UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1995
Commission File No.: 1-9999
EVERGREEN BANCORP, INC.
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(Exact name of Registrant as specified in its Charter)
DELAWARE 36-3114785
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(State of incorporation) (I.R.S. Employer Identification No.)
237 Glen Street, Glens Falls, New York 12801
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(Address of principal executive offices) (Zip Code)
(518) 792-1151
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(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12 (b) of the Act:
Title of each class Name of exchange on which registered
NONE Nasdaq National Market System
Securities registered pursuant to Section 12 (g) of the Act:
Common Stock, $ 3 1/3 Par Value
(Title of Class)
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [ X ] No [ ]
The aggregate market value of the Registrant's common stock (based upon the
average of the bid and asked prices on February 29, 1996) held by
non-affiliates was approximately $94.6 million, excluding 385 thousand shares
held by affiliates of the registrant. The number of shares of Registrant's
Common Stock outstanding on February 29, 1996 was 4,637,714.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Portions of the Registrant's Annual Report to Stockholders for the
fiscal year ended December 31, 1995(Parts I, II and IV).
(2) Portions of the Registrant's Proxy Statement for its 1996 Annual Meeting
of Stockholders to be filed within 120 days of the Registrant's fiscal
year-end (Part III).
PART I
EVERGREEN BANCORP, INC.
ITEM 1. Description of Business
GENERAL
Evergreen Bancorp, Inc. ("Registrant" or "Evergreen") is a Delaware
Corporation registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "BHC Act") having its principal place of
business at 237 Glen Street, Glens Falls, New York. Evergreen commenced
business under its former name of First Glen Bancorp on November 3, 1980.
Evergreen adopted its current name on April 23, 1986.
The Registrant conducts substantially all of its business through its sole
banking subsidiary, Evergreen Bank, N.A. (the "Bank"). Its predecessor bank,
The First National Bank of Glens Falls, was originally organized as a
state-chartered bank in New York State in 1853, and was converted to a
national bank in 1865. In 1994, the three subsidiary banks of Evergreen were
combined to form the Bank. Today, the Bank is regulated by the Office of the
Comptroller of the Currency ("OCC"). The deposits of Evergreen Bank are
insured by the Federal Deposit Insurance Corporation ("FDIC") to the extent
permitted by law. See "Supervision and Regulation." The Bank's principal
offices are in Glens Falls, New York, and it has 24 banking offices in 8
counties of upstate New York. At December 31, 1995, Evergreen Bank had total
assets of approximately $861.3 million, total deposits of approximately
$750.3 million, and total stockholders' equity of approximately $79.7
million.
The Bank conducts a general commercial banking and trust business at 24
locations in upstate New York, concentrated in three principal regions
generally known as Glens Falls, Plattsburgh and Albany. Through the Bank,
Evergreen provides a variety of banking services to individuals,
partnerships, corporations, municipalities and government entities in New
York State. Such banking services include accepting deposits, making loans;
checking and NOW accounts; business, agricultural, real estate, home
improvement, automobile and other personal loans; credit cards; letters of
credit; home equity lines of credit; safe deposit boxes; wire transfer
facilities; and access to automated teller machines.
Evergreen and its subsidiaries derive substantially all of their revenue and
income from the furnishing of bank and bank-related services. Evergreen
functions primarily as the holder of stock of its subsidiaries and assists
the management of its subsidiaries as appropriate.
Evergreen is a legal entity separate and distinct from its subsidiaries. The
right of Evergreen to participate in any distribution of the assets or
earnings of any subsidiary is subject to the prior claims of creditors of the
subsidiary, except to the extent that claims, if any, of Evergreen itself as
a creditor may be recognized. See "Supervision and Regulation -- Payment of
Dividends".
GOVERNMENT MONETARY POLICY
The Bank is affected by the credit policies of monetary authorities,
including the Board of Governors of the Federal Reserve System. An important
element of the Federal Reserve System is to regulate the national supply of
bank credit. Among the instruments of monetary policy used by the Federal
Reserve are open market operations in U.S. Government securities, changes in
the discount rate, reserve requirements on member bank deposits, and funds
availability regulations. The monetary policies of the Federal Reserve have
in the past had a significant effect on the operations of financial
institutions, including the Bank, and will continue to do so in the future.
Changing conditions in the national economy and money markets, as well as the
impact of actions by monetary and fiscal authorities, make it difficult to
predict the effect of future changes in interest rates, deposit levels or
loan demand on the business and income of the Bank.
COMPETITION
The Bank faces strong competition in its three principal market areas, both
in attracting deposits and making loans. The Bank's most direct competition
for deposits and trust services has historically come from other banks,
savings institutions and credit unions located in the Bank's market areas.
However, the Bank also faces significant non-banking competition from mutual
funds, insurance companies, investment management firms, investment banking
firms, broker dealers and a growing list of other investment alternatives.
This has increased the competition for funds that historically would have
been maintained as bank deposits.
The Bank competes in this environment by providing a full range of financial
services, competitive interest rates and a personal level of service that,
combined, tend to retain the loyalty of customers in its market areas against
competitors with far larger resources than that of the Bank. To a lesser
extent, convenience of branch locations and hours of operations are
competitive advantages of the Bank in the Glens Falls and Plattsburgh
regions.
The Bank encounters significant competition for new loans, both commercial
and consumer, from other commercial banks, including super-regional, money
center and locally-owned banks. In addition, savings banks