 518,107
============= ====== ===== =======
</TABLE>
Maturities of investment securities classified as available for sale at
December 31, 1998, are shown below (in thousands). Expected maturities
will differ from contractual maturities because borrowers may have the
right to call or prepay obligations with or without call or prepayment
penalties.
F-20
<PAGE> 84
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
<TABLE>
<CAPTION>
AMORTIZED ESTIMATED
COST MARKET VALUE
-------- --------
<S> <C> <C>
Due in one year or less $ 7,536 7,536
Due from one to five years 22,445 22,512
Due from five to ten years 9,972 10,009
-------- --------
39,953 40,057
Mortgage-backed securities 8,653 8,779
Collateralized mortgage obligations 505,310 522,128
-------- --------
$553,916 570,964
======== ========
</TABLE>
During the period following June 30, 1997, and prior to the change in
ownership of the Company on September 8, 1997, the Company purchased
approximately $74,440,000 in agency securities for the held to maturity
portfolio. These short-term securities were purchased to meet liquidity
requirements. Subsequent to the change in ownership of the Company, new
management elected to classify the held to maturity portfolio as
available for sale. The amortized cost of securities held to maturity
transferred to securities available for sale was approximately
$454,496,000 with an unrealized loss of approximately $6,316,000. Also,
soon after the change in ownership, the Company sold approximately
$118,480,000 in agency securities, approximately $75,482,000 in mortgage
backed certificates and approximately $345,176,000 in floating rate
securities for a gross loss of approximately $17,336,000. Management was
of the opinion that the fair value of the floating rate security
portfolio would not fully recover the amortized cost of the portfolio
prior to the time of sale. As a result, the Company recognized through
earnings the unrealized loss on the remaining floating rate portfolio of
$54,724,000 which is included in net gains (losses) on sale of assets in
the accompanying consolidated statements of operations for the six months
ended December 31, 1997.
At December 31, 1998 and 1997, securities available for sale included
floating rate securities with an amortized cost of approximately
$299,746,000 and $425,491,000, respectively, and fixed-rate securities of
approximately $254,169,000 and $83,018,000, respectively. The
floating-rate securities' weighted average yield was 7.6% and 6.97% at
December 31, 1998 and 1997, respectively. The fixed rate securities'
weighted average yield was 6.36% and 6.51% at December 31, 1998 and 1997,
respectively. The overall weighted average yield of securities was 7.05%
and 6.83% at December 31, 1998 and 1997, respectively.
At December 31, 1998 and 1997, securities with a total par amount of
$276,566,000 and $73,957,000, respectively, were pledged to secure
various deposits, borrowings, and securitization transactions. Accrued
interest receivable on securities of approximately $3,307,000 and
$2,842,000 was included in other assets at December 31, 1998 and 1997,
respectively.
F-21
<PAGE> 85
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
Proceeds from sales of securities available for sale for the year ended
December 31, 1998, the six months ended December 31, 1997, and for the
years ended June 30, 1997 and 1996, were approximately $47,764,000,
$865,146,000, $730,957,000, and $50,321,000, respectively. Gross gains of
approximately $2,189,000, $12,788,000, and $1,000 were realized for the
year ended December 31, 1998, for the six months ended December 31, 1997,
and for the year ended June 30, 1996, respectively. No gross gains were
realized for the year ended June 30, 1997. Gross losses of $5,000,
$17,398,000, $29,889,000, and $182,000 were realized for the year ended
December 31, 1998, the six months ended December 31, 1997, and for the
years ended June 30, 1997 and 1996, respectively, and are included in net
gains (losses) on sale of assets in the accompanying consolidated
statements of operations. Gains and (losses) from loans securitized and
sold are not included above.
In prior years the Company owned Student Loan Marketing Association
Preferred Stock which was sold during 1997. Proceeds from the sale of
those securities during 1997 were approximately $12,986,000 with gross
gains of approximately $307,000 realized in 1997.
In December 1995, concurrent with the adoption of its implementation
guide on SFAS No. 115, the FASB allowed a one-time reassessment of the
SFAS No. 115 classifications of all securities currently held. Any
reclassifications would be accounted for at estimated market value in
accordance with SFAS No. 115 and any reclassifications from the held to
maturity portfolio that resulted from this one-time reassessment would
not call into question the Company's intent to hold other securities to
maturity in the future. The Company used the opportunity under this
one-time reassessment to reclassify $1,500,793,000 in securities from
held to maturity to the available for sale portfolio. In connection with
this reclassification, gross unrealized losses of $16,663,000 were
recorded in available for sale securities. This reclassification resulted
in a reduction of stockholders' equity of $10,831,000 (net of tax).
(6) LOANS RECEIVABLE
Loans receivable are summarized below at amortized cost (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------
1998 1997
----------- -----------
<S> <C> <C>
Residential real estate loans $ 344,565 281,565
Commercial 927,682 646,539
Held for sale 16,188 7,133
Consumer loans 101,738 38,717
----------- -----------
Total loans 1,390,173 973,954
Less:
Allowance for loan losses (27,901) (20,484)
----------- -----------
Loans receivable, net $ 1,362,272 953,470
=========== ===========
</TABLE>
F-22
<PAGE> 86
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
Accrued interest receivable on loans of approximately $8,586,000 and
$7,129,000 was included in other assets at December 31, 1998 and 1997,
respectively.
An analysis of the allowance for loan losses is as follows (in
thousands):
<TABLE>
<CAPTION>
YEAR SIX MONTHS
ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------
1998 1997 1997 1996
-------- ------- ------- ------
<S> <C> <C> <C> <C>
Balance at beginning of period $ 20,484 11,435 3,228 4,593
Allowance acquired 7,284 -- -- --
Loans charged off (1,504) (16,554) (20,293) (6,537)
Recoveries 187 25 72 55
-------- ------- ------- ------
Net loans charged off (1,317) (16,529) (20,221) (6,482)
Provision for loan losses, primarily
related to indirect automobile
loans prior to 1998 1,450 25,578 28,428 5,117
-------- ------- ------- ------
Balance at end of period $ 27,901 20,484 11,435 3,228
======== ======= ======= ======
</TABLE>
Beginning in fiscal 1994, the Company initiated a subprime indirect
automobile financing program, through dealerships in Oklahoma and
Florida. Loans were generated through a network of principally used
automobile dealers and were extended to borrowers who typically were not
eligible for traditional bank financing, due to past credit problems or
inadequate credit history. Loans were typically extended in amounts to
include the purchase price of the automobile, tag, tax and license fees
and optional credit life and vehicle maintenance warranty insurance
coverage. Loan terms included interest rates ranging from 13.9% to 30.9%
and payment periods ranging from 12 months to 60 months. Due to the
nature of the borrowers involved, a higher than normal risk of borrower
default and inability to collect all amounts due was likely. During
fiscal 1997, the Company experienced greater than expected borrower
defaults and resultant losses and chose to cease all further origination
activities. At June 30, 1997, the subprime loan portfolio totaled
approximately $75,545,000, net of discounts and unearned interest, in
which an allowance for loan losses of approximately $7,684,000, or 10%,
of the carrying value of the subprime loan portfolio had been
established. From inception of the program through December 31, 1997,
loan originations totaled approximately $187,832,000 with associated
charge offs of approximately $28,650,000 or 15%. The allowance for loan
losses was established for estimated inherent losses that existed in the
auto loan portfolio at June 30, 1997, based primarily on the delinquency
status of the loan portfolio, the estimated value of the underlying
collateral and historical loss experience. In December 1997, the Company
sold the subprime loan portfolio for approximately $43,968,000 which
approximated the Company's book value less the valuation allowance.
F-23
<PAGE> 87
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
In connection with the BankSouth acquisition in 1998 (see note 3), the
Company acquired a portfolio of indirect automobile loans of
approximately $20,000,000. Management believes that this portfolio, while
containing more risk than direct automobile loans, represents less risk
than the program previously conducted prior to the change in ownership.
In management's opinion, adequate allowances have been established to
properly reflect the losses inherent in these loans at December 31, 1998.
At December 31, 1998 and 1997, the Company classified approximately
$1,176,000 and $655,000, respectively, of loans as impaired, as defined
by SFAS No. 114, "Accounting by Creditors for Impairment of a Loan." The
average recorded investment in impaired loans for the year ended December
31, 1998 and for the six months ended December 31, 1997, was
approximately $1,179,000 and $655,000, respectively. Interest payments
received on impaired loans are recorded as interest income, unless
collection of the remaining recorded investment is doubtful, at which
time the loan is placed on nonaccrual status and payments received are
recorded as reductions of principal. The Company recognized interest
income on impaired loans of approximately $48,000 and $52,000 for the
year ended December 31, 1998 and for the six months ended December 31,
1997, respectively.
At December 31, 1998 and 1997, loans to directors, officers and employees
of the Company aggregated approximately $3,662,000 and $1,500,000,
respectively. In management's opinion, such transactions were made on
substantially the same terms as those prevailing at the time for
comparable transactions with other persons and did not involve more than
normal risk.
(7) PREMISES AND EQUIPMENT
Premises and equipment consisted of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------------------
1998 1997
-------------- --------------
<S> <C> <C>
Land $ 4,711 3,033
Buildings and building improvements 20,739 11,920
Furniture, fixtures and equipment 15,474 10,938
-------------- --------------
40,924 25,891
Less accumulated depreciation and amortization (16,965) (15,245)
-------------- --------------
$ 23,959 10,646
============== ==============
</TABLE>
Depreciation and amortization expense relating to premises and equipment
for the year ended December 31, 1998, the six months ended December 31,
1997 and the years ended June 30, 1997 and 1996 was approximately
$1,730,000, $692,000, $1,450,000, and $1,213,000, respectively.
F-24
<PAGE> 88
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(8) ASSETS ACQUIRED THROUGH FORECLOSURE AND REPOSSESSION
Assets acquired through foreclosure and repossession amounted to $693,000
and $260,000 at December 31, 1998 and 1997, net of allowances of $139,000
and $35,000, respectively. For the year ended December 31, 1998, the six
months ended December 31, 1997, and for the years ended June 30, 1997 and
1996, income (expense) from assets acquired through foreclosure and
repossession totaled approximately $(127,000), $69,000, $873,000, and
$1,902,000, respectively. The Company records net income (expense) from
assets acquired through foreclosure and repossessions in other
noninterest income if in a net income position or in other noninterest
expense if in a net expense position, while the gain or loss portion is
included in net gains (losses) on sale of assets.
(9) DEPOSIT ACCOUNTS
Accrued interest on deposit accounts of approximately $4,206,000 and
$3,865,000 was included in other liabilities in the accompanying
consolidated statements of financial condition at December 31, 1998 and
1997, respectively.
The aggregate amount of certificates of deposit with a denomination
greater than $100,000 was approximately $93,000,000 and $86,000,000 at
December 31, 1998 and 1997, respectively.
Contractual maturities of time deposits at December 31, 1998, are
summarized as follows (dollars in thousands):
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31, AMOUNT
--------------
<S> <C>
1999 $ 961,389
2000 190,009
2001 37,901
2002 10,088
2003 and thereafter 13,928
--------------
$ 1,213,315
==============
</TABLE>
Legislation was enacted in fiscal 1997 which required institutions
holding deposits insured by the Savings Association Insurance Fund (SAIF)
to pay a one-time fee of approximately 65 cents for each $100 of SAIF
insured deposits. The Company accrued its one-time assessment of
approximately $10,311,000 during September 1996.
F-25
<PAGE> 89
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(10) SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE
Securities sold under agreements to repurchase are summarized as follows
(dollars in thousands):
<TABLE>
<CAPTION>
JUNE 30,
DECEMBER 31, ------------------------
1997 1997 1996
---- ---- ----
<S> <C> <C> <C>
Average outstanding balance $ 57,579 421,706 685,601
Weighted average interest rate during the period 5.61% 5.45% 5.83%
Maximum month-end balance $ 239,914 942,315 1,079,194
Outstanding balance at the end of the period -- 310,801 1,079,194
Weighted average rate at the end of the period -- 5.55% 5.36%
Mortgage-backed securities securing the agreements
at period-end:
Carrying value $ -- 335,202 1,171,395
Estimated market value -- 322,451 1,115,428
Accrued interest payable at the end of the period -- 1,327 5,799
</TABLE>
Securities sold under agreements to repurchase were delivered to the
broker-dealers who arranged the transactions. The agreements generally
matured within one month.
Additional interest expense incurred on interest rate swaps not included
in the above average rates totaled approximately $444,000, $5,227,000,
and $6,428,000 for the six months ended December 31, 1997, and the years
ended June 30, 1997 and 1996, respectively.
There are no securities sold under agreements to repurchase at December
31, 1998 and 1997. All agreements outstanding at June 30, 1997, were
either retired or replaced with FHLB advances as part of the Company's
ongoing asset/liability management strategy.
(11) ADVANCES FROM THE FEDERAL HOME LOAN BANK OF TOPEKA
Advances from the FHLB are summarized as follows (dollars in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------------------------------------------
1998 1997
------------------------------- -------------------------------
WEIGHTED WEIGHTED
AVERAGE AVERAGE
CONTRACTUAL CONTRACTUAL
BALANCE RATE BALANCE RATE
-------------- -------- --------------- -------
<S> <C> <C> <C>
Variable rate $ -- --% $ 30,100 5.75%
Fixed rate 220,033 4.77 50,036 6.26
-------------- -------- --------------- -------
$ 220,033 4.77% $ 80,136 6.06%
============== ======== =============== =======
</TABLE>
F-26
<PAGE> 90
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
At December 31, 1998, the Company had $130,000,000 in borrowing capacity
under a collateralized line of credit with the FHLB. The line of credit
was unadvanced at December 31, 1998. The line of credit expires on
October 22, 1999, and bears interest at a floating rate.
Although no specific assets are pledged, the FHLB requires the Company to
hold eligible assets with a lending value, as defined, at least equal to
FHLB advances, which can include such items as first mortgage loans,
investment securities and interest bearing deposits, which are not
already pledged or encumbered.
Scheduled principal repayments of advances from the FHLB at December 31,
1998, were as follows (dollars in thousands):
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE
CONTRACTUAL
YEAR ENDING DECEMBER 31, AMOUNT RATE
<S> <C> <C>
1999 $ -- --%
2000 -- --
2001 -- --
2002 40,000 6.26
2003 and thereafter 180,033 4.44
------------------- ------------
$ 220,033 4.77%
============ ===========
</TABLE>
(12) SENIOR NOTES
Senior notes of $80,000,000 at 11% and issued to individual investors
were outstanding at December 31, 1998 and 1997. Senior notes are due
September 8, 2004 and pay interest semiannually. Senior notes are general
unsecured obligations of Local Financial and will rank senior to such
other indebtedness as the Company may incur that is not expressly
subordinated to the senior notes. The indenture generally restricts the
incurrence of additional indebtedness by the Company, except for certain
junior indebtedness.
(13) INTEREST RATE SWAP, CAP AND FLOOR AGREEMENTS
The Company is a party to financial instruments with off-balance sheet
risk, in the normal course of business, to meet the financing needs of
its customers and to reduce its own exposure to fluctuations in interest
rates. These financial instruments include commitments to extend credit,
options written, standby letters of credit and financial guarantees,
interest rate caps and floors written, interest rate
F-27
<PAGE> 91
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
swaps, and forward and futures contracts. Those instruments involve, to
varying degrees, elements of credit and interest rate risk in excess of
the amount recognized in the consolidated statements of financial
condition. The contract or notional amounts of those instruments reflect
the extent of the Company's involvement in particular classes of
financial instruments.
The Company's exposure to credit loss in the event of nonperformance by
the other party to the financial instrument for commitments to extend
credit, standby letters of credit, and financial guarantees written is
represented by the contractual notional amount of those instruments. The
Company uses the same credit policies in making commitments and
conditional obligations as it does for on-balance sheet instruments. For
interest rate caps, floors, and swap transactions, forward and futures
contracts, and options written, the contract or notional amounts do not
represent exposure to credit loss. The Company controls the credit risk
of its interest rate swap, cap and floor agreements, and forward and
futures contracts through credit approvals, limits, and monitoring
procedures.
Unless noted otherwise, the Company does not require collateral or other
security to support financial instruments with credit risk.
The Company enters into a variety of interest-rate swap transactions in
managing its interest rate exposure. Interest rate swap transactions
generally involve the exchange of fixed and floating rate interest
payment obligations without the exchange of the underlying principal
amounts. The Company minimizes its credit exposure to interest rate
counterparties by entering into the transactions with counterparties that
have been rated in one of the top three investment ratings by at least
two nationally recognized credit rating agencies. The Company also
utilized interest rate caps and floors to manage its interest rate
exposure through the use of these instruments.
Effective with the change in ownership on September 8, 1997, all
outstanding interest rate swap, cap and floor agreements were terminated
and are included in net gains (losses) on sale of assets in the
consolidated statements of operations. The termination of the interest
rate swap agreements, totaling approximately $500,000,000 notional
principal amount, resulted in realized gross losses of approximately
$47,283,000. The termination of cap and floor agreements totaling
approximately $2,350,000,000 notional principal amount resulted in
realized gross losses of $2,234,000. Upon termination of the interest
rate swap, cap and floor agreements, and the corresponding liquidation of
the underlying hedged items, the Company recognized all remaining
deferred gains and losses which resulted in an additional loss of
approximately $3,920,000. The above losses resulted in a net tax benefit
of approximately $18,703,000.
During fiscal 1997, the Company terminated interest rate swaps used to
hedge securities sold under agreements to repurchase and FHLB advances
with a notional principal amount of $100,000,000 resulting in a loss of
approximately $3,825,000 which was being amortized over the life of the
original swap agreement of approximately 7 years. (See discussion above
on termination of interest rate swaps in connection with the change in
ownership on September 8, 1997.) During fiscal 1996, the Company
terminated interest rate swaps used to hedge a portion of the available
for sale portfolio with a notional
F-28
<PAGE> 92
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
principal of $300,000,000 resulting in a gain of $3,637,000 which was
being amortized over the original swap agreement of approximately 3
years. The Company also terminated interest rate swaps during fiscal 1996
used to hedge a portion of the securities sold under agreements to
repurchase and FHLB advances with a notional principal amount of
$200,000,000 resulting in a loss of approximately $3,344,000 which was
being amortized over the original swap agreement of approximately 2
years. As a result of interest rate swap terminations, amortization of
deferred gains and losses resulted in the recognition of approximately
$73,000 in net losses during fiscal year 1997 and $671,000 in net gains
during fiscal year 1996.
The net effect of the interest rate swaps, caps and floors on net
interest income was a decrease of approximately $21,148,000 ($13,746,000
net of income tax) and $21,509,000 ($14,772,000 net of income tax) for
the years ended June 30, 1997 and 1996, respectively. Such decrease was
attributable primarily to interest rate swaps used to hedge a portion of
the Company's cost of borrowings in periods of rising interest rates.
(14) OTHER COMPREHENSIVE INCOME (LOSS)
The changes in the components of other comprehensive income (loss) are
reported net of income taxes for the periods indicated as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1998
------------------------------------------
PRE-TAX TAX NET
AMOUNT EFFECT AMOUNT
---------- ---------- ----------
<S> <C> <C> <C>
Unrealized gain on securities:
Unrealized holding gain arising $ 15,636 (5,472) 10,164
during the period
Less: reclassification adjustment
for gains included in net income (2,184) 764 (1,420)
---------- ---------- ----------
Other comprehensive income $ 13,452 (4,708) 8,744
========== ========== ==========
</TABLE>
F-29
<PAGE> 93
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
<TABLE>
<CAPTION>
SIX MONTHS ENDED DECEMBER 31, 1997
------------------------------------------
PRE-TAX TAX NET
AMOUNT EFFECT AMOUNT
---------- ---------- ----------
<S> <C> <C> <C>
Unrealized loss on securities:
Unrealized holding loss arising
during the period $ (6,532) 2,286 (4,246)
Less: reclassification adjustment
for losses included in net income 59,334 (20,767) 38,567
---------- ---------- ----------
Other comprehensive income $ 52,802 (18,481) 34,321
========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30, 1997
------------------------------------------
PRE-TAX TAX NET
AMOUNT EFFECT AMOUNT
---------- ---------- ----------
<S> <C> <C> <C>
Unrealized loss on securities:
Unrealized holding loss arising
during the period $ (4,174) 1,462 (2,712)
Less: reclassification adjustment
for losses included in net income 29,582 (10,354) 19,228
---------- ---------- ----------
Other comprehensive income $ 25,408 (8,892) 16,516
========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30, 1996
------------------------------------------
PRE-TAX TAX NET
AMOUNT EFFECT AMOUNT
---------- ---------- ----------
<S> <C> <C> <C>
Unrealized loss on securities:
Unrealized holding loss arising
during the period $ (75,147) 26,301 (48,846)
Less: reclassification adjustment
of losses included in net income 181 (63) 118
---------- ---------- ----------
Other comprehensive loss $ (74,966) 26,238 (48,728)
========== ========== ==========
</TABLE>
F-30
<PAGE> 94
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(15) INCOME TAXES
The provision (benefit) for income taxes has been allocated as follows,
including the tax effect of the changes in unrealized gains (losses) on
available for sale securities (in thousands):
<TABLE>
<CAPTION>
YEAR SIX MONTHS
ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------------
1998 1997 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Income (loss) from operations $ 10,254 (44,075) (11,860) 4,872
Stockholders' equity 4,708 18,481 8,892 (26,238)
---------- ---------- ---------- ----------
$ 14,962 (25,594) (2,968) (21,366)
========== ========== ========== ==========
</TABLE>
Components of the provision (benefit) for income taxes from operations are as
follows (in thousands):
<TABLE>
<CAPTION>
YEAR SIX MONTHS
ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------------
1998 1997 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Current income tax expense
(benefit) $ (1,005) (16,490) (10,431) 2,911
Deferred income tax expense
(benefit) 11,259 (27,585) (1,429) 1,961
---------- ---------- ---------- ----------
$ 10,254 (44,075) (11,860) 4,872
========== ========== ========== ==========
</TABLE>
F-31
<PAGE> 95
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
The effective income tax rates differ from the statutory federal income
tax rate of 35%. A reconciliation of the provision (benefit) for income
taxes based on the statutory rates with the effective rates is as follows
(in thousands):
<TABLE>
<CAPTION>
YEAR SIX MONTHS
ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------------
1998 1997 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Income tax at statutory rate (35%) $ 10,042 (45,511) (14,667) 6,453
Provision for deferred tax assets -- 742 2,000 --
Effect of state income tax
(benefit), net of federal 549 (5,236) (3,013) (675)
Change in valuation allowance (384) 6,254 2,949 --
Other, net 47 (324) 871 (906)
---------- ---------- ---------- ----------
Provision (benefit) for income
taxes $ 10,254 (44,075) (11,860) 4,872
========== ========== ========== ==========
</TABLE>
Deferred income tax assets and liabilities consisted of the following (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1998 1997
------------ ------------
<S> <C> <C>
Deferred income tax assets:
Realized losses on available for sale securities $ 7,711 10,787
Federal net operating loss carryforwards 6,668 14,283
State net operating loss carryforwards 8,819 9,203
Allowance for loan losses 4,200 4,109
Other 4,432 1,365
------------ ------------
31,830 39,747
------------ ------------
Deferred income tax liabilities:
Stock dividends receivable (2,564) (1,602)
Depreciation and amortization (1,622) (364)
Deferred loan fees (1,287) (970)
Unrealized gains on available for sale securities (5,967) (1,259)
Other (612) (291)
------------ ------------
(12,052) (4,486)
------------ ------------
Net deferred tax asset 19,778 35,261
Valuation allowance on state NOL's (8,819) (9,203)
------------ ------------
Deferred tax asset, net $ 10,959 26,058
============ ============
</TABLE>
F-32
<PAGE> 96
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
At December 31, 1998, the Company had approximately $19,053,000 and
$176,387,000 of operating loss carryforwards available for federal and
state income tax purposes, respectively. The state net operating losses
expire in varying amounts between 2006 and 2013. The federal net
operating losses expire in 2013.
During 1997, the Company established a valuation allowance for the
portion of the available state net operating loss carryforwards for which
it was determined to be more likely than not that the benefit of the
deferred tax asset would not be realized. Historically, the Company has
generated income for federal income tax purposes. The tax loss for the
year ended June 30, 1997, and the six months ended December 31, 1997, was
a result of the Company exiting the indirect subprime automobile lending
program, terminating the interest rate swap agreements, and discontinuing
the wholesale securities strategy previously employed by former
management. Based on the current strategy of new management and current
taxable income for the year ended December 31, 1998, no valuation
allowance for other deferred tax assets has been established as the
Company believes it is more likely than not that sufficient income for
federal income tax purposes will be realized.
As a result of the Small Business Job Protection Act, the Company was
required to change its method of accounting for bad debts from the
reserve method to the direct charge-off method for income tax purposes
during 1997. The Company will be required to recapture the excess of the
qualifying and nonqualifying tax loan loss reserves over the base year
tax loan loss reserves over a six-year period. The recapture amount is
estimated to be $17,244,000 and the qualifying and nonqualifying base
year tax reserves totaled approximately $8,116,000 and $1,373,000,
respectively. The Company has deferred this recapture through its tax
year June 30, 1998.
In accordance with SFAS No. 109, "Accounting for Income Taxes," a
deferred tax liability has not been recognized for the tax bad debt
reserve and supplemental reserves of the Company that arose in tax years
that began prior to December 31, 1987. At December 31, 1998, the portion
of the tax bad debt reserve and supplemental reserves attributable to
pre-1988 tax years was approximately $13,329,000. The amount of
unrecognized deferred tax liability at December 31, 1998 was
approximately $4,665,000. This deferred tax liability could be recognized
if certain distributions are made with respect to the stock of Local, or
the bad debt reserve is used for any purpose other than absorbing bad
debt losses.
During 1997, the Company's federal income tax returns were examined by
and/or settled with the Internal Revenue Service through fiscal year
1993. As a result of these examinations and related claims for refund,
the Company received a refund of taxes previously paid of approximately
$800,000 which had not been anticipated by the Company prior to the
examination.
