SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20052
------------------------------------------------------
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission File Number 0-23751
-------------------------------------------------------------
SouthBanc Shares, Inc.
(Exact Name of Registrant as Specified in its Charter)
United States 58-2361245
- -------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
907 N. Main Street
Anderson, South Carolina 29621
(Address of Principal Executive Offices)
(Zip Code)
(864) 225-0241
--------------------------------------------------------
(Registrant's Telephone Number, Including Area Code)
- -----------------------------------------------------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
(1) Yes X No
------- -------
$0.01 par value of common stock 4,302,762
- ------------------------------- ---------
(Class) (Outstanding at May 12, 1998)
<PAGE>
<PAGE>
SouthBanc Shares, Inc.
FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1998
TABLE OF CONTENTS
Item 1. Financial Statements
Consolidated Balance Sheets as of March 31, 1998 (Unaudited)
and September 30, 1997 . . . . . . . . . . . . . . . . . . . 3
Consolidated Statements of Operations for the Six Months Ended
March 31, 1998, and March 31, 1997, and the Three Months
Ended March 31, 1998, and March 31, 1997 (unaudited) . . . . 4
Computation of Basic and Diluted Earnings Per Share for the
Three Months Ended March 31, 1998 and 1997 (Unaudited) . . . 4-a
Computation of Basic and Diluted Earnings Per Share for the
Six Months Ended March 31, 1998 and 1997 (Unaudited) . . . . 4-b
Consolidated Statements of Stockholders' Equity
for the Year Ended September 30, 1997 and
the Six Months Ended March 31, 1998 (unaudited). . . . . . . 5
Consolidated Statements of Cash Flows for the Six Months
Ended March 31, 1998 and March 31, 1997 (unaudited). . . . . 6
Notes to Consolidated Financial Statements (unaudited). . . . 8
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations for the Three Months Ended March
31, 1998 and 1997, and the Six Months Ended March 31, 1998
and 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Liquidity and Capital Resources . . . . . . . . . . . . . . . 16
Capital Compliance. . . . . . . . . . . . . . . . . . . . . . 18
Impact of New Accounting Pronouncements . . . . . . . . . . . 18
Effect of Inflation and Changing Prices . . . . . . . . . . . 19
Year 2000 Considerations. . . . . . . . . . . . . . . . . . . 19
Item 3. Market Risk Disclosure . . . . . . . . . . . . . . . . . . . 20
Part II Other Information
Items:
1. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . 21
2. Changes in Securities and Use of Proceeds. . . . . . . . . 21
3. Defaults Upon Senior Securities. . . . . . . . . . . . . . 21
4. Submission of Matters to a Vote of Senior Holders. . . . . 21
5. Other Materially Important Events. . . . . . . . . . . . . 21
6. Exhibits and Reports on Form 8-K . . . . . . . . . . . . . 21
Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . 22
Exhibit 27 - Financial Data Schedule . . . . . . . . . . . . . . 23
<PAGE>
<PAGE>
Item 1 - Financial Statements
Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Consolidated Balance Sheets
March 31, September 30,
1998 1997
Assets: (Unaudited)
- ------- ----------- -------------
Cash and cash equivalents $80,053,462 $13,499,332
Investment securities available for sale
(amortized cost of $16,439,887 at March 31,
1998 and $11,188,937 at September 30, 1997) 16,479,156 11,325,700
Federal Home Loan Bank stock, at cost 2,600,000 1,650,000
Mortgage-backed securities available for sale
(amortized cost of $71,614,823 at March 31,
1998 and $35,713,975 at September 30, 1997) 71,495,270 35,862,700
Loans receivable, (net of allowance for loan
losses of $2,021,852 at March 31, 1998 and
$1,886,243 at September 30, 1997) 195,314,355 178,772,266
Investment in Limited Partnership 5,309,505 5,003,835
Real estate acquired in settlement of loans 107,035 162,776
Real estate held for development 2,192,814 2,284,038
Premises and equipment, net 6,560,484 6,294,465
Accrued interest receivable
Loans receivable 1,454,116 1,330,255
Mortgage-backed and other securities 423,792 238,186
Other 3,371,173 569,787
------------ ------------
Total Assets $385,361,162 $256,993,340
============ ============
Liabilities and Stockholders' Equity:
- ------------------------------------
Deposits $211,869,662 $201,001,858
Advances from the Federal Home Loan Bank
("FHLB") 18,970,464 15,000,000
Reserve Repurchase Agreements 20,000,000 0
Advance payments by borrowers for property
taxes and insurance 227,834 396,886
Accrued interest payable 1,503,866 1,362,483
Stock order subscription 96,398,970 0
Accrued expenses and other liabilities 5,665,745 8,630,370
------------ ------------
Total Liabilities 354,636,541 226,391,597
------------ ------------
Stockholders' Equity:
Common stock ($1.00 par value; authorized
20,000,000 shares; issued and outstanding
1,508,873 shares at March 31, 1998 and
September 30, 1997) 1,508,873 1,508,873
Additional paid-in capital 11,742,309 11,651,917
Retained earnings, restricted 18,997,254 18,381,766
Unrealized gain (loss) on securities
available for sale, net 65,259 188,423
Indirect guarantee of ESOP debt <755,586> <804,024>
Deferred compensation for Management
and Recognition Plan (MRP) <833,488> <325,212>
------------ ------------
Total stockholders' equity 30,724,621 30,601,743
Total liabilities and stockholders' equity $385,361,162 $256,993,340
============ ============
See accompanying notes to consolidated financial statements.
3
<PAGE>
<PAGE>
Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Consolidated Statements of Operations (Unaudited)
Six Months Ended Three Months Ended
March 31, March 31,
---------------------- -----------------------
1998 1997 1998 1997
--------- ---------- --------- ----------
Interest Income:
Loans $8,191,413 $6,623,242 $4,153,297 $3,341,455
Mortgage-backed securities 1,725,999 1,578,089 1,052,481 838,547
Other investments 843,692 387,807 482,018 226,771
---------- ---------- ---------- ----------
Total interest income 10,761,104 8,589,138 5,687,796 4,406,773
---------- ---------- ---------- ----------
Interest expense:
Interest on deposits:
Transaction accounts 295,824 250,800 142,603 123,966
Passbook accounts 312,305 291,108 157,215 141,784
Certificate accounts 3,937,496 3,158,951 1,935,286 1,665,307
---------- ---------- ---------- ----------
Total interest on
deposits 4,545,625 3,700,859 2,235,104 1,931,057
Interest on borrowings 1,352,060 593,251 921,202 362,334
---------- ---------- ---------- ----------
Total interest expense 5,897,685 4,294,110 3,156,306 2,293,391
Net interest income 4,863,419 4,295,028 2,531,490 2,113,382
Provision for loan losses 262,500 175,000 174,500 145,000
Net interest income after ---------- ---------- ---------- ----------
provision for loan losses 4,600,919 4,120,028 2,356,990 1,968,382
Other income:
Loan and deposit account
service charges 999,129 990,915 530,532 556,996
Gain (Loss) on sale of
investments 90,267 10,973 90,267 10,541
Gain (Loss) on sale of
real estate, net 9,936 14,278 16,596 12,262
Gain (Loss) on sale of
loans, net <3,928> 10,271 <15,551> 2,230
Gain on Sale of Real
Estate Held for
Development 67,358 0 37,365 0
Gain (Loss) on sale of
fixed assets, Net <2,892> 0 <2,892> 0
Other 507,635 279,150 292,960 131,643
---------- ---------- --------- ----------
Total other Income 1,667,505 1,305,587 949,277 713,672
General and administrative
expenses:
Salaries and employee
benefits 2,266,171 1,915,813 1,170,765 977,404
Occupancy 231,490 249,978 117,435 132,905
Furniture and
equipment expense 505,614 489,742 291,490 317,492
FDIC insurance
premiums 61,474 95,936 31,210 5,895
Advertising 121,381 196,845 61,243 109,074
Data processing 205,596 137,242 108,878 77,701
Office supplies 164,647 211,186 97,558 112,397
Other 594,254 632,773 281,519 317,750
Total general and ---------- ---------- --------- ----------
administrative
expenses 4,150,627 3,929,515 2,160,098 2,050,618
Income before income taxes 2,117,797 1,496,100 1,146,169 631,436
Income taxes 725,992 508,674 389,579 214,688
---------- ---------- --------- ----------
Net income $1,391,805 $987,426 $756,590 $416,748
========== ======== ======== ========
Basic earnings per share $0.92 $0.66 $0.50 $0.28
Diluted earnings per share 0.90 0.66 0.49 0.28
Weighted average shares
outstanding 1,508,873 1,504,601 1,508,873 1,504,601
Adjusted weighted average
shares 1,546,072 1,507,214 1,547,382 1,507,356
========== ========= ========= =========
See accompanying notes to consolidated financial statements.
4
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<PAGE>
Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Computation of Basic and Diluted Earnings Per Share
Quarter Ended March 31, 1998
Basic Earnings Per Share (EPS) Computation
Net Income available to common stockholders $756,590
Weighted
Shares Percent Average
Dates Outstanding Outstanding of Period Shares
- ----------------- ----------- --------- ------
January 1, 1998, - March 31, 1998 1,508,873 100% 1,508,873
Basic EPS $0.50
The equation for computing EPS is: Income available to common stockholders
---------------------------------------
Weighted average shares
Diluted Earnings Per Share Computation
Net Income available to common stockholders $756,590
Plus effect of assumed conversions 0
Net income available to common stockholders plus --------
assumed conversions $756,590
Weighted average shares 1,508,873
PLUS: Incremental shares from assumed conversions
Stock Options granted October 1993 3,857
Stock Options granted April 1997 34,652
-------
Dilutive potential common shares 38,509
---------
Adjusted weighted average shares 1,547,382
Diluted EPS $0.49
The equation for computing diluted EPS is
Income available to common stockholders plus effect of assumed conversion
-------------------------------------------------------------------------
Weighted average shares + dilutive potential common shares.
Quarter Ended March 31, 1997
Basic Earnings Per Share (EPS) Computation
Net income available to common stockholders $416,748
Weighted
Shares Percent Average
Dates Outstanding Outstanding of Period Shares
- ----------------- ----------- --------- ------
January 1, 1997 - March 31, 1997 1,504,601 100% 1,504,601
Basic EPS $0.28
Diluted Earnings Per Share Computation
Net Income available to common stockholders $416,748
Plus effect of assumed conversions 0
Net income available to common stockholders plus --------
assumed conversions $416,748
Weighted average shares 1,504,601
PLUS: Incremental shares from assumed conversions
Stock Options granted October 1993 2,775
Diluted Potential Common Shares 2,775
---------
Adjusted weighted average shares 1,507,356
Diluted EPS $0.28
4-a
<PAGE>
<PAGE>
Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Computation of Basic and Diluted Earnings Per Share
Six Months Ended March 31, 1998
Basic Earnings Per Share (EPS) Computation
Net Income available to common stockholders $1,391,805
Weighted
Shares Percent Average
Dates Outstanding Outstanding of Period Shares
- ----------------- ----------- --------- ------
October 1, 1997, - March 31, 1998 1,508,873 100% 1,508,873
Basic EPS $0.92
The equation for computing EPS is: Income available to common stockholders
---------------------------------------
Weighted average shares
Diluted Earnings Per Share Computation
Net Income available to common stockholders $1,391,805
Plus effect of assumed conversions 0
Net income available to common stockholders plus ----------
assumed conversions $1,391,805
Weighted average shares 1,508,873
PLUS: Incremental shares from assumed conversions
Stock Options granted October 1993 3,816
Stock Options granted April 1997 33,383
-------
Dilutive potential common shares 37,199
---------
Adjusted weighted average shares 1,546,072
Diluted EPS $0.90
The equation for computing diluted EPS is
Income available to common stockholders plus effect of assumed conversion
-------------------------------------------------------------------------
Weighted average shares + dilutive potential common shares.