F-33
<PAGE> 97
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(16) COMMITMENTS AND CONTINGENCIES
In conjunction with the acquisition of LAB during fiscal 1989, the
Company and LAB entered into an Assistance Agreement with the Federal
Savings and Loan Insurance Corporation (the FSLIC). Under the terms of
the Assistance Agreement, the FSLIC Resolution Fund (the FUND), which is
managed by the Federal Deposit Insurance Corporation (the FDIC), is
entitled to receive 100% of the tax benefits attributable to acquired net
operating loss carryforwards and deductions resulting from certain items,
other than covered asset losses, for which the FUND has agreed to provide
assistance to the extent such tax benefits are realized by the
consolidated group. LAB is entitled to share in realized tax benefits of
a portion of the FUND assistance on a 50-50 basis.
Under the LAB Assistance Agreement, a dispute exists between LAB and the
FDIC regarding tax benefits which have been received. Management, after
consultation with legal counsel and based on available facts and
proceedings to date, has determined that it is probable that LAB has some
liability to the FDIC with regard to the tax benefits. The Company's
estimate of this liability is approximately $13,000,000, which is
included in other liabilities in the accompanying December 31, 1998 and
1997, consolidated statements of financial condition. The Company
provided for this liability through a provision for uninsured risk in the
consolidated statements of operations for the years ended June 30, 1997
and 1996. The FDIC's estimate of this liability is approximately
$23,000,000. Management of the Company is of the opinion that the FDIC's
estimate does not give credit to the Company for certain tax benefits
originally contracted for in the Assistance Agreement, but later
eliminated as a result of the Revenue Reconciliation Act of 1993.
Management intends to vigorously defend its estimate of the liability.
Pursuant to the terms of the Redemption Agreement discussed in Note 2,
the Selling Shareholders have agreed to indemnify the Company with
respect to the Assistance Agreement to the extent the Company is found to
be liable for an amount in excess of approximately $13,000,000. In
addition, the Selling Shareholders have agreed to be solely and
exclusively responsible for all reasonable litigation costs and expenses
which are incurred by the Company in connection with the prosecution,
defense and settlement with the FDIC.
In the ordinary course of business, the Company is subject to other legal
actions and complaints. Management, after consultation with legal
counsel, and based on available facts and proceedings to date, believes
the ultimate liability, if any, arising from such legal actions or
complaints, will not have a material adverse effect on the Company's
consolidated financial position or future results of operations.
Commitments to extend credit are agreements to lend to a customer as long
as there is no violation of any condition established in the contract.
Commitments generally have fixed expiration dates or other termination
clauses and may require payment of a fee. The Company evaluates each
customer's creditworthiness on a case-by-case basis. The amount of
collateral obtained, if it is deemed necessary
F-34
<PAGE> 98
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
by the Company upon extension of credit, is based on management's credit
evaluation of the counterparty. Collateral held varies but may include
accounts receivable, inventory, property, plant and equipment, and
income-producing commercial properties. At December 31, 1998, the Company
had approximately $133,333,000 of outstanding loan commitments consisting
of residential real estate, commercial real estate and commercial
business loans approved but unfunded.
During 1995, the Company securitized and sold approximately $62,147,000
of fixed rate multi-family commercial loans with recourse. The maximum
contractual recourse obligation of the Company is 10% of the total unpaid
principal balance of the mortgages on the settlement date. At December
31, 1998, the unpaid principal balance of loans sold totaled
approximately $18,543,000. The Company has pledged assets, consisting
primarily of mortgage-backed securities totaling approximately $6,458,000
under the recourse provision of the securitization transaction.
Management does not expect any material losses to be incurred as a result
of the recourse provision.
Standby letters of credit and financial guarantees written are
conditional commitments issued by the Company to guarantee the
performance of a customer to a third party. Those guarantees are
primarily issued to support public and private borrowing arrangements,
including commercial paper, bond financing and similar transactions. The
Company holds marketable securities as collateral supporting those
commitments for which collateral is deemed necessary.
The Company leases certain real estate and equipment under operating
leases. For the year ended December 31, 1998, the six months ended
December 31, 1997, and for the years ended June 30, 1997 and 1996, lease
expense totaled approximately $594,000, $387,000, $730,000, and $618,000,
respectively. Future obligations under operating leases at December 31,
1998, are summarized as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31,
<S> <C> <C>
1999 $ 528
2000 397
2001 371
2002 303
2003 and thereafter 188
-----------
$ 1,787
==========
</TABLE>
F-35
<PAGE> 99
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
(17) REGULATORY MATTERS
Local is subject to various regulatory capital requirements administered
by the federal banking agencies. Failure to meet minimum capital
requirements can initiate certain mandatory--and possible additional
discretionary--actions by regulators that, if undertaken, could have a
direct material effect on Local's consolidated financial statements.
Under capital adequacy guidelines and the regulatory framework for prompt
corrective action, Local must meet specific capital guidelines that
involve quantitative measures of Local's assets, liabilities, and certain
off-balance-sheet items as calculated under regulatory accounting
practices. Local's capital amounts and classification are also subject to
qualitative judgments by the regulators about components, risk
weightings, and other factors.
Quantitative measures established by regulation to ensure capital
adequacy require Local to maintain minimum amounts and ratios (set forth
in the following table) of total and Tier I capital (as defined in the
regulations) to risk-weighted assets (as defined), of core capital (as
defined) to adjusted tangible assets (as defined) and of tangible capital
(as defined) to tangible assets. Management believes, as of December 31,
1998 and 1997, that Local meets all capital adequacy requirements to
which it is subject.
As of December 31, 1998 and 1997, the most recent notifications from the
OTS categorized Local as well capitalized under the regulatory framework
for prompt corrective action. To be categorized as well capitalized Local
must maintain minimum total capital, core capital, and Tier I capital as
set forth in the table. There are no conditions or events since that
notification that management believes have changed Local's category.
<TABLE>
<CAPTION>
TO BE WELL CAPITALIZED
MINIMUM FOR CAPITAL FOR PROMPT CORRECTIVE
ACTUAL ADEQUACY PURPOSES ACTION PROVISIONS
--------------------- ------------------- ---------------------
AMOUNT RATIO AMOUNT RATIO AMOUNT RATIO
-------- -------- -------- -------- -------- --------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C> <C>
As of December 31, 1998:
Total capital (to risk weighted assets) $174,398 13.08% $106,669 8.00% $133,337 10.00%
Core capital (to adjusted tangible assets) 158,786 7.63% 62,448 3.00% 104,080 5.00%
Tangible capital (to tangible assets) 158,362 7.61% 31,218 1.50% N/A N/A
Tier I Capital (to risk weighted assets) 158,786 11.91% N/A N/A 80,002 6.00%
Total capital (to risk weighted assets) $134,331 14.14% $ 76,022 8.00% $ 95,027 10.00%
Core capital (to adjusted tangible assets) 128,803 6.98% 55,384 3.00% 92,307 5.00%
Tangible capital (to tangible assets) 127,024 6.89% 27,665 1.50% N/A N/A
Tier I Capital (to risk weighted assets) 128,803 13.55% N/A N/A 57,016 6.00%
</TABLE>
Management intends to continue compliance with all regulatory capital
requirements.
F-36
<PAGE> 100
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
Federal regulations allow Local to pay dividends during a calendar year
up to the amount that would reduce Local's surplus capital ratio, as
defined, to one-half of Local's surplus capital ratio at the beginning of
the calendar year, adjusted to reflect Local's net income to date during
the calendar year. At the beginning of calendar year 1999, under
applicable regulations of the OTS, the total capital available for the
payment of dividends by Local to the Company was $37.6 million.
(18) STOCK COMPENSATION
Effective with the securities offering and redemption in September 1997,
the board of directors adopted a stock option plan. The stock option plan
has 1,420,370 shares of common stock authorized and will provide for the
granting of incentive stock options intended to comply with the
requirements of Section 422 of the Internal Revenue Code as well as
non-incentive or compensatory stock options and stock appreciation
rights. On September 8, 1997, non-qualified stock options for 1,116,005
shares of common stock were granted to executive officers of the Company
at an exercise price of $10 per share. On December 31, 1997, incentive
stock options for 158,000 shares of common stock were granted to officers
and compensatory stock options for 60,000 shares of common stock were
granted to directors of the Company at an exercise price of $11.75 per
share. During the year ended December 31, 1998, all previously issued
options were rescinded and canceled in exchange for an equal number of
options at an exercise price of $10 per share and an additional 63,000
shares were issued at $10 per share during 1998. Stock options to buy
1,141,005 and 256,000 shares of common stock shall be exercisable in
three and five equal annual installments, respectively, commencing with
the end of the first twelve month period following the date the stock
options were granted. The stock options expire ten years from the
effective dates of the respective option agreements.
The per share weighted-average fair value of stock options granted for
the year ended December 31, 1998 and for the six months ended December
31, 1997, was $2.01 and $2.36, respectively, on the date of grant using
the Black-Scholes option-pricing model with the following assumptions:
risk-free interest rate of 4.54% and 5.29%, respectively, expected life
of 5 years for both periods, and no expected dividend yield or volatility
for both periods.
The Company applies APB Opinion No. 25 and related interpretations in
accounting for its stock option plan. Accordingly, no compensation cost
has been recognized for its stock option rights. Had the Company
determined compensation cost based on the fair value at the grant date
for its stock options under SFAS No. 123, "Accounting for Stock Based
Compensation," the Company's net income (loss) for the year ended
December 31, 1998 and for the six months ended December 31, 1997, would
have been decreased and increased, respectively, to the pro forma amounts
below.
F-37
<PAGE> 101
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C> <C>
Net income (loss) (in thousands) As reported $ 18,437 (85,956)
Pro forma 17,787 (86,148)
Basic net income (loss) per share As reported 0.90 (4.76)
Diluted net income (loss) per share As reported 0.89 (4.76)
Basic net income (loss) per share Pro forma 0.87 (4.77)
Diluted net income (loss) per share Pro forma 0.86 (4.77)
</TABLE>
Stock options of 1,397,005 and 1,334,005 were outstanding at December 31,
1998 and 1997 respectively, with an exercise price of $10 and contractual
life of outstanding options of 10 years. At December 31, 1998, 418,935
options were exercisable. No options were exercisable at December 31,
1997.
(19) EMPLOYEE BENEFITS
The Company has a retirement plan (the Plan), which is a noncontributory
defined benefit pension plan, covering substantially all of its full-time
employees. The benefits are based on years of service and the employees'
compensation during the last five years of employment. The Company's
policy, generally, is to fund pension costs unless the Plan is overfunded
and no contribution is required. Contributions are intended to provide
not only for benefits attributed to service to date but also for those
expected to be earned in the future. No contributions were made during
the year ended December 31, 1998, the six months ended December 31, 1997,
or the years ended June 30, 1997 or 1996, as the Plan is overfunded.
The following table sets forth the Plan's funded status and amounts
recognized in the Company's consolidated statements of financial
condition and operations for the periods indicated (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
1998 1997
---------- ----------
<S> <C> <C>
CHANGE IN BENEFIT OBLIGATION
Benefit obligation at beginning of period $ 9,126 8,930
Service cost 646 258
Interest cost 718 327
Recognized net gain from past experience different
from that assumed 2,139 (130)
Prior service cost (35) (17)
Transition asset (84) (42)
Benefits paid (369) (200)
---------- ----------
Benefit obligation at end of period 12,141 9,126
---------- ----------
</TABLE>
F-38
<PAGE> 102
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 31,
1998 1997
---------- ----------
<S> <C> <C>
CHANGE IN PLAN ASSETS
Fair value of plan assets at beginning of period $ 19,783 17,339
Actual return on plan assets 530 2,644
Benefits paid (369) (200)
---------- ----------
Fair value of plan assets at end of plan period 19,944 19,783
---------- ----------
Funded status 7,803 10,657
Unrecognized net gain from past experience different
from that assumed (5,663) (9,298)
Unrecognized prior service cost (478) (513)
Unrecognized transition asset being recognized over
15 years (127) (211)
---------- ----------
Prepaid benefit cost $ 1,535 635
========== ==========
</TABLE>
<TABLE>
<CAPTION>
YEAR
ENDED YEARS ENDED JUNE 30,
DECEMBER 31, --------------------------
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
COMPONENTS OF NET PERIODIC PENSION BENEFIT
Service cost $ 646 515 490
Interest cost 718 627 553
Expected return on plan assets (1,999) (3,820) (4,150)
Net amortization and deferral (265) 2,017 2,871
---------- ---------- ----------
Net periodic pension benefit $ (900) (661) (236)
========== ========== ==========
</TABLE>
The Company had a projected net periodic pension benefit for the actuarial year
ended June 30, 1998, based on the June 30, 1997, valuation; however, the Company
did not record any prepaid pension benefit for the six months ended December 31,
1997, due to the uncertainty of any changes made by new management.
A weighted average discount rate of 6.75% and 7.5% in 1998 and 1997,
respectively, and a rate of increase in future compensation levels of 5.5% was
used in determining the actuarial present value of the projected benefit
obligation for 1998 and 1997. The expected long-term rate of return on assets
was 11.0% for 1998 and 1997.
F-39
<PAGE> 103
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
The Company does not provide postretirement benefits other than pensions.
At June 30, 1998, the Company employed 629 full-time equivalent persons
compared to 481 at June 30, 1997.
As a result of the acquisition of Green Country (see note 3), the Company
adopted the Green Country Bank 401(k) plan with amendments effective
February 16, 1998. Eligible employees of the Company may elect to defer a
portion of their salary and contribute to the 401(k) plan to fund
retirement benefits. The Company currently does not participate with
matched or fixed contributions.
(20) FAIR VALUE OF FINANCIAL INSTRUMENTS
SFAS No. 107, "Disclosures about Fair Value of Financial Instruments,"
requires that the Company disclose estimated fair values for its
financial instruments. Fair value estimates, methods and assumptions set
forth below for the Company's financial instruments, are made solely to
comply with the requirements of SFAS No. 107.
Fair values are based on estimates or calculations at the transaction
level using present value techniques in instances where quoted market
prices are not available. Because broadly traded markets do not exist for
most of the Company's financial instruments, the fair value calculations
attempt to incorporate the effect of current market conditions at a
specific time. Fair valuations are management's estimates of the values,
and they are often calculated based on current pricing policy, the
economic and competitive environment, the characteristics of the
financial instruments, expected losses and other such factors. These
calculations are subjective in nature, involve uncertainties and matters
of significant judgment and do not include tax ramifications; therefore,
the results cannot be determined with precision, substantiated by
comparison to independent markets and may not be realized in an actual
sale or immediate settlement of the instruments. The Company has not
included certain material items in its disclosure, such as the value of
the long-term relationships with the Company's depositors, since this
intangible is not a financial instrument. There may be inherent
weaknesses in any calculation technique, and changes in the underlying
assumptions used, including discount rates and estimates of future cash
flows, could significantly affect the results. For all of these reasons,
the aggregation of the fair value calculations presented herein do not
represent, and should not be construed to represent, the underlying value
of the Company.
F-40
<PAGE> 104
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
The following table presents a summary of the Company's financial instruments,
as defined by SFAS No. 107 (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, 1998 DECEMBER 31, 1997
------------------------- -------------------------
CARRYING ESTIMATED CARRYING ESTIMATED
VALUE FAIR VALUE VALUE FAIR VALUE
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Financial Assets:
Cash and cash equivalents $ 54,880 54,880 54,152 54,152
Securities purchased under
agreements to resell -- -- 178,000 178,000
Securities available for sale 570,964 570,964 518,107 518,107
Loans receivable, net 1,362,272 1,379,964 953,470 972,820
FHLB stock 42,693 42,693 45,147 45,147
Financial Liabilities:
Deposits 1,668,074 1,676,485 1,602,533 1,608,540
Advances from the FHLB 220,033 220,178 80,136 80,173
Senior notes 80,000 85,397 80,000 80,000
</TABLE>
The following are descriptions of the methods used to determine the estimated
fair values:
(a) CASH AND CASH EQUIVALENTS AND SECURITIES PURCHASED UNDER
AGREEMENTS TO RESELL
The carrying amount is a reasonable estimate of fair value because
of the relatively short period of time between the origination of
the instrument and its expected realization.
(b) SECURITIES
The carrying value and estimated fair value of securities at
December 31, 1998 and 1997, is set forth in Note 5. The estimated
fair value of FHLB stock approximates the carrying value as of
December 31, 1998 and 1997.
(c) LOANS
The fair valuation calculation process differentiates loans based
on their financial characteristics, such as product
classification, loan category, pricing features and remaining
maturity. Prepayment estimates are evaluated by product and loan
rate. In establishing the credit risk component of the fair value
calculations for loans, the Company considered several approaches,
including the use of variable discount rates based on relative
credit quality, forecasting cash flows, net of projected losses
and secondary market pricing for certain third party loan sale
transactions. After evaluating such information, the Company
concluded that the allowance for
F-41
<PAGE> 105
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
loan losses represented a reasonable estimate of the credit risk
component of the fair value of loans at December 31, 1998 and
1997.
The fair value of commercial real estate loans, other real estate
mortgage loans, real estate construction loans, and commercial
business loans is calculated by discounting contractual cash flows
adjusted for prepayment estimates using discount rates that
reflect the Company's current pricing for loans with similar
characteristics and remaining maturity.
For real estate single family first and junior lien mortgages,
fair value is calculated by discounting contractual cash flows,
adjusted for prepayment estimates, using discount rates based on
the Company's current pricing for loans of similar size, type,
remaining maturity and repricing characteristics.
For other consumer loans, the fair value is calculated by
discounting the contractual cash flows, adjusted for prepayment
estimates, using discount rates based on the Company's current
pricing for loans of similar size, type, and remaining maturity.
(D) DEPOSIT LIABILITIES
SFAS No. 107 states that the fair value of deposits with no stated
maturity, such as noninterest-bearing demand deposits,
interest-bearing checking and savings deposits and market rate
savings, is equal to the amount payable on demand at the
measurement date. Although SFAS No. 107's requirements for these
categories are not consistent with the market practice of using
prevailing interest rates to value these amounts, the amount
included for these deposits in the previous table is their
carrying value at December 31, 1998 and 1997. The fair value of
certificates of deposit and other time deposits is calculated
based on the discounted value of contractual cash flows. The
discount rate is estimated using the rates currently offered for
similar duration deposits.
(E) ADVANCES FROM THE FEDERAL HOME LOAN BANK OF TOPEKA AND SENIOR
NOTES
The estimated fair value of FHLB advances is based on the
discounted value of contractual cash flows. The discount rate is
estimated using the current market rate for similar duration
borrowings. Commitments are related primarily to variable rate
loans originated at current market rates. The estimate of fair
value of these commitments is considered to be immaterial. The
estimate of value of senior notes is based on the discounted value
of contractual cash flows.
(F) LIMITATIONS
The information presented in this note is based on market quotes
and fair value calculations as of December 31, 1998 and 1997.
These amounts have not been updated since these dates; therefore,
the valuations may have changed since that point in time.
F-42
<PAGE> 106
(21) SUPPLEMENTAL QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
Following is a summary of the unaudited interim results of operations for
the year ended December 31, 1998 (in thousands, except per share data):
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH FULL
QUARTER QUARTER QUARTER QUARTER YEAR
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Interest and dividend income $ 35,491 35,025 36,386 40,302 147,204
Net interest and dividend income $ 11,848 12,441 14,035 16,442 54,766
Provision for loan losses $ 150 300 500 500 1,450
Income before income taxes $ 6,580 6,952 7,398 7,761 28,691
Net income $ 4,249 4,525 4,725 4,938 18,437
Net income per common share:
Basic $ 0.21 0.22 0.23 0.24 0.90
Diluted $ 0.21 0.22 0.23 0.24 0.89
</TABLE>
(22) PARENT COMPANY FINANCIAL INFORMATION
Condensed financial information for Local Financial Corporation is as follows
(in thousands):
Statements of Financial Condition
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1998 1997
------------ ------------
<S> <C> <C>
Assets:
Cash and due from banks, substantially restricted
at December 31, 1997 $ 2,019 11,840
Investment in subsidiary 187,464 143,917
Other assets 12,743 10,061
------------ ------------
Total assets $ 202,226 165,818
============ ============
Liabilities and Stockholders' Equity:
Senior notes $ 80,000 80,000
Other liabilities 3,420 3,193
------------ ------------
Total liabilities 83,420 83,193
------------ ------------
Common stock 205 197
Additional paid-in capital 206,758 197,766
Retained earnings 50,197 31,760
Treasury stock (149,436) (149,436)
Accumulated other comprehensive income 11,082 2,338
------------ ------------
Total stockholders' equity 118,806 82,625
------------ ------------
Total liabilities and stockholders' equity $ 202,226 165,818
============ ============
</TABLE>
F-43
<PAGE> 107
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 1997 and 1996
Statements of Operations
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, --------------------------
1998 1997 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Income:
Dividend income from subsidiary $ 2,000 -- 500 10,600
Equity in undistributed earnings (losses)
of subsidiary 23,067 (83,925) (29,886) 5,124
Other 192 -- 200 43
---------- ---------- ---------- ----------
Total income (loss) 25,259 (83,925) (29,186) 15,767
Expense:
Interest expense 9,470 3,073 1,026 1,606
Compensation and employee benefits -- -- -- 871
Other 922 52 145 828
---------- ---------- ---------- ----------
Total expense 10,392 3,125 1,171 3,305
Provision (benefit) for income taxes (3,570) (1,094) (312) (1,106)
---------- ---------- ---------- ----------
Net income (loss) $ 18,437 (85,956) (30,045) 13,568
========== ========== ========== ==========
</TABLE>
F-44
<PAGE> 108
LOCAL FINANCIAL CORPORATION AND SUBSIDIARY
Notes to Consolidated Financial Statements
December 31, 1998 and 1997, June 30, 1997 and 1996
Statements of Cash Flows
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED YEARS ENDED JUNE 30,
DECEMBER 31, DECEMBER 31, ----------------------
1998 1997 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Cash provided (absorbed) by operating activities:
Net income (loss) $ 18,437 (85,956) (30,045) 13,568
Adjustments to reconcile net income (loss) to
net cash provided (absorbed) by
operating activities:
Equity in undistributed losses
(earnings) of subsidiary (23,067) 83,925 29,886 (5,124)
Change in other liabilities 228 3,012 (558) 531
Change in other assets (2,682) (5,582) (398) (1,937)
-------- -------- -------- --------
Net cash provided (absorbed) by operating activities (7,084) (4,601) (1,115) 7,038
Cash provided (absorbed) by investing activities:
Investment in subsidiary (2,087) (83,839) -- --
Cash acquired in acquisition of Green Country 2,512 -- -- --
-------- -------- -------- --------
Net cash provided (absorbed) by investing activities 425 (83,839) -- --
Cash provided (absorbed) by financing activities:
Proceeds from issuance of common stock -- 181,067 -- --
Capital contribution -- -- 8,099 --
Purchase of treasury stock -- (149,436) -- --
Repayment of note payable -- (7,010) (7,010) (7,010)
Proceeds from issuance of senior notes -- 80,000 -- --
Payments of debt issuance costs -- (4,344) -- --
Payment of liability assumed from Green Country (3,162) -- -- --
-------- -------- -------- --------
Net cash provided (absorbed) by financing activities (3,162) 100,277 1,089 (7,010)
Net change in cash and cash equivalents (9,821) 11,837 (26) 28
Cash and cash equivalents at beginning of period 11,840 3 29 1
-------- -------- -------- --------
Cash and cash equivalents at end of period $ 2,019 11,840 3 29
======== ======== ======== ========
Supplemental schedule of noncash investing activity:
Tax benefit contributed to subsidiary $ -- -- 535 1,752
======== ======== ======== ========
</TABLE>
F-45
<PAGE> 109
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
3.1* Certificate of Incorporation of Local Financial Corporation
("Local Financial")
3.2* Certificate of Amendment or Certificate of Incorporation of Local
Financial
3.3* Bylaws of Local Financial
4.1* Purchase Agreement among Local Financial, Friedman Billings,
Ramsey & Co., Inc. ("FBR") and the Purchasers Named therein,
dated September 8, 1997
4.2* Registration Rights Agreement between Local Financial, FBR and
the Purchasers, named therein, dated September 8, 1997
4.3* Indenture between Local Financial and The Bank of New York
("BONY"), as Trustee, dated September 8, 1997
4.4* Form of Common Stock certificate of Local Financial
4.5* Form of Senior Note (included in Exhibit 4.3)
10.1* Redemption Agreement between Local Financial and Barron Collier
and Miles Collier (collectively, the "Selling Stockholders")
Dated August 25, 1997
10.2* Amendment to Redemption Agreement between Local Financial and the
Selling Stockholders, dated September 5, 1997
10.3* Security Agreement between Local Financial and BONY, as Trustee,
dated September 8, 1997
10.4* Escrow Agreement between Local Financial, the Selling
Stockholders and BONY, as Escrow Agent, dated September 8, 1997
10.5* Common Interest Agreement between Local America, Inc., Local
America Bank of Tulsa, F.S.B., Local Federal Bank, F.S.B. and the
Selling Stockholders, dated September 8, 1997
10.6* Warrant of Local Financial to FBR to purchase 591,000 shares of
Common Stock, dated September 8, 1997
10.7* Employment Agreement between Local Financial and Edward A.
Townsend, dated September 8, 1997**
10.8* Employment Agreement between Local Financial and Jan A. Norton,
dated September 8, 1997**
10.9* Local Financial Stock Option Plan**
10.10* Local Financial Stock Option Agreement between Local Financial
and Edward A. Townsend, dated September 8, 1997**
10.11 Local Financial Corporation 1998 Stock Option Plan**
10.12 Form of Severance Agreement, dated January 1, 1999**
10.13 First Amendment to Employment Agreement between Local Financial
and Edward A. Townsend dated November 6, 1998
10.14 First Amendment to Employment Agreement between Local Financial
and Jan A. Norton dated November 6, 1998
10.15 1998 Non-qualified Stock Option Agreement between Local Financial
and Edward A. Townsend dated September 23, 1998
10.16 1998 Non-qualified Stock Option Agreement between Local Financial
and Jan A. Norton dated September 23, 1998
16.0* Letter re: Change in certifying Accountant
21.0* Subsidiaries of the Registrant (see "Business--Subsidiaries" in
the Prospectus)
27.0 Financial Data Schedule
</TABLE>
- -------------------------
* These exhibits were filed with the Company's Registration Statement
Form S-1, Registration No. 333-43727 and are incorporated by reference
herein:
** Exhibits identified with a double asterisk (**) are management
contracts or are compensatory plans or arrangements.
<PAGE> 1
EXHIBIT 10.11
LOCAL FINANCIAL CORPORATION
1998 STOCK OPTION PLAN
1. PURPOSE
The purpose of this Local Financial Corporation 1998 Stock
Option Plan (the "Plan") is to provide a method whereby those key employees and
non-employee directors of Local Financial Corporation and its affiliates
(collectively, the "Company"), who are primarily responsible for the management
and growth of the Company's business and who are presently making and are
expected to make substantial contributions to the Company's future management
and growth, may be offered incentives in addition to those presently available,
and may be stimulated by increased personal involvement in the fortunes and
success of the Company to continue in its service, thereby advancing the
interests of the Company and its shareholders. The word "affiliate," as used in
the Plan, means any corporation in any unbroken chain of corporations beginning
or ending with the Company, if at the time of the granting of an option, each
corporation other than the last in that chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in the chain.
2. ADMINISTRATION
The following provisions shall govern the administration of
the Plan:
(a) BOARD OR COMMITTEE ADMINISTRATION. The Plan shall
be administered by the Board of Directors which may delegate its
administrative powers and authority under the Plan, in whole or in
part, to one or more duly appointed committees of the Board (including
a committee described in Subsection 2(b) below). The Board of Directors
may from time to time remove members from or add members to the
committee. Vacancies on the committee, however caused, shall be filled
by the Board of Directors. The Board of Directors may designate a
Chairman and Vice-Chairman of the committee from among the committee
members. Acts of the committee (i) approved at a meeting, held at a
time and place and in accordance with rules adopted by the committee,
at which a quorum of the committee is present and acting, or (ii)
otherwise reduced to and approved in writing by all members of the
committee, shall be the valid acts of the committee.
(b) SPECIAL RULE FOR OFFICERS AND DIRECTORS. The
grant of options to employees who are officers or directors of the
Company and to non-employee directors of the Company may be made by and
all discretion with respect to the material terms of the options may be
exercised by either (i) the Board of Directors, or (ii) a duly
appointed committee of the Board composed solely of two or more
non-employee directors having full authority to act in the matter. The
term "non-employee directors" shall have the meaning set forth in Rule
16b-3 as promulgated by the Securities and Exchange Commission ("SEC")
under section 16(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as that rule may be amended from time to time,
and as interpreted by the SEC ("Rule 16b-3").
<PAGE> 2
(c) DESIGNATION. The Board of Directors and any
committee(s) referred to in Subsection 2(a) or 2(b) is referred to
hereinafter as the "Committee," except where otherwise expressly
provided or where the context requires otherwise.
(d) COMMITTEE POWERS. The Committee shall effect the
grant of options under the Plan by execution of instruments in writing
in a form approved by the Committee. Subject to the express terms and
conditions of the Plan, the Committee shall have full power to construe
the Plan and the terms of any option granted under the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan
or options granted under the Plan and to make all other determinations
necessary or advisable for the Plan's administration, including,
without limitation, the power to:
(i) determine which persons meet the
requirements of Section 3 hereof for selection as participants
in the Plan;
(ii) determine to whom of the eligible
persons, if any, options shall be granted under the Plan;
(iii) establish the terms and conditions
required or permitted to be included in every option agreement
or any amendments thereto, including whether options to be
granted thereunder shall be "incentive stock options," as
defined in section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"), or non-qualified stock options not
described in sections 422(b) or 423(a) of the Code;
(iv) specify the number of shares to be
covered by each option;
(v) determine the fair market value of
shares of the Company's common stock for any purpose under the
Plan;
(vi) take appropriate action to amend any
option hereunder, provided that no such action may be taken
without the written consent of the affected optionee;
(vii) cancel outstanding options and issue
replacement options therefor with the consent of the affected
optionee; and
(viii) make all other determinations deemed
necessary or advisable for administering the Plan.
The Committee's determination on the foregoing matters shall be conclusive.
3. ELIGIBILITY
The persons who shall be eligible to receive the discretionary
grant of options under the Plan shall be those key employees, officers and
directors of the Company (including directors of the Company who are not also
employees of the Company) selected for participation by the Committee ("Eligible
2
<PAGE> 3
Persons"). Notwithstanding any other provision of the Plan, no Eligible Person
shall be granted options to purchase more than an aggregate of eight hundred
eleven thousand six hundred forty (811,640) shares of the Company's common stock
under the Plan, as adjusted pursuant to Section 9.
4. THE SHARES
The shares of stock subject to options authorized to be
granted under the Plan shall consist of one million four hundred twenty thousand
three hundred seventy (1,420,370) shares of the Company's $0.01 par value common
stock (the "Shares"), or the number and kind of shares of stock or other
securities which shall be substituted for the Shares or to which the Shares
shall be adjusted as provided in Section 9 hereof. Upon the expiration or
termination for any reason of an outstanding option under the Plan which has not
been exercised in full, all unissued Shares thereunder shall again become
available for the grant of options under the Plan. Shares which are (i)
delivered by an optionee in payment of the exercise price of an option, or (ii)
delivered by an optionee, or withheld by the Company from the Shares otherwise
due upon exercise of an option, in satisfaction of applicable withholding taxes,
shall again become available for the grant of options under the Plan.
5. INCENTIVE STOCK OPTION AGREEMENT TERMS AND CONDITIONS
Options granted to employees (but not to non-employee
directors) under the terms and conditions of this Section 5 are intended to be
incentive stock options (ISOs) under section 422 of the Code. Each incentive
stock option granted under the Plan shall be authorized by action of the
Committee and shall be evidenced by a written agreement in such form as the
Committee shall from time to time approve, which agreement shall comply with and
be subject to the following terms and conditions:
(a) EXERCISE PRICE. The exercise price of each
incentive stock option shall be equal to or greater than one hundred
percent (100%) of the fair market value of a Share of the Company on
the date the option is granted; provided, however, that the exercise
price of an incentive stock option granted to an individual who owns
stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company, as determined
under the stock ownership rules specified in Subsection 5(c), shall be
equal to or greater than one hundred ten percent (110%) of the fair
market value of a Share on the date the option is granted.
(b) DURATION OF OPTIONS. No incentive stock option
shall be exercisable after the expiration of ten (10) years from the
date on which that option is granted; provided, however, that no
incentive stock option granted to an individual who owns stock
possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company, as determined under the
stock ownership rules specified in Subsection 5(c), shall be
exercisable after the expiration of five (5) years from the date on
which that option is granted.
(c) DETERMINATION OF STOCK OWNERSHIP. For purposes of
determining in Subsections 5(a) and 5(b) whether an employee owns stock
possessing more than ten percent
3
<PAGE> 4
(10%) of the total combined voting power of all classes of stock of the
Company, an employee shall be considered as owning the stock owned,
directly or indirectly, by or for his or her brothers and sisters
(whether by the whole or half blood), spouse, ancestors, and lineal
descendants. Stock owned, directly or indirectly, by or for a
corporation, partnership, estate, or trust shall be considered as being
owned proportionately by or for its shareholders, partners, or
beneficiaries. Stock with respect to which the employee holds an option
shall not be counted for purposes of this determination.
(d) RIGHT TO EXERCISE. Each incentive stock option
shall become exercisable and vest according to the terms and conditions
established by the Committee and reflected in the written agreement
evidencing the option. Each incentive stock option shall be subject to
termination before its date exercised or its date of expiration as
provided in Subsection 5(e).
(e) TERMINATIONS OF OPTIONS. If an optionee ceases to
be an employee of the Company, his or her rights to exercise an
incentive stock option then held shall be only as follows:
DEATH: If an optionee dies while he or she is employed by the
Company, the optionee's estate shall have the right for a period of twelve (12)
months after the date of death to exercise the option to the extent the optionee
was entitled to exercise the option on that date, provided the date of exercise
is in no event after the expiration of the term of the option. To the extent the
option is not exercised within this period, the option will terminate. An
optionee's "estate" shall mean the optionee's legal representative or any person
who acquires the right to exercise an option by reason of the optionee's death.
DISABILITY: If an optionee's employment with the Company ends
because the optionee becomes disabled, the optionee or his or her qualified
representative (in the event of the optionee's mental disability) shall have the
right for a period of twelve (12) months after the date on which the optionee's
employment ends to exercise the option to the extent the optionee was entitled
to exercise the option on that date, provided the date of exercise is in no
event after the expiration of the term of the option. To the extent the option
is not exercised within this period, the option will terminate.
RESIGNATION: If an optionee voluntarily resigns from the
Company, the optionee shall have the right for a period of three (3) months
after the date of resignation to exercise the option to the extent the optionee
was entitled to exercise the option on that date, provided the date of exercise
is in no event after the expiration of the term of the option. To the extent the
option is not exercised within this period, the option will terminate.
TERMINATION FOR REASONS OTHER THAN CAUSE: If an optionee's
employment is terminated by the Company for reasons other than "Cause," the
optionee shall have the right for a period of three (3) months after the date of
termination to exercise the option to the extent the optionee was entitled to
exercise the option on that date, provided the date of exercise is in no event
after the expiration of the term of the option. To the extent the option is not
exercised within this period, the option will terminate. For the purpose of this
clause, "Cause" shall mean that:
4
<PAGE> 5
the optionee is determined solely by the Committee to have committed an act of
embezzlement, fraud, dishonesty, or breach of fiduciary duty to the Company, or
to have deliberately disregarded the rules of the Company which resulted in
loss, damage, or injury to the Company, or because the optionee has made any
unauthorized disclosure of any of the secrets or confidential information of the
Company, has induced any client or customer of the Company to break any contract
with the Company, has induced any principal for whom the Company acts as agent
to terminate the agency relationship, or has engaged in any conduct that
constitutes unfair competition with the Company. If an optionee's employment is
terminated by the Company for "Cause," as that term is defined above, then, and
in that event, all rights of the optionee in an incentive stock option granted
to optionee hereunder, to the extent that it has not been previously exercised,
shall terminate on the date the optionee's employment is so terminated for
"Cause."
OTHER REASONS: If an optionee's employment with the Company
ends for any reason not mentioned above in this Subsection 5(e), all rights of
the optionee in an incentive stock option, to the extent that it has not been
exercised, shall terminate on the date the optionee's employment ends.
(f) NOTICE OF SALE. If an optionee sells or otherwise
disposes of any Shares acquired upon exercise of an incentive stock
option, the optionee shall give the Company notice of the sale or
disposition within five (5) days thereafter.
(g) LIMIT ON EXERCISE OF INCENTIVE STOCK OPTIONS. To
the extent that the aggregate fair market value (determined as of the
time the option is granted) of the Stock with respect to which
incentive stock options are exercisable for the first time by any
individual during any calendar year (under all plans of the Company and
its parent and subsidiary corporations) exceeds One Hundred Thousand
Dollars ($100,000), the options shall be treated as options that are
not incentive stock options.
6. NON-QUALIFIED STOCK OPTION AGREEMENT TERMS AND CONDITIONS
The options granted under the terms and conditions of this
Section 6 are Non-qualified stock options and are not intended to qualify as
either a qualified stock option or an incentive stock option as those terms are
defined by applicable provisions of the Code. Each Non-qualified stock option
granted under the Plan shall be authorized by action of the Committee and shall
be evidenced by a written agreement in such form as the Committee shall from
time to time approve, which agreement shall comply with and be subject to the
following terms and conditions:
(a) EXERCISE PRICE. The exercise price of each
Non-qualified stock option shall be determined by the Committee at the
time of grant.
(b) DURATION OF OPTIONS. Each Non-qualified stock
option shall be for a term determined by the Committee; provided,
however, that the term of any option may not exceed ten (10) years.
5
<PAGE> 6
(c) RIGHT TO EXERCISE. Each Non-qualified stock
option shall become exercisable and vest according to the terms and
conditions established by the Committee and reflected in the written
agreement evidencing the option. As an additional condition to the
exercise of the Non-qualified stock options, the Plan must be approved
by the Company's shareholders prior to exercise. Each Non-qualified
stock option shall be subject to termination before its date of
expiration as provided in Subsection 6(d).
(d) TERMINATIONS OF OPTIONS. Unless otherwise
specified by the Committee in an option agreement, if an optionee
ceases to be an employee of the Company, his or her rights to exercise
a Non-qualified stock option then held shall be only as follows:
DEATH: If an optionee dies while he or she is employed by the
Company, the optionee's estate shall have the original term of the option (or
such longer period as the Committee may determine at the date of grant or during
the term of the option) after the date of death to exercise the option to the
extent the optionee was entitled to exercise the option on that date, provided
the date of exercise is in no event after the expiration of the term of the
option. To the extent the option is not exercised within this period, the option
will terminate. An optionee's "estate" shall mean the optionee's legal
representative or any person who acquires the right to exercise an option by
reason of the optionee's death.
DISABILITY: If an optionee's employment with the Company ends
because the optionee becomes disabled, the optionee or his or her qualified
representative (in the event of the optionee's mental disability) shall have the
original term of the option (or such longer period as the Committee may
determine at the date of grant or during the term of the option) after the date
on which the optionee's employment ends to exercise the option to the extent the
optionee was entitled to exercise the option on that date, provided the date of
exercise is in no event after the expiration of the term of the option. To the
extent the option is not exercised within this period, the option will
terminate.
RESIGNATION: If an optionee voluntarily resigns from the
Company, the optionee shall have the right for a period of twelve (12) months
(or such longer period as the Committee may determine at the date of grant or
during the term of the option) after the date of resignation to exercise the
option to the extent the optionee was entitled to exercise the option on that
date, provided the date of exercise is in no event after the expiration of the
term of the option. To the extent the option is not exercised within this
period, the option will terminate.
TERMINATION FOR REASONS OTHER THAN CAUSE: If an optionee's
employment is terminated by the Company for reasons other than "Cause," the
optionee shall have the right for a period of twelve (12) months (or such longer
period as the Committee may determine at the date of grant or during the term of
the option) after the date of termination to exercise the option to the extent
the optionee was entitled to exercise the option on that date, provided the date
of exercise is in no event after the expiration of the term of the option. To
the extent the option is not exercised within this period, the option will
terminate. For the purpose of this clause, "Cause" shall mean that: the optionee
is determined solely by the Committee to have committed an act of embezzlement,
fraud, dishonesty, or breach of fiduciary duty to the Company, or to have
deliberately disregarded the rules of the Company which resulted in loss,
damage, or injury to the Company, or
6
<PAGE> 7
because the optionee has made any unauthorized disclosure of any of the secrets
or confidential information of the Company, has induced any client or customer
of the Company to break any contract with the Company, has induced any principal
for whom the Company acts as agent to terminate the agency relationship, or has
engaged in any conduct that constitutes unfair competition with the Company. If
an optionee's employment is terminated by the Company for "Cause," as that term
is defined above, then, and in that event, all rights of the optionee in a
non-qualified stock option, to the extent that it has not been exercised, shall
terminate on the date the optionee's employment is so terminated for "Cause."
OTHER REASONS: If an optionee's employment with the Company
ends for any reason not mentioned above in this Subsection 6(d), all rights of
the optionee in a Non-qualified stock option, to the extent that it has not been
exercised, shall terminate on the date the optionee's employment ends (or such
longer period as the Committee may determine at the date of grant or during the
term of the said option).
(e) GROSS-UP BONUS. In conjunction with the granting
of Non-qualified stock options, the Committee, in its sole discretion,
may provide for a Gross-Up Bonus upon exercise, cancellation or cash
out of such stock options to gross up the optionee for applicable
taxes. The terms and conditions of the Gross-Up Bonus shall be set
forth in the written agreement.
7. GRANTS TO NON-EMPLOYEE DIRECTORS
All options granted to non-employee directors shall be subject
to the following terms and conditions:
(a) LIMITS. The aggregate amount of Shares (as
adjusted pursuant to Section 9) subject to options granted to all
non-employee directors as a group shall not exceed 5% of the Shares
plus Shares underlying expired or terminated options that are added
back to the number of Shares available under the Plan pursuant to
Section 4.
(b) NON-QUALIFIED OPTIONS. All stock options granted
to non-employee directors pursuant to the Plan shall be Non-qualified
stock options.
(c) EXERCISE PRICE. The exercise price of each option
granted to a non-employee director shall be determined by the Committee
at the time of grant.
(d) DURATION OF OPTIONS. Each option granted to a
non-employee director shall be for a term determined by the Committee;
provided, however, that the term of any option may not exceed ten (10)
years.
(e) RIGHT TO EXERCISE. Each option granted to a
non-employee director shall become exercisable and vest according to
the terms and conditions established by the Committee and reflected in
the written agreement evidencing the option. Each option granted to a
non-employee director shall be subject to termination before its date
of expiration as provided in Subsection 7(f).
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<PAGE> 8
(f) TERMINATIONS OF OPTIONS. If a non-employee
director ceases to be a director of the Company, his or her rights to
exercise an option then held shall be only as follows:
DEATH: If a non-employee director dies while he or she is
serving on the Board of the Company, the director's estate shall have the right
for a period of twelve (12) months (or such longer period as the Committee may
determine at the date of grant or during the term of the option) after the date
of death to exercise the option to the extent the director was entitled to
exercise the option on that date, provided the date of exercise is in no event
after the expiration of the term of the option. To the extent the option is not
exercised within this period, the option will terminate. A director's "estate"
shall mean the director's legal representative or any person who acquires the
right to exercise an option by reason of the director's death.
DISABILITY: If a non-employee director's Board membership ends
because the director becomes disabled, the director or his or her qualified
representative (in the event of the director's mental disability) shall have the
right for a period of twelve (12) months (or such longer period as the Committee
may determine at the date of grant or during the term of the option) after the
date on which the director's Board membership ends to exercise the option to the
extent the director was entitled to exercise the option on that date, provided
the date of exercise is in no event after the expiration of the term of the
option. To the extent the option is not exercised within this period, the option
will terminate.
RESIGNATION: If a non-employee director voluntarily resigns
from the Company's Board, the director shall have the right for a period of
twelve (12) months (or such longer period as the Committee may determine at the
date of grant or during the term of the option) after the date of resignation to
exercise the option to the extent the director was entitled to exercise the
option on that date, provided the date of exercise is in no event after the
expiration of the term of the option. To the extent the option is not exercised
within this period, the option will terminate.
TERMINATION FOR REASONS OTHER THAN CAUSE: If a non-employee
director's Board membership is terminated by the Company for reasons other than
"Cause," the director shall have the right for a period of twelve (12) months
(or such longer period as the Committee may determine at the date of grant or
during the term of the option) after the date of termination to exercise the
option to the extent the director was entitled to exercise the option on that
date, provided the date of exercise is in no event after the expiration of the
term of the option. To the extent the option is not exercised within this
period, the option will terminate. For the purpose of this clause, "Cause" shall
mean that: the director is determined by the Committee to have committed an act
of embezzlement, fraud, dishonesty, or breach of fiduciary duty to the Company,
or to have deliberately disregarded the rules of the Company which resulted in
loss, damage, or injury to the Company, or because the director has made any
unauthorized disclosure of any of the secrets or confidential information of the
Company, has induced any client or customer of the Company to break any contract
with the Company, has induced any principal for whom the Company acts as agent
to terminate the agency relationship, or has engaged in any conduct that
constitutes unfair competition with the Company.
8
<PAGE> 9
OTHER REASONS: If a non-employee director's Board membership
ends for any reason not mentioned above in this Subsection 7(f), all rights of
the director in an option, to the extent that it has not been exercised, shall
terminate on the date the director's Board membership ends.
8. ADDITIONAL TERMS AND CONDITIONS OF ALL OPTIONS
The following terms and conditions shall apply to all options
granted pursuant to the Plan:
(a) EXERCISE OF OPTIONS. To the extent the right to
purchase Shares has vested under an optionee's stock option agreement,
options may be exercised from time to time by delivering payment
therefor in cash, certified check, official bank check, or the
equivalent thereof acceptable to the Company, together with written
notice to the Company at the address specified in the written agreement
evidencing the option. The written notice must identify the option or
part thereof being exercised and specify the number of Shares for which
payment is being tendered. An optionee may also exercise an option by
the delivery and surrender of Shares which (i) have been owned by the
optionee for at least six (6) months or for such other period as the
Committee may require; and (ii) have an aggregate fair market value on
the date of surrender equal to the exercise price. In addition, an
option may be exercised by delivering to the Company (i) an exercise
notice instructing the Company to deliver the certificates for the
Shares purchased to a designated brokerage firm; and (ii) a copy of
irrevocable instructions delivered to the brokerage firm to sell the
Shares acquired upon exercise of the option and to deliver to the
Company from the sale proceeds sufficient cash to pay the exercise
price and applicable withholding taxes arising as a result of the
exercise.
The Company is vested with authority to assist any employee to
whom an option is granted under this Plan (including any director or officer of
the Company or any of its subsidiaries who is also an employee) in the payment
of the purchase price payable on the exercise of that option, by lending the
amount of such purchase price to such employee on such terms and at such rates
of interest and upon such security (or unsecured) as shall have been authorized
by or under authority of the Board.
The Company shall deliver to the optionee, without transfer or
issue tax to the optionee (or other person entitled to exercise the option), at
the principal office of the Company, or such other place as shall be mutually
acceptable, a certificate or certificates for the Shares acquired under the
option dated the date the option was validly exercised; provided, however, that
the time of delivery may be postponed by the Company for such period as may be
required for it with reasonable diligence to comply with any requirements of
law.
(b) TRANSFERABILITY OF OPTIONS AND SHARES. Each
option shall be transferable only by will or the laws of descent and
distribution and shall be exercisable during the optionee's lifetime
only by the optionee, or in the event of disability, the optionee's
qualified representative. Notwithstanding the foregoing, the Committee
may grant non-qualified stock options that are transferable by the
optionee to such optionee's children and
9
<PAGE> 10
immediate family members, whether directly or indirectly or by means of
a trust or partnership or otherwise. In addition, in order for Shares
acquired upon exercise of incentive stock options to receive the tax
treatment afforded such Shares, the Shares may not be disposed of
within two years from the date of the option grant nor within one year
after the date of transfer of such Shares to the optionee.
(c) WITHHOLDING. The Company shall have the right to
condition the issuance of Shares upon exercise of an option upon
payment by the optionee of any applicable taxes required to be withheld
under federal, state or local tax laws or regulations in connection
with the exercise. To the extent permitted in an optionee's stock
option agreement, an optionee may elect to pay such tax by (i)
requesting the Company to withhold a sufficient number of Shares from
the total number of Shares issuable upon exercise of the option or (ii)
delivering a sufficient number of Shares which have been held by the
optionee for at least six (6) months (or such other period as the
Committee may require) to the Company. This election is subject to
approval or disapproval by the Committee. The value of Shares withheld
or delivered shall be the fair market value of the Shares on the date
the exercise becomes taxable as determined by the Committee.
(d) FAIR MARKET VALUE OF SHARES. For any purposes
under the Plan, fair market value per Share shall mean, where there is
a public market for the Shares, the mean of the bid and asked prices
(or the closing price if listed on a stock exchange or the NASDAQ
National Market) of the Shares for the date of grant, as reported in
the Wall Street Journal (or, if not so reported, as otherwise reported
by the NASDAQ Stock Market or the National Quotation Bureau). If this
fair market value information is not available for the date of grant,
then such information for the last preceding date for which it is
available shall be considered as the fair market value.
(e) OTHER TERMS AND CONDITIONS. Options may also
contain such other provisions, which shall not be inconsistent with any
of the foregoing terms, as the Committee shall deem appropriate. No
option, however, nor anything contained in the Plan, shall confer upon
any optionee any right to continue in the employ or in the status as a
director of the Company, nor limit in any way the right of the Company
to terminate an optionee's employment at any time.
9. ADJUSTMENT OF, AND CHANGES IN, THE SHARES
(a) CHANGES IN CAPITALIZATION. Subject to any required action
by the shareholders of the Company, the number of Shares covered by
each outstanding option, and the number of Shares which have been
authorized for issuance under the Plan but as to which no options have
yet been granted, as well as the price per Share covered by each
outstanding option, shall be proportionately adjusted for any increase
or decrease in the number of issued Shares resulting from a stock
split, reverse stock split, stock dividend, recapitalization,
combination or reclassification of the Shares, or any other increase or
decrease in the number of issued Shares effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be
made by the Board of
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<PAGE> 11
Directors, whose determination in that respect shall be final, binding,
and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of Shares
subject to an option.
(b) DISSOLUTION, LIQUIDATION, SALE, OR MERGER. In the event of
a proposed dissolution or liquidation of the Company, options
outstanding under the Plan shall terminate immediately before the
consummation of such proposed action. The Board will, in such
circumstances, provide written notice to the optionees of the expected
dates of termination of outstanding options and consummation of the
proposed dissolution or liquidation.
In the event of a proposed Change of Control of the Company,
as that term is defined below in this Paragraph 9(b), outstanding
options may be assumed or equivalent options may be substituted by the
successor corporation (or a parent or subsidiary of the successor
corporation), unless the successor corporation does not agree to assume
the options or to substitute equivalent options. If outstanding options
are not to be assumed or substituted by equivalent options, all
outstanding options shall terminate immediately before the consummation
of the proposed Change of Control (subject to the actual consummation
of the sale or merger) and the Company shall provide written notice to
the optionees of the expected dates of termination of the options and
consummation of the transaction. If the unexercised options are to be
terminated pursuant to the foregoing sentence, all persons entitled to
exercise any unexercised options then outstanding shall have the right,
at such time prior to the consummation of the transaction causing such
termination as the Company shall designate, to exercise any and all
previously unexercised options, including those options that would not
otherwise be currently exercisable. If the transaction is not
consummated, unexercised options shall continue in accordance with the
original terms of this Plan.