Six Months Ended March 31, 1997
Basic Earnings Per Share (EPS) Computation
Net income available to common stockholders $987,426
Weighted
Shares Percent Average
Dates Outstanding Outstanding of Period Shares
- ----------------- ----------- --------- ------
October 1, 1996 - March 31, 1997 1,504,601 100% 1,504,601
Basic EPS $0.66
Diluted Earnings Per Share Computation
Net Income available to common stockholders $987,426
Plus effect of assumed conversions 0
Net income available to common stockholders plus --------
assumed conversions $987,426
Weighted average shares 1,504,601
PLUS: Incremental shares from assumed conversions
Stock Options granted October 1993 2,613
Diluted Potential Common Shares 2,613
---------
Adjusted weighted average shares 1,507,214
Diluted EPS $0.66
4-b
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<TABLE>
Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Consolidated Statements of Stockholders' Equity
Year Ended September 30, 1997, and
Six Months Ended March 31, 1998 (Unaudited)
Unrealized
Gain (Loss)
on Indirect
Securities Guarantee Deferred
Additional Available of Compensation
Common Paid-in Retained for Sale ESOP for
Stock Capital Earnings Net of Taxes Debt MRP Total
---------- ----------- ----------- ------------ ---------- ------------- ---------
- --
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at September
30, 1996 $1,504,601 $11,696,679 $17,607,269 <$816,855> <$900,900> -
$29,090,794
Change in unrea-
lized loss on
securities, net - - - 1,005,278 - -
1,005,278
Exercise of stock
options 4,272 38,448 - - - -
42,720
Reduction of ESOP
debt - - - - 96,876 -
96,876
ESOP Expense - 32,152 - - - -
32,152
Purchase of common
stock for MRP - - - - - <404,093>
<404,093>
Earned portion of MRP - - - - - 78,881
78,881
Dividends on common
stock - - <953,866> - - -
<953,866>
Offering costs for the
sale of common stock - <115,362> - - - -
<115,362>
Net income for 1997 - - 1,728,363 - - -
1,728,363
---------- ----------- ----------- ------- --------- --------- ---------
- --
Balance at September
30, 1997 1,508,873 11,651,917 18,381,766 188,423 <804,024> <325,212>
$30,601,743
---------- ----------- ----------- ------- --------- --------- ---------
- --
Change in unrealized
gain or loss on
securities, net - - - <123,164> - -
<123,164>
Reduction of ESOP debt - - - - 48,438 -
48,438
ESOP Expense - 90,392 - - - -
90,392
Purchase of common
stock for MRP - - - - - <612,448>
<612,448>
Earned portion of MRP - - - - - 104,172
104,172
Dividends on common stock - - <776,317> - - -
<776,317>
Net income for six months
ended March 31, 1998 - - 1,391,805 - - -
1,391,805
---------- ----------- ----------- ------- --------- --------- ---------
- --
Balance at March
31, 1998 $1,508,873 $11,742,309 $18,997,254 $65,259 <$755,586> <$833,488>
$30,724,621
========== =========== =========== ======= ========= =========
===========
</TABLE>
5
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Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Consolidated Statements of Cash Flows
Six Months Ended March 31, 1998, and 1997 (Unaudited)
1998 1997
----------- -----------
Cash flows from operating activities:
Net income $1,391,805 $987,426
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 216,436 484,974
Provision for loan losses 262,500 175,000
Earnings of investment in limited partners <124,545> 0
Loss (Gain) on sale of investments, net <90,267> <10,973>
Loss (Gain) on sale of real estate <9,936> <14,278>
Deferred Compensation 194,564 <10,271>
Loss (Gain) on sale of loans, net 3,928 0
Loss (Gain) on sale of real estate held for
development <67,358> 0
Loss (Gain) on sale of fixed assets 2,892 0
Decrease (Increase) in accrued interest
receivable and other assets <1,708,447> <141,480>
Increase (Decrease) in other liabilities 2,359,571 393,722
----------- -----------
Net cash provided by operating activ 2,431,143 1,864,120
----------- -----------
Cash flows from investing activities:
Proceeds from maturities of investment securities 3,951,424 2,404,861
Purchases of investment securities <8,742,151> <9,672,145>
Purchase of investments in limited partnership <181,125> 0
Proceeds from the sales of fixed assets 17,800 0
Principal repayments on mortgage-backed securi 6,509,856 2,194,629
Purchase of mortgage-backed securities <56,793,971> <10,499,126>
Purchase of cash surrender value life insuranc <1,386,538> 0
Proceeds from sale of mortgage-backed securiti 9,798,760 0
Proceeds from redemption of FHLB stock 163,500 0
Purchases of FHLB stock <1,113,500> <356,300>
Increase in loans receivable, net <12,224,459> <14,379,245>
Purchases of loans receivable <23,961,875> <12,720,169>
Sales of loans receivable 18,668,628 3,567,769
Proceeds from sale of real estate owned 175,949 116,299
Proceeds from sale of real estate held for dev 286,021 0
Purchase of premises and equipment <719,134> <1,168,948>
Capital improvements of real estate held for d <54,057> <633,811>
----------- -----------
Net cash used in investing activities <65,604,872> <41,146,186>
----------- -----------
(continued)
6
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Perpetual Bank, A Federal Savings Bank, and Subsidiaries
Consolidated Statements of Cash Flows, Continued
Six Months Ended March 31, 1998, and 1997 (Unaudited)
1998 1997
----------- -----------
Cash flows from financing activities:
Increase in deposit accounts 10,867,804 26,121,541
Proceeds from FHLB Advances 74,000,000 36,000,000
Repayment of FHLB Advances <70,029,536> <26,000,000>
Proceeds from Reverse Repurchase Borrowing 20,000,000 0
Proceeds from the sale of stock subscriptions 96,398,970 0
Payment of Stock Offering Costs 0 <115,361>
Purchase of stock for MRP <612,448> 0
Repayments of ESOP Loan 48,438 48,438
Dividends paid on common stock <776,317> <211,381>
(Decrease) increase in Advance payments by
borrowers for property taxes and insurance <169,052> <759,189>
----------- -----------
Net cash provided by financing activies 129,727,859 35,084,048
Net increase (decrease) in cash and cash
equivalents 66,554,130 <4,198,018>
Cash and cash equivalents, beginning of year 13,499,332 13,584,568
----------- -----------
Cash and cash equivalents, end of year $80,053,462 $9,386,550
=========== ==========
Supplemental disclosures:
Cash paid during the year for
Interest $5,756,302 $3,837,971
=========== ==========
Taxes 687,750 0
=========== ==========
Noncash investing activity:
Additions to real estate acquired in settlement 120,208 134,332
Loans receivable exchanged for mortgage-backed
securities 588,981 0
Change in unrealized net loss on securities
available for sale, net of tax <123,164> <249,497>
Change in Employee Stock Ownership Plan debt
guaranteed by the Bank 48,438 48,438
See accompanying notes to consolidated financial statements.
7
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Perpetual Bank, A Federal Savings Bank and Subsidiaries
Notes to Consolidated Financial Statements
(1) Basis of Presentation
---------------------
SouthBanc Shares, Inc. ("Holding Company"), a Delaware corporation, was formed
at the direction of Perpetual Bank, A Federal Savings Bank ("Savings Bank"),
to become the holding company for the Savings Bank in connection with the
conversion of the Savings Bank's parent mutual holding company, SouthBanc
Shares, M.H.C., to the stock form of organization ("Conversion and
Reorganization"). The Conversion and Reorganization was consummated on April
14, 1998. Accordingly, the consolidated financial statements contained in
this Quarterly Report are those of the Savings Bank and the related
information contained herein relates primarily to the Savings Bank.
The accompanying unaudited consolidated financial statements for the Savings
Bank and subsidiaries were prepared in accordance with instructions for Form
10-Q and, therefore, do not include all disclosures necessary for a complete
presentation of financial condition, results of operations, and cash flows in
conformity with generally accepted accounting principles. All adjustments,
consisting of normal recurring accruals, which are, in the opinion of
management, necessary for fair presentation of the interim consolidated
financial statements have been included. The results of operations for the
period ended March 31, 1998, are not necessarily indicative of the results
that may be expected for the entire year.
(2) Principles of Consolidation
---------------------------
These consolidated financial statements do not include all disclosures
required by generally accepted accounting principles and should be read in
conjunction with the Savings Bank's audited consolidated financial statements
and related notes for the year ended September 30, 1997, included in the
Holding Company's Prospectus dated February 11, 1998. The accompanying
unaudited consolidated financial statements include the accounts of the
Savings Bank and its wholly owned subsidiaries, Mortgage First Service
Corporation and United Service Corporation, which has a wholly owned
subsidiary, United Investment Services. All significant intercompany items
and transactions have been eliminated in consolidation.
(3) Payment of Dividends
--------------------
The payment of dividends by the Holding Company depends primarily on the
ability of the Savings Bank to pay dividends to the Holding Company. The
payment of dividends by the Savings Bank is subject to regulation by the
Office of Thrift Supervision ("OTS"). SouthBanc may not declare or pay a cash
dividend or repurchase any of its capital stock if the effect thereof would
cause the capital of the Savings Bank to be reduced below regulatory capital
requirements imposed by the OTS.
The Savings Bank's Board of Directors declared a cash dividend of $.35 per
share to the Savings Bank's shareholders during the quarter ended March 31,
1998, payable to shareholders of record as of March 30, 1998.
8
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<PAGE>
(4) Earnings Per Share
------------------
In February 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards (SFAS) No. 128, Earnings Per
Share. SFAS No. 128 specifies the computation, presentation and disclosure
requirements for earnings per share (EPS for entities with publicly held
common stock or potential common stock such as options, warrants, convertible
securities or contingent stock agreements if those securities trade in a
public market. This standard specifies computation and presentation
requirements for both basic EPS and, for entities with complex capital
structures, diluted EPS. SFAS No. 128 is effective for reporting periods
ending after December 15, 1997. The Holding Company adopted SFAS No. 128 in
the first quarter. Accordingly, all prior period earnings per share have been
restated for SFAS No. 128.
QUARTERS ENDED
MARCH 31
1998 1997
---- ----
Basic weighted average shares outstanding 1,508,873 1,504,601
Plus stock option incremental shares considered
outstanding for diluted EPS calculations 38,509 2,755
Adjusted Weight Average Shares 1,547,382 1,507,356
RECONCILIATION OF THE NUMERATORS AND DENOMINATORS OF THE BASIC AND DILUTED EPS
COMPUTATIONS:
FOR THE QUARTER ENDED MARCH 31, 1998
INCOME SHARE PER SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ------
BASIC EPS $756,590 1,508,873 $0.50
Effect of Diluted Securities
Stock Options 0 38,509
-------- ---------
Diluted EPS $756,590 1,547,382 $0.49
9
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<PAGE>
(4) Earnings Per Share - (Continued)
--------------------------------
FOR THE QUARTER ENDED MARCH 31, 1997
INCOME SHARE PER SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ------
Basis EPS $416,748 1,504,601 $0.28
Effect of Diluted Securities
Stock Options 0 2,755
-------- ---------
Diluted EPS $416,748 1,507,356
$0.28
SIX MONTHS ENDED
MARCH 31
1998 1997
---- ----
Basic weighted average shares outstanding 1,508,873 1,504,601
Plus stock option incremental shares considered
outstanding for diluted EPS calculations 37,199 2,613
--------- ---------
Adjusted Weight Average Shares 1,546,072 1,507,214
RECONCILIATION OF THE NUMERATORS AND DENOMINATORS OF THE BASIC AND DILUTED EPS
COMPUTATIONS:
FOR THE SIX MONTHS ENDED MARCH 31, 1998
INCOME SHARE PER SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ------
Basic EPS $1,391,805 1,508,873 $0.92
Effect of Diluted Securities
Stock Options 0 37,199
---------- ---------
Diluted EPS $1,391,805 1,546,072 $0.90
10
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<PAGE>
(4) Earnings Per Share - (Continued)
--------------------------------
FOR THE SIX MONTHS ENDED MARCH 31, 1997
INCOME SHARE PER SHARE
(NUMERATOR) (DENOMINATOR) AMOUNT
----------- ------------- ------
Basic EPS $987,426 1,504,601 $0.66
Effect of Diluted Securities
Stock Options 0 2,613
-------- ---------
Diluted EPS $987,426 1,507,214 $0.66
Item 2 - Management's Discussion and Analysis of Financial Condition and
Results of Operations
Comparison of Financial Condition at March 31, 1998 and September 30, 1997
Total assets of the Savings Bank increased $128.4 million from $257.0 million
at September 30, 1997, to $385.4 million at March 31, 1998, primarily due to
stock order subscriptions of $96.4 million. There were also increases in cash
and cash equivalents, investment securities available-for-sale, Federal Home
Loan Bank stock, mortgage-backed securities available-for-sale, and loans
receivable, net. These increases were funded by proceeds from the stock order
subscriptions, increases in deposits and borrowings in the form of reverse
repurchase agreements. The purchase of investment securities and
mortgage-backed securities are part of a "wholesale leveraging" strategy,
providing the Savings Bank the opportunity to earn income based on the
differential between the interest rates earned on such securities and the
interest paid on the borrowed funds.
Investment securities available-for-sale increased 46.0% from $11.3 million at
September 30, 1997, to $16.5 million at March 31, 1998. The $16.5 million of
investment securities has an average yield of 7.30%.
Mortgage-backed securities available-for-sale increased $35.6 million from
$35.9 million at September 30, 1997, to $71.5 million at March 31, 1998.
During the six months ended March 31, 1998, the Savings Bank invested $14.5
million in one year adjustable rate GNMA securities yielding 5.58%. The
Savings Bank also purchased $15.3 million in fixed rate mortgage-backed
securities with twenty year maturities yielding 7.26% and $10.5 million in
monthly adjustable interest rate collaterized mortgage obligations (CMO's)
secured by FHLMC and GNMA obligations with a yield of 6.83% at March 31, 1998.
Loans receivable increased $16.5 million from September 30, 1997, to March 31,
1998, as residential mortgage loans increased $11.6 million, commercial real
estate loans $1.2 million, consumer loans $1.3 million, and commercial loans
$2.4 million.
Other assets increased $2.8 million. The Savings Bank purchased single
premium whole life insurance of $2.1 million to fund future retirement
benefits. In addition, the costs of the stock conversion incurred through
March 31, 1998, was $464,000. The cost of the conversion will be net against
the proceeds from the sale of the stock in April 1998.
11
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Deposits increased $10.9 million from $201.0 million at September 30, 1997, to
$211.9 million at March 31, 1998, as consumer and commercial checking accounts
increased $7.7 million, statement savings and money market accounts increased
$6.1 million and certificates of deposits decreased $2.9 million. The Savings
Bank is continuing to promote the Free Checking Program and recent local bank
mergers increased commercial checking and money market opportunities.