Notwithstanding the foregoing, the Committee may provide in
the option grant that upon a proposed Change of Control, such option
shall become fully vested and the difference between the fair market
value of the underlying shares and the exercise price may be paid to
the optionee in cancellation of such options, at the discretion of such
optionee. Additionally, notwithstanding the foregoing, the Committee
may also provide that upon a proposed Change of Control, that such
option shall become fully vested and at optionee's election, in
optionee's sole and absolute discretion, the optionee can choose either
(i) to elect to receive the cash-out payment for his options in the
manner provided in the preceding sentence, or (ii) to continue to
retain his options as to the Shares of the Company's common stock
pursuant to the terms and conditions of his grant, if the Company
continues to have Shares of its common stock issued and outstanding
after the effective date of the Change of Control, or (iii) to require
the surviving, resulting or acquiring corporation, which has merged,
consolidated or acquired the Company, to assume and agree to fully
perform and pay all of Company's obligations to optionee under the
terms and conditions of optionee's option grant and to substitute for
the Company's Shares, which were otherwise the subject of such option
grant, a proportionate amount (based on the fair market value of the
Shares in relation to the fair market value of the shares of common
stock of the surviving, resulting or acquiring
11
<PAGE> 12
corporation on the effective date of the Change of Control) of the
shares of the surviving, resulting or acquiring corporation with such
option to be at the same exercise price and otherwise on the same terms
and conditions contained in the optionee's then existing option grant.
Company shall take all necessary steps to assure that any surviving,
resulting or acquiring corporation, as an express condition to, or
requirement of, its merger, consolidation or acquisition of Company,
expressly agree to assume and fully perform and pay all of the
obligations of Company under any non-qualified stock option grant
containing any of the immediately foregoing clauses (i) - (ii).
For all purposes under this Plan, the term "Change of Control"
shall mean the occurrence of one of the following events to the Company
or to the Bank, as that term is defined below:
(x) the consummation of any agreement of merger,
statutory share exchange or consolidation pursuant to which
either the Company, or its wholly-owned subsidiary bank, Local
Federal Bank, F.S.B., a federally chartered stock savings bank
with its principal offices in Oklahoma City, Oklahoma, or any
successor entity thereto, or assign (the "Bank"), is merged or
consolidated into, or all of the outstanding shares of the
Company's or the Bank's common stock are acquired by, another
corporation, partnership, limited liability company or limited
liability partnership, or any other business entity; or
(y) another corporation or such other business entity
is merged or consolidated into the Company or the Bank in
circumstances under which the outstanding shares of the
Company's or the Bank's common stock are converted into or
exchanged for cash or securities of another such corporation
or entity which was not a wholly-owned subsidiary of the
Company or the Bank at all times within one year prior to the
said merger or consolidation; or
(z) (1) the consummation of a sale of fifty percent
(50%) or more of the issued and outstanding common stock of
the Bank by the Company; or (2) fifty percent (50%) or more of
the issued and outstanding common stock of the Company is
acquired by ten or fewer persons (including corporations or
any other form of business entity) acting in concert; or (3)
the consummation of the sale of all or substantially all of
the assets of the Bank by the Company or of the Company by the
Bank.
(c) NOTICE OF ADJUSTMENTS, FRACTIONAL SHARES. To the
extent the foregoing adjustments relate to stock or securities of the
Company, such adjustments shall be made by the Committee, whose
determination in that respect shall be final, binding, and conclusive.
No right to purchase fractional shares shall result from any adjustment
in options pursuant to this Section 9. In case of any such adjustment,
the shares subject to the option shall be rounded down to the nearest
whole share. Notice of any adjustment shall be given by the Company to
each holder of an option which was in fact so adjusted and the
adjustment (whether or not notice is given) shall be effective and
binding for all purposes of the Plan.
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<PAGE> 13
No adjustment shall be made for dividends or other rights for which the
record date is prior to the date of such issuance, except as provided
in this Section 9.
Any issue by the Company of shares of stock of any class, or
securities convertible into shares of any class, shall not affect the
number or price of Shares subject to the option, and no adjustment by
reason thereof shall be made. The grant of an option pursuant to the
Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its
business or assets.
10. AMENDMENT AND TERMINATION OF THE PLAN
The Board shall have complete power and authority to terminate
or amend the Plan; provided, however, that the Board shall not, without the
approval of the shareholders of the Company, amend the Plan in a manner that
requires shareholder approval for continued compliance with section 422 of the
Code, any successor rules, or other regulatory authority. Except as provided in
Section 9, no termination, modification or amendment of the Plan may, without
the consent of optionees to whom options were previously granted under the Plan,
adversely effect the rights of those optionees. Any consent required by the
preceding sentence may be obtained in any manner deemed appropriate by the
Committee.
The Plan, unless sooner terminated, shall terminate on
September 23, 2008, ten (10) years from the date the Plan was originally adopted
by the Board. An option may not be granted under the Plan after the Plan is
terminated.
11. EFFECTIVENESS OF THE PLAN
The Plan will become effective upon being adopted by the
Company's Board of Directors.
12. INFORMATION TO OPTIONEES
The Company shall provide to each optionee during the period
for which he or she has one or more outstanding options, copies of all annual
reports and all other information which is provided to shareholders of the
Company. The Company shall not be required to provide such information to key
employees whose duties in connection with the Company assure their access to
equivalent information.
13. PRIVILEGES OF STOCK OWNERSHIP AND SECURITIES LAW COMPLIANCE
No optionee shall be entitled to the privileges of stock
ownership as to any Shares not actually issued and delivered to the optionee.
The exercise of any option under the Plan shall be conditioned upon the
registration of the Shares with the SEC and qualification of the options and
underlying Shares under the Delaware securities laws, unless in the opinion of
counsel to the
13
<PAGE> 14
Company registration or qualification is not necessary. The Company shall
diligently endeavor to comply with all applicable securities laws before any
options are granted under the Plan and before any Shares are issued pursuant to
the exercise of such options.
14. STOCK APPRECIATION RIGHTS
If a stock option agreement so provides, an option granted
under this Plan (herein sometimes referred to as the "Corresponding Option") may
include the right (a "Stock Appreciation Right") to receive an amount equal to
some or all of the excess of the fair market value (determined in a manner
specified in the instrument evidencing the Corresponding Option) of the shares
subject to unexercised portions of the Corresponding Option over the aggregate
exercise price for such shares under the Corresponding Option as of the date the
Stock Appreciation Right is exercised. The amount payable upon exercise of a
Stock Appreciation Right may be paid in cash or in shares of the class then
subject to the Corresponding Option (valued on the basis of their fair market
value, determined as specified with respect to the measurement of the amount
payable as aforesaid), or in a combination of cash and such shares so valued. No
Stock Appreciation Right may be exercised in whole or in part (a) other than in
connection with the contemporaneous surrender without exercise of such
Corresponding Option, or the portion thereof that corresponds to the portion of
the Stock Appreciation Right being exercised, or (b) except to the extent that
the Corresponding Option or such portion thereof is exercisable on the date of
exercise of the Stock Appreciation Right by the person exercising the Stock
Appreciation Right, or (c) unless the class of stock then subject to the
Corresponding Option is then publicly traded stock.
15. INDEMNIFICATION
To the extent permitted by applicable law in effect from time
to time, no member of the Board or the Committee shall be liable for any action
or omission of any other member of the Board or Committee nor for any act or
omission on the member's own part, excepting only the member's own willful
misconduct or gross negligence. The Company shall pay expenses incurred by, and
satisfy a judgment or fine rendered or levied against, a present or former
director or member of the Committee in any action against such person (whether
or not the Company is joined as a party defendant) to impose liability or a
penalty on such person for an act alleged to have been committed by such person
while a director or member of the Committee arising with respect to the Plan or
administration thereof or out of membership on the Committee or by the Company,
or all or any combination of the preceding; provided the director or Committee
member was acting in good faith, within what such director or Committee member
reasonably believed to have been within the scope of his or her employment or
authority and for a purpose which he or she reasonably believed to be in the
best interests of the Company or its shareholders. Payments authorized hereunder
include amounts paid and expenses incurred in settling any such action or
threatened action. This section does not apply to any action instituted or
maintained in the right of the Company by a shareholder or holder of a voting
trust certificate representing shares of the Company. The provisions of this
section shall apply to the estate, executor, administrator, heirs, legatees or
devisees of a director or Committee member, and the term "person" as used in
this section shall include the estate, executor, administrator, heirs, legatees
or devisees of such person.
Date Plan Approved by the Board: September 23, 1998
Date Plan Approved by Shareholders: _____________
14
<PAGE> 1
EXHIBIT 10.12
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Severance Agreement") is made and
entered into effective as of the _____ day of _____________, 199___ ("Effective
Date"), by and between LOCAL FEDERAL BANK, F.S.B., a federally chartered stock
savings bank ("Bank") with address of 3601 N.W. 63rd Street, Oklahoma City,
Oklahoma 73116, and ________________________, an individual resident of the
State of Oklahoma, with mailing address of _________________________________
_____________________________ ("Executive").
R E C I T A L S:
A. Bank is engaged in the banking business in the State of
Oklahoma, with principal offices in Oklahoma City, Oklahoma, and branch
locations at various sites throughout the State of Oklahoma. Local Financial
Corporation ("LFC") is a Delaware corporation which owns all of the issued and
outstanding stock of Bank with its principal place of business in Oklahoma City,
Oklahoma. LFC is a publicly-held company which has its stock listed on the
American Stock Exchange.
B. Executive has been hired to serve as __________________Vice
President of Bank. As a condition and term of his employment by Bank, it is
entering into and granting him the rights and benefits set forth in this
Severance Agreement.
C. Executive is willing to enter into this Severance Agreement
with Bank and to serve as _________ Vice President of the Bank in consideration
of the severance payment entitlements granted to him by Bank hereunder and
certain other additional and other valuable benefits, compensation and
inducements to be granted him by Bank as agreed to between them.
D. The Board of Directors of Bank has approved and authorized
Bank entering into this Severance Agreement with Executive.
E. Accordingly, Bank and Executive desire to enter into this
Severance Agreement to set forth the terms and conditions of the severance pay
entitlements being granted to Executive by Bank herein.
NOW, THEREFORE, in consideration of the aforementioned
Recitals, the premises, the mutual covenants set forth herein, and of such other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Bank and Executive, respectively, they do each hereby covenant
and agree with the other as follows:
1. DEFINITIONS. For all purposes in this Severance Agreement,
the following terms shall have the respective meanings specified below:
(a) "Annual Cash Compensation" means Executive's
annual base salary in effect as of the date of this Agreement,
or if greater, Executive's annual base salary in effect at the
time of the Change of Control, or at the time of the
termination of his employment without "Cause" by Bank, or by
Executive for Good Reason, during the
<PAGE> 2
term of this Severance Agreement as expressly provided in
Section 3, below, whichever amount is greater.
(b) "Bank" means (x) the Bank until a Change of
Control, and (y) the successor to the Bank upon a Change of
Control ("Bank's Successor").
(c) "Cause" with respect to the termination of
Executive's employment by the Bank shall mean termination of
Executive's employment by the Bank for cause because of
Executive's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform the stated duties of
his employment by the Bank, willful violation of any law, rule
or regulation (other than traffic violations or similar
offenses), or of a final cease-and-desist order, or for
purposes of any entitlement to the severance pay under this
Severance Agreement in the event of the death or permanent
disability of Executive occurring during the term of this
Severance Agreement. For purpose of this Severance Agreement,
the term "permanent disability" shall mean if Executive shall
have an illness, injury or other physical or mental condition
which results in Executive's inability to perform
substantially the duties he performs in his employment
capacity for the Bank to the extent he was performing such
duties immediately prior to the commencement of such condition
and that such disability has continued for a period of more
than one hundred twenty (120) days during the term of this
Severance Agreement. If Executive shall be so disabled for
more than one hundred twenty (120) days during the term of
this Severance Agreement, the employment of Executive by the
Bank shall be deemed by reason of his permanent disability to
have been for all purposes hereunder terminated for "Cause"
under the terms and provisions of this Severance Agreement. In
determining the incompetence of Executive for purposes of
application of this definition under this Section 1(c), the
acts or omissions of Executive shall be measured against
standards generally prevailing in the federal savings bank
industry.
(d) "Change of Control" shall for all purposes in
this Severance Agreement mean the occurrence of any of the
following events:
(i) the consummation of any agreement of
merger, statutory share exchange or consolidation
pursuant to which either LFC, or the Bank, is merged
or consolidated into, or all of the outstanding
shares of LFC's or the Bank's common stock are
acquired by, another corporation, partnership,
limited liability company or partnership, or any
other business entity; or
(ii) another corporation or such other
business entity is merged or consolidated into LFC or
the Bank in circumstances under which the outstanding
shares of LFC's or the Bank's common stock are
converted into or exchanged for cash or securities of
another such corporation or entity which was not a
wholly-owned subsidiary of LFC or the Bank at all
times within one year prior to the said merger or
consolidation; or
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<PAGE> 3
(iii) (x) the consummation of a sale of
fifty percent (50%) or more of the issued and
outstanding common stock of the Bank by LFC; or (y)
fifty percent (50%) or more of the issued and
outstanding common stock of LFC is acquired by
persons (including corporations or any other form of
business entity) who are acting in concert; or (z)
the consummation of the sale of all or substantially
all of the assets of the Bank by LFC.
(e) "Good Reason" with respect to Executive shall
have the following meaning for all purposes under this
Severance Agreement:
(i) A significant diminution of his Role, as
that term is defined below in this Section 1, if the
diminution in his Role is not reasonably related to
an adverse change in his performance of his assigned
duties at the Bank; provided that Good Reason shall
not exist under this clause in the case of
termination for "Cause," as that term is defined in
above in this Section 1, or diminution of his Role by
reason of the voluntary actions of Executive, or on
account of his disability, retirement or death, as
described and defined herein, or the voluntary
termination by Executive of his employment by Bank
other than for a Good Reason, as defined hereunder;
(ii) A reduction in the base salary and/or
bonuses paid to Executive to an amount such that the
sum of his base salary and bonuses as so reduced is
less than the sum of his base salary and bonuses as
of the Effective Date of this Severance Agreement, or
at any time while the Severance Agreement is in force
if Executive receives an increase in salary or bonus
after the date of this Severance Agreement, or a
failure after twenty (20) days' written notice by
Executive to Bank, or Bank's Successor, of Bank, or
Bank's Successor, to pay Executive any installment
owing to him of such salary or bonus;
(iii) The failure by Bank, or Bank's
Successor, to provide Executive with any material
benefit that is provided to the executive officers of
the Bank, or Bank's Successor, generally, or any
action or inaction by the Bank, or Bank's Successor,
which could adversely affect his continued
participation in any benefit plan, entitlements or
other arrangements of the Bank, or Bank's Successor,
or his ability to enjoy or realize upon any material
benefit under any such plan, entitlement or
arrangement;
(iv) The Bank's, or Bank's Successor,
assigning Executive, without his prior written
consent, to perform his duties for the Bank, or
Bank's Successor, at a location anywhere other than
__________ County, State of Oklahoma; or
(v) The failure by the Bank, or Bank's
Successor, to obtain the assumption of all of its
obligations under this Severance Agreement and under
the stock option agreement being made and entered
into by and
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between LFC and Executive this same date by Bank's
Successor, or to otherwise comply with the terms and
provisions of Section 9, below.
(f) "LFC" means (x) LFC until a Change of Control,
and (y) the successor to LFC upon a Change of Control (LFC's
"Successor").
(g) "Role" shall have the meaning for all purposes
under this Severance Agreement of (i) prior to any Change of
Control, as defined herein, Executive's authority or
responsibilities with the Bank on the date of this Severance
Agreement; or any enhanced Role (other than by way of an
interim or otherwise expressly temporary appointment) to which
he had ascended after the date of this Severance Agreement;
and (ii) after any Change of Control, the authority and
responsibilities with the Bank's Successor as described in
writing by the Bank's Successor prior to the Change of Control
and which is reasonably commensurate with Executive's Role, as
defined in clause g(i) above, in this definition.
(h) "Severance Period" shall for all purposes in this
Severance Agreement mean a period of years after Executive's
termination that is equal to the number by which Executive's
Annual Cash Compensation is multiplied to determine the
Severance Benefit payable to him under the provisions of this
Severance Agreement.
(i) "Successor" shall mean for all purposes in this
Severance Agreement any entity that assumes all of the
obligations of LFC and the Bank under this Severance Agreement
pursuant to Section 9, below.
2. TERM OF SEVERANCE AGREEMENT. Subject to the provisions on
termination of Executive's employment by the Bank contained in Section 5, below,
this Severance Agreement shall terminate and be of no further force and effect
and Executive shall not have any further rights or entitlements hereunder on one
of the following two dates, whichever is applicable:
(a) if a Change of Control occurs prior to the third
(3rd) anniversary of the Effective Date of this Agreement,
then, and in that event, this Severance Agreement shall
terminate and be of no further force and effect either (i) on
the date which is the second (2nd) anniversary of the
effective date of that Change of Control (i.e., the date upon
which it is consummated), including any date that might occur
after the third (3rd) anniversary of the Effective Date of
this Agreement, or (ii) on the third (3rd) anniversary of the
Effective Date of this Agreement, whichever date shall last
occur; or
(b) if no Change of Control of Bank occurs prior to
the third (3rd) anniversary of the Effective Date of the
Severance Agreement, (i.e., the Change of Control is not
consummated prior to that date), then, and in that event, this
Severance Agreement shall terminate for all purposes and be of
no further force and effect on the third (3rd) anniversary of
the Effective Date of this Agreement, unless it is renewed or
extended by the Bank, in writing, prior to that said date.
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3. SEVERANCE BENEFIT. If at any time during the term of this
Severance Agreement (as defined in Section 2, above), the Bank's, or the Bank's
Successor's, employment of Executive is terminated (i) by the Bank, or the
Bank's Successor, as the case may be, without "Cause," or (ii) by Executive for
"Good Reason," then, and in either such event, the Severance Period shall be one
(1) year and the Bank, or the Bank's Successor, as the case may be, shall be
expressly obligated to pay to Executive an amount equal to his Annual Cash
Compensation multiplied by one (1), payable in full within ten (10) days after
the date of such termination of Executive's employment.
The severance payments to be made to Executive pursuant to
this Section 3, above, shall be hereinafter referred to as the "Severance
Benefit." In addition to payment of the Severance Benefit, any stock options or
other stock or stock-based awards previously made to Executive shall immediately
vest and become exercisable, to the extent exercise is required, after any
termination of Executive's employment on the basis described above in this
Section 3 and any and all restrictions on Executive's ability to obtain the full
economic benefit of such vested stock awards shall immediately thereupon lapse.
Executive shall have no obligation to seek other employment or to otherwise
attempt to mitigate the effect of this Section 3 of this Severance Agreement or
the Severance Benefit payable hereunder in order to be entitled to receive that
Severance Benefit. Any payment received by Executive from other employment shall
not serve to reduce in any way the amount of the Severance Benefit payable to
him hereunder. Executive shall not be entitled to receive any Severance Benefit
under this Severance Agreement if his employment is terminated (x) by the Bank,
or the Bank's Successor, as the case may be, for "Cause," or (y) by Executive
without "Good Reason."
4. TERMINATION OF EXECUTIVE'S EMPLOYMENT BY THE BANK.
(a) The Bank may terminate Executive's employment by
the Bank, with or without cause, at any time during the term
hereof, effective upon delivery of written notice to that
effect to Executive, anything in this Severance Agreement to
the contrary notwithstanding, but any such termination by the
Bank of Executive's employment, other than termination of his
employment for "Cause," during the term of this Severance
Agreement, shall entitle Executive to receive the applicable
Severance Benefit to which he is entitled in such event under
the provisions of Section 3, above. Executive shall not have
any right to receive any Severance Benefits or any other
benefits to which he would have otherwise been entitled under
this Severance Agreement if he terminates his employment by
the Bank without Good Reason during the term hereof, or if his
employment is terminated by the Bank for "Cause." The Bank and
Executive agree that it would be difficult to ascertain the
amount of damages owing to Executive if his employment is
terminated without "Cause" by the Bank or if he terminates his
employment for Good Reason during the term of this Severance
Agreement and, accordingly, the amount to be paid by the Bank
to Executive as the Severance Benefit in such event shall be
deemed to be liquidated damages for such termination of his
employment and not a forfeiture or penalty. Executive agrees
that the damages resulting to him in the event of such
termination of his employment during the term of this
Severance Agreement would be difficult and impractical to
ascertain and that therefore the amount of liquidated
5
<PAGE> 6
damages comprising the Severance Benefit to be paid by the
Bank to him under this Severance Agreement in such event would
be a fair and reasonable amount of damages under such
circumstances. Accordingly, Executive agrees that his sole and
exclusive remedy, in the event of the termination of his
employment by the Bank without "Cause," or in the event he
terminates his employment for Good Reason, during the term of
this Severance Agreement, shall be strictly limited to his
right to receive such liquidated damages in the amount of the
Severance Benefit payable to him hereunder, and that he shall
not have, and he hereby expressly waives in such event, any
right to seek any other equitable or legal remedy or other
damages whether actual, special, consequential or punitive, by
reason of such termination of his employment.
(b) If Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs by a notice served under the provisions of Section
8(e)(3) or (g)(1) of the Federal Deposit Insurance Act [12
U.S.C. ss.1818(e)(3) and (g)(1)], Bank's obligations under
this Agreement shall be suspended as of the date of service of
said notice pursuant to the Act unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the
Bank may, in its discretion, (i) pay Executive all or part of
the compensation which was withheld by the Bank while their
obligations under this Agreement were suspended in accordance
herewith, and (ii) reinstate (in whole or in part) any of
their obligations which were so suspended.
(c) If Executive is removed and/or permanently
prohibited from participating in the conduct of Bank' affairs
by an order issued under Section 8(e)(4) or (g)(1) of the
Federal Deposit Insurance Act [12 U.S.C. ss.1818(e)(4) or
(g)(1)], all obligations of Bank under this Agreement shall
terminate as of the effective date of the order; provided,
however, the vested rights of the Bank and Executive under
this Agreement shall not be affected thereby.
(d) If the Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act), all obligations
under this Agreement shall terminate as of the date of such
default, but this Section 3(d) shall not affect any vested
rights of the Bank or Executive under this Agreement.
(e) All obligations under this Agreement shall be
terminated, except to the extent determined that the
continuation of this Agreement is necessary for the continued
operations of the Bank:
(i) by the Director of the Federal Deposit
Insurance Corporation, or his or her designee, at the
time the Federal Deposit Insurance Corporation enters
into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in
Section. 13(c) of the Federal Deposit Insurance Act;
or
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<PAGE> 7
(ii) by the Director of the Federal Deposit
Insurance Corporation, or his or her designee, at the
time the Director, or his or her designee approves a
supervisory merger to resolve problems related to
operation of the Bank, or when the Bank is determined
by the Director to be in an unsafe or unsound
condition.
Any rights of the Bank or Executive under the
Agreement that have already vested, however, shall not be affected by
such action.
5. NO ASSIGNMENT OR SUCCESSION; DEATH OF EXECUTIVE. This
Severance Agreement is personal to Executive. Executive shall not assign or
delegate any of his rights or obligations under this Severance Agreement without
first obtaining the prior written consent of the Bank. In the event of
Executive's death during the term of this Severance Agreement, all of the rights
and entitlements of Executive under this Severance Agreement shall immediately
cease to include, without limitation, any and all rights to receive any
Severance Benefit as set forth in Section 3 of this Severance Agreement, above.
In such event, this Severance Agreement shall be deemed to be terminated and of
no further force and effect as of the date of his death, unless his entitlement
hereunder has become completely vested in him pursuant to the terms of Section 3
of this Agreement, above, prior to the date of his death.
6. AMENDMENTS OR ADDITIONS: ACTION BY BANK'S BOARD OF
DIRECTORS. No amendments or additions to this Severance Agreement shall be
binding unless in writing and executed by both the Bank and by Executive.
Provided, however, this Severance Agreement may also be amended unilaterally by
the Bank to delete or amend any provision that becomes the subject of
supervisory concern on the part of the Office of Thrift Supervision, the FDIC,
or of any other regulatory agency having supervisory authority over the Bank,
provided that any such concern must be expressed by such regulatory agency in
writing to the Bank. Prior to making any amendment to this Severance Agreement
permitted by this sentence, the Bank shall provide Executive with a copy of the
written concerns of the involved regulatory authorities, and, to the extent the
regulatory authorities permit, Executive shall have an opportunity to meet with
appropriate representatives of the regulatory authority to discuss such required
amendments.