Borrowings at March 31, 1998, consisted of Federal Home Loan Bank Advances and
reverse repurchase agreements. Federal Home Loan Bank Advances increased $4.0
million from $15.0 million at September 30, 1997, to $19.0 million at March
31, 1998, and were used to fund loan growth and the purchase of investment and
mortgage-backed securities. Reverse repurchase agreements amounted to $20.0
million at March 31, 1998. Reverse repurchase agreements are a form of
borrowings by the Savings Bank where the Savings Bank sells securities under
the agreement that it will repurchase them at a later date, for which the
Savings Bank receives funds from the purchaser of the securities at an agreed
upon interest rate. At March 31, 1998, there were two reverse repurchase
agreements outstanding: (i) $10.0 million at an interest rate of 5.59%, which
is callable away from the Savings Bank after November 13, 2000, and has a
maturity date of November 13, 2002, and (ii) $10.0 million at an interest rate
of 5.49%, which is callable away from the Savings Bank after November 6, 1998,
and has a maturity date of November 6, 2000.
Stockholders equity increased $100,000 from $30.6 million at September 30,
1997, to $30.7 million at March 31, 1998. Retained income was offset by
dividends paid and increased deferred compensation expense for the 1996
Management Recognition Plan (MRP). The Savings Bank paid $776,000 in
dividends during the six months ended March 31, 1998. Deferred compensation
associated with the 1996 MRP, which is recorded on the Savings Bank's balance
sheet as a contra equity account, increased $508,000 from $325,000 to $833,000
as a result of open market purchases by the 1996 MRP Trust during the six
months ended March 31, 1998, of the remaining 11,415 shares required to fund
the plan.
Comparison of Operating Results for the Three Months Ended March 31, 1998 and
1997
Net Income
- ----------
Net income for the three months ended March 31, 1998, increased 81.5% to
$757,000 or $0.50 basic earnings per share and $0.49 diluted earnings per
share, compared to $417,000 or $0.28 basic earnings per share and $0.28
diluted earnings per share for the same three months a year ago.
Net Interest Income
- -------------------
Net interest income increased $400,000 from $2.1 million for the three months
ended March 31, 1997, to $2.5 million for the three months ended March 31,
1998. Total interest income increased 29.1% or $1,281,000 from $4,407,000 for
the three months ended March 31, 1997, to $5,688,000 for the three months
ended March 31, 1998, due primarily to a higher average balance of outstanding
loans which increased $33.0 million or 20.7% from an average of $159.8 million
for the three months ended March 31, 1997, to $192.9 million for the three
months ended March 31, 1998. Interest income on mortgage-backed securities
increased $214,000 or 25.5% due to a higher average balance of mortgage-backed
securities and interest income on other investments increased $255,000 or
112.6% as the average balance of investment securities increased $10.8 million
or 173.5%.
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Interest Expense
- ----------------
Interest expense on deposits increased $304,000 or 15.7% from $1,931,000 for
the three months ended March 31, 1997, to $2,235,000 for the three months
ended March 31, 1998, as the average deposits increased $30.1 million or 17.1%
from $176.2 million and an average cost of 4.38% for the three months ended
March 31, 1997, to $206.3 million and an average cost of 4.33% for the three
months ended March 31, 1998. Interest expense on borrowings increased
$559,000 or 154.4% from $362,000 for the three months ended March 31, 1997, to
$921,000 for the three months ended March 31, 1998, as the average borrowings
increased $35.8 million or 136.6% from $26.2 million for the three months
ended March 31, 1997, to $62.0 million for the three months ended March 31,
1998.
Provisions for Loan Losses
- --------------------------
Provisions for loan losses are charges to earnings to bring the total
allowance for loan losses to a level considered adequate by management to
provide for management's best estimate of inherent loan losses. In
determining the adequacy of the allowance for loan losses, management
evaluates various factors including the market value of the underlying
collateral, growth, and composition of the loan portfolio, the relationship of
the allowance for loan losses to outstanding loans, loss experience,
delinquency trends and economic conditions. Management evaluates the carrying
value of loans periodically, and the allowance for loan losses is adjusted
accordingly.
The provision for loan losses increased $29,500 or 20.3% from $145,000 for the
three months ended March 31, 1997, to $174,500 for the three months ended
March 31, 1998. Net charge-offs for the three months ended March 31, 1998,
were $111,000 compared to $29,000 for the three months ended March 31, 1997.
At March 31, 1998, the allowance for loan losses was 1.02% compared to 1.04%
at September 30, 1997.
Other Income
- ------------
Total other income increased from $714,000 for the three months ended March
31, 1997, to $949,000 for the three months ended March 31, 1998. Gain or loss
on sale of investments increased $80,000 to $90,000 for the three months ended
March 31, 1998, from $10,000 for the same three months of 1997. Other income
increased $161,000 from $132,000 for the three months ended March 31, 1997,
to $293,000 for the three months ended March 31, 1998. The Savings Bank
recorded net income from its investment in Mortgage First Service Corporation
of $45,000 for the three months ended March 31, 1998, compared to a start-up
loss of $21,000 for the three months ended March 31, 1997. The wholly-owned
subsidiary United Service Corporation's income increased $35,000 from $67,000
for the three months ended March 31, 1997, to $102,000 for the three months
ended March 31, 1998. Limited partnership investment income increased $58,000
from $7,000 for the three months ended March 31, 1997, to $65,000 for the
three months ended March 31, 1998.
General and Administrative Expense
- ----------------------------------
General and administrative expenses increased $109,000 from $2,051,000 for the
three months ended March 31, 1997, to $2,160,000 for the three months ended
March 31, 1998. Salaries and employee benefits increased 19.8% from $977,000
for the three months ended March 31, 1997, to $1,171,000 for the three months
ended March 31, 1998, as a result of opening a full service office and closing
a grocery store office $28,000, and expenses with the ESOP of $61,000 and the
1996 MRP of $52,000. Office occupancy decreased $16,000 from $133,000 for the
three months ended March 31, 1997, to $117,000 for the three months ended
March 31, 1998, due to a decrease in building maintenance expense. Furniture
and
13
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equipment expense decreased $26,000 from $317,000 for the three months ended
March 31, 1997, to $291,000 for the three months ended March 31, 1998, due to
write-offs of data processing equipment in 1997. The FDIC insurance premium
increased $25,000 from $6,000 for the three months ended March 31, 1997, to
$31,000 for the three months ended March 31, 1998, due to an adjustment by
the FDIC in the three months ended March 31, 1997.
Advertising expenses decreased $48,000 or 44.0% from $109,000 for the three
months ended March 31, 1997, to $61,000 for the three months ended March 31,
1998, as a result of winding down of the Free Checking Advertising Campaign
that began in October 1994. Data processing increased $31,000 or 39.7% from
$78,000 for the three months ended March 31, 1997, to $109,000 as a result of
increased volume and cost of ATM and debit card processing. Office supplies
decreased $15,000 or 13.4% from $112,000 for the three months ended March 31,
1997, to $97,000 for the three months ended March 31, 1998, as the Savings
Bank was changing computer systems in the quarter ended March 31, 1997, that
required new internal processing supplies. Other expenses decreased $36,000
or 11.3% from $318,000 for the three months ended March 31, 1997, to $282,000
for the three months ended March 31, 1998, due to decreases in legal expense
and postage expense.
Income Taxes
- ------------
Income taxes increased $175,000 or 81.4% to $390,000 for the three months
ended March 31, 1998, from $215,000 for the three months ended March 31, 1997.
This was due to an increase in income before taxes of $515,000 or 81.6% from
$631,000 to $1,146,000 for the three months ended March 31, 1997, and 1998,
respectively.
Comparison of Operating Results for the Six Months Ended March 31, 1998 and
1997
Net Income
- ----------
Net income for the six months ended March 31, 1998, increased 41.0% to
$1,392,000 or $0.92 basic earnings per share and $0.90 diluted earnings per
share, compared to $987,000 or $0.66 basic earnings per share and $0.66
diluted earnings per share for the same six months a year ago.
Net Interest Income
- -------------------
Net interest income increased $1.6 million from $4.3 million for the six
months ended March 31, 1997, to $5.9 million for the six months ended March
31, 1998. Total interest income increased 25.3% or $2,172,000 from $8,589,000
for the six months ended March 31, 1997, to $10,761,000 for the six months
ended March 31, 1998, due primarily to a higher average balance of outstanding
loans which increased $34.6 million or 22.7% from an average of $152.2 million
for the six months ended March 31, 1997, to an average of $186.8 million for
the six months ended March 31, 1998. The interest income on loans increased
$1.6 million or 24.2% from $6.6 million to $8.2 million for the six months
ended March 31, 1997 and 1998, respectively. Interest income on
mortgage-backed securities increased $148,000 or 9.4% due to a higher average
balance of mortgage-backed securities which increased $7.2 million or 15.5%
from an average of $46.6 million for the six months ended March 31, 1997, to
an average of $53.8 million for the six months ended March 31, 1998. Interest
income on other investments increased $466,000 or 118% as the average balance
of investment securities increased from an average of $13.0 million for the
six months ended March 31, 1997, to $26.2 million for the six months ended
March 31, 1998, an increase of $13.2 million or 101.5%.
14
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Interest Expense
- ----------------
Interest expense increased 37.2% from $4.3 million for the six months ended
March 31, 1997, to $5.9 million for the six months ended March 31, 1998.
Interest on deposits increased 21.6% from $3.7 million for the six months
ended March 31, 1997, to $4.5 million for the six months ended March 31, 1998,
as the average balance of deposits increased 20.9% from $168.7 million for the
six months ended March 31, 1997, to $203.9 million for the six months ended
March 31, 1998, and the weighted average cost of deposits increased from 4.39%
for the six months ended March 31, 1997, to 4.46% for the six months ended
March 31, 1998.
Interest expense on borrowings (Federal Home Loan Bank Advances and reverse
repurchase agreements) increased $759,000 or 128.0% from $593,000 for the six
months ended March 31, 1997, to $1,352,000 for the six months ended March 31,
1998, as the average borrowings increased from $21.1 million for the six
months ended March 31, 1997, to $51.2 million for the six months ended March
31, 1998.
Provision for Loan Losses
- -------------------------
The provision for loan losses increased $87,500 or 50.0% from $175,000 for the
six months ended March 31, 1997, to $262,500 for the six months ended March
31, 1998. Net charge-offs for the six months ended March 31, 1998, were
$127,000 compared to $46,000 for the six months ended March 31, 1997. At
March 31, 1998, the allowance for loan losses was 1.02%, compared to 1.04% at
September 30, 1997.
Other Income
- ------------
Total other income increased from $1,306,000 for the six months ended March
31, 1997, to $1,668,000 for the six months ended March 31, 1998. Gain on sale
of investments increased $80,000 to $90,000 for the six months ended March 31,
1998. Other income increased $229,000 from $279,000 for the six months ended
March 31, 1997, to $508,000 for the six months ended March 31, 1998.
Perpetual Bank recorded net income from its investment in Mortgage First
Service Corporation of $74,000 for the six months ended March 31, 1998,
compared to start-up loss of $76,000 for the six months ended March 31, 1997.
The wholly-owned subsidiary United Service Corporation's income increased
$43,000 from $240,000 for the six months ended March 31, 1997, to $283,000 for
the six months ended March 31, 1998. Limited partnership investment income
increased $50,000 from $75,000 for the six months ended March 31, 1997, to
$125,000 for the six months ended March 31, 1998.
General and Administrative Expenses
- -----------------------------------
General and administrative expenses increased $221,000 from $3,930,000 for the
six months ended March 31, 1997, to $4,151,000 for the six months ended March
31, 1998. Salaries and employee benefits increased $351,000 or 18.3% from
$1,916,000 for the six months ended March 31, 1997, to $2,267,000 for the six
months ended March 31, 1998, as a result of opening a full service office and
closing a grocery store office $43,000, and expenses with the ESOP of $90,000
and the 1996 MRP of $104,000. Office occupancy decreased $19,000 from
$250,000 for the six months ended March 31, 1997, to $231,000 for the six
months ended March 31, 1998, due to a decrease in building maintenance costs.
Furniture and equipment expenses increased $16,000 from $490,000 for the six
months ended March 31, 1997, to $506,000 for the six months ended March 31,
1998, due to increased computer equipment depreciation expense. FDIC
insurance premiums decreased $35,000 from $96,000 for the six months ended
March 31, 1997, to $61,000 for the six months ended March 31, 1998, due to a
decrease in the insurance premium rate charged by the FDIC. Advertising
decreased $76,000 from $197,000 for the
15
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six months ended March 31, 1997, to $121,000 for the six months ended March
31, 1998, as the Free Checking Advertising Campaign was winding down. Data
processing increased $69,000 from $137,000 for the six months ended March 31,
1997, to $206,000 for the six months ended March 31, 1998, due to increased
cost in processing ATM and debit cards. Office supplies decreased $46,000
from $211,00 for the six months ended March 31, 1997, to $165,000 for the six
months ended March 31, 1998, as the Savings Bank was changing computer systems
in the six months ended March 31, 1997, that required new internal processing
supplies. Other expenses decreased $39,000 from $633,000 for the six months
ended March 31, 1997, to $594,000 for the six months ended March 31, 1998, due
to decreases in legal expense, postage, and dues and subscriptions.
Income Taxes
- ------------
Income taxes increased $175,000 or 81.4% from $215,000 for the six months
ended March 31, 1997, to $390,000 for the six months ended March 31, 1998, due
to an increase in income before taxes. The effective tax rate was 34% for
both six months ended March 31, 1997 and 1998.
Liquidity and Capital Resources
- -------------------------------
The Savings Bank's primary sources of funds are deposits, repayment of loan
principal, and repayment of mortgage backed securities and Collateralized
Mortgage Obligations (CMOs), and, to a lesser extent, maturities of investment
securities, and short-term investments and operations. While scheduled loan
repayments and maturing investments are relatively predictable, deposit flows
and early loan repayments are more influenced by interest rates, general
economic conditions, and competition. The Savings Bank attempts to price its
deposits to meet its asset/liability objectives consistent with local market
conditions. Excess balances are invested in overnight funds. In addition,
the Savings Bank is eligible to borrow funds from the Federal Home Loan Bank
("FHLB") of Atlanta. Under OTS regulations, a member thrift institution is
required to maintain an average daily balance of liquid assets (cash, certain
time deposits and savings accounts, bankers' acceptances, and specified U. S.
government, state or federal agency obligations and certain other investments)
equal to a monthly average of not less than a specified percentage of its net
withdrawable accounts plus short-term borrowings. This liquidity requirement,
which is currently 4.0%, may be changed from time to time by the OTS to any
amount within the range of 4.0% to 10.0%, depending upon economic conditions
and the savings flow of member associations. Monetary penalties may be
imposed for failure to meet liquidity requirements. The liquidity of the
Savings Bank at March 31, 1997, was 31.0%.
The primary investing activity of the Savings Bank is lending. During the six
months ended March 31, 1998, the Savings Bank originated $50.6 million of
loans, $18.7 million of which were sold. The Savings Bank also purchased
$24.0 million of loans. The retained originations were primarily funded by
increases in deposits, principal repayments of loans and mortgage-backed
securities and CMO's, Federal Home Loan Bank Advances, and Reverse Repurchase
Agreements.
Liquidity management is both a short and long-term responsibility of the
Savings Bank's management. The Savings Bank adjusts its investments in liquid
assets based upon management's assessment of (i) expected loan demand, (ii)
projected loan sales, (iii) expected deposit flows, (iv) yields available on
interest-bearing deposits, and (v) liquidity of its asset/liability management
program. Excess liquidity is generally invested in interest-bearing overnight
deposits and other short-term government and agency obligations. If the
Savings Bank requires funds beyond its ability to generate them internally, it
has additional borrowing capacity with the FHLB and collateral eligible for
repurchase agreements.
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The Savings Bank anticipates that it will have sufficient funds available
through normal loan repayments to meet current loan commitments. At March 31,
1998, the Savings Bank had outstanding commitments to originate loans of
approximately $12,348,000.
Certificates of deposit scheduled to mature in one year or less at March 31,
1998, totaled $110.3 million. Based upon management's experience and
familiarity with the customers involved and the Savings Bank's pricing policy
relative to that of its perceived competitors, management believes that a
significant portion of such deposits will remain with the Bank.
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Capital Compliance
- ------------------
The Holding Company is not subject to any separate regulatory capital
requirements. The Savings Bank is required to meet certain statutory capital
ratios including tangible capital, core capital, and risk-based capital
components. The Savings Bank met all of these requirements at March 31, 1998.
The following table summarizes the Savings Bank's capital ratios and the
statutory requirements at March 31, 1998:
Capital Compliance
------------------
To Be Well
For Capital Capitalized Under
Adequacy Prompt Corrective
Actual Purposes Action Provisions
------ -------- -----------------
(Dollars in Thousands)
- ----------------------
Amount Ratio Amount Ratio Amount Ratio
------ ----- ------ ----- ------ -----
Tier 1 Core Capital $27,672 7.24% $15,294 4.00% $19,117 5.00%
(To adjusted total
assets)
Total Risk-Based
Capital $27,693 13.03% $16,997 8.00% $12,748 6.00%
(To risk-weighted
assets)
Tier 1 Risk-Based
Capital $27,672 13.02% $ 8,499 4.00% $21,247 10.00%
(To risk-weighted
assets)
Tangible Equity
Capital $27,672 7.24% $ 7,647 2.00% - -
(To tangible
assets)
Impact of New Accounting Pronouncements
- ---------------------------------------
Earnings Per Share
- ------------------
The Financial Accounting Standards Board ("FASB") issued Statement of
Financial Accounting Standards ("SFAS") No. 128, "Earnings Per Share," in
February 1997. SFAS 128 applies to entities with publicly traded common stock
or potential common stock and is effective for financial statements for
periods ending after December 15, 1997, including interim periods. SFAS 128
simplifies the standards for computing earnings per share ("EPS") previously
found in APB Opinion 15, "Earnings Per Share." It replaces the presentation
of primary EPS with a presentation of basic EPS. It also requires dual
presentation of basic and diluted EPS on the face of the income statement for
all companies with complex capital structures and requires a reconciliation of
the numerator and denominator of the basic EPS computation to the numerator
and denominator of the diluted EPS computation. The Savings Bank's present
computation of diluted EPS under APB Opinion 15 is applied against a
materiality test of 3 per cent. For financial statements issued by the
Savings Bank after December 15, 1997, the materiality test will no longer
apply and the Bank will report basic and diluted EPS for each period presented
as well as the further reconciliations required by SFAS 128. Although earlier
application is not permitted, SFAS 128 will require restatement of all
prior-period EPS data presented.
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Disclosure of Information about Capital Structure
- -------------------------------------------------
The FASB also issued SFAS No. 129, "Disclosure of Information about Capital
Structure" in February 1997. The purpose of SFAS 129 is to consolidate
existing disclosure requirements for ease of retrieval. SFAS 129 contains no
change in disclosure requirements for companies, such as the Savings Bank that
were subject to the previously existing requirements. It applies to all
entities and is effective for financial statement issued for periods ending
after December 15, 1997.
Reporting Comprehensive Income
- ------------------------------
The FASB also issued SFAS No. 130, "Reporting Comprehensive Income" in June
1997. The purpose of SFAS 130 is to address concerns over the practice of
reporting elements of comprehensive income directly in equity. This SFAS
requires all items that are required to be recognized under accounting
standards as components of comprehensive income be reported in a financial
statement that is displayed in equal prominence with the other financial
statements. This statement is effective for periods beginning after December
15, 1997. Comparative financial statements are required to be reclassified to
reflect the provisions of this statement. The Savings Bank will adopt the
provisions of this SFAS for calendar year 1998.
Disclosures about Segments of an Enterprise and Related Information
- -------------------------------------------------------------------
The FASB also issued SFAS No. 131, "Disclosures about Segments of an
Enterprise and Related Information" in June 1997. This statement applies to
all public entities. The provisions of SFAS 131 require certain disclosures
regarding material industry segments within an entity. Due to the Savings
Bank's structure, SFAS 131 is not expected to have a material impact.
Effect of Inflation and Changing Prices
- ---------------------------------------
The Consolidated Financial Statements and related financial data presented
herein have been prepared in accordance with Generally Accepted Accounting
Principles ("GAAP") which require the measurement of financial position and
operating results in terms of historical dollars, without considering the
changes in relative purchasing power of money over time due to inflation.
The primary impact of inflation on operations of the Savings Bank is reflected
in increased operating costs. Unlike most industrial companies, virtually all
the assets and liabilities of a financial institution are monetary in nature.
As a result, interest rates generally have a more significant impact on a
financial institution's performance than do general levels of inflation.
Interest rates do not necessarily move in the same direction or to the same
extent as the prices of goods and services.
Year 2000 Considerations
- ------------------------
Many existing computer programs use only two digits to identify a year in the
date datum field. These programs were designed and developed without
considering the impact of the upcoming change in the century. If uncorrected,
many computer applications could fail or create erroneous results by or at the
Year 2000. The Year 2000 issue affects virtually all companies and
organizations.
The Savings Bank has an in-house computer system to process customer records
and monetary transactions, post deposit and general ledger entries and record
activity in installment lending, loan servicing and loan originations.
Although no assurances can be given, based on internal testing procedures and
conversations with the software provider, the Bank does not expect that the
cost of addressing any Year 2000 issue will be a material event or uncertainty
that would cause its reported financial information not to be necessarily
indicative of future operating results or future financial condition, or that
the costs of consequences of incomplete or untimely resolution of any Year
2000 issue
19
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represent known material event or uncertainty that is reasonably likely to
affect its future financial results, or cause its reported financial
information not to be necessarily indicative of future operating results or
future financial condition. Incomplete or untimely compliance, however, would
have a material adverse effect on the Savings Bank, the dollar amount of which
cannot be accurately quantified at this time because of the inherent variables
and uncertainties involved. The Savings Bank has formed a Year 2000
Compliance Committee that reports the progress of the Year 2000 Plan to the
Board of Directors on a monthly basis. This Plan includes commercial
borrowers that may be subject to some degree of risk. The Savings Bank will
complete written testing strategies and plans by June 30, 1998, for mission -
critical systems. The Savings Bank's core software vendor has provided a
written testing plan that will be tested by December 31, 1998.
ITEM 3 - Market Risk Disclosure
- -------------------------------
There have been no material changes to the market risk information set forth
under "Management's Discussion and Analysis of Financial Condition and Results
of Operations -- Market Risk and Asset Liability Management" in the Company's
prospectus dated February 11, 1998.
20
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PART II
Item 1. Legal Proceedings
- ---------------------------
The Savings Bank from time to time and currently is involved as plaintiff or
defendant in various legal actions incident to its business. These actions
are not believed to be material, either individually or collectively, to the
consolidated financial condition or results of operations of the Bank.
Item 2. Changes in Securities and Use of Proceeds
- ---------------------------------------------------
None
Item 3. Defaults Upon Senior Securities
- -----------------------------------------
Not applicable
Item 4. Submission of Matters to a Vote of Security Holders
- -------------------------------------------------------------
None
Item 5. Other Information
- ---------------------------
None
Item 6. Exhibits and Reports on Form 8-K
- ------------------------------------------
Exhibits:
--------
3(a) Certificate of Incorporation of the Holding Company *
3(b) Bylaws of the Holding Company *
10(a) Employment Agreement with Robert W. Orr
10(b) Employment Agreement with Thomas C. Hall
10(c) Employment Agreement with Barry C. Visioli
27 Financial Data Schedule
* Incorporated by reference to the Holding Company's Registration
Statement on Form S-1, as amended (File No. 333-42517).
No reports on Form 8-K were filed during the quarter under
report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this amended report to be signed on its behalf by
the undersigned thereunto duly authorized.
SouthBanc Shares, Inc.
Date: /s/ Robert W. Orr
May 15, 1998 -----------------------------------------
Robert W. Orr
President and Managing Officer
(Duly Authorized Representative)
Date: /s/ Thomas C. Hall
May 15, 1998 ------------------------------------------
Thomas C. Hall
Chief Financial Officer
22
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Exhibit 10(a)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of April 20, 1998, by and between
PERPETUAL BANK, A FEDERAL SAVINGS BANK (the "BANK"), SOUTHBANC SHARES, INC.
(the "COMPANY"), a Delaware corporation; and ROBERT W. ORR ("EXECUTIVE").
WHEREAS, EXECUTIVE serves in a position of substantial responsibility;
WHEREAS, the BANK wishes to assure itself of the services of EXECUTIVE
for the period provided in this Agreement; and
WHEREAS, EXECUTIVE is willing to serve in the employ of the BANK on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, EXECUTIVE agrees to serve
as President and Chief Executive Officer of the BANK. During said period,
EXECUTIVE also agrees to serve, if elected, as an officer and director of the
COMPANY or any subsidiary or affiliate of the COMPANY or the BANK. Executive
shall render administrative and management duties to the BANK such as are
customarily performed by persons situated in a similar executive capacity.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of thirty-six
(36) full calendar months thereafter. Commencing on the first anniversary
date, and continuing at each anniversary date thereafter, the Board of
Directors of the BANK (the "Board") may extend the Agreement for an additional
year. Prior to the extension of the Agreement as provided herein, the Board
of Directors of the BANK will conduct a formal performance evaluation of
EXECUTIVE for purposes of determining whether to extend the Agreement, and the
results thereof shall be included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, EXECUTIVE shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the BANK; provided, however, that, with the
approval of the Board, as evidenced by a resolution of such Board, from time
to time, EXECUTIVE may serve, or continue to serve, on the boards of directors
of, and hold any other
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offices or positions in, companies or organizations, which, in such Board's
judgment, will not present any conflict of interest with the BANK, or
materially affect the performance of EXECUTIVE's duties pursuant to this
Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The
BANK shall pay EXECUTIVE as compensation a salary of $98,800 per year ("Base
Salary"). Such Base Salary shall be payable in accordance with the customary
payroll practices of the BANK. During the period of this Agreement,
EXECUTIVE's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement.
Such review shall be conducted by a Committee designated by the Board, and the
Board may increase EXECUTIVE's Base Salary. In addition to the Base Salary
provided in this Section 3(a), the BANK shall provide EXECUTIVE at no cost to
EXECUTIVE with all such other benefits as are provided uniformly to permanent
full-time employees of the BANK.