7. BINDING ARBITRATION. Unless the Bank and Executive
expressly agree otherwise in writing, all disputes relating to this Severance
Agreement, or any breach thereof or the meaning and effect of any term and
provisions hereof, shall be submitted to binding arbitration by the Bank and
Executive, pursuant to the provisions of the Oklahoma Uniform Arbitration Act,
15 O.S. ss.801, et seq. (the "Act"), and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "Rules"). In the
event a dispute arises which cannot be informally resolved by the parties
hereto, a panel of three (3) arbitrators shall be selected to settle the
dispute. Within twenty (20) days following the demand by either party for
arbitration of a dispute arising under this Severance Agreement, the Bank shall
appoint an arbitrator knowledgeable and experienced in federal savings banks and
Executive shall appoint an arbitrator knowledgeable and experienced in federal
savings banks. The two (2) arbitrators so appointed shall together appoint a
third arbitrator, also knowledgeable and experienced in federal savings banks,
within twenty (20) days following the appointment of the last arbitrator
selected by the Bank and by Executive. In the event that the two (2) arbitrators
selected by the Bank and by Executive are unable to mutually select
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<PAGE> 8
a third arbitrator within the twenty (20) day period, the third arbitrator shall
be selected by the then presiding judge of the Oklahoma County, Oklahoma
District Court. If the presiding judge of the Oklahoma County, Oklahoma District
Court is unable or unwilling to make such selection, the parties will request
that the Chief United States District Judge of the United States District Court
for the Western District of Oklahoma make such selection. The panel of three (3)
arbitrators shall then determine a time and a place for the hearing and shall
notify the parties in writing personally or by registered mail no less than
twenty (20) days before the hearing. The arbitrators will hear the dispute in
accordance with the Act and the Rules. Each party hereto shall be entitled to be
represented by counsel and each party shall be solely responsible for the fees
of their respective counsel. A majority of arbitrators shall render a final
award within twenty (20) days following the conclusion of the hearing which
shall be final and binding upon all parties hereto. The expenses and fees of the
third arbitrator mutually selected by the first two (2) arbitrators shall be
divided equally between the parties. Each party shall be solely responsible for
the expenses and fees of the arbitrator whom it selected. The arbitrators may
include, as part of any award, for the recovery of attorney's fees by the
prevailing party. All other expenses incurred in the conduct of the arbitration
shall be divided equally between the parties. Judgment upon the award rendered
by the arbitrators may be entered in any court having jurisdiction thereof.
8. LFC'S, BANK'S AND THE BANK'S SUCCESSOR'S OPTION UPON THE
OCCURRENCE OF A CHANGE OF CONTROL. If LFC or the Bank enters into a definitive
agreement that would result in a Change of Control, as defined herein, then LFC
and the Bank may elect (i) to assign this Severance Agreement to the Successor
effective on the occurrence of the Change of Control, provided that such
Successor shall assume in writing all of the obligations of the Bank hereunder
and shall expressly acknowledge that a Change of Control of LFC or the Bank has
occurred within the meaning of this Severance Agreement so as to entitle
Executive to the Severance Benefit set forth in Section 3 of this Severance
Agreement, above, if his employment is thereafter terminated by the Bank or the
Successor without "Cause," or he thereafter voluntarily terminates his
employment for Good Reason, and provided further that LFC and the Bank shall
remain liable for the performance of all of their obligations under this
Severance Agreement if the Successor fails to so perform any of its obligations
under this Severance Agreement; or (ii) to terminate this Severance Agreement
upon written notice to Executive given pursuant to the terms and conditions of
this Severance Agreement not later than thirty (30) days after the execution of
any such definitive agreement to effect such a Change of Control, to be
effective on the effective date of the Change of Control, and upon consummation
of the Change of Control, paying to Executive, in readily available funds, his
compensation and benefits to the date on which such termination shall take
effect on the effective date of such Change of Control plus the full amount of
the then applicable Severance Benefit as provided for in Section 3, above.
9. MISCELLANEOUS PROVISIONS.
(a) The Bank and Executive hereby jointly stipulate,
covenant and agree that this Severance Agreement is not
intended by them to be and does not in any sense constitute an
employment agreement between the Bank and Executive and that
Executive does not have any written agreement establishing his
employment relationship with the Bank nor shall the terms and
conditions of this Severance Agreement be so construed but
rather this Severance Agreement shall be deemed
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limited to the sole and restricted purpose of describing the
terms and conditions of Executive's severance pay entitlement
should he be terminated under the circumstances described in
Section 3, above, during the term hereof, subject to the terms
and provisions set forth above in this Severance Agreement.
(b) All payments to be made to Executive under this
Severance Agreement will be subject to required withholding of
federal, state and local income and employment taxes.
Notwithstanding anything in this Severance Agreement to the
contrary, if any of the payments provided for in this
Severance Agreement, together with any other payment which
Executive has the right to receive from the Bank, or any
corporation which is a member of an "affiliated group" (as
defined in Section 1504(a) of the Internal Revenue Code of
1986 ("Code") without regard to Section 1504(b) of the Code)
of which the Bank is a member, would constitute a "parachute
payment" (as defined in Section 280Gb(2) of the Code), the
payments pursuant to this Severance Agreement shall be reduced
to the largest amount that will result in no portion of such
payments being subject to the excise tax imposed by Section
4999 of the Code; provided, however, that the determination as
to whether any reduction in the payment under this Agreement
pursuant to this proviso is necessary shall be made by
Executive in good faith, and such reasonable determination
shall be conclusive and binding upon the Bank with respect to
its treatment of the payment for tax reporting purposes and,
provided further, that Executive may determine in his
discretion what payment or payment provided for him herein
shall be so reduced.
(c) This Severance Agreement shall be binding upon,
and shall inure to the benefit of the Bank and Executive and
their respective heirs, personal and legal representatives,
successors and permitted assigns.
(d) The Bank and Executive agree that the
construction and interpretation of this Severance Agreement
shall at all times and in all respects be governed by the laws
of the United States of America where applicable and otherwise
in all respects by the laws of the State of Oklahoma.
(e) All notices required or permitted herein must be
in writing and shall be deemed to have been duly given on the
date of service and served personally or by telecopier, telex,
or other similar communication to the party or parties to whom
notice is to be given, on the next day if notice is effected
by overnight mail service, or on the third business day after
mailing in the United States mail, if mailed, to the party or
parties to whom notice is to be given by registered or
certified mail, return receipt requested, postage prepaid, to
the address of such party, as set forth in the first paragraph
of this Severance Agreement, or to such other address as any
party to this Severance Agreement may designate to the other
from time-to-time for this purpose in a manner complying with
the provisions of this section. Any communication which is
mailed by overnight mail or sent by telecopier or telex shall
be confirmed immediately, but failure to so confirm shall not
affect the effectiveness of such notice from and after the day
on which such notice is actually received.
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<PAGE> 10
(f) Any provision of this Severance Agreement which
is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof and any prohibition
or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other
jurisdiction.
(g) This Severance Agreement contains the entire
agreement and understanding by and between the Bank and
Executive with respect to Executive's severance pay
entitlement as herein described, and supersedes all prior
agreements and understandings between the parties to this
Severance Agreement, relating to the subject matter of this
Severance Agreement. No waiver of any provision of this
Severance Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is
sought to be enforced. Moreover, no valid waiver of any
provision of this Severance Agreement, at any time, shall be
deemed to be a waiver of any other provision of this Severance
Agreement at such time, or will be deemed a valid waiver of
such provision at any other time.
(h) This Severance Agreement may be executed in two
(2) or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
(i) Time shall be of the essence with regard to the
performance by the parties hereto of their respective
obligations hereunder.
IN WITNESS WHEREOF, the Bank and Executive have duly executed
this Severance Agreement as of the day and year first above written to be
effective as of the date stated in the first paragraph above.
LOCAL FEDERAL: LOCAL FEDERAL BANK, F.S.B.,
a federally chartered stock savings bank
By:
---------------------------------------
Name: Jan A. Norton
--------------------------------------
Title: President
-------------------------------------
Date:
--------------------------------------
EXECUTIVE:
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
10
<PAGE> 1
EXHIBIT 10.13
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment"), is
made and entered into as of this _____ day of ________, 1998, to be effective as
of September 23, 1998 ("Effective Date"), by and between LOCAL FINANCIAL
CORPORATION, a Delaware corporation ("LFC"), its wholly-owned subsidiary bank,
LOCAL FEDERAL BANK, F.S.B., a federally chartered stock savings bank ("Bank"),
both with address of 3601 N. W. 63rd Street, Oklahoma City, Oklahoma 73116, and
EDWARD A. TOWNSEND, an individual resident of the State of Oklahoma, with
mailing address of 28910 South 593, Grove, Oklahoma 74344 ("Townsend").
R E C I T A L S:
A. LFC and Bank made and entered into that certain Employment
Agreement with Townsend dated September 8, 1997 ("Agreement") whereby LFC and
Bank employed Townsend to serve as the Chairman of the Board of Directors and
Chief Executive Officer of LFC and of the Bank, respectively, and to manage and
direct the conduct of their banking businesses pursuant to the terms and
conditions and for the compensation and benefits to be paid to Townsend as set
forth and fully described in the Agreement. Townsend has well and fully served
as the Chairman of the Board of Directors and Chief Executive Officer of LFC and
of the Bank since the date of the Agreement and continues to so serve as of the
effective date of this Amendment.
B. LFC, Bank and Townsend are desirous of amending the
Agreement to more specifically provide for the severance benefits which Townsend
might become entitled to receive in the event of a "Change of Control," as that
term is defined below in this Amendment, occurring to LFC or the Bank during the
term of the Agreement. The purpose and effect of this Amendment is to
specifically provide benefits and protection to Townsend in the event of the
occurrence of such a Change of Control and to supplement his existing rights and
benefits in that regard as currently set forth in the Agreement.
C. Accordingly, LFC, the Bank and Townsend are desirous of
entering into this Amendment in order to specifically provide for benefits and
protection to Townsend in the event of the occurrence of a Change of Control, as
defined herein, occurring to LFC or the Bank during the term of the Agreement
and to amend certain specific provisions of the Agreement in order to make them
consistent with the benefits and protection being accorded to Townsend by the
provisions of this Amendment.
NOW, THEREFORE, in consideration of the aforementioned
recitals, the premises, the mutual covenants set forth herein and of such other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by LFC, the Bank and Townsend, respectively, they do each hereby
covenant and agree as follows:
1. SECTION 3 - COMPENSATION. Section 3 - Compensation of the
Agreement is hereby completely amended and fully restated in its entirety to
read henceforth as follows:
<PAGE> 2
3. COMPENSATION.
(a) The Bank agrees to pay Townsend as a guaranteed salary
throughout the term of this Agreement, unless Townsend voluntarily
resigns without "Good Reason" as that term is defined in Section 10,
below, of this Agreement, as amended, from his employment by LFC and by
Bank during the term of this Agreement, or unless this Agreement is
terminated for "Cause" by LFC or the Bank, as set forth and described
in Section 9, below, in this Agreement, an annual base salary for the
services rendered to LFC and Bank by Townsend, as described above, in
the amount of Three Hundred Twenty Thousand and No/100 Dollars
($320,000.00) per year. This salary shall be payable to Townsend in
twelve (12) equal, monthly installments of Twenty-Six Thousand Six
Hundred Sixty-Six and 67/100 Dollars ($26,666.67) per month for each
month during which services are rendered by Townsend to LFC or the Bank
during the term of this Agreement. LFC and Bank covenant and agree that
the amount of salary to be paid to Townsend cannot be decreased by LFC
or Bank during the term of this Agreement for any reason and must be
paid to Townsend in all events each month during the term of this
Agreement unless Townsend voluntarily resigns from his employment by
LFC and the Bank without "Good Reason" during the term of this
Agreement, or unless Townsend is terminated for "Cause" by the Bank for
the specific reasons set forth and described below in Section 9 of this
Agreement. Accordingly, LFC and Bank agree that if during the term of
this Agreement, (i) Townsend resigns with "Good Reason," or (ii)
Townsend is terminated by LFC and the Bank without "Cause," as defined
below in Section 9 of this Agreement, he shall still be entitled to
receive as liquidated damages for the termination of his employment in
either such event, under this Agreement; the full amount of his
remaining guaranteed salary under this Agreement to be paid to him in
the amount of Twenty-Six Thousand Six Hundred Sixty-Six and 67/100
Dollars ($26,666.67) per month in the same manner as if he had remained
employed by LFC or the Bank during the entire term of this Agreement.
It is expressly provided, however, that the foregoing obligations shall
be supplemental to and cumulative of the specific severance benefit
entitlements being granted to Townsend under the provisions of
Paragraph 10 of this Agreement, below, which shall be deemed to be the
applicable benefits and entitlements of Townsend in the event a "Change
of Control," as that term is defined in Paragraph 10 of this Agreement,
below, occurs to LFC or the Bank during the term of this Agreement.
Townsend, LFC and the Bank hereby expressly covenant and agree,
anything in this Agreement to the contrary notwithstanding, including,
without limitation, the provisions of Sections 3 through 6 and Sections
9 and 10 of this Agreement, as amended, that any payments made to
Townsend by Bank pursuant to this Agreement, or otherwise, are in all
respects expressly subject to and conditioned upon their compliance
with the provisions of 12 U.S.C. ss. 1828(k) and any regulations
promulgated thereunder.
(b) Bank shall pay Townsend his annual base salary on a
monthly basis on the first day of each month, subject to normal salary
deductions for the amount so owing, including, but not limited to,
Social Security, Medicare, federal and state income withholding taxes.
Townsend's base annual salary may be increased in the future, from time
to time, by the actions of LFC's or the Bank's Board of Directors,
based upon Townsend's performance and other relevant factors and LFC's
or the Bank's Board of Directors will review Townsend's salary for the
purposes of determining any appropriate increase in the base annual
salary of
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Townsend at least annually. In addition, LFC or Bank may, from time to
time, enter into supplemental agreements or memoranda in writing with
Townsend for the award and payment to him of additional compensation or
bonuses upon such terms and conditions as LFC or Bank shall deem to be
in their respective best interests, and in the event of the execution
by LFC or Bank of any such agreement or memoranda, the right of
Townsend to additional compensation or bonuses shall be determined in
accordance with the applicable provisions thereof. In the absence of
any such supplemental agreements or memoranda and expressly subject to
Townsend's rights and benefits in the event of a "Change of Control"
occurring to LFC or the Bank, as set forth in Paragraph 10 of this
Agreement, below, neither LFC nor Bank shall be obligated to pay to
Townsend any additional compensation or bonus whatsoever, irrespective
of the payments of additional compensation or bonus to Townsend in any
past or succeeding year, or the payment of additional compensation or
bonus to other employees of LFC or the Bank at the end of the year, but
may do so in the sole discretion of LFC's or the Bank's Board of
Directors, respectively, and the determination of LFC's or the Bank's
Board of Directors, respectively, in the exercise of such discretion,
with respect to the payment and amount of any additional compensation
or bonus to Townsend for any fiscal year of LFC or Bank if made, shall
be final and conclusive.
2. SECTION 9(a) AND (f) - TERMINATION OF EMPLOYMENT. The
provisions of Section 9(a) and (f), respectively, of the Agreement are hereby
completely amended and fully restated as set forth below, with all of the other
existing subsections of Section 9 of the Agreement, i.e., subsections (b) - (e)
thereof, to remain in full force and effect as originally stated:
9. TERMINATION OF EMPLOYMENT.
(a) The Board of Directors of the Bank and/or the Board of
Directors of LFC, respectively, may terminate Townsend's employment by
the Bank and/or by LFC, respectively, under this Agreement, with or
without "Cause," at any time during the term hereof, effective upon
delivery of written notice to that effect to Townsend, but any such
termination by the Bank or LFC, as the case may be, of Townsend other
than termination of his employment for "Cause," as defined below in
this Section 9, shall not prejudice Townsend's right to receive the
full amount of the remaining compensation which would have otherwise
been paid him throughout the term of this Agreement on the same basis
and at the same times and to receive all such other fringe benefits to
which he would have otherwise been entitled to receive during the term
of this Agreement, subject to Townsend's cumulative and supplemental
rights to receive the severance benefits specifically accorded to him
pursuant to the provisions of Section 10, below, of this Agreement,
which shall arise in the event that a "Change of Control," as defined
in Section 10, occurs to LFC or the Bank during the term of this
Agreement, which said rights, benefits and entitlements as set forth in
Section 10 shall, in such event, be deemed to control over the benefits
and entitlements accorded to Townsend under this Section 9, to the
extent they are in any way inconsistent therewith. On the other hand,
Townsend shall not have any right to receive any further compensation
or any other benefits to which he would have otherwise been entitled
under this Agreement after his voluntary resignation from his
employment by the Bank or LFC, without "Good Reason," as that term is
defined below in Section 10 of this Agreement, or after his termination
from his employment for "Cause" by the Bank or LFC, in accordance
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<PAGE> 4
with the terms of this Agreement, except for the vested rights of
Townsend hereunder, i.e., any and all compensation benefits and rights
which Townsend was entitled to receive prior to the effective date of
such termination. For all purposes under this Agreement, termination
for "Cause" shall mean termination because of Townsend's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties
under this Agreement, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses) or of a final
cease-and-desist order, or any material breach by Townsend of any
provisions of this Agreement or the death or permanent disability, as
that term is defined below, of Townsend occurring during the term of
this Employment Agreement. For purposes of this Employment Agreement,
the term "permanent disability" shall mean if Townsend shall have an
illness, injury or other physical or mental condition which results in
Townsend's inability to perform substantially all of the duties he
performs in his employment capacity for the Bank or LFC to the extent
he was performing such duties immediately prior to the commencement of
such condition and that such disability has continued for a period of
more than six (6) months during the term of this Employment Agreement.
If Townsend shall be so disabled for more than six (6) months during
the term of this Employment Agreement, the employment of Townsend by
the Bank and LFC shall be deemed by reason of his said permanent
disability to have been for all purposes hereunder terminated for
"Cause." In determining the incompetence of Townsend, the acts or
omissions of Townsend shall be measured against standards generally
prevailing in the federal savings bank industry. Unless Townsend
voluntarily resigns from his employment by LFC and the Bank without
"Good Reason," as that term is defined in Section 10 below, during the
term of this Agreement, or unless the termination by the Bank or LFC of
Townsend's employment under this Agreement is for "Cause," as defined
above, LFC and the Bank shall be obligated to continue to pay to
Townsend his compensation and to provide to him all other benefits of
his employment as set forth in this Agreement during the remaining term
of this Agreement after the termination of his employment on the same
basis and at the same times as set forth and described above in this
Agreement, subject to Townsend's cumulative and supplemental right to
receive the specific severance benefits accorded him under the
provisions of Section 10, below, in this Agreement, in the event a
"Change of Control" occurs to LFC or the Bank, as defined in Section 10
below, which Section shall prevail over the rights and benefits
accorded to Townsend under this Section 9 to the extent they are
inconsistent therewith. LFC, the Bank and Townsend agree that it would
be difficult to ascertain the amount of damages owing to Townsend if
this Agreement is terminated without "Cause" or he resigns for "Good
Reason" during the term of this Agreement, and accordingly, that the
amount to be paid by LFC and Bank to Townsend as compensation and the
other benefits to be provided by LFC and Bank to Townsend during the
remaining term of this Agreement as if Townsend had remained employed
by LFC or the Bank in such instance, shall be deemed to be liquidated
damages for the termination of this Agreement by Bank or LFC without
"Cause," or for Townsend's resignation for "Good Reason," and not as a
forfeiture or penalty. Townsend, LFC and Bank specifically covenant and
agree that the amount of liquidated damages, as determined in the
manner set forth above in this Section 9, would be a fair and
reasonable amount of damages for Townsend to receive due to the
termination of his employment under such circumstances and that the
right to receive such compensation as liquidated damages shall be
Townsend's sole and only remedy in such event, except for and subject
to the prior and superior rights of Townsend to the
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<PAGE> 5
severance benefits set forth and described in Section 10, below, of
this Agreement, which shall be deemed to control and supersede the
rights of Townsend under this Section 9, in the event a "Change of
Control" occurs to LFC or the Bank, as defined and described in Section
10, below.
* * *
(f) If Townsend resigns voluntarily from his employment by the
Bank during the term of this Agreement without "Good Reason," as that
term is defined in Section 10, below, of this Agreement, then, and in
such event, all of the rights, benefits and entitlements of Townsend
under this Agreement, including without limitation, his right to
receive salary payments, shall cease on the date of such voluntary
resignation without "Good Reason," except for the rights of Townsend
which have vested prior to the date of his said voluntary resignation.
3. SECTION 10 - SEVERANCE BENEFITS IN THE EVENT OF A CHANGE OF
CONTROL. The following entirely new Section shall be added by this Amendment to
the Agreement, numbered 10 and entitled "Severance Benefits in the Event of a
Change of Control," and the subsequent paragraphs shall be renumbered
accordingly, i.e., the existing Section 10 shall become Section 11, and the
existing Sections 11, 12, 13 and 14 shall become Sections 12, 13, 14 and 15,
respectively. The new Section 10 - Severance Benefits in the Event of a Change
of Control, shall read henceforth in its entirety as follows:
10. SEVERANCE BENEFITS IN THE EVENT OF A CHANGE OF CONTROL.
(a) For all purposes in this Amendment and in the Agreement
and in, particular, this Section 10, the following terms shall have the
respective meanings specified below:
(i) "Annual Cash Compensation" means the sum of (a)
Townsend's annual base salary in effect as of the date of this
Agreement, or if greater, Townsend's base salary in effect at
the time of the Change of Control, and (b) the amount of any
cash bonuses paid to Townsend during the twelve-month period
immediately preceding the effective date of a Change of
Control.
(ii) "Bank" means (x) the Bank until a Change of
Control, and (y) the successor to the Bank upon a Change of
Control (the "Successor").
(iii) "Cause" shall have the same meaning ascribed to
that term in Section 9, above, in the Agreement.
(iv) "Change of Control" shall for all purposes in
this Agreement and Amendment mean the occurrence of any of the
following events:
(x) the consummation of any agreement of
merger, statutory share exchange or consolidation
pursuant to which either the Company, or the Bank, is
merged or consolidated into, or all of the
outstanding shares of the Company's or the Bank's
common stock are acquired by, another corporation,
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<PAGE> 6
partnership, limited liability company or
partnership, or any other business entity; or
(y) another corporation or such other
business entity is merged or consolidated into the
Company or the Bank in circumstances under which the
outstanding shares of the Company's or the Bank's
common stock are converted into or exchanged for cash
or securities of another such corporation or entity
which was not a wholly-owned subsidiary of the
Company or the Bank at all times within one year
prior to the said merger or consolidation; or
(z) (1) the consummation of a sale of fifty
percent (50%) or more of the issued and outstanding
common stock of the Bank by the Company; or (2) fifty
percent (50%) or more of the issued and outstanding
common stock of the Company is acquired by persons
(including corporations or any other form of business
entity) who are acting in concert; or (3) the
consummation of the sale of all or substantially all
of the assets of the Bank by the Company or of the
Company by the Bank.
(v) "Good Reason" with respect to Townsend shall have
the following meaning for all purposes under the Agreement and
this Amendment:
(v) A significant diminution of his Role, as
that term is defined below in this Section 10, if the
diminution in his Role is not reasonably related to
an adverse change in his performance of his assigned
duties at LFC or the Bank; provided that Good Reason
shall not exist under this clause in the case of
termination for Cause, as that term is defined in
Section 9, or diminution of his Role by reason of the
voluntary actions of Townsend, or on account of
disability, retirement or death, as described and
defined herein, or the voluntary termination by
Townsend of his employment with LFC or Bank other
than for a Good Reason, as defined hereunder;
(w) A reduction in the base salary and/or
bonuses paid to Townsend to an amount such that the
sum of his base salary and bonuses as so reduced is
less than the sum of his base salary and bonuses as
of the date of this Amendment, or at any time while
the Agreement is in force if Townsend receives an
increase in salary or bonus after the date of this
Amendment, or a failure after twenty (20) days'
written notice by Townsend to LFC and the Bank of LFC
or the Bank to pay Townsend any installment owing to
him of such salary or bonus;
(x) The failure by LFC or Bank to provide
Townsend with any material benefit that is provided
to the executive officers of LFC and the Bank
generally, or any action or inaction by LFC or the
Bank which could adversely affect his continued
participation in any benefit plan, entitlements
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<PAGE> 7
or other arrangements of Bank or LFC, or his ability
to enjoy or realize upon any material benefit under
any such plan, entitlement or arrangement;
(y) LFC's or the Bank's assigning Townsend,
without his prior written consent, to perform his
duties under the Agreement at a location anywhere
other than Oklahoma County, State of Oklahoma; or
(z) The failure by LFC or the Bank to obtain
the assumption of all of their obligations under this
Amendment and the Agreement and under the 1998
Non-Qualified Stock Option Agreement being made and
entered into by and between LFC and Townsend this
same date by the Successor, or to otherwise comply
with the terms and provisions of subparagraph (c) of
this Section 10, below.
(vi) "LFC" means (x) LFC until a Change of Control,
and (y) the successor to LFC upon a Change of Control (the
"Successor").
(vii) "Role" shall have the meaning for all purposes
under this Amendment and the Agreement of (x) prior to any
Change of Control, as defined herein, Townsend's authority or
responsibilities with the Bank or LFC on the date of this
Amendment; or any enhanced Role (other than by way of an
interim or otherwise expressly temporary appointment) to which
he had ascended from the date of this Amendment to the date of
any Change of Control; and (y) after any Change of Control,
the authority and responsibilities with the Successor
described in writing by such Successor prior to the Change of
Control and which is reasonably commensurate with Townsend's
Role, as defined in clause (x) above, in this definition.
(viii) "Severance Period" shall for all purposes in
this Amendment and the Agreement mean a period of years after
Townsend's termination that is equal to the number by which
Townsend's Annual Cash Compensation is multiplied to determine
the Severance Benefit payable under the provisions of the
Agreement.
(ix) "Successor" shall mean for all purposes in this
Amendment and the Agreement any entity that assumes the
obligations of LFC and the Bank under this Amendment and the
Agreement pursuant to subparagraph (c)(1), below.
(b) If at any time during the period beginning on the date of
this Amendment and ending on the third anniversary of a Change of
Control occurring to LFC or the Bank, as specifically defined and
described above in this Paragraph 10, the employment of Townsend is
terminated (x) by LFC or the Bank, or their respective Successor,
without "Cause" or (y) by Townsend for "Good Reason," as that term is
expressly defined above, then, in addition to all amounts otherwise
payable to Townsend upon his termination hereunder, LFC, the Bank
and/or the Successor shall be expressly obligated to pay to Townsend
the following:
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<PAGE> 8
(i) The Bank or the Successor shall pay to Townsend
and LFC, or the Successor, shall cause the Bank or the
Successor to pay to Townsend, an amount (the "Severance
Benefit") equal to the sum of his Annual Cash Compensation,
multiplied by three (3), payable in equal quarterly
installments from the date of said termination until the date
which is three (3) years from the date of said termination,
with the first installment thereof being due and payable
within five (5) days after the date of such termination of
Townsend's employment. Townsend shall have no obligation to
seek other employment or to otherwise attempt to mitigate the
effect of this Section 10 of this Agreement or the benefits
payable hereunder in order to be entitled to receive the
Severance Benefit or the other benefits hereunder, and any
payment received by Townsend from other employment shall not
serve to reduce in any way the amount of the Severance Benefit
payable to him hereunder.