(b) The BANK will provide EXECUTIVE with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
EXECUTIVE was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the BANK will not,
without EXECUTIVE's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect EXECUTIVE's rights or
benefits thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), EXECUTIVE will be entitled to participate
in or receive benefits under any employee benefit plans including, but not
limited to, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plan, medical coverage or any other
employee benefit plan or arrangement made available by the BANK in the future
to its senior executives and key management employees, subject to, and on a
basis consistent with, the terms, conditions and overall administration of
such plans and arrangements. EXECUTIVE will be entitled to incentive
compensation and bonuses as provided in any plan, or pursuant to any
arrangement of the BANK, in which EXECUTIVE is eligible to participate.
Nothing paid to EXECUTIVE under any such plan or arrangement will be deemed to
be in lieu of other compensation to which EXECUTIVE is entitled under this
Agreement, except as provided under Section 5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the BANK shall pay or reimburse EXECUTIVE for all reasonable travel
and other obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during EXECUTIVE's term of employment under this Agreement, the provisions of
this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one
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or more of the following: (i) the termination by the BANK of EXECUTIVE's
full-time employment hereunder for any reason other than a Change in Control,
as defined in Section 5(a) hereof; disability, as defined in Section 6(a)
hereof; death; retirement, as defined in Section 7 hereof; or Termination for
Cause, as defined in Section 8 hereof; (ii) EXECUTIVE's resignation from the
BANK's employ, upon (A) unless consented to by EXECUTIVE, a material change in
EXECUTIVE's function, duties, or responsibilities, which change would cause
EXECUTIVE's position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in Sections 1 and 2,
above (any such material change shall be deemed a continuing breach of this
Agreement), (B) a relocation of EXECUTIVE's principal place of employment by
more than 35 miles from its location at the effective date of this Agreement,
or a material reduction in the benefits and perquisites to EXECUTIVE from
those being provided as of the effective date of this Agreement, (C) the
liquidation or dissolution of the BANK, or (D) any breach of this Agreement by
the BANK. Upon the occurrence of any event described in clauses (A), (B), (C)
or (D), above, EXECUTIVE shall have the right to elect to terminate his
employment under this Agreement by resignation upon not less than sixty (60)
days prior written notice given within a reasonable period of time not to
exceed, except in case of a continuing breach, four (4) calendar months after
the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the BANK shall pay
EXECUTIVE, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the payments due to EXECUTIVE for
the remaining term of the Agreement, including Base Salary, bonuses, and any
other cash or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on EXECUTIVE's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the BANK as of the Date of Termination), to EXECUTIVE for the
term of the Agreement provided, however, that if the BANK is not in compliance
with its minimum capital requirements or if such payments would cause the
BANK's capital to be reduced below its minimum capital requirements, such
payments shall be deferred until such time as the BANK is in capital
compliance. All payments made pursuant to this Section 4(b) shall be paid in
substantially equal monthly installments over the remaining term of this
Agreement following EXECUTIVE's termination; provided, however, that if the
remaining term of the Agreement is less than one (1) year (determined as of
EXECUTIVE's Date of Termination), such payments and benefits shall be paid to
EXECUTIVE in a lump sum within thirty (30) days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the BANK will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the BANK for EXECUTIVE prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
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5. CHANGE IN CONTROL.
(a) No benefit shall be paid under this Section 5 unless there shall
have occurred a Change in Control of the COMPANY or the BANK. For purposes of
this Agreement, a "Change in Control" of the COMPANY or the BANK shall be
deemed to occur if and when (a) there occurs a change in control of the BANK
or the COMPANY within the meaning of the Home Owners Loan Act of 1933 and 12
C.F.R. Part 574, (b) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the COMPANY or the BANK representing twenty-five
percent (25%) or more of the combined voting power of the COMPANY's or the
BANK's then outstanding securities, (c) the membership of the board of
directors of the COMPANY or the BANK changes as the result of a contested
election, such that individuals who were directors at the beginning of any
twenty-four (24) month period (whether commencing before or after the date of
adoption of this Agreement) do not constitute a majority of the Board at the
end of such period, or (d) upon the consummation of a merger, consolidation,
sale or disposition of all or substantially all of the COMPANY's or the BANK's
assets, or a plan of partial or complete liquidation that has been approved by
the shareholders of the Company or the Bank.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred, EXECUTIVE shall be entitled to the benefits
provided in paragraphs (c), (d) and (e) of this Section 5 upon his subsequent
involuntary termination following the effective date of a Change in Control
(or voluntary termination within twelve (12) months of the effective date of a
Change in Control following any demotion, loss of title, office or significant
authority, reduction in his annual compensation or benefits (other than a
reduction affecting the BANK's personnel generally), or relocation of his
principal place of employment by more than 35 miles from its location
immediately prior to the Change in Control), unless such termination is
because of his death, retirement as provided in Section 7, termination for
Cause, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK shall pay EXECUTIVE, or in the event of
his subsequent death, his beneficiary or beneficiaries, or his estate, as the
case may be, as severance pay or liquidated damages, or both, a sum equal to
2.99 times EXECUTIVE's "base amount," within the meaning of Section
280G(b)(3) of the Internal Revenue Code of 1986 ("Code"), as amended. Such
payment shall be made in a lump sum paid within ten (10) days of EXECUTIVE's
Date of Termination.
(d) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the BANK for EXECUTIVE prior to his severance. In addition,
EXECUTIVE shall be entitled to receive the value of employer contributions
that would have been made on EXECUTIVE's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the BANK
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as of the Date of Termination. Such coverage and payments shall cease upon
the expiration of thirty-six (36) months.
(e) Upon the occurrence of a Change in Control, EXECUTIVE shall be
entitled to receive benefits due him under, or contributed by the COMPANY or
the BANK on his behalf, pursuant to any retirement, incentive, profit sharing,
bonus, performance, disability or other employee benefit plan maintained by
the BANK or the COMPANY on EXECUTIVE's behalf to the extent that such benefits
are not otherwise paid to EXECUTIVE upon a Change in Control.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that the aggregate payments or benefits to be made or afforded to
EXECUTIVE under this Section, together with any other payments or benefits
received or to be received by EXECUTIVE in connection with a Change in
Control, would be deemed to include an "excess parachute payment" under
Section 280G of the Code, then, at the election of EXECUTIVE, (i) such
payments or benefits shall be payable or provided to EXECUTIVE over the
minimum period necessary to reduce the present value of such payments or
benefits to an amount which is one dollar ($1.00) less than three (3) times
EXECUTIVE's "base amount" under Section 280G(b)(3) of the Code or (ii) the
payments or benefits to be provided under this Section 5 shall be reduced to
the extent necessary to avoid treatment as an excess parachute payment with
the allocation of the reduction among such payments and benefits to be
determined by EXECUTIVE.
6. TERMINATION FOR DISABILITY.
(a) If EXECUTIVE shall become disabled as defined in the BANK's then
current disability plan (or, if no such plan is then in effect, if EXECUTIVE
is permanently and totally disabled within the meaning of Section 22(e)(3) of
the Code as determined by a physician designated by the Board), the BANK may
terminate EXECUTIVE's employment for "Disability."
(b) Upon EXECUTIVE's termination of employment for Disability, the BANK
will pay EXECUTIVE, as disability pay, a bi-weekly payment equal to three-
quarters (3/4) of EXECUTIVE's bi-weekly rate of Base Salary on the effective
date of such termination. These disability payments shall commence on the
effective date of EXECUTIVE's termination and will end on the earlier of (i)
the date EXECUTIVE returns to the full-time employment of the BANK in the same
capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between EXECUTIVE and the BANK; (ii)
EXECUTIVE's full-time employment by another employer; (iii) EXECUTIVE
attaining the age of sixty-five (65); or (iv) EXECUTIVE's death; or (v) the
expiration of the term of this Agreement. The disability pay shall be reduced
by the amount, if any, paid to EXECUTIVE under any plan of the BANK providing
disability benefits to EXECUTIVE.
(c) The BANK will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
BANK for EXECUTIVE prior
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to his termination for Disability. This coverage and payments shall cease
upon the earlier of (i) the date EXECUTIVE returns to the full-time employment
of the BANK, in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between EXECUTIVE and
the BANK; (ii) EXECUTIVE's full-time employment by another employer; (iii)
EXECUTIVE's attaining the age of sixty-five (65); (iv) EXECUTIVE's death; or
(v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to EXECUTIVE during any period during which
EXECUTIVE is incapable of performing his duties hereunder by reason of
temporary disability.
7. TERMINATION UPON RETIREMENT; DEATH OF EXECUTIVE; RESIGNATION
Termination by the BANK of EXECUTIVE based on "Retirement" shall mean
retirement at or after attaining age sixty-five (65) or in accordance with any
retirement arrangement established with EXECUTIVE's consent with respect to
him. Upon termination of EXECUTIVE upon Retirement, EXECUTIVE shall be
entitled to all benefits under any retirement plan of the BANK or the COMPANY
and other plans to which EXECUTIVE is a party. Upon the death of EXECUTIVE
during the term of this Agreement, the BANK shall pay to EXECUTIVE's estate
the compensation due to EXECUTIVE through the last day of the calendar month
in which his death occurred. Upon the voluntary resignation of EXECUTIVE
during the term of this Agreement, other than in connection with an Event of
Termination, the BANK shall pay to EXECUTIVE the compensation due to EXECUTIVE
through his Date of Termination.
8. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of EXECUTIVE's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final cease-
and-desist order, or material breach of any provision of this Agreement.
Notwithstanding the foregoing, EXECUTIVE shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4) of the members of the Board at a meeting of the Board
called and held for that purpose (after reasonable notice to EXECUTIVE and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, EXECUTIVE was guilty of
conduct justifying termination for Cause and specifying the reasons thereof.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after termination for Cause. Any stock options granted to
EXECUTIVE under any stock option plan or any unvested awards granted under any
other stock benefit plan of the BANK, the COMPANY, or any subsidiary or
affiliate thereof, shall become null and void effective upon EXECUTIVE's
receipt of Notice of
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Termination for Cause pursuant to Section 10 hereof, and shall not be
exercisable by EXECUTIVE at any time subsequent to such Termination for Cause.
9. REQUIRED PROVISIONS.
(a) The BANK may terminate EXECUTIVE's employment at any time, but any
termination by the BANK, other than Termination for Cause, shall not prejudice
EXECUTIVE's right to compensation or other benefits under this Agreement.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after Termination for Cause as defined in Section 8 herein.
(b) If EXECUTIVE is suspended and/or temporarily prohibited from
participating in the conduct of the BANK's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(1)), the BANK's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the BANK may, in its
discretion, (i) pay EXECUTIVE all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations that were suspended.
(c) If EXECUTIVE is removed and/or permanently prohibited from
participating in the conduct of the BANK's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the BANK under the Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the BANK is in default (as defined in Section 3(x)(1) of the
FDIA), all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated (except to
the extent determined that continuation of the Agreement is necessary for the
continued operation of the BANK): (i) by the Director of the Office of Thrift
Supervision (the "Director") or his 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 FDIA
or (ii) by the Director, or his designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to
operation of the BANK or when the BANK is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made to EXECUTIVE pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
Section 1828(k) and any regulations promulgated thereunder.
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10. NOTICE.
(a) Any purported termination by the BANK or by EXECUTIVE shall be
communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of EXECUTIVE's employment under the
provision so indicated.
(b) "Date of Termination" shall mean (A) if EXECUTIVE's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period), and (B) if
his employment is terminated for any other reason, other than Termination for
Cause, the date specified in the Notice of Termination. In the event of
EXECUTIVE's Termination for Cause, the Date of Termination shall be the same
as the date of the Notice of Termination.
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence
of a Change in Control and voluntary termination by EXECUTIVE in which case
the Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal there from having expired and no appeal
having been perfected) and provided further that the Date of Termination shall
be extended by a notice of dispute only if such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
BANK will continue to pay EXECUTIVE his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he was participating when the notice of dispute
was given, until the dispute is finally resolved in accordance with this
Agreement. Amounts paid under this Section are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.
11. NON-COMPETITION.
(a) Upon any termination of EXECUTIVE's employment hereunder pursuant to
an Event of Termination as provided in Section 4 hereof, EXECUTIVE agrees not
to compete with the BANK and/or the COMPANY for a period of one (1) year
following such termination in any city, town or county in which the BANK and/
or the COMPANY has an office or has filed an application for regulatory
approval to establish an office, determined as of the effective date
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of such termination. EXECUTIVE agrees that during such period and within said
cities, towns and counties, EXECUTIVE shall not work for or advise, consult or
otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities
of the BANK and/or the COMPANY. The parties hereto, recognizing that
irreparable injury will result to the BANK and/or the COMPANY, its business
and property in the event of EXECUTIVE's breach of this Subsection 11(a) agree
that in the event of any such breach by EXECUTIVE, the BANK and/or the COMPANY
will be entitled, in addition to any other remedies and damages available, to
an injunction to restrain the violation hereof by EXECUTIVE, EXECUTIVE's
partners, agents, servants, employers, employees and all persons acting for or
with EXECUTIVE. EXECUTIVE represents and admits that in the event of the
termination of his employment pursuant to Section 4 hereof, EXECUTIVE's
experience and capabilities are such that EXECUTIVE can obtain employment in a
business engaged in other lines and/or of a different nature than the BANK
and/or the COMPANY, and that the enforcement of a remedy by way of injunction
will not prevent EXECUTIVE from earning a livelihood. Nothing herein will be
construed as prohibiting the BANK and/or the COMPANY from pursuing any other
remedies available to the BANK and/or the COMPANY for such breach or
threatened breach, including the recovery of damages from EXECUTIVE.
(b) EXECUTIVE recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the BANK and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the BANK. EXECUTIVE will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the BANK or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, EXECUTIVE may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the BANK. In the event of a breach or threatened breach by
EXECUTIVE of the provisions of this Section, the BANK will be entitled to an
injunction restraining EXECUTIVE from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of
the BANK or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part,
has been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the BANK from pursuing any other remedies available
to the BANK for such breach or threatened breach, including the recovery of
damages from EXECUTIVE.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the BANK. The COMPANY, however, guarantees
all payments and the provision of all amounts and benefits due hereunder to
EXECUTIVE and, if such payments are
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not timely paid or provided by the BANK, such amounts and benefits shall be
paid or provided by the COMPANY.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the BANK or any
predecessor of the BANK and EXECUTIVE, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to EXECUTIVE
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that EXECUTIVE is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to affect any such action shall be
null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
EXECUTIVE, the BANK, the COMPANY and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act
other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
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17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of South
Carolina, unless otherwise specified herein; provided, however, that in the
event of a conflict between the terms of this Agreement and any applicable
federal or state law or regulation, the provisions of such law or regulation
shall prevail.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the employee
within fifty miles from the location of the BANK, in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that EXECUTIVE shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by EXECUTIVE pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the BANK, if successful pursuant to a legal judgment,
arbitration or settlement.
21. INDEMNIFICATION.
The BANK shall provide EXECUTIVE (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
EXECUTIVE (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been a director or officer of
the BANK (whether or not he continues to be a directors or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
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22. SUCCESSOR TO THE BANK OR THE COMPANY.
The BANK and the COMPANY shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the BANK or the COMPANY, expressly
and unconditionally to assume and agree to perform the BANK's or the COMPANY's
obligations under this Agreement, in the same manner and to the same extent
that the BANK or the COMPANY would be required to perform if no such
succession or assignment had taken place.
IN WITNESS WHEREOF, the BANK and the COMPANY have caused this Agreement
to be executed and their seal to be affixed hereunto by a duly authorized
officer, and EXECUTIVE has signed this Agreement, all on the 20th day of
April, 1998.
ATTEST: PERPETUAL BANK, A FEDERAL
SAVINGS BANK
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- --------------------------------------
[SEAL]
ATTEST: SOUTHBANC SHARES, INC.
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- --------------------------------------
[SEAL]
WITNESS:
/s/ Margaret Duffell /s/ Robert W. Orr
- ------------------------------- ------------------------------------------
ROBERT W. ORR
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Exhibit 10(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of April 20, 1998, by and between
PERPETUAL BANK, A FEDERAL SAVINGS BANK (the "BANK"), SOUTHBANC SHARES, INC.
(the "COMPANY"), a Delaware corporation; and THOMAS C. HALL ("EXECUTIVE").
WHEREAS, EXECUTIVE serves in a position of substantial responsibility;
WHEREAS, the BANK wishes to assure itself of the services of EXECUTIVE
for the period provided in this Agreement; and
WHEREAS, EXECUTIVE is willing to serve in the employ of the BANK on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, EXECUTIVE agrees to serve
as a Senior Vice President of the BANK. During said period, EXECUTIVE also
agrees to serve, if elected, as an officer of the COMPANY or any subsidiary or
affiliate of the COMPANY or the BANK. Executive shall render administrative
and management duties to the BANK such as are customarily performed by persons
situated in a similar executive capacity.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of thirty-six
(36) full calendar months thereafter. Commencing on the first anniversary
date, and continuing at each anniversary date thereafter, the Board of
Directors of the BANK (the "Board") may extend the Agreement for an additional
year. Prior to the extension of the Agreement as provided herein, the Board
of Directors of the BANK will conduct a formal performance evaluation of
EXECUTIVE for purposes of determining whether to extend the Agreement, and the
results thereof shall be included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, EXECUTIVE shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the BANK; provided, however, that, with the
approval of the Board, as evidenced by a resolution of such Board, from time
to time, EXECUTIVE may serve, or continue to serve, on the boards of directors
of, and hold any other offices or positions in, companies or organizations,
which, in such Board's judgment, will not
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present any conflict of interest with the BANK, or materially affect the
performance of EXECUTIVE's duties pursuant to this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The
BANK shall pay EXECUTIVE as compensation a salary of $83,200 per year ("Base
Salary"). Such Base Salary shall be payable in accordance with the customary
payroll practices of the BANK. During the period of this Agreement,
EXECUTIVE's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement.
Such review shall be conducted by a Committee designated by the Board, and the
Board may increase EXECUTIVE's Base Salary. In addition to the Base Salary
provided in this Section 3(a), the BANK shall provide EXECUTIVE at no cost to
EXECUTIVE with all such other benefits as are provided uniformly to permanent
full-time employees of the BANK.
(b) The BANK will provide EXECUTIVE with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
EXECUTIVE was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the BANK will not,
without EXECUTIVE's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect EXECUTIVE's rights or
benefits thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), EXECUTIVE will be entitled to participate
in or receive benefits under any employee benefit plans including, but not
limited to, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plan, medical coverage or any other
employee benefit plan or arrangement made available by the BANK in the future
to its senior executives and key management employees, subject to, and on a
basis consistent with, the terms, conditions and overall administration of
such plans and arrangements. EXECUTIVE will be entitled to incentive
compensation and bonuses as provided in any plan, or pursuant to any
arrangement of the BANK, in which EXECUTIVE is eligible to participate.
Nothing paid to EXECUTIVE under any such plan or arrangement will be deemed to
be in lieu of other compensation to which EXECUTIVE is entitled under this
Agreement, except as provided under Section 5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the BANK shall pay or reimburse EXECUTIVE for all reasonable travel
and other obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during EXECUTIVE's term of employment under this Agreement, the provisions of
this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the BANK of EXECUTIVE's full-time
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employment hereunder for any reason other than a Change in Control, as defined
in Section 5(a) hereof; disability, as defined in Section 6(a) hereof; death;
retirement, as defined in Section 7 hereof; or Termination for Cause, as
defined in Section 8 hereof; (ii) EXECUTIVE's resignation from the BANK's
employ, upon (A) unless consented to by EXECUTIVE, a material change in
EXECUTIVE's function, duties, or responsibilities, which change would cause
EXECUTIVE's position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in Sections 1 and 2,
above (any such material change shall be deemed a continuing breach of this
Agreement), (B) a relocation of EXECUTIVE's principal place of employment by
more than 35 miles from its location at the effective date of this Agreement,
or a material reduction in the benefits and perquisites to EXECUTIVE from
those being provided as of the effective date of this Agreement, (C) the
liquidation or dissolution of the BANK, or (D) any breach of this Agreement by
the BANK. Upon the occurrence of any event described in clauses (A), (B), (C)
or (D), above, EXECUTIVE shall have the right to elect to terminate his
employment under this Agreement by resignation upon not less than sixty (60)
days prior written notice given within a reasonable period of time not to
exceed, except in case of a continuing breach, four (4) calendar months after
the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the BANK shall pay
EXECUTIVE, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the payments due to EXECUTIVE for
the remaining term of the Agreement, including Base Salary, bonuses, and any
other cash or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on EXECUTIVE's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the BANK as of the Date of Termination), to EXECUTIVE for the
term of the Agreement provided, however, that if the BANK is not in compliance
with its minimum capital requirements or if such payments would cause the
BANK's capital to be reduced below its minimum capital requirements, such
payments shall be deferred until such time as the BANK is in capital
compliance. All payments made pursuant to this Section 4(b) shall be paid in
substantially equal monthly installments over the remaining term of this
Agreement following EXECUTIVE's termination; provided, however, that if the
remaining term of the Agreement is less than one (1) year (determined as of
EXECUTIVE's Date of Termination), such payments and benefits shall be paid to
EXECUTIVE in a lump sum within thirty (30) days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the BANK will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the BANK for EXECUTIVE prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
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5. CHANGE IN CONTROL.
(a) No benefit shall be paid under this Section 5 unless there shall
have occurred a Change in Control of the COMPANY or the BANK. For purposes of
this Agreement, a "Change in Control" of the COMPANY or the BANK shall be
deemed to occur if and when (a) there occurs a change in control of the BANK
or the COMPANY within the meaning of the Home Owners Loan Act of 1933 and 12
C.F.R. Part 574, (b) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the COMPANY or the BANK representing twenty-five
percent (25%) or more of the combined voting power of the COMPANY's or the
BANK's then outstanding securities, (c) the membership of the board of
directors of the COMPANY or the BANK changes as the result of a contested
election, such that individuals who were directors at the beginning of any
twenty-four (24) month period (whether commencing before or after the date of
adoption of this Agreement) do not constitute a majority of the Board at the
end of such period, or (d) upon the consummation of a merger, consolidation,
sale or disposition of all or substantially all of the COMPANY's or the BANK's
assets, or a plan of partial or complete liquidation that has been approved by
the shareholders of the Company or the Bank.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred, EXECUTIVE shall be entitled to the benefits
provided in paragraphs (c), (d) and (e) of this Section 5 upon his subsequent
involuntary termination following the effective date of a Change in Control
(or voluntary termination within twelve (12) months of the effective date of a
Change in Control following any demotion, loss of title, office or significant
authority, reduction in his annual compensation or benefits (other than a
reduction affecting the BANK's personnel generally), or relocation of his
principal place of employment by more than 35 miles from its location
immediately prior to the Change in Control), unless such termination is
because of his death, retirement as provided in Section 7, termination for
Cause, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK shall pay EXECUTIVE, or in the event of
his subsequent death, his beneficiary or beneficiaries, or his estate, as the
case may be, as severance pay or liquidated damages, or both, a sum equal to
2.99 times EXECUTIVE's "base amount," within the meaning of Section 280G(b)
(3) of the Internal Revenue Code of 1986 ("Code"), as amended. Such payment
shall be made in a lump sum paid within ten (10) days of EXECUTIVE's Date of
Termination.
(d) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the BANK for EXECUTIVE prior to his severance. In addition,
EXECUTIVE shall be entitled to receive the value of employer contributions
that would have been made on EXECUTIVE's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the BANK
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as of the Date of Termination. Such coverage and payments shall cease upon
the expiration of thirty-six (36) months.
(e) Upon the occurrence of a Change in Control, EXECUTIVE shall be
entitled to receive benefits due him under, or contributed by the COMPANY or
the BANK on his behalf, pursuant to any retirement, incentive, profit sharing,
bonus, performance, disability or other employee benefit plan maintained by
the BANK or the COMPANY on EXECUTIVE's behalf to the extent that such benefits
are not otherwise paid to EXECUTIVE upon a Change in Control.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that the aggregate payments or benefits to be made or afforded to
EXECUTIVE under this Section, together with any other payments or benefits
received or to be received by EXECUTIVE in connection with a Change in
Control, would be deemed to include an "excess parachute payment" under
Section 280G of the Code, then, at the election of EXECUTIVE, (i) such
payments or benefits shall be payable or provided to EXECUTIVE over the
minimum period necessary to reduce the present value of such payments or
benefits to an amount which is one dollar ($1.00) less than three (3) times
EXECUTIVE's "base amount" under Section 280G(b)(3) of the Code or (ii) the
payments or benefits to be provided under this Section 5 shall be reduced to
the extent necessary to avoid treatment as an excess parachute payment with
the allocation of the reduction among such payments and benefits to be
determined by EXECUTIVE.
6. TERMINATION FOR DISABILITY.
(a) If EXECUTIVE shall become disabled as defined in the BANK's then
current disability plan (or, if no such plan is then in effect, if EXECUTIVE
is permanently and totally disabled within the meaning of Section 22(e)(3) of
the Code as determined by a physician designated by the Board), the BANK may
terminate EXECUTIVE's employment for "Disability."
(b) Upon EXECUTIVE's termination of employment for Disability, the BANK
will pay EXECUTIVE, as disability pay, a bi-weekly payment equal to three-
quarters (3/4) of EXECUTIVE's bi-weekly rate of Base Salary on the effective
date of such termination. These disability payments shall commence on the
effective date of EXECUTIVE's termination and will end on the earlier of (i)
the date EXECUTIVE returns to the full-time employment of the BANK in the same
capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between EXECUTIVE and the BANK; (ii)
EXECUTIVE's full-time employment by another employer; (iii) EXECUTIVE
attaining the age of sixty-five (65); or (iv) EXECUTIVE's death; or (v) the
expiration of the term of this Agreement. The disability pay shall be reduced
by the amount, if any, paid to EXECUTIVE under any plan of the BANK providing
disability benefits to EXECUTIVE.
(c) The BANK will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
BANK for EXECUTIVE prior
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to his termination for Disability. This coverage and payments shall cease
upon the earlier of (i) the date EXECUTIVE returns to the full-time employment
of the BANK, in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between EXECUTIVE and
the BANK; (ii) EXECUTIVE's full-time employment by another employer; (iii)
EXECUTIVE's attaining the age of sixty- five (65); (iv) EXECUTIVE's death; or
(v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to EXECUTIVE during any period during which
EXECUTIVE is incapable of performing his duties hereunder by reason of
temporary disability.