(ii) During the Severance Period, Townsend shall be
entitled to all benefits under the group hospitalization plan,
healthcare plan, dental plan, life or other insurance or death
benefit plan, or any similar benefit plan or program of LFC
and the Bank or the Successor for which key executives of LFC,
the Bank or the Successor are eligible, to the same extent as
if Townsend had continued to be an employee of LFC or the Bank
at a compensation level equal to his Annual Cash Compensation,
and Townsend's share of the costs shall be the same as that
cost, if any, for which Townsend was responsible while an
employee of LFC and the Bank. If any such plan or program does
not permit continued participation by Townsend, or does not
permit continued participation by Townsend through the end of
the Severance Period, LFC, the Bank or the Successor shall
arrange to provide Townsend with substantially similar
benefits through the end of the Severance Period, with
Townsend responsible solely for that share of the costs with
regard to such benefits which he was formerly paying as
outlined above. At Townsend's sole and exclusive option,
Townsend may elect to be paid in cash an amount equivalent to
LFC's, the Bank's or the Successor's costs of providing such
benefits during the Severance Period, such election to be made
within thirty (30) days after Townsend's said termination of
employment, with such payment to be made to him within ten
(10) days after his delivery of such election to LFC, the Bank
or the Successor hereunder.
(iii) Any stock options, restricted stock or other
stock or stock-based awards to Townsend shall immediately vest
and become exercisable to the extent exercise is required and
all restrictions on the ability of Townsend to obtain the full
economic benefit of such vested awards shall immediately
lapse.
(c) LFC'S, BANK'S AND THE SUCCESSOR'S OPTION UPON THE
OCCURRENCE OF A CHANGE OF Control. If LFC or the Bank enters into a
definitive agreement that would result in a Change of Control, as
defined herein, then LFC and the Bank may elect (i) to assign this
Agreement, as amended, to the Successor effective on the occurrence of
the Change of Control, provided that such Successor shall assume in
writing all of the obligations of LFC and the Bank hereunder and under
that certain 1998 Non-Qualified Stock Option Agreement by and between
LFC and Townsend of even date herewith and shall expressly acknowledge
that a Change of Control of LFC or the Bank has occurred within the
meaning of this
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<PAGE> 9
Agreement so as to entitle Townsend to the Severance Benefit and other
benefits set forth in Section 10(b) of this Agreement, above, if his
employment is thereafter terminated without Cause or he thereafter
voluntarily terminates his employment for Good Reason and provided
further that LFC and the Bank shall remain liable for the performance
of all of their obligations under this Agreement if the Successor fails
to so perform any of its obligations under this Agreement; or (ii) to
terminate this Agreement upon written notice to Townsend given pursuant
to the terms and conditions of this Amendment and the Agreement not
later than thirty (30) days after the execution of any such definitive
agreement to effect such a Change of Control, to be effective on the
effective date of the Change of Control, and upon occurrence of the
Change of Control, paying to Townsend, in readily available funds, his
compensation and benefits to the date on which such termination shall
take effect on the effective date of the Change of Control and the full
amount of the Severance Benefit as provided for in this Section 10, and
such other benefits as are also provided to Townsend as the result of a
Change of Control, as set forth and provided in Section 10, above.
(d) TAXES. All payments to be made to Townsend under this
Employment Agreement will be subject to required withholding of
federal, state and local income and employment taxes. Notwithstanding
anything in this Employment Agreement to the contrary, if any of the
payments provided for in this Employment Agreement, together with any
other payment which Townsend has the right to receive from the Bank, or
any corporation which is a member of an "affiliated group" (as defined
in Section 1504(a) of the Internal Revenue Code of 1986 ("Code")
without regard to Section 1504(b) of the Code) of which the Bank is a
member, would constitute a "parachute payment" (as defined in Section
280Gb(2) of the Code), the payments pursuant to this Employment
Agreement shall be reduced to the largest amount that will result in no
portion of such payments being subject to the excise tax imposed by
Section 4999 of the Code; provided, however, that the determination as
to whether any reduction in the payment under this Agreement pursuant
to this proviso is necessary shall be made by Townsend in good faith,
and such reasonable determination shall be conclusive and binding upon
the Bank with respect to its treatment of the payment for tax reporting
purposes and, provided further, that Townsend may determine in his
discretion what payment or payment provided for him herein shall be so
reduced.
4. NO FURTHER CHANGES. Except as expressly stated above, there
are no further amendments or modifications of any sort or nature being made to
the Agreement and all of its other respective terms and conditions shall remain
in full force and effect as originally stated.
IN WITNESS WHEREOF, LFC, the Bank and Townsend have duly
executed this Amendment as of the day and year first above written to be
effective as of the date stated in the first paragraph above.
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<PAGE> 10
LFC: LOCAL FINANCIAL CORPORATION,
a Delaware corporation
By:
--------------------------------------------
Name: Jan A. Norton
-------------------------------------------
Title: President
------------------------------------------
Date:
-------------------------------------------
BANK: LOCAL FEDERAL BANK, F.S.B.,
a federally chartered stock savings bank
By:
---------------------------------------------
Name: Jan A. Norton
-------------------------------------------
Title: President
------------------------------------------
Date:
-------------------------------------------
TOWNSEND:
------------------------------------------------
EDWARD A. TOWNSEND
an Individual Resident of the State of Oklahoma
Date:
-------------------------------------------
<PAGE> 1
EXHIBIT 10.14
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment"), is
made and entered into as of this 6th day of November, 1998, to be effective as
of September 23, 1998 ("Effective Date"), by and between LOCAL FINANCIAL
CORPORATION, a Delaware corporation ("LFC"), its wholly-owned subsidiary bank,
LOCAL FEDERAL BANK, F.S.B., a federally chartered stock savings bank ("Bank"),
both with address of 3601 N. W. 63rd Street, Oklahoma City, Oklahoma 73116, and
JAN A. NORTON, an individual resident of the State of Oklahoma, with mailing
address of 2001 Birnam Wood Drive, Miami, Oklahoma 74354 ("Norton").
R E C I T A L S:
A. LFC and Bank made and entered into that certain Employment
Agreement with Norton dated September 8, 1997 ("Agreement") whereby LFC and Bank
employed Norton to serve as the President LFC and of the Bank, respectively, and
to manage and direct the conduct of their banking businesses pursuant to the
terms and conditions and for the compensation and benefits to be paid to Norton
as set forth and fully described in the Agreement. Norton has well and fully
served as the President of LFC and of the Bank since the date of the Agreement
and continues to so serve as of the effective date of this Amendment.
B. LFC, Bank and Norton are desirous of amending the Agreement
to more specifically provide for the severance benefits which Norton might
become entitled to receive in the event of a "Change of Control," as that term
is defined below in this Amendment, occurring to LFC or the Bank during the term
of the Agreement. The purpose and effect of this Amendment is to specifically
provide benefits and protection to Norton in the event of the occurrence of such
a Change of Control and to supplement his existing rights and benefits in that
regard as currently set forth in the Agreement.
C. Accordingly, LFC, the Bank and Norton are desirous of
entering into this Amendment in order to specifically provide for benefits and
protection to Norton in the event of the occurrence of a Change of Control, as
defined herein, occurring to LFC or the Bank during the term of the Agreement
and to amend certain specific provisions of the Agreement in order to make them
consistent with the benefits and protection being accorded to Norton by the
provisions of this Amendment.
NOW, THEREFORE, in consideration of the aforementioned
recitals, the premises, the mutual covenants set forth herein and of such other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by LFC, the Bank and Norton, respectively, they do each hereby
covenant and agree as follows:
1. SECTION 3 - COMPENSATION. Section 3 - Compensation of the
Agreement is hereby completely amended and fully restated in its entirety to
read henceforth as follows:
<PAGE> 2
3. COMPENSATION.
(a) The Bank agrees to pay Norton as a guaranteed salary
throughout the term of this Agreement, unless Norton voluntarily
resigns without "Good Reason" as that term is defined in Section 10,
below, of this Agreement, as amended, from his employment by LFC and by
Bank during the term of this Agreement, or unless this Agreement is
terminated for "Cause" by LFC or the Bank, as set forth and described
in Section 9, below, in this Agreement, an annual base salary for the
services rendered to LFC and Bank by Norton, as described above, in the
amount of Two Hundred Forty Thousand and No/100 Dollars ($240,000.00)
per year. This salary shall be payable to Norton in twelve (12) equal,
monthly installments of Twenty Thousand and No/100 Dollars ($20,000.00)
per month for each month during which services are rendered by Norton
to LFC or the Bank during the term of this Agreement. LFC and Bank
covenant and agree that the amount of salary to be paid to Norton
cannot be decreased by LFC or Bank during the term of this Agreement
for any reason and must be paid to Norton in all events each month
during the term of this Agreement unless Norton voluntarily resigns
from his employment by LFC and the Bank without "Good Reason" during
the term of this Agreement, or unless Norton is terminated for "Cause"
by the Bank for the specific reasons set forth and described below in
Section 9 of this Agreement. Accordingly, LFC and Bank agree that if
during the term of this Agreement, (i) Norton resigns with "Good
Reason," or (ii) Norton is terminated by LFC and the Bank without
"Cause," as defined below in Section 9 of this Agreement, he shall
still be entitled to receive as liquidated damages for the termination
of his employment in either such event, under this Agreement; the full
amount of his remaining guaranteed salary under this Agreement to be
paid to him in the amount of Twenty Thousand and No/100 Dollars
($20,000.00) per month in the same manner as if he had remained
employed by LFC or the Bank during the entire term of this Agreement.
It is expressly provided, however, that the foregoing obligations shall
be supplemental to and cumulative of the specific severance benefit
entitlements being granted to Norton under the provisions of Paragraph
10 of this Agreement, below, which shall be deemed to be the applicable
benefits and entitlements of Norton in the event a "Change of Control,"
as that term is defined in Paragraph 10 of this Agreement, below,
occurs to LFC or the Bank during the term of this Agreement. Norton,
LFC and the Bank hereby expressly covenant and agree, anything in this
Agreement to the contrary notwithstanding, including, without
limitation, the provisions of Sections 3 through 6 and Sections 9 and
10 of this Agreement, as amended, that any payments made to Norton by
Bank pursuant to this Agreement, or otherwise, are in all respects
expressly subject to and conditioned upon their compliance with the
provisions of 12 U.S.C. ss. 1828(k) and any regulations promulgated
thereunder.
(b) Bank shall pay Norton his annual base salary on a monthly
basis on the first day of each month, subject to normal salary
deductions for the amount so owing, including, but not limited to,
Social Security, Medicare, federal and state income withholding taxes.
Norton's base annual salary may be increased in the future, from time
to time, by the actions of LFC's or the Bank's Board of Directors,
based upon Norton's performance and other relevant factors and LFC's or
the Bank's Board of Directors will review Norton's salary for the
purposes of determining any appropriate increase in the base annual
salary of Norton at least annually. In addition, LFC or Bank may, from
time to time, enter into supplemental
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<PAGE> 3
agreements or memoranda in writing with Norton for the award and
payment to him of additional compensation or bonuses upon such terms
and conditions as LFC or Bank shall deem to be in their respective best
interests, and in the event of the execution by LFC or Bank of any such
agreement or memoranda, the right of Norton to additional compensation
or bonuses shall be determined in accordance with the applicable
provisions thereof. In the absence of any such supplemental agreements
or memoranda and expressly subject to Norton's rights and benefits in
the event of a "Change of Control" occurring to LFC or the Bank, as set
forth in Paragraph 10 of this Agreement, below, neither LFC nor Bank
shall be obligated to pay to Norton any additional compensation or
bonus whatsoever, irrespective of the payments of additional
compensation or bonus to Norton in any past or succeeding year, or the
payment of additional compensation or bonus to other employees of LFC
or the Bank at the end of the year, but may do so in the sole
discretion of LFC's or the Bank's Board of Directors, respectively, and
the determination of LFC's or the Bank's Board of Directors,
respectively, in the exercise of such discretion, with respect to the
payment and amount of any additional compensation or bonus to Norton
for any fiscal year of LFC or Bank if made, shall be final and
conclusive.
2. SECTION 9(a) AND (f) - TERMINATION OF EMPLOYMENT. The
provisions of Section 9(a) and (f), respectively, of the Agreement are hereby
completely amended and fully restated as set forth below, with all of the other
existing subsections of Section 9 of the Agreement, i.e., subsections (b) - (e)
thereof, to remain in full force and effect as originally stated:
9. TERMINATION OF EMPLOYMENT.
(a) The Board of Directors of the Bank and/or the Board of
Directors of LFC, respectively, may terminate Norton's employment by
the Bank and/or by LFC, respectively, under this Agreement, with or
without "Cause," at any time during the term hereof, effective upon
delivery of written notice to that effect to Norton, but any such
termination by the Bank or LFC, as the case may be, of Norton other
than termination of his employment for "Cause," as defined below in
this Section 9, shall not prejudice Norton's right to receive the full
amount of the remaining compensation which would have otherwise been
paid him throughout the term of this Agreement on the same basis and at
the same times and to receive all such other fringe benefits to which
he would have otherwise been entitled to receive during the term of
this Agreement, subject to Norton's cumulative and supplemental rights
to receive the severance benefits specifically accorded to him pursuant
to the provisions of Section 10, below, of this Agreement, which shall
arise in the event that a "Change of Control," as defined in Section
10, occurs to LFC or the Bank during the term of this Agreement, which
said rights, benefits and entitlements as set forth in Section 10
shall, in such event, be deemed to control over the benefits and
entitlements accorded to Norton under this Section 9, to the extent
they are in any way inconsistent therewith. On the other hand, Norton
shall not have any right to receive any further compensation or any
other benefits to which he would have otherwise been entitled under
this Agreement after his voluntary resignation from his employment by
the Bank or LFC, without "Good Reason," as that term is defined below
in Section 10 of this Agreement, or after his termination from his
employment for "Cause" by the Bank or LFC, in accordance with the terms
of this Agreement, except for the vested rights of Norton hereunder,
i.e., any and all compensation
3
<PAGE> 4
benefits and rights which Norton was entitled to receive prior to the
effective date of such termination. For all purposes under this
Agreement, termination for "Cause" shall mean termination because of
Norton's personal dishonesty, incompetence, willful misconduct, breach
of fiduciary duty involving personal profit, intentional failure to
perform stated duties under this Agreement, willful violation of any
law, rule or regulation (other than traffic violations or similar
offenses) or of a final cease-and-desist order, or any material breach
by Norton of any provisions of this Agreement or the death or permanent
disability, as that term is defined below, of Norton occurring during
the term of this Employment Agreement. For purposes of this Employment
Agreement, the term "permanent disability" shall mean if Norton shall
have an illness, injury or other physical or mental condition which
results in Norton's inability to perform substantially all of the
duties he performs in his employment capacity for the Bank or LFC to
the extent he was performing such duties immediately prior to the
commencement of such condition and that such disability has continued
for a period of more than six (6) months during the term of this
Employment Agreement. If Norton shall be so disabled for more than six
(6) months during the term of this Employment Agreement, the employment
of Norton by the Bank and LFC shall be deemed by reason of his said
permanent disability to have been for all purposes hereunder terminated
for "Cause." In determining the incompetence of Norton, the acts or
omissions of Norton shall be measured against standards generally
prevailing in the federal savings bank industry. Unless Norton
voluntarily resigns from his employment by LFC and the Bank without
"Good Reason," as that term is defined in Section 10 below, during the
term of this Agreement, or unless the termination by the Bank or LFC of
Norton's employment under this Agreement is for "Cause," as defined
above, LFC and the Bank shall be obligated to continue to pay to Norton
his compensation and to provide to him all other benefits of his
employment as set forth in this Agreement during the remaining term of
this Agreement after the termination of his employment on the same
basis and at the same times as set forth and described above in this
Agreement, subject to Norton's cumulative and supplemental right to
receive the specific severance benefits accorded him under the
provisions of Section 10, below, in this Agreement, in the event a
"Change of Control" occurs to LFC or the Bank, as defined in Section 10
below, which Section shall prevail over the rights and benefits
accorded to Norton under this Section 9 to the extent they are
inconsistent therewith. LFC, the Bank and Norton agree that it would be
difficult to ascertain the amount of damages owing to Norton if this
Agreement is terminated without "Cause" or he resigns for "Good Reason"
during the term of this Agreement, and accordingly, that the amount to
be paid by LFC and Bank to Norton as compensation and the other
benefits to be provided by LFC and Bank to Norton during the remaining
term of this Agreement as if Norton had remained employed by LFC or the
Bank in such instance, shall be deemed to be liquidated damages for the
termination of this Agreement by Bank or LFC without "Cause," or for
Norton's resignation for "Good Reason," and not as a forfeiture or
penalty. Norton, LFC and Bank specifically covenant and agree that the
amount of liquidated damages, as determined in the manner set forth
above in this Section 9, would be a fair and reasonable amount of
damages for Norton to receive due to the termination of his employment
under such circumstances and that the right to receive such
compensation as liquidated damages shall be Norton's sole and only
remedy in such event, except for and subject to the prior and superior
rights of Norton to the severance benefits set forth and described in
Section 10, below, of this Agreement, which shall be deemed to control
and supersede the rights of Norton under this Section 9, in the event a
"Change of Control" occurs to LFC or the Bank, as defined and described
in Section 10, below.
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<PAGE> 5
* * *
(f) If Norton resigns voluntarily from his employment by the
Bank during the term of this Agreement without "Good Reason," as that
term is defined in Section 10, below, of this Agreement, then, and in
such event, all of the rights, benefits and entitlements of Norton
under this Agreement, including without limitation, his right to
receive salary payments, shall cease on the date of such voluntary
resignation without "Good Reason," except for the rights of Norton
which have vested prior to the date of his said voluntary resignation.
3. SECTION 10 - SEVERANCE BENEFITS IN THE EVENT OF A CHANGE OF
CONTROL. The following entirely new Section shall be added by this Amendment to
the Agreement, numbered 10 and entitled "Severance Benefits in the Event of a
Change of Control," and the subsequent paragraphs shall be renumbered
accordingly, i.e., the existing Section 10 shall become Section 11, and the
existing Sections 11, 12, 13 and 14 shall become Sections 12, 13, 14 and 15,
respectively. The new Section 10 - Severance Benefits in the Event of a Change
of Control, shall read henceforth in its entirety as follows:
10. SEVERANCE BENEFITS IN THE EVENT OF A CHANGE OF
CONTROL.
(a) For all purposes in this Amendment and in the Agreement
and in, particular, this Section 10, the following terms shall have the
respective meanings specified below:
(i) "Annual Cash Compensation" means the sum of (a)
Norton's annual base salary in effect as of the date of this
Agreement, or if greater, Norton's base salary in effect at
the time of the Change of Control, and (b) the amount of any
cash bonuses paid to Norton during the twelve-month period
immediately preceding the effective date of a Change of
Control.
(ii) "Bank" means (x) the Bank until a Change of
Control, and (y) the successor to the Bank upon a Change of
Control (the "Successor").
(iii) "Cause" shall have the same meaning ascribed to
that term in Section 9, above, in the Agreement.
(iv) "Change of Control" shall for all purposes in
this Agreement and Amendment mean the occurrence of any of the
following events:
(x) the consummation of any agreement of
merger, statutory share exchange or consolidation
pursuant to which either the Company, or the Bank, is
merged or consolidated into, or all of the
outstanding shares of the Company's or the Bank's
common stock are acquired by, another corporation,
partnership, limited liability company or
partnership, or any other business entity; or
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<PAGE> 6
(y) another corporation or such other
business entity is merged or consolidated into the
Company or the Bank in circumstances under which the
outstanding shares of the Company's or the Bank's
common stock are converted into or exchanged for cash
or securities of another such corporation or entity
which was not a wholly-owned subsidiary of the
Company or the Bank at all times within one year
prior to the said merger or consolidation; or
(z) (1) the consummation of a sale of fifty
percent (50%) or more of the issued and outstanding
common stock of the Bank by the Company; or (2) fifty
percent (50%) or more of the issued and outstanding
common stock of the Company is acquired by persons
(including corporations or any other form of business
entity) who are acting in concert; or (3) the
consummation of the sale of all or substantially all
of the assets of the Bank by the Company or of the
Company by the Bank.
(v) "Good Reason" with respect to Norton shall have
the following meaning for all purposes under the Agreement and
this Amendment:
(v) A significant diminution of his Role, as
that term is defined below in this Section 10, if the
diminution in his Role is not reasonably related to
an adverse change in his performance of his assigned
duties at LFC or the Bank; provided that Good Reason
shall not exist under this clause in the case of
termination for Cause, as that term is defined in
Section 9, or diminution of his Role by reason of the
voluntary actions of Norton, or on account of
disability, retirement or death, as described and
defined herein, or the voluntary termination by
Norton of his employment with LFC or Bank other than
for a Good Reason, as defined hereunder;
(w) A reduction in the base salary and/or
bonuses paid to Norton to an amount such that the sum
of his base salary and bonuses as so reduced is less
than the sum of his base salary and bonuses as of the
date of this Amendment, or at any time while the
Agreement is in force if Norton receives an increase
in salary or bonus after the date of this Amendment,
or a failure after twenty (20) days' written notice
by Norton to LFC and the Bank of LFC or the Bank to
pay Norton any installment owing to him of such
salary or bonus;
(x) The failure by LFC or Bank to provide
Norton with any material benefit that is provided to
the executive officers of LFC and the Bank generally,
or any action or inaction by LFC or the Bank which
could adversely affect his continued participation in
any benefit plan, entitlements or other arrangements
of Bank or LFC, or his ability to enjoy or realize
upon any material benefit under any such plan,
entitlement or arrangement;
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<PAGE> 7
(y) LFC's or the Bank's assigning Norton,
without his prior written consent, to perform his
duties under the Agreement at a location anywhere
other than Oklahoma County, State of Oklahoma; or
(z) The failure by LFC or the Bank to obtain
the assumption of all of their obligations under this
Amendment and the Agreement and under the 1998
Non-Qualified Stock Option Agreement being made and
entered into by and between LFC and Norton this same
date by the Successor, or to otherwise comply with
the terms and provisions of subparagraph (c) of this
Section 10, below.
(vi) "LFC" means (x) LFC until a Change of Control,
and (y) the successor to LFC upon a Change of Control (the
"Successor").
(vii) "Role" shall have the meaning for all purposes
under this Amendment and the Agreement of (x) prior to any
Change of Control, as defined herein, Norton's authority or
responsibilities with the Bank or LFC on the date of this
Amendment; or any enhanced Role (other than by way of an
interim or otherwise expressly temporary appointment) to which
he had ascended from the date of this Amendment to the date of
any Change of Control; and (y) after any Change of Control,
the authority and responsibilities with the Successor
described in writing by such Successor prior to the Change of
Control and which is reasonably commensurate with Norton's
Role, as defined in clause (x) above, in this definition.
(viii) "Severance Period" shall for all purposes in
this Amendment and the Agreement mean a period of years after
Norton's termination that is equal to the number by which
Norton's Annual Cash Compensation is multiplied to determine
the Severance Benefit payable under the provisions of the
Agreement.
(ix) "Successor" shall mean for all purposes in this
Amendment and the Agreement any entity that assumes the
obligations of LFC and the Bank under this Amendment and the
Agreement pursuant to subparagraph (c)(1), below.
(b) If at any time during the period beginning on the date of
this Amendment and ending on the third anniversary of a Change of
Control occurring to LFC or the Bank, as specifically defined and
described above in this Paragraph 10, the employment of Norton is
terminated (x) by LFC or the Bank, or their respective Successor,
without "Cause" or (y) by Norton for "Good Reason," as that term is
expressly defined above, then, in addition to all amounts otherwise
payable to Norton upon his termination hereunder, LFC, the Bank and/or
the Successor shall be expressly obligated to pay to Norton the
following:
(i) The Bank or the Successor shall pay to Norton and
LFC, or the Successor, shall cause the Bank or the Successor
to pay to Norton, an amount (the "Severance Benefit") equal to
the sum of his Annual Cash Compensation, multiplied by three
(3), payable in equal quarterly installments from the date of
said termination until the date which is three (3) years from
the date of said termination, with the first
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<PAGE> 8
installment thereof being due and payable within five (5) days
after the date of such termination of Norton's employment.
Norton shall have no obligation to seek other employment or to
otherwise attempt to mitigate the effect of this Section 10 of
this Agreement or the benefits payable hereunder in order to
be entitled to receive the Severance Benefit or the other
benefits hereunder, and any payment received by Norton from
other employment shall not serve to reduce in any way the
amount of the Severance Benefit payable to him hereunder.
(ii) During the Severance Period, Norton shall be
entitled to all benefits under the group hospitalization plan,
healthcare plan, dental plan, life or other insurance or death
benefit plan, or any similar benefit plan or program of LFC
and the Bank or the Successor for which key executives of LFC,
the Bank or the Successor are eligible, to the same extent as
if Norton had continued to be an employee of LFC or the Bank
at a compensation level equal to his Annual Cash Compensation,
and Norton's share of the costs shall be the same as that
cost, if any, for which Norton was responsible while an
employee of LFC and the Bank. If any such plan or program does
not permit continued participation by Norton, or does not
permit continued participation by Norton through the end of
the Severance Period, LFC, the Bank or the Successor shall
arrange to provide Norton with substantially similar benefits
through the end of the Severance Period, with Norton
responsible solely for that share of the costs with regard to
such benefits which he was formerly paying as outlined above.
At Norton's sole and exclusive option, Norton may elect to be
paid in cash an amount equivalent to LFC's, the Bank's or the
Successor's costs of providing such benefits during the
Severance Period, such election to be made within thirty (30)
days after Norton's said termination of employment, with such
payment to be made to him within ten (10) days after his
delivery of such election to LFC, the Bank or the Successor
hereunder.
(iii) Any stock options, restricted stock or other
stock or stock-based awards to Norton shall immediately vest
and become exercisable to the extent exercise is required and
all restrictions on the ability of Norton to obtain the full
economic benefit of such vested awards shall immediately
lapse.
(c) LFC'S, BANK'S AND THE SUCCESSOR'S OPTION UPON THE
OCCURRENCE OF A CHANGE OF Control. If LFC or the Bank enters into a
definitive agreement that would result in a Change of Control, as
defined herein, then LFC and the Bank may elect (i) to assign this
Agreement, as amended, to the Successor effective on the occurrence of
the Change of Control, provided that such Successor shall assume in
writing all of the obligations of LFC and the Bank hereunder and under
that certain 1998 Non-Qualified Stock Option Agreement by and between
LFC and Norton of even date herewith and shall expressly acknowledge
that a Change of Control of LFC or the Bank has occurred within the
meaning of this Agreement so as to entitle Norton to the Severance
Benefit and other benefits set forth in Section 10(b) of this
Agreement, above, if his employment is thereafter terminated without
Cause or he thereafter voluntarily terminates his employment for Good
Reason and provided further that LFC and the Bank shall remain liable
for the performance of all of their obligations under this Agreement if
the Successor fails to so perform any of its obligations under this
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<PAGE> 9
Agreement; or (ii) to terminate this Agreement upon written notice to
Norton given pursuant to the terms and conditions of this Amendment and
the Agreement not later than thirty (30) days after the execution of
any such definitive agreement to effect such a Change of Control, to be
effective on the effective date of the Change of Control, and upon
occurrence of the Change of Control, paying to Norton, in readily
available funds, his compensation and benefits to the date on which
such termination shall take effect on the effective date of the Change
of Control and the full amount of the Severance Benefit as provided for
in this Section 10, and such other benefits as are also provided to
Norton as the result of a Change of Control, as set forth and provided
in Section 10, above.
(d) TAXES. All payments to be made to Norton under this
Employment Agreement will be subject to required withholding of
federal, state and local income and employment taxes. Notwithstanding
anything in this Employment Agreement to the contrary, if any of the
payments provided for in this Employment Agreement, together with any
other payment which Norton has the right to receive from the Bank, or
any corporation which is a member of an "affiliated group" (as defined
in Section 1504(a) of the Internal Revenue Code of 1986 ("Code")
without regard to Section 1504(b) of the Code) of which the Bank is a
member, would constitute a "parachute payment" (as defined in Section
280Gb(2) of the Code), the payments pursuant to this Employment
Agreement shall be reduced to the largest amount that will result in no
portion of such payments being subject to the excise tax imposed by
Section 4999 of the Code; provided, however, that the determination as
to whether any reduction in the payment under this Agreement pursuant
to this proviso is necessary shall be made by Norton in good faith, and
such reasonable determination shall be conclusive and binding upon the
Bank with respect to its treatment of the payment for tax reporting
purposes and, provided further, that Norton may determine in his
discretion what payment or payment provided for him herein shall be so
reduced.
4. NO FURTHER CHANGES. Except as expressly stated above, there
are no further amendments or modifications of any sort or nature being made to
the Agreement and all of its other respective terms and conditions shall remain
in full force and effect as originally stated.
IN WITNESS WHEREOF, LFC, the Bank and Norton have duly
executed this Amendment as of the day and year first above written to be
effective as of the date stated in the first paragraph above.
LFC: LOCAL FINANCIAL CORPORATION,
a Delaware corporation
By:
--------------------------------------------------
Name: Edward A. Townsend
Title: Chairman of the Board of Directors and Chief
Executive Officer
Date:
--------------------------------------------------
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<PAGE> 10
BANK: LOCAL FEDERAL BANK, F.S.B.,
a federally chartered stock savings bank
By:
--------------------------------------------------
Name: Edward A. Townsend
Title: Chairman of the Board of Directors and Chief
Executive Officer
Date:
--------------------------------------------------
NORTON:
-------------------------------------------------------
JAN A. NORTON
an Individual Resident of the State of Oklahoma
Date:
--------------------------------------------------
10
<PAGE> 1
EXHIBIT 10.15
1998 NON-QUALIFIED STOCK OPTION AGREEMENT
This Agreement, effective as of September 23, 1998, is between
Local Financial Corporation, a Delaware corporation (the "Company"), and Edward
A. Townsend, an individual resident of the State of Oklahoma ("Grantee"). This
Agreement is made pursuant to the terms and conditions of the Local Financial
Corporation 1998 Stock Option Plan (the "Plan"), a copy of which has been
provided to Grantee.
1. GRANT OF OPTION. The Company grants to Grantee an option to
purchase eight hundred eleven thousand six hundred forty (811,640) shares of the
Common Stock ($0.01 par value) of the Company (the "Shares"), on the terms and
conditions set forth in the Plan and in this Agreement. This grant is
conditioned on the Grantee rescinding the option previously granted under the
stock option agreement dated September 8, 1997. The Grantee is deemed to have
rescinded the previously granted option by executing and returning a copy of
this Agreement to the Company on or before November 30, 1998.
2. PURCHASE PRICE. The Purchase Price of the Shares to be
purchased pursuant to this option shall be ten dollars ($10.00) per Share, which
is equal to or greater than one hundred percent (100%) of the fair market value
of the Shares on the date hereof.
3. VESTING. Grantee's right to exercise the option granted in
this Agreement shall vest as provided in this Section . This option shall become
vested and exercisable with respect to one-third of the Shares on the effective
date of this Agreement, one-third on September 8, 1999 and one-third on
September 8, 2000.
In the event Grantee's employment by the Company is terminated
by the Company for any reason except for "Cause," as that term is defined below,
all unexercised portions of the option granted under this Agreement shall become
immediately vested and exercisable. The term for "Cause" is defined in the same
manner contained in the Employment Agreement entered into between Grantee and
Company dated September 8, 1997, as amended. In the event the Grantee dies
during the term of the option, all unexercised portions of the option granted
under this Agreement shall become immediately vested and exercisable by the
Grantee's estate. In the event the Grantee's employment with the Company ends
because the Grantee becomes disabled, all unexercised portions of the option
granted under this Agreement shall become immediately vested and exercisable by
the Grantee or his qualified representative (in the event of the Grantee's
mental disability). In the event that a Change of Control occurs, as that term
is defined in Section 10, below, all unexercised portions of the option granted
under this Agreement shall become immediately vested on the effective date of
any such Change of Control. If the Grantee's employment by the Company, or its
subsidiary bank, is terminated for "Cause," he shall forfeit the right to any
options granted to him under this Agreement which are not vested, or which have
not been exercised by Grantee as of the date of the termination of his
employment.
4. THE PLAN. This option is granted pursuant to the Plan, the
provisions of which are incorporated into this Agreement by reference, and in
the event of any conflict between this Agreement and the Plan, the terms of the
Plan shall govern.
5. NO TRANSFER OR ASSIGNMENT OF OPTION. Except as otherwise
provided in this Agreement, this option and the rights and privileges conferred
hereby shall not be transferred, assigned, pledged, or hypothecated in any way
(whether by operation of law or otherwise) and shall
<PAGE> 2
not be subject to sale under execution, attachment, or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate, or otherwise dispose of this
option, or of any right or privilege conferred hereby, contrary to the
provisions of this Agreement, or upon any attempted sale under any execution,
attachment, or similar process upon the rights and privileges conferred hereby,
this option and the rights and privileges conferred hereby shall immediately
become null and void. Notwithstanding the foregoing, the Grantee may transfer
this option in its entirety or any portion thereof at his death by will or by
intestacy, or otherwise during his lifetime to the Grantee's children and
immediate family members, whether directly or indirectly, or by means of a trust
or partnership or otherwise.
6. METHOD OF EXERCISE.
(a) NOTICE AND OPTION PAYMENT. Grantee may exercise
this option by giving written notice to the Company pursuant to Section
12(h). The notice shall specify the election to exercise this option
and the number of Shares for which it is being exercised; provided,
however, that no exercise for fractional Shares shall be permitted. The
notice shall be signed by Grantee. Grantee shall deliver to the
Company, at the time of giving the notice, payment in U.S. Dollars or a
check drawn on a U.S. financial institution in the full amount of the
Purchase Price. In addition, the option may be exercised by Grantee by
delivering to the Company (i) an exercise notice instructing the
Company to deliver the certificates for the Shares purchased to a
designated brokerage firm; and (ii) a copy of irrevocable instructions
delivered to the brokerage firm to sell the Shares acquired upon
exercise of the option and to deliver to the Company from the sale
proceeds sufficient cash to pay the exercise price.
(b) ALTERNATE PAYMENT WITH STOCK. Notwithstanding the
foregoing provisions requiring payment by check or delivery of shares
to a brokerage firm, payment of such Purchase Price owing upon the
exercise of an option hereunder or any portion thereof, or payment of
the withholding amount or any portion thereof, may be made by Grantee
tendering to the Company his Shares, or surrendering his exercisable
options hereunder, if the Shares are then publicly traded (as defined
below). Shares tendered or options surrendered shall be credited toward
such Purchase Price or withholding amount on the valuation basis set
forth below. In the case of Shares tendered, the stock certificates
evidencing the Shares to be used shall accompany the notice of exercise
and shall be duly endorsed or accompanied by duly executed stock powers
to transfer the same to the Company. Payment in Common Stock or options
instead of cash shall not be effective and shall be rejected by the
Company if (i) the Company is then prohibited from purchasing or
acquiring the shares, or (ii) the right or power of the person
exercising the options to deliver such shares or options in payment of
the Purchase Price or withholding amount is subject to the prior
interest of any other person (excepting the Company), as indicated by
legends upon the certificate(s) or is known to the Company. For
purposes of this Section 6(b): (y) "Publicly Traded Shares" are those
that are listed or admitted to unlisted trading privileges on a
national securities exchange or as to which bid and offer quotations
are reported in the automated quotation system ("NASDAQ") operated by
the National Association of Securities Dealers, Inc. ("NASD"), and (z)
for credit toward the Purchase Price or withholding amount, shares
tendered or options surrendered shall be valued as of the day
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<PAGE> 3
immediately preceding the delivery to the Company of the certificates
evidencing such shares, in the case of tendered shares, or the option
exercise notice, in the case of surrendered options. If such day is not
a trading day in the United States Securities Markets, the shares shall
be valued on the nearest preceding trading day. The valuation shall be
made on the basis of the closing price of the Shares as reported with
respect to the market (or the composite of the markets, if more than
one) in which such Shares are then traded, or if no such closing prices
are reported, the lowest independent offer quotation reported therefor
in Level 2 of NASDAQ, or if no such quotations are reported, then on
the basis of the most nearly comparable valuation method acceptable to
the Company. If the Company rejects the payment in stock or options,
the tendered Notice of Exercise shall not be effective under this
Option Agreement unless promptly after being notified of such
rejection, the Grantee exercising the option pays the Purchase Price or
withholding amount as the case may be, in acceptable form as required
above in this Section 6.
(c) ISSUANCE OF SHARES. After receiving a proper
notice of exercise, the Company shall issue a certificate or
certificates for the Shares as to Grantee, registered in Grantee's name
(or in Grantee's name and the name of Grantee's spouse as community
property or as joint tenants with a right of survivorship) or permitted
transferee under Section 5.
7. TERM AND EXPIRATION.
(a) TERM. This option, if it has not expired earlier
under the provisions of Section 7(b), shall expire in all events on the
tenth (10th) anniversary of the effective date of this Agreement.
(b) TERMINATIONS OF OPTIONS. The option granted under
this Agreement, to the extent that it has not been exercised, shall
terminate at the earliest of any of the following times: In the event
of Grantee's death, the Grantee's estate shall have the original term
of the option to exercise the option. If Grantee's employment ends
because Grantee becomes disabled, the Grantee or his qualified
representative (in the event of the optionee's mental disability) shall
have the original term of the option to exercise the option. If Grantee
voluntarily resigns from the Company, the option shall terminate sixty
(60) months after the date of resignation, subject to the provision of
Section 7(a), above. If Grantee's employment is terminated by the
Company for reasons other than for "Cause," as defined above, the
Grantee shall have the original term of the option to exercise the
option, subject to the provision of Section 7(a), above. If Grantee's
employment with the Company is terminated for "Cause," as that term is
defined in his above-referenced Employment Agreement, the options
granted hereunder shall terminate completely on the date of such
termination. If Grantee's employment with the Company ends for any
reason not mentioned above in this Section 7(b), the options granted
hereunder shall terminate sixty (60) months after the date of
termination of employment, subject to the provision of Section 7(a),
above.
8. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued
upon the exercise of this option unless and until the Company has determined
that all applicable provisions of state and federal securities laws have been
satisfied.
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<PAGE> 4
9. GROSS-UP BONUS. Upon any exercise, cancellation or cash out
by Grantee of his options hereunder, or any exercise by him of the Stock
Appreciation Rights granted to him under the provisions of Section 12, below, by
or for any reason or on any basis permitted under this Agreement, the Company
shall pay the Grantee a Gross-Up Bonus for all of his applicable resulting
federal and state taxes. The Gross-Up Bonus shall be paid at the time of the
exercise, cancellation or cash out of the option. The Gross-Up Bonus shall be
equal to: ["X" divided by "Y"] minus "X," where "X" is the compensation income
recognized by Grantee upon the exercise, cancellation or cash out of the option
and "Y" is one (1) minus [the sum of Grantee's federal and state tax rates and
Medicare rate]. The intent of the Gross-Up Bonus is to allow the net amount
received by the Grantee, after withholding all necessary federal and state
taxes, to equal the compensation income recognized from the options.
10. CHANGE OF CONTROL. Upon the effective date of any Change
of Control (as that term is defined below in this Section 10), all unexercised
portions of the options granted to the Grantee under this Agreement shall become
immediately vested and, in such event, the Grantee shall be entitled to elect to
do one of the following, in his sole and absolute discretion (Grantee's said
election to be evidenced by a written notice so indicating to be delivered by
Grantee to the Company, or to the Company's successor or assign, within thirty
(30) days after the said effective date of such Change of Control), namely:
(a) If Company survives such Change of Control and
continues to have shares of common stock issued and outstanding, then,
and, in such event, Grantee can elect to continue this Agreement in
full force and effect upon all of the same terms and conditions and to
fully retain the rights, benefits and options granted to him hereunder;
or
(b) to accept in lieu of the options to acquire the
Shares of the Company's common stock granted to him under this
Agreement options to acquire a proportionate amount (based on the
relation of the fair market value of the Company's Shares to the fair
market value of the common stock of the surviving, resulting or
acquiring corporation, as of the effective date of the said Change of
Control) of the common stock of the surviving, resulting or acquiring
corporation based on the same exercise price stated herein, with the
continuing right to receive the Gross-Up Bonus, when applicable,
pursuant to Section 9, above, and otherwise containing all of the other
identical terms and conditions of the options granted to Grantee under
this Agreement made fully applicable to Grantee's said option to
acquire the common stock of said surviving, resulting or acquiring
corporation pursuant hereto; or
(c) to accept as payment in full for all of Grantee's
rights under this Agreement and for all of the options granted to him
hereunder a "cash-out" payment in an amount equal to the difference
between the fair market value on the effective date of the Change of
Control of the underlying Shares subject to Grantee's options hereunder
and the exercise price of those options under this Agreement. The full
amount of the "cash-out" payment of such differential shall be payable
to Grantee, in cash, within ten (10) days of Grantee's delivery of his
written election hereunder to the Company, or its successor or assign.
In the event Grantee elects to receive the "cash-out" payment for his
options pursuant to this Section 10, Grantee shall also be entitled to
receive the Gross-Up Bonus with regard thereto as specifically provided
by the terms of Section 9, above, of this Agreement.
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<PAGE> 5
The Company expressly covenants and agrees that it will
require as an express condition to any merger or acquisition which it enters
into constituting a Change of Control under this Agreement that the surviving,
resulting or acquiring corporation (i) expressly assume and obligate itself in
writing to fully perform and pay all of the obligations of the Company under
this Agreement; (ii) expressly acknowledge in writing that a Change of Control
as defined in this Section 10 has occurred such as to entitle Grantee to
exercise all of the rights, elections and entitlements granted to him by the
provisions of this Section 10; and (iii) that it will be bound by Grantee's said
election and will fully perform and comply with all obligations or payments
resulting from Grantee's said election hereunder. If any such surviving,
resulting or acquiring corporation fails for any reason to fully perform its
obligations under this Agreement, then, and in such event, Company, or its
successor or assign, shall remain liable to fully perform or pay any and all
said obligations to Grantee to the extent such surviving, resulting or acquiring
corporation should fail to do so.
For all purposes under this Agreement, the term "Change of
Control" shall mean the occurrence of one of the following events:
(i) the consummation of any agreement of merger,
statutory share exchange or consolidation pursuant to which either the
Company, or its wholly-owned subsidiary bank, Local Federal Bank,
F.S.B., a federally chartered stock savings bank with its principal
offices in Oklahoma City, Oklahoma, or its successor entity or assign
(the "Bank"), is merged or consolidated into, or all of the outstanding
shares of the Company's or the Bank's common stock are acquired by,
another corporation, partnership, limited liability company or
partnership, or any other business entity; or
(ii) another corporation or such other business
entity is merged or consolidated into the Company or the Bank in
circumstances under which the outstanding shares of the Company's or
the Bank's common stock are converted into or exchanged for cash or
securities of another such corporation or entity which was not a
wholly-owned subsidiary of the Company or the Bank at all times within
one year prior to the said merger or consolidation; or
(iii) (x) the consummation of a sale of fifty percent
(50%) or more of the issued and outstanding common stock of the Bank by
the Company; or (y) fifty percent (50%) or more of the issued and
outstanding common stock of the Company is acquired by persons
(including corporations or any other form of business entity) acting in
concert; or (z) the consummation of the sale of all or substantially
all of the assets of the Bank by the Company or of the Company by the
Bank.
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<PAGE> 6
11. CAPITAL ADJUSTMENTS.
(a) THE COMPANY'S FREEDOM TO ACT. The existence of
this Agreement shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations, or other changes in
the Company's capital structure or its business, or any merger or
consolidation of the Company or any issue of bonds, debentures, or
preferred or preference stocks affecting the Shares or the rights
thereof, or of any rights, options, or warrants to purchase any capital
stock of the Company, or the dissolution or liquidation of the Company,
any sale or transfer of all or any part of its assets or business, or
any other corporate act or proceedings of the Company, whether of a
similar character or otherwise.
(b) ADJUSTMENT OF OPTIONED SHARES. The Shares with
respect to which this option is granted are Shares of the Company as
presently constituted; but if and whenever, prior to the delivery by
the Company of all of the Shares with respect to which these options
are granted, the Company shall effect a subdivision or consolidation of
the Shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction in the number of the Shares
outstanding without receiving compensation therefor in money, services,
or property, the number of the Shares then remaining subject to option
hereunder shall (i) in the event of an increase in the number of
outstanding Shares, be proportionately increased, and the cash
consideration payable per Share shall be proportionately reduced; and
(ii) in the event of a reduction in the number of outstanding Shares,
be proportionately reduced, and the cash consideration payable per
Share shall be proportionately increased.
12. STOCK APPRECIATION RIGHTS.In addition to the right and
entitlement which Grantee has to exercise and pay for the options granted to him
under this Agreement under the provisions of Section 6 of this Agreement, above,
Grantee is hereby expressly granted the right and entitlement, so long as the
Shares are "Publicly Traded Shares" as that term is defined in Section 6(c),
above, in lieu of exercising his corresponding options to purchase the Shares,
to receive an amount equal to the difference between the fair market value of
the Shares (valued as of the day immediately preceding the delivery to the
Company of Grantee's notice of his exercise of his Stock Appreciation Rights
hereunder with respect to a portion or all of the unexercised portions of the
corresponding options granted to Grantee hereunder) over the aggregate exercise
price for such Shares subject to such corresponding options as to which Grantee
is so exercising his Stock Appreciation Rights hereunder. Grantee shall have the
privilege of exercising his Stock Appreciation Rights under the provisions of
this Section 12 at any time during the term of this Option Agreement as to the
Shares for which his options hereunder are then exercisable. Grantee shall be
entitled to receive the Gross-Up Bonus pursuant to the provisions of Section 9,
above, with regard to any exercise by him of is Stock Appreciation Rights under
the provisions of this Section 12. The amount payable to the Grantee upon
exercise of his Stock Appreciation Rights under the provisions of this Section
12 may, at the sole election of the Grantee, be paid either (i) in cash, or (ii)
in Shares of the Company's common stock then subject to his corresponding
options hereunder (valued on the basis of their fair market value determined as
of the day immediately preceding the delivery to the Company of the Grantee's
exercise of his Stock Appreciation Rights pursuant to this Section 12), or (iii)
in a combination of cash and such Shares so valued as the Grantee may elect or
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so specify in his written notice of exercise of his Stock Appreciation Rights
under this Section 12 delivered to the Company in the manner aforesaid. No Stock
Appreciation Rights may be exercised by Grantee in whole or in part under the
provisions of this Agreement (x) other than in connection with a contemporaneous
surrender without exercise of such corresponding options, or the portion thereof
that corresponds to the portion of the Stock Appreciation Rights being so
exercised by the Grantee pursuant hereto, or (y) except to the extent that the
corresponding option or such portion thereof is exercisable on the date of
exercise of the Stock Appreciation Rights by the Grantee in accordance with the
terms and provisions of this Agreement, or (z) unless the class of stock then
subject to the corresponding option hereunder is then "Publicly Traded Shares"
as that term is defined in Section 6(c) above. Grantee has the right to exercise
the Stock Appreciation Rights being granted to him under the provisions of this
Section 12 at any time during the term of this Agreement.
13. DETERMINATION OF FAIR MARKET VALUE OF SHARES. For all
purposes under this Agreement where it is required or appropriate to determine
the fair market value of the Shares or the shares of stock of another
corporation, that determination shall be made in one of the following two ways,
as applicable.
(a) FAIR MARKET VALUE OF PUBLICLY TRADED SHARES. For
any purposes under this Plan, the fair market value of any shares of
corporate stock being determined pursuant hereto which are
"Publicly-Traded Shares," as that term is defined in Section 6(b) of
this Agreement, shall be valued as of the day immediately preceding the
required valuation date hereunder. If such day is not a trading day in
the United States Securities Markets, the shares shall be valued on the
nearest preceding trading day. The valuation shall be made on the basis
of the closing price of the shares as reported with respect to the
market (or the composite of the markets, if more than one) in which
such shares are then traded, or if no such closing prices are reported,
the lowest independent offer quotation reported therefor in Level 2 of
NASDAQ, or if no such quotations are reported, then on the basis of the
most nearly comparable valuation method acceptable to the Company.
(b) FAIR MARKET VALUE OF SHARES WHICH ARE NOT
PUBLICLY TRADED. If the shares being valued for any purpose under this
Agreement are not "Publicly-Traded Shares," they shall be valued on the
basis of what a non-related willing buyer would pay to acquire such
shares from a non-related willing seller in an arms-length transaction.
In determining such value, the Company will use the most recent
purchase of such shares made on that basis if made within the last two
years or if there is no such sale the Company will obtain an appraisal
of the shares by a qualified, independent appraiser who is
knowledgeable of the type of business in which the corporation issuing
the shares is engaged and all parties shall be bound by the results of
such appraisal.
14. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that the Company
determines that it is required to withhold federal, state, or local tax
as a result of the exercise of this option, Grantee, as a condition to
the exercise of this option, shall make arrangements satisfactory to
the Company to enable it to satisfy all withholding requirements. This
withholding requirement can be satisfied by means of the Gross-Up Bonus
pursuant to Section 9 of this Agreement.
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(b) NO RIGHTS AS A SHAREHOLDER. Grantee shall have no
rights as a shareholder with respect to any Shares subject to this
option until the Shares have been issued in the name of Grantee.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Agreement
shall be construed as giving Grantee the right to be retained as an
employee of the Company.
(d) FURTHER ASSURANCES. Each party to this Agreement
agrees to perform any and all further acts and to execute and deliver
any documents that may reasonably be necessary to carry out the
provisions of this Agreement.
(e) ATTORNEYS' FEES. In any legal action or other
proceeding brought by either party to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs.
(f) CONFIDENTIALITY. Grantee agrees and acknowledges
that the terms and conditions of this Agreement, including without
limitation the number of Shares for which options have been granted,
are confidential. Grantee agrees that he will not disclose these terms
and conditions to any third party, except to Grantee's financial or
legal advisors, tax preparer or family members, unless such disclosure
is required by law.
(g) GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Oklahoma
applicable to contracts wholly made and performed in the State of
Oklahoma.
(h) NOTICES. Any notice or other communication under
this Agreement must be in writing and shall be effective upon delivery
by hand; or one (1) day after deposited with a recognized overnight
mail courier service; or three (3) business days after deposit in the
United States mail, postage prepaid, certified or registered; and
addressed to the Company or to Grantee at the corresponding address
below. Each party shall be obligated to notify the other in writing of
any change in that party's address. Notice of change of address shall
be effective only when done in accordance with this Section .
If to the Company, to:
Attention: Corporate Secretary
Local Financial Corporation
3601 N. W. 63rd Street
Oklahoma City, Oklahoma 73116
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If to Grantee, to:
Edward A. Townsend
28910 South 593
Grove, Oklahoma 74344
(i) ENTIRE AGREEMENT. This Agreement and the Plan,
together with those documents that are referenced in the Agreement, are
intended to be the final, complete, and exclusive statement of the
terms of the agreement between Grantee and the Company with regard to
the subject matter of this Agreement. This Agreement and the Plan
supersede all other prior agreements, communications, and statements,
whether written or oral, express or implied, pertaining to that subject
matter. This Agreement and the Plan may not be contradicted by evidence
of any prior or contemporaneous statements or agreements, oral or
written, and may not be explained or supplemented by evidence of
consistent additional terms.