7. TERMINATION UPON RETIREMENT; DEATH OF EXECUTIVE; RESIGNATION
Termination by the BANK of EXECUTIVE based on "Retirement" shall mean
retirement at or after attaining age sixty-five (65) or in accordance with any
retirement arrangement established with EXECUTIVE's consent with respect to
him. Upon termination of EXECUTIVE upon Retirement, EXECUTIVE shall be
entitled to all benefits under any retirement plan of the BANK or the COMPANY
and other plans to which EXECUTIVE is a party. Upon the death of EXECUTIVE
during the term of this Agreement, the BANK shall pay to EXECUTIVE's estate
the compensation due to EXECUTIVE through the last day of the calendar month
in which his death occurred. Upon the voluntary resignation of EXECUTIVE
during the term of this Agreement, other than in connection with an Event of
Termination, the BANK shall pay to EXECUTIVE the compensation due to EXECUTIVE
through his Date of Termination.
8. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of EXECUTIVE's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final cease-
and-desist order, or material breach of any provision of this Agreement.
Notwithstanding the foregoing, EXECUTIVE shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4) of the members of the Board at a meeting of the Board
called and held for that purpose (after reasonable notice to EXECUTIVE and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, EXECUTIVE was guilty of
conduct justifying termination for Cause and specifying the reasons thereof.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after termination for Cause. Any stock options granted to
EXECUTIVE under any stock option plan or any unvested awards granted under any
other stock benefit plan of the BANK, the COMPANY, or any subsidiary or
affiliate thereof, shall become null and void effective upon EXECUTIVE's
receipt of Notice of
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Termination for Cause pursuant to Section 10 hereof, and shall not be
exercisable by EXECUTIVE at any time subsequent to such Termination for Cause.
9. REQUIRED PROVISIONS.
(a) The BANK may terminate EXECUTIVE's employment at any time, but any
termination by the BANK, other than Termination for Cause, shall not prejudice
EXECUTIVE's right to compensation or other benefits under this Agreement.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after Termination for Cause as defined in Section 8 herein.
(b) If EXECUTIVE is suspended and/or temporarily prohibited from
participating in the conduct of the BANK's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(1)), the BANK's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the BANK may, in its
discretion, (i) pay EXECUTIVE all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations that were suspended.
(c) If EXECUTIVE is removed and/or permanently prohibited from
participating in the conduct of the BANK's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the BANK under the Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the BANK is in default (as defined in Section 3(x)(1) of the
FDIA), all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated (except to
the extent determined that continuation of the Agreement is necessary for the
continued operation of the BANK): (i) by the Director of the Office of Thrift
Supervision (the "Director") or his 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 FDIA
or (ii) by the Director, or his designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to
operation of the BANK or when the BANK is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made to EXECUTIVE pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
Section 1828(k) and any regulations promulgated thereunder.
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10. NOTICE.
(a) Any purported termination by the BANK or by EXECUTIVE shall be
communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of EXECUTIVE's employment under the
provision so indicated.
(b) "Date of Termination" shall mean (A) if EXECUTIVE's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period), and (B) if
his employment is terminated for any other reason, other than Termination for
Cause, the date specified in the Notice of Termination. In the event of
EXECUTIVE's Termination for Cause, the Date of Termination shall be the same
as the date of the Notice of Termination.
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence
of a Change in Control and voluntary termination by EXECUTIVE in which case
the Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal there from having expired and no appeal
having been perfected) and provided further that the Date of Termination shall
be extended by a notice of dispute only if such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
BANK will continue to pay EXECUTIVE his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he was participating when the notice of dispute
was given, until the dispute is finally resolved in accordance with this
Agreement. Amounts paid under this Section are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.
11. NON-COMPETITION.
(a) Upon any termination of EXECUTIVE's employment hereunder pursuant to
an Event of Termination as provided in Section 4 hereof, EXECUTIVE agrees not
to compete with the BANK and/or the COMPANY for a period of one (1) year
following such termination in any city, town or county in which the BANK and/
or the COMPANY has an office or has filed an application for regulatory
approval to establish an office, determined as of the effective date
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of such termination. EXECUTIVE agrees that during such period and within said
cities, towns and counties, EXECUTIVE shall not work for or advise, consult or
otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities
of the BANK and/or the COMPANY. The parties hereto, recognizing that
irreparable injury will result to the BANK and/or the COMPANY, its business
and property in the event of EXECUTIVE's breach of this Subsection 11(a) agree
that in the event of any such breach by EXECUTIVE, the BANK and/or the COMPANY
will be entitled, in addition to any other remedies and damages available, to
an injunction to restrain the violation hereof by EXECUTIVE, EXECUTIVE's
partners, agents, servants, employers, employees and all persons acting for or
with EXECUTIVE. EXECUTIVE represents and admits that in the event of the
termination of his employment pursuant to Section 4 hereof, EXECUTIVE's
experience and capabilities are such that EXECUTIVE can obtain employment in a
business engaged in other lines and/or of a different nature than the BANK
and/or the COMPANY, and that the enforcement of a remedy by way of injunction
will not prevent EXECUTIVE from earning a livelihood. Nothing herein will be
construed as prohibiting the BANK and/or the COMPANY from pursuing any other
remedies available to the BANK and/or the COMPANY for such breach or
threatened breach, including the recovery of damages from EXECUTIVE.
(b) EXECUTIVE recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the BANK and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the BANK. EXECUTIVE will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the BANK or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, EXECUTIVE may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the BANK. In the event of a breach or threatened breach by
EXECUTIVE of the provisions of this Section, the BANK will be entitled to an
injunction restraining EXECUTIVE from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of
the BANK or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part,
has been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the BANK from pursuing any other remedies available
to the BANK for such breach or threatened breach, including the recovery of
damages from EXECUTIVE.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the BANK. The COMPANY, however, guarantees
all payments and the provision of all amounts and benefits due hereunder to
EXECUTIVE and, if such payments are
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not timely paid or provided by the BANK, such amounts and benefits shall be
paid or provided by the COMPANY.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the BANK or any
predecessor of the BANK and EXECUTIVE, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to EXECUTIVE
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that EXECUTIVE is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to affect any such action shall be
null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
EXECUTIVE, the BANK, the COMPANY and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act
other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
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17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of South
Carolina, unless otherwise specified herein; provided, however, that in the
event of a conflict between the terms of this Agreement and any applicable
federal or state law or regulation, the provisions of such law or regulation
shall prevail.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the employee
within fifty miles from the location of the BANK, in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that EXECUTIVE shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by EXECUTIVE pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the BANK, if successful pursuant to a legal judgment,
arbitration or settlement.
21. INDEMNIFICATION.
The BANK shall provide EXECUTIVE (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
EXECUTIVE (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been a director or officer of
the BANK (whether or not he continues to be a directors or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
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22. SUCCESSOR TO THE BANK OR THE COMPANY.
The BANK and the COMPANY shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the BANK or the COMPANY, expressly
and unconditionally to assume and agree to perform the BANK's or the COMPANY's
obligations under this Agreement, in the same manner and to the same extent
that the BANK or the COMPANY would be required to perform if no such
succession or assignment had taken place.
IN WITNESS WHEREOF, the BANK and the COMPANY have caused this Agreement
to be executed and their seal to be affixed hereunto by a duly authorized
officer, and EXECUTIVE has signed this Agreement, all on the 20th day of
April, 1998.
ATTEST: PERPETUAL BANK, A FEDERAL
SAVINGS BANK
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- --------------------------------------
[SEAL]
ATTEST: SOUTHBANC SHARES, INC.
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- --------------------------------------
[SEAL]
WITNESS:
/s/ Margaret Duffell BY: /s/ Thomas C. Hall
- ------------------------------- --------------------------------------
THOMAS C. HALL
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Exhibit 10(c)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of April 20, 1998, by and between
PERPETUAL BANK, A FEDERAL SAVINGS BANK (the "BANK"), SOUTHBANC SHARES, INC.
(the "COMPANY"), a Delaware corporation; and BARRY C. VISIOLI ("EXECUTIVE").
WHEREAS, EXECUTIVE serves in a position of substantial responsibility;
WHEREAS, the BANK wishes to assure itself of the services of EXECUTIVE
for the period provided in this Agreement; and
WHEREAS, EXECUTIVE is willing to serve in the employ of the BANK on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, EXECUTIVE agrees to serve
as a Senior Vice President of the BANK. During said period, EXECUTIVE also
agrees to serve, if elected, as an officer of the COMPANY or any subsidiary or
affiliate of the COMPANY or the BANK. Executive shall render administrative
and management duties to the BANK such as are customarily performed by persons
situated in a similar executive capacity.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of thirty-six
(36) full calendar months thereafter. Commencing on the first anniversary
date, and continuing at each anniversary date thereafter, the Board of
Directors of the BANK (the "Board") may extend the Agreement for an additional
year. Prior to the extension of the Agreement as provided herein, the Board
of Directors of the BANK will conduct a formal performance evaluation of
EXECUTIVE for purposes of determining whether to extend the Agreement, and the
results thereof shall be included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, EXECUTIVE shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the BANK; provided, however, that, with the
approval of the Board, as evidenced by a resolution of such Board, from time
to time, EXECUTIVE may serve, or continue to serve, on the boards of directors
of, and hold any other offices or positions in, companies or organizations,
which, in such Board's judgment, will not
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present any conflict of interest with the BANK, or materially affect the
performance of EXECUTIVE's duties pursuant to this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The
BANK shall pay EXECUTIVE as compensation a salary of $72,800 per year ("Base
Salary"). Such Base Salary shall be payable in accordance with the customary
payroll practices of the BANK. During the period of this Agreement,
EXECUTIVE's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement.
Such review shall be conducted by a Committee designated by the Board, and the
Board may increase EXECUTIVE's Base Salary. In addition to the Base Salary
provided in this Section 3(a), the BANK shall provide EXECUTIVE at no cost to
EXECUTIVE with all such other benefits as are provided uniformly to permanent
full-time employees of the BANK.
(b) The BANK will provide EXECUTIVE with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
EXECUTIVE was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the BANK will not,
without EXECUTIVE's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect EXECUTIVE's rights or
benefits thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), EXECUTIVE will be entitled to participate
in or receive benefits under any employee benefit plans including, but not
limited to, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plan, medical coverage or any other
employee benefit plan or arrangement made available by the BANK in the future
to its senior executives and key management employees, subject to, and on a
basis consistent with, the terms, conditions and overall administration of
such plans and arrangements. EXECUTIVE will be entitled to incentive
compensation and bonuses as provided in any plan, or pursuant to any
arrangement of the BANK, in which EXECUTIVE is eligible to participate.
Nothing paid to EXECUTIVE under any such plan or arrangement will be deemed to
be in lieu of other compensation to which EXECUTIVE is entitled under this
Agreement, except as provided under Section 5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the BANK shall pay or reimburse EXECUTIVE for all reasonable travel
and other obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during EXECUTIVE's term of employment under this Agreement, the provisions of
this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the BANK of EXECUTIVE's full-time
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employment hereunder for any reason other than a Change in Control, as defined
in Section 5(a) hereof; disability, as defined in Section 6(a) hereof; death;
retirement, as defined in Section 7 hereof; or Termination for Cause, as
defined in Section 8 hereof; (ii) EXECUTIVE's resignation from the BANK's
employ, upon (A) unless consented to by EXECUTIVE, a material change in
EXECUTIVE's function, duties, or responsibilities, which change would cause
EXECUTIVE's position to become one of lesser responsibility, importance, or
scope from the position and attributes thereof described in Sections 1 and 2,
above (any such material change shall be deemed a continuing breach of this
Agreement), (B) a relocation of EXECUTIVE's principal place of employment by
more than 35 miles from its location at the effective date of this Agreement,
or a material reduction in the benefits and perquisites to EXECUTIVE from
those being provided as of the effective date of this Agreement, (C) the
liquidation or dissolution of the BANK, or (D) any breach of this Agreement by
the BANK. Upon the occurrence of any event described in clauses (A), (B), (C)
or (D), above, EXECUTIVE shall have the right to elect to terminate his
employment under this Agreement by resignation upon not less than sixty (60)
days prior written notice given within a reasonable period of time not to
exceed, except in case of a continuing breach, four (4) calendar months after
the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the BANK shall pay
EXECUTIVE, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to the payments due to EXECUTIVE for
the remaining term of the Agreement, including Base Salary, bonuses, and any
other cash or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on EXECUTIVE's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the BANK as of the Date of Termination), to EXECUTIVE for the
term of the Agreement provided, however, that if the BANK is not in compliance
with its minimum capital requirements or if such payments would cause the
BANK's capital to be reduced below its minimum capital requirements, such
payments shall be deferred until such time as the BANK is in capital
compliance. All payments made pursuant to this Section 4(b) shall be paid in
substantially equal monthly installments over the remaining term of this
Agreement following EXECUTIVE's termination; provided, however, that if the
remaining term of the Agreement is less than one (1) year (determined as of
EXECUTIVE's Date of Termination), such payments and benefits shall be paid to
EXECUTIVE in a lump sum within thirty (30) days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the BANK will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the BANK for EXECUTIVE prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
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5. CHANGE IN CONTROL.