(j) AMENDMENTS. This Agreement may not be amended or
modified except in a writing signed by both parties.
(k) SUCCESSORS AND ASSIGNS. Grantee agrees that he
will not assign, sell, transfer, delegate, or otherwise dispose of,
whether voluntarily or involuntarily, or by operation of law, any
rights or obligations under this Agreement, except as expressly
permitted by this Agreement. Any such purported assignment, sale,
transfer, delegation, or other disposition shall be null and void.
Subject to the limitations set forth in this Agreement, the Agreement
shall be binding on and inure to the benefit of the successors and
assigns of the Company and any successors and permitted assigns of
Grantee, including any of his executors, administrators, or other legal
representatives. It shall not benefit any person or entity other than
those specifically enumerated in this Agreement.
(l) SEVERABILITY. If any provision of this Agreement,
or its application to any person, place, or circumstance, is held by an
arbitrator or a court of competent jurisdiction to be invalid,
unenforceable, or void, that provision shall be enforced to the
greatest extent permitted by law, and the remainder of this Agreement
and of that provision shall remain in full force and effect as applied
to other persons, places, and circumstances.
(m) INTERPRETATION. This Agreement shall be construed
as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this
Agreement shall not be construed in favor of the party receiving a
benefit nor against the party responsible for any particular language
in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement. Unless the
context requires otherwise, all references in this Agreement to
Sections are to the Sections of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
one or more counterparts all of which together shall constitute one and
the same instrument.
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The parties have duly executed this Agreement as of the date
first written above.
COMPANY: LOCAL FINANCIAL CORPORATION
By:
----------------------------------
Name: Jan A. Norton
Title: President
GRANTEE: -------------------------------------
Edward A. Townsend
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EXHIBIT 10.16
1998 NON-QUALIFIED STOCK OPTION AGREEMENT
This Agreement, effective as of September 23, 1998, is between
Local Financial Corporation, a Delaware corporation (the "Company"), and Jan A.
Norton, an individual resident of the State of Oklahoma ("Grantee"). This
Agreement is made pursuant to the terms and conditions of the Local Financial
Corporation 1998 Stock Option Plan (the "Plan"), a copy of which has been
provided to Grantee.
1. GRANT OF OPTION. The Company grants to Grantee an option to
purchase three hundred four thousand three hundred sixty-five (304,365) shares
of the Common Stock ($0.01 par value) of the Company (the "Shares"), on the
terms and conditions set forth in the Plan and in this Agreement. This grant is
conditioned on the Grantee rescinding the option previously granted under the
stock option agreement dated September 8, 1997. The Grantee is deemed to have
rescinded the previously granted option by executing and returning a copy of
this Agreement to the Company on or before November 30, 1998.
2. PURCHASE PRICE. The Purchase Price of the Shares to be
purchased pursuant to this option shall be ten dollars ($10.00) per Share, which
is equal to or greater than one hundred percent (100%) of the fair market value
of the Shares on the date hereof.
3. VESTING. Grantee's right to exercise the option granted in
this Agreement shall vest as provided in this Section . This option shall become
vested and exercisable with respect to one-third of the Shares on the effective
date of this Agreement, one-third on September 8, 1999 and one-third on
September 8, 2000.
In the event Grantee's employment by the Company is terminated
by the Company for any reason except for "Cause," as that term is defined below,
all unexercised portions of the option granted under this Agreement shall become
immediately vested and exercisable. The term for "Cause" is defined in the same
manner contained in the Employment Agreement entered into between Grantee and
Company dated September 8, 1997, as amended. In the event the Grantee dies
during the term of the option, all unexercised portions of the option granted
under this Agreement shall become immediately vested and exercisable by the
Grantee's estate. In the event the Grantee's employment with the Company ends
because the Grantee becomes disabled, all unexercised portions of the option
granted under this Agreement shall become immediately vested and exercisable by
the Grantee or his qualified representative (in the event of the Grantee's
mental disability). In the event that a Change of Control occurs, as that term
is defined in Section 10, below, all unexercised portions of the option granted
under this Agreement shall become immediately vested on the effective date of
any such Change of Control. If the Grantee's employment by the Company, or its
subsidiary bank, is terminated for "Cause," he shall forfeit the right to any
options granted to him under this Agreement which are not vested, or which have
not been exercised by Grantee as of the date of the termination of his
employment.
4. THE PLAN. This option is granted pursuant to the Plan, the
provisions of which are incorporated into this Agreement by reference, and in
the event of any conflict between this Agreement and the Plan, the terms of the
Plan shall govern.
<PAGE> 2
5. NO TRANSFER OR ASSIGNMENT OF OPTION. Except as otherwise
provided in this Agreement, this option and the rights and privileges conferred
hereby shall not be transferred, assigned, pledged, or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to sale
under execution, attachment, or similar process. Upon any attempt to transfer,
assign, pledge, hypothecate, or otherwise dispose of this option, or of any
right or privilege conferred hereby, contrary to the provisions of this
Agreement, or upon any attempted sale under any execution, attachment, or
similar process upon the rights and privileges conferred hereby, this option and
the rights and privileges conferred hereby shall immediately become null and
void. Notwithstanding the foregoing, the Grantee may transfer this option in its
entirety or any portion thereof at his death by will or by intestacy, or
otherwise during his lifetime to the Grantee's children and immediate family
members, whether directly or indirectly, or by means of a trust or partnership
or otherwise.
6. METHOD OF EXERCISE.
(a) NOTICE AND OPTION PAYMENT. Grantee may exercise
this option by giving written notice to the Company pursuant to Section
12(h). The notice shall specify the election to exercise this option
and the number of Shares for which it is being exercised; provided,
however, that no exercise for fractional Shares shall be permitted. The
notice shall be signed by Grantee. Grantee shall deliver to the
Company, at the time of giving the notice, payment in U.S. Dollars or a
check drawn on a U.S. financial institution in the full amount of the
Purchase Price. In addition, the option may be exercised by Grantee by
delivering to the Company (i) an exercise notice instructing the
Company to deliver the certificates for the Shares purchased to a
designated brokerage firm; and (ii) a copy of irrevocable instructions
delivered to the brokerage firm to sell the Shares acquired upon
exercise of the option and to deliver to the Company from the sale
proceeds sufficient cash to pay the exercise price.
(b) ALTERNATE PAYMENT WITH STOCK. Notwithstanding the
foregoing provisions requiring payment by check or delivery of shares
to a brokerage firm, payment of such Purchase Price owing upon the
exercise of an option hereunder or any portion thereof, or payment of
the withholding amount or any portion thereof, may be made by Grantee
tendering to the Company his Shares, or surrendering his exercisable
options hereunder, if the Shares are then publicly traded (as defined
below). Shares tendered or options surrendered shall be credited toward
such Purchase Price or withholding amount on the valuation basis set
forth below. In the case of Shares tendered, the stock certificates
evidencing the Shares to be used shall accompany the notice of exercise
and shall be duly endorsed or accompanied by duly executed stock powers
to transfer the same to the Company. Payment in Common Stock or options
instead of cash shall not be effective and shall be rejected by the
Company if (i) the Company is then prohibited from purchasing or
acquiring the shares, or (ii) the right or power of the person
exercising the options to deliver such shares or options in payment of
the Purchase Price or withholding amount is subject to the prior
interest of any other person (excepting the Company), as indicated by
legends upon the certificate(s) or is known to the Company. For
purposes of this Section 6(b): (y) "Publicly Traded Shares" are those
that are listed or admitted to unlisted trading privileges on a
national securities exchange or as to which bid and offer quotations
are reported in the
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automated quotation system ("NASDAQ") operated by the National
Association of Securities Dealers, Inc. ("NASD"), and (z) for credit
toward the Purchase Price or withholding amount, shares tendered or
options surrendered shall be valued as of the day immediately preceding
the delivery to the Company of the certificates evidencing such shares,
in the case of tendered shares, or the option exercise notice, in the
case of surrendered options. If such day is not a trading day in the
United States Securities Markets, the shares shall be valued on the
nearest preceding trading day. The valuation shall be made on the basis
of the closing price of the Shares as reported with respect to the
market (or the composite of the markets, if more than one) in which
such Shares are then traded, or if no such closing prices are reported,
the lowest independent offer quotation reported therefor in Level 2 of
NASDAQ, or if no such quotations are reported, then on the basis of the
most nearly comparable valuation method acceptable to the Company. If
the Company rejects the payment in stock or options, the tendered
Notice of Exercise shall not be effective under this Option Agreement
unless promptly after being notified of such rejection, the Grantee
exercising the option pays the Purchase Price or withholding amount as
the case may be, in acceptable form as required above in this Section
6.
(c) ISSUANCE OF SHARES. After receiving a proper
notice of exercise, the Company shall issue a certificate or
certificates for the Shares as to Grantee, registered in Grantee's name
(or in Grantee's name and the name of Grantee's spouse as community
property or as joint tenants with a right of survivorship) or permitted
transferee under Section 5.
7. TERM AND EXPIRATION.
(a) TERM. This option, if it has not expired earlier
under the provisions of Section 7(b), shall expire in all events on the
tenth (10th) anniversary of the effective date of this Agreement.
(b) TERMINATIONS OF OPTIONS. The option granted under
this Agreement, to the extent that it has not been exercised, shall
terminate at the earliest of any of the following times: In the event
of Grantee's death, the Grantee's estate shall have the original term
of the option to exercise the option. If Grantee's employment ends
because Grantee becomes disabled, the Grantee or his qualified
representative (in the event of the optionee's mental disability) shall
have the original term of the option to exercise the option. If Grantee
voluntarily resigns from the Company, the option shall terminate sixty
(60) months after the date of resignation, subject to the provision of
Section 7(a), above. If Grantee's employment is terminated by the
Company for reasons other than for "Cause," as defined above, the
Grantee shall have the original term of the option to exercise the
option, subject to the provision of Section 7(a), above. If Grantee's
employment with the Company is terminated for "Cause," as that term is
defined in his above-referenced Employment Agreement, the options
granted hereunder shall terminate completely on the date of such
termination. If Grantee's employment with the Company ends for any
reason not mentioned above in this Section 7(b), the options granted
hereunder shall terminate sixty (60) months after the date of
termination of employment, subject to the provision of Section 7(a),
above.
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8. LEGALITY OF INITIAL ISSUANCE. No Shares shall be issued
upon the exercise of this option unless and until the Company has determined
that all applicable provisions of state and federal securities laws have been
satisfied.
9. GROSS-UP BONUS. Upon any exercise, cancellation or cash out
by Grantee of his options hereunder, or any exercise by him of the Stock
Appreciation Rights granted to him under the provisions of Section 12, below, by
or for any reason or on any basis permitted under this Agreement, the Company
shall pay the Grantee a Gross-Up Bonus for all of his applicable resulting
federal and state taxes. The Gross-Up Bonus shall be paid at the time of the
exercise, cancellation or cash out of the option. The Gross-Up Bonus shall be
equal to: ["X" divided by "Y"] minus "X," where "X" is the compensation income
recognized by Grantee upon the exercise, cancellation or cash out of the option
and "Y" is one (1) minus [the sum of Grantee's federal and state tax rates and
Medicare rate]. The intent of the Gross-Up Bonus is to allow the net amount
received by the Grantee, after withholding all necessary federal and state
taxes, to equal the compensation income recognized from the options.
10. CHANGE OF CONTROL. Upon the effective date of any Change
of Control (as that term is defined below in this Section 10), all unexercised
portions of the options granted to the Grantee under this Agreement shall become
immediately vested and, in such event, the Grantee shall be entitled to elect to
do one of the following, in his sole and absolute discretion (Grantee's said
election to be evidenced by a written notice so indicating to be delivered by
Grantee to the Company, or to the Company's successor or assign, within thirty
(30) days after the said effective date of such Change of Control), namely:
(a) If Company survives such Change of Control and
continues to have shares of common stock issued and outstanding, then,
and, in such event, Grantee can elect to continue this Agreement in
full force and effect upon all of the same terms and conditions and to
fully retain the rights, benefits and options granted to him hereunder;
or
(b) to accept in lieu of the options to acquire the
Shares of the Company's common stock granted to him under this
Agreement options to acquire a proportionate amount (based on the
relation of the fair market value of the Company's Shares to the fair
market value of the common stock of the surviving, resulting or
acquiring corporation, as of the effective date of the said Change of
Control) of the common stock of the surviving, resulting or acquiring
corporation based on the same exercise price stated herein, with the
continuing right to receive the Gross-Up Bonus, when applicable,
pursuant to Section 9, above, and otherwise containing all of the other
identical terms and conditions of the options granted to Grantee under
this Agreement made fully applicable to Grantee's said option to
acquire the common stock of said surviving, resulting or acquiring
corporation pursuant hereto; or
(c) to accept as payment in full for all of Grantee's
rights under this Agreement and for all of the options granted to him
hereunder a "cash-out" payment in an amount equal to the difference
between the fair market value on the effective date of the Change of
Control of the underlying Shares subject to Grantee's options hereunder
and the exercise price of those options under this Agreement. The full
amount of the "cash-out"
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payment of such differential shall be payable to Grantee, in cash,
within ten (10) days of Grantee's delivery of his written election
hereunder to the Company, or its successor or assign. In the event
Grantee elects to receive the "cash-out" payment for his options
pursuant to this Section 10, Grantee shall also be entitled to receive
the Gross-Up Bonus with regard thereto as specifically provided by the
terms of Section 9, above, of this Agreement.
The Company expressly covenants and agrees that it will
require as an express condition to any merger or acquisition which it enters
into constituting a Change of Control under this Agreement that the surviving,
resulting or acquiring corporation (i) expressly assume and obligate itself in
writing to fully perform and pay all of the obligations of the Company under
this Agreement; (ii) expressly acknowledge in writing that a Change of Control
as defined in this Section 10 has occurred such as to entitle Grantee to
exercise all of the rights, elections and entitlements granted to him by the
provisions of this Section 10; and (iii) that it will be bound by Grantee's said
election and will fully perform and comply with all obligations or payments
resulting from Grantee's said election hereunder. If any such surviving,
resulting or acquiring corporation fails for any reason to fully perform its
obligations under this Agreement, then, and in such event, Company, or its
successor or assign, shall remain liable to fully perform or pay any and all
said obligations to Grantee to the extent such surviving, resulting or acquiring
corporation should fail to do so.
For all purposes under this Agreement, the term "Change of
Control" shall mean the occurrence of one of the following events:
(i) the consummation of any agreement of merger,
statutory share exchange or consolidation pursuant to which either the
Company, or its wholly-owned subsidiary bank, Local Federal Bank,
F.S.B., a federally chartered stock savings bank with its principal
offices in Oklahoma City, Oklahoma, or its successor entity or assign
(the "Bank"), is merged or consolidated into, or all of the outstanding
shares of the Company's or the Bank's common stock are acquired by,
another corporation, partnership, limited liability company or
partnership, or any other business entity; or
(ii) another corporation or such other business
entity is merged or consolidated into the Company or the Bank in
circumstances under which the outstanding shares of the Company's or
the Bank's common stock are converted into or exchanged for cash or
securities of another such corporation or entity which was not a
wholly-owned subsidiary of the Company or the Bank at all times within
one year prior to the said merger or consolidation; or
(iii) (x) the consummation of a sale of fifty percent
(50%) or more of the issued and outstanding common stock of the Bank by
the Company; or (y) fifty percent (50%) or more of the issued and
outstanding common stock of the Company is acquired by persons
(including corporations or any other form of business entity) acting in
concert; or (z) the consummation of the sale of all or substantially
all of the assets of the Bank by the Company or of the Company by the
Bank.
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11. CAPITAL ADJUSTMENTS.
(a) THE COMPANY'S FREEDOM TO ACT. The existence of
this Agreement shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations, or other changes in
the Company's capital structure or its business, or any merger or
consolidation of the Company or any issue of bonds, debentures, or
preferred or preference stocks affecting the Shares or the rights
thereof, or of any rights, options, or warrants to purchase any capital
stock of the Company, or the dissolution or liquidation of the Company,
any sale or transfer of all or any part of its assets or business, or
any other corporate act or proceedings of the Company, whether of a
similar character or otherwise.
(b) ADJUSTMENT OF OPTIONED SHARES. The Shares with
respect to which this option is granted are Shares of the Company as
presently constituted; but if and whenever, prior to the delivery by
the Company of all of the Shares with respect to which these options
are granted, the Company shall effect a subdivision or consolidation of
the Shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction in the number of the Shares
outstanding without receiving compensation therefor in money, services,
or property, the number of the Shares then remaining subject to option
hereunder shall (i) in the event of an increase in the number of
outstanding Shares, be proportionately increased, and the cash
consideration payable per Share shall be proportionately reduced; and
(ii) in the event of a reduction in the number of outstanding Shares,
be proportionately reduced, and the cash consideration payable per
Share shall be proportionately increased.
12. STOCK APPRECIATION RIGHTS.In addition to the right and
entitlement which Grantee has to exercise and pay for the options granted to him
under this Agreement under the provisions of Section 6 of this Agreement, above,
Grantee is hereby expressly granted the right and entitlement, so long as the
Shares are "Publicly Traded Shares" as that term is defined in Section 6(c),
above, in lieu of exercising his corresponding options to purchase the Shares,
to receive an amount equal to the difference between the fair market value of
the Shares (valued as of the day immediately preceding the delivery to the
Company of Grantee's notice of his exercise of his Stock Appreciation Rights
hereunder with respect to a portion or all of the unexercised portions of the
corresponding options granted to Grantee hereunder) over the aggregate exercise
price for such Shares subject to such corresponding options as to which Grantee
is so exercising his Stock Appreciation Rights hereunder. Grantee shall have the
privilege of exercising his Stock Appreciation Rights under the provisions of
this Section 12 at any time during the term of this Option Agreement as to the
Shares for which his options hereunder are then exercisable. Grantee shall be
entitled to receive the Gross-Up Bonus pursuant to the provisions of Section 9,
above, with regard to any exercise by him of is Stock Appreciation Rights under
the provisions of this Section 12. The amount payable to the Grantee upon
exercise of his Stock Appreciation Rights under the provisions of this Section
12 may, at the sole election of the Grantee, be paid either (i) in cash, or (ii)
in Shares of the Company's common stock then subject to his corresponding
options hereunder (valued on the basis of their fair market value determined as
of the day immediately preceding the delivery to the Company of the Grantee's
exercise of his Stock Appreciation Rights pursuant to this Section 12), or (iii)
in a combination of cash and such Shares so valued as the Grantee may elect or
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so specify in his written notice of exercise of his Stock Appreciation Rights
under this Section 12 delivered to the Company in the manner aforesaid. No Stock
Appreciation Rights may be exercised by Grantee in whole or in part under the
provisions of this Agreement (x) other than in connection with a contemporaneous
surrender without exercise of such corresponding options, or the portion thereof
that corresponds to the portion of the Stock Appreciation Rights being so
exercised by the Grantee pursuant hereto, or (y) except to the extent that the
corresponding option or such portion thereof is exercisable on the date of
exercise of the Stock Appreciation Rights by the Grantee in accordance with the
terms and provisions of this Agreement, or (z) unless the class of stock then
subject to the corresponding option hereunder is then "Publicly Traded Shares"
as that term is defined in Section 6(c) above. Grantee has the right to exercise
the Stock Appreciation Rights being granted to him under the provisions of this
Section 12 at any time during the term of this Agreement.
13. DETERMINATION OF FAIR MARKET VALUE OF SHARES. For all
purposes under this Agreement where it is required or appropriate to determine
the fair market value of the Shares or the shares of stock of another
corporation, that determination shall be made in one of the following two ways,
as applicable.
(a) FAIR MARKET VALUE OF PUBLICLY TRADED SHARES. For
any purposes under this Plan, the fair market value of any shares of
corporate stock being determined pursuant hereto which are
"Publicly-Traded Shares," as that term is defined in Section 6(b) of
this Agreement, shall be valued as of the day immediately preceding the
required valuation date hereunder. If such day is not a trading day in
the United States Securities Markets, the shares shall be valued on the
nearest preceding trading day. The valuation shall be made on the basis
of the closing price of the shares as reported with respect to the
market (or the composite of the markets, if more than one) in which
such shares are then traded, or if no such closing prices are reported,
the lowest independent offer quotation reported therefor in Level 2 of
NASDAQ, or if no such quotations are reported, then on the basis of the
most nearly comparable valuation method acceptable to the Company.
(b) FAIR MARKET VALUE OF SHARES WHICH ARE NOT
PUBLICLY TRADED. If the shares being valued for any purpose under this
Agreement are not "Publicly-Traded Shares," they shall be valued on the
basis of what a non-related willing buyer would pay to acquire such
shares from a non-related willing seller in an arms-length transaction.
In determining such value, the Company will use the most recent
purchase of such shares made on that basis if made within the last two
years or if there is no such sale the Company will obtain an appraisal
of the shares by a qualified, independent appraiser who is
knowledgeable of the type of business in which the corporation issuing
the shares is engaged and all parties shall be bound by the results of
such appraisal.
14. MISCELLANEOUS PROVISIONS.
(a) WITHHOLDING TAXES. In the event that the Company
determines that it is required to withhold federal, state, or local tax
as a result of the exercise of this option, Grantee, as a condition to
the exercise of this option, shall make arrangements satisfactory to
the Company to enable it to satisfy all withholding requirements. This
withholding requirement can be satisfied by means of the Gross-Up Bonus
pursuant to Section 9 of this Agreement.
7
<PAGE> 8
(b) NO RIGHTS AS A SHAREHOLDER. Grantee shall have no
rights as a shareholder with respect to any Shares subject to this
option until the Shares have been issued in the name of Grantee.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Agreement
shall be construed as giving Grantee the right to be retained as an
employee of the Company.
(d) FURTHER ASSURANCES. Each party to this Agreement
agrees to perform any and all further acts and to execute and deliver
any documents that may reasonably be necessary to carry out the
provisions of this Agreement.
(e) ATTORNEYS' FEES. In any legal action or other
proceeding brought by either party to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs.
(f) CONFIDENTIALITY. Grantee agrees and acknowledges
that the terms and conditions of this Agreement, including without
limitation the number of Shares for which options have been granted,
are confidential. Grantee agrees that he will not disclose these terms
and conditions to any third party, except to Grantee's financial or
legal advisors, tax preparer or family members, unless such disclosure
is required by law.
(g) GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Oklahoma
applicable to contracts wholly made and performed in the State of
Oklahoma.
(h) NOTICES. Any notice or other communication under
this Agreement must be in writing and shall be effective upon delivery
by hand; or one (1) day after deposited with a recognized overnight
mail courier service; or three (3) business days after deposit in the
United States mail, postage prepaid, certified or registered; and
addressed to the Company or to Grantee at the corresponding address
below. Each party shall be obligated to notify the other in writing of
any change in that party's address. Notice of change of address shall
be effective only when done in accordance with this Section .
If to the Company, to:
Attention: Corporate Secretary
Local Financial Corporation
3601 N. W. 63rd Street
Oklahoma City, Oklahoma 73116
8
<PAGE> 9
If to Grantee, to:
Jan A. Norton
2001 Birnam Wood Drive
Miami, Oklahoma 74354
(i) ENTIRE AGREEMENT. This Agreement and the Plan,
together with those documents that are referenced in the Agreement, are
intended to be the final, complete, and exclusive statement of the
terms of the agreement between Grantee and the Company with regard to
the subject matter of this Agreement. This Agreement and the Plan
supersede all other prior agreements, communications, and statements,
whether written or oral, express or implied, pertaining to that subject
matter. This Agreement and the Plan may not be contradicted by evidence
of any prior or contemporaneous statements or agreements, oral or
written, and may not be explained or supplemented by evidence of
consistent additional terms.
(j) AMENDMENTS. This Agreement may not be amended or
modified except in a writing signed by both parties.
(k) SUCCESSORS AND ASSIGNS. Grantee agrees that he
will not assign, sell, transfer, delegate, or otherwise dispose of,
whether voluntarily or involuntarily, or by operation of law, any
rights or obligations under this Agreement, except as expressly
permitted by this Agreement. Any such purported assignment, sale,
transfer, delegation, or other disposition shall be null and void.
Subject to the limitations set forth in this Agreement, the Agreement
shall be binding on and inure to the benefit of the successors and
assigns of the Company and any successors and permitted assigns of
Grantee, including any of his executors, administrators, or other legal
representatives. It shall not benefit any person or entity other than
those specifically enumerated in this Agreement.
(l) SEVERABILITY. If any provision of this Agreement,
or its application to any person, place, or circumstance, is held by an
arbitrator or a court of competent jurisdiction to be invalid,
unenforceable, or void, that provision shall be enforced to the
greatest extent permitted by law, and the remainder of this Agreement
and of that provision shall remain in full force and effect as applied
to other persons, places, and circumstances.
(m) INTERPRETATION. This Agreement shall be construed
as a whole, according to its fair meaning, and not in favor of or
against any party. By way of example and not in limitation, this
Agreement shall not be construed in favor of the party receiving a
benefit nor against the party responsible for any particular language
in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement. Unless the
context requires otherwise, all references in this Agreement to
Sections are to the Sections of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
one or more counterparts all of which together shall constitute one and
the same instrument.
9
<PAGE> 10
The parties have duly executed this Agreement as of the date
first written above.
COMPANY: LOCAL FINANCIAL CORPORATION
By:
-------------------------------------------
Name: Edward A. Townsend
Title: Chairman of the Board of Directors
and Chief Executive Officer
GRANTEE: ----------------------------------------------
Jan A. Norton
10
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<FISCAL-YEAR-END> DEC-31-1998
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