(a) No benefit shall be paid under this Section 5 unless there shall
have occurred a Change in Control of the COMPANY or the BANK. For purposes of
this Agreement, a "Change in Control" of the COMPANY or the BANK shall be
deemed to occur if and when (a) there occurs a change in control of the BANK
or the COMPANY within the meaning of the Home Owners Loan Act of 1933 and 12
C.F.R. Part 574, (b) any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the COMPANY or the BANK representing twenty-five
percent (25%) or more of the combined voting power of the COMPANY's or the
BANK's then outstanding securities, (c) the membership of the board of
directors of the COMPANY or the BANK changes as the result of a contested
election, such that individuals who were directors at the beginning of any
twenty-four (24) month period (whether commencing before or after the date of
adoption of this Agreement) do not constitute a majority of the Board at the
end of such period, or (d) upon the consummation of a merger, consolidation,
sale or disposition of all or substantially all of the COMPANY's or the BANK's
assets, or a plan of partial or complete liquidation that has been approved by
the shareholders of the Company or the Bank.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred, EXECUTIVE shall be entitled to the benefits
provided in paragraphs (c), (d) and (e) of this Section 5 upon his subsequent
involuntary termination following the effective date of a Change in Control
(or voluntary termination within twelve (12) months of the effective date of a
Change in Control following any demotion, loss of title, office or significant
authority, reduction in his annual compensation or benefits (other than a
reduction affecting the BANK's personnel generally), or relocation of his
principal place of employment by more than 35 miles from its location
immediately prior to the Change in Control), unless such termination is
because of his death, retirement as provided in Section 7, termination for
Cause, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK shall pay EXECUTIVE, or in the event of
his subsequent death, his beneficiary or beneficiaries, or his estate, as the
case may be, as severance pay or liquidated damages, or both, a sum equal to
2.99 times EXECUTIVE's "base amount," within the meaning of Section 280G(b)
(3) of the Internal Revenue Code of 1986 ("Code"), as amended. Such payment
shall be made in a lump sum paid within ten (10) days of EXECUTIVE's Date of
Termination.
(d) Upon the occurrence of a Change in Control followed by EXECUTIVE's
termination of employment, the BANK will cause to be continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the BANK for EXECUTIVE prior to his severance. In addition,
EXECUTIVE shall be entitled to receive the value of employer contributions
that would have been made on EXECUTIVE's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the BANK
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as of the Date of Termination. Such coverage and payments shall cease upon
the expiration of thirty-six (36) months.
(e) Upon the occurrence of a Change in Control, EXECUTIVE shall be
entitled to receive benefits due him under, or contributed by the COMPANY or
the BANK on his behalf, pursuant to any retirement, incentive, profit sharing,
bonus, performance, disability or other employee benefit plan maintained by
the BANK or the COMPANY on EXECUTIVE's behalf to the extent that such benefits
are not otherwise paid to EXECUTIVE upon a Change in Control.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that the aggregate payments or benefits to be made or afforded to
EXECUTIVE under this Section, together with any other payments or benefits
received or to be received by EXECUTIVE in connection with a Change in
Control, would be deemed to include an "excess parachute payment" under
Section 280G of the Code, then, at the election of EXECUTIVE, (i) such
payments or benefits shall be payable or provided to EXECUTIVE over the
minimum period necessary to reduce the present value of such payments or
benefits to an amount which is one dollar ($1.00) less than three (3) times
EXECUTIVE's "base amount" under Section 280G(b)(3) of the Code or (ii) the
payments or benefits to be provided under this Section 5 shall be reduced to
the extent necessary to avoid treatment as an excess parachute payment with
the allocation of the reduction among such payments and benefits to be
determined by EXECUTIVE.
6. TERMINATION FOR DISABILITY.
(a) If EXECUTIVE shall become disabled as defined in the BANK's then
current disability plan (or, if no such plan is then in effect, if EXECUTIVE
is permanently and totally disabled within the meaning of Section 22(e)(3) of
the Code as determined by a physician designated by the Board), the BANK may
terminate EXECUTIVE's employment for "Disability."
(b) Upon EXECUTIVE's termination of employment for Disability, the BANK
will pay EXECUTIVE, as disability pay, a bi-weekly payment equal to three-
quarters (3/4) of EXECUTIVE's bi-weekly rate of Base Salary on the effective
date of such termination. These disability payments shall commence on the
effective date of EXECUTIVE's termination and will end on the earlier of (i)
the date EXECUTIVE returns to the full-time employment of the BANK in the same
capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between EXECUTIVE and the BANK; (ii)
EXECUTIVE's full-time employment by another employer; (iii) EXECUTIVE
attaining the age of sixty-five (65); or (iv) EXECUTIVE's death; or (v) the
expiration of the term of this Agreement. The disability pay shall be reduced
by the amount, if any, paid to EXECUTIVE under any plan of the BANK providing
disability benefits to EXECUTIVE.
(c) The BANK will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
BANK for EXECUTIVE prior
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to his termination for Disability. This coverage and payments shall cease
upon the earlier of (i) the date EXECUTIVE returns to the full-time employment
of the BANK, in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between EXECUTIVE and
the BANK; (ii) EXECUTIVE's full-time employment by another employer; (iii)
EXECUTIVE's attaining the age of sixty- five (65); (iv) EXECUTIVE's death; or
(v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to EXECUTIVE during any period during which
EXECUTIVE is incapable of performing his duties hereunder by reason of
temporary disability.
7. TERMINATION UPON RETIREMENT; DEATH OF EXECUTIVE; RESIGNATION
Termination by the BANK of EXECUTIVE based on "Retirement" shall mean
retirement at or after attaining age sixty-five (65) or in accordance with any
retirement arrangement established with EXECUTIVE's consent with respect to
him. Upon termination of EXECUTIVE upon Retirement, EXECUTIVE shall be
entitled to all benefits under any retirement plan of the BANK or the COMPANY
and other plans to which EXECUTIVE is a party. Upon the death of EXECUTIVE
during the term of this Agreement, the BANK shall pay to EXECUTIVE's estate
the compensation due to EXECUTIVE through the last day of the calendar month
in which his death occurred. Upon the voluntary resignation of EXECUTIVE
during the term of this Agreement, other than in connection with an Event of
Termination, the BANK shall pay to EXECUTIVE the compensation due to EXECUTIVE
through his Date of Termination.
8. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of EXECUTIVE's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule, or
regulation (other than traffic violations or similar offenses) or final cease-
and-desist order, or material breach of any provision of this Agreement.
Notwithstanding the foregoing, EXECUTIVE shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of not less than
three-fourths (3/4) of the members of the Board at a meeting of the Board
called and held for that purpose (after reasonable notice to EXECUTIVE and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, EXECUTIVE was guilty of
conduct justifying termination for Cause and specifying the reasons thereof.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after termination for Cause. Any stock options granted to
EXECUTIVE under any stock option plan or any unvested awards granted under any
other stock benefit plan of the BANK, the COMPANY, or any subsidiary or
affiliate thereof, shall become null and void effective upon EXECUTIVE's
receipt of Notice of
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Termination for Cause pursuant to Section 10 hereof, and shall not be
exercisable by EXECUTIVE at any time subsequent to such Termination for Cause.
9. REQUIRED PROVISIONS.
(a) The BANK may terminate EXECUTIVE's employment at any time, but any
termination by the BANK, other than Termination for Cause, shall not prejudice
EXECUTIVE's right to compensation or other benefits under this Agreement.
EXECUTIVE shall not have the right to receive compensation or other benefits
for any period after Termination for Cause as defined in Section 8 herein.
(b) If EXECUTIVE is suspended and/or temporarily prohibited from
participating in the conduct of the BANK's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(1)), the BANK's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the BANK may, in its
discretion, (i) pay EXECUTIVE all or part of the compensation withheld while
its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations that were suspended.
(c) If EXECUTIVE is removed and/or permanently prohibited from
participating in the conduct of the BANK's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the BANK under the Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the BANK is in default (as defined in Section 3(x)(1) of the
FDIA), all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated (except to
the extent determined that continuation of the Agreement is necessary for the
continued operation of the BANK): (i) by the Director of the Office of Thrift
Supervision (the "Director") or his 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 FDIA
or (ii) by the Director, or his designee at the time the Director or such
designee approves a supervisory merger to resolve problems related to
operation of the BANK or when the BANK is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties that have already
vested, however, shall not be affected by such action.
(f) Any payments made to EXECUTIVE pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
Section 1828(k) and any regulations promulgated thereunder.
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10. NOTICE.
(a) Any purported termination by the BANK or by EXECUTIVE shall be
communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of EXECUTIVE's employment under the
provision so indicated.
(b) "Date of Termination" shall mean (A) if EXECUTIVE's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period), and (B) if
his employment is terminated for any other reason, other than Termination for
Cause, the date specified in the Notice of Termination. In the event of
EXECUTIVE's Termination for Cause, the Date of Termination shall be the same
as the date of the Notice of Termination.
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence
of a Change in Control and voluntary termination by EXECUTIVE in which case
the Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal there from having expired and no appeal
having been perfected) and provided further that the Date of Termination shall
be extended by a notice of dispute only if such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
BANK will continue to pay EXECUTIVE his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he was participating when the notice of dispute
was given, until the dispute is finally resolved in accordance with this
Agreement. Amounts paid under this Section are in addition to all other
amounts due under this Agreement and shall not be offset against or reduce any
other amounts due under this Agreement.
11. NON-COMPETITION.
(a) Upon any termination of EXECUTIVE's employment hereunder pursuant to
an Event of Termination as provided in Section 4 hereof, EXECUTIVE agrees not
to compete with the BANK and/or the COMPANY for a period of one (1) year
following such termination in any city, town or county in which the BANK and/
or the COMPANY has an office or has filed an application for regulatory
approval to establish an office, determined as of the effective date
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of such termination. EXECUTIVE agrees that during such period and within said
cities, towns and counties, EXECUTIVE shall not work for or advise, consult or
otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities
of the BANK and/or the COMPANY. The parties hereto, recognizing that
irreparable injury will result to the BANK and/or the COMPANY, its business
and property in the event of EXECUTIVE's breach of this Subsection 11(a) agree
that in the event of any such breach by EXECUTIVE, the BANK and/or the COMPANY
will be entitled, in addition to any other remedies and damages available, to
an injunction to restrain the violation hereof by EXECUTIVE, EXECUTIVE's
partners, agents, servants, employers, employees and all persons acting for or
with EXECUTIVE. EXECUTIVE represents and admits that in the event of the
termination of his employment pursuant to Section 4 hereof, EXECUTIVE's
experience and capabilities are such that EXECUTIVE can obtain employment in a
business engaged in other lines and/or of a different nature than the BANK
and/or the COMPANY, and that the enforcement of a remedy by way of injunction
will not prevent EXECUTIVE from earning a livelihood. Nothing herein will be
construed as prohibiting the BANK and/or the COMPANY from pursuing any other
remedies available to the BANK and/or the COMPANY for such breach or
threatened breach, including the recovery of damages from EXECUTIVE.
(b) EXECUTIVE recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the BANK and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the BANK. EXECUTIVE will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the BANK or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, EXECUTIVE may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the BANK. In the event of a breach or threatened breach by
EXECUTIVE of the provisions of this Section, the BANK will be entitled to an
injunction restraining EXECUTIVE from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of
the BANK or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part,
has been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the BANK from pursuing any other remedies available
to the BANK for such breach or threatened breach, including the recovery of
damages from EXECUTIVE.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the BANK. The COMPANY, however, guarantees
all payments and the provision of all amounts and benefits due hereunder to
EXECUTIVE and, if such payments are
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not timely paid or provided by the BANK, such amounts and benefits shall be
paid or provided by the COMPANY.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the BANK or any
predecessor of the BANK and EXECUTIVE, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to EXECUTIVE
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that EXECUTIVE is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to affect any such action shall be
null, void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
EXECUTIVE, the BANK, the COMPANY and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act
other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
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17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of South
Carolina, unless otherwise specified herein; provided, however, that in the
event of a conflict between the terms of this Agreement and any applicable
federal or state law or regulation, the provisions of such law or regulation
shall prevail.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the employee
within fifty miles from the location of the BANK, in accordance with the rules
of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that EXECUTIVE shall be entitled to seek specific performance of his
right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by EXECUTIVE pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the BANK, if successful pursuant to a legal judgment,
arbitration or settlement.
21. INDEMNIFICATION.
The BANK shall provide EXECUTIVE (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
EXECUTIVE (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred
by him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been a director or officer of
the BANK (whether or not he continues to be a directors or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
11
<PAGE>
<PAGE>
22. SUCCESSOR TO THE BANK OR THE COMPANY.
The BANK and the COMPANY shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the BANK or the COMPANY, expressly
and unconditionally to assume and agree to perform the BANK's or the COMPANY's
obligations under this Agreement, in the same manner and to the same extent
that the BANK or the COMPANY would be required to perform if no such
succession or assignment had taken place.
IN WITNESS WHEREOF, the BANK and the COMPANY have caused this Agreement
to be executed and their seal to be affixed hereunto by a duly authorized
officer, and EXECUTIVE has signed this Agreement, all on the 20th of April,
1998.
ATTEST: PERPETUAL BANK, A FEDERAL
SAVINGS BANK
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- -------------------------------------
[SEAL]
ATTEST: SOUTHBANC SHARES, INC.
/s/ Sylvia B. Reed BY: /s/ Harold A. Pickens, Jr.
- ------------------------------- --------------------------------------
[SEAL]
WITNESS:
/s/ Margaret Duffell /s/ Barry C. Visioli
- -------------------------------- ------------------------------------------
BARRY C. VISIOLI
12
<PAGE>
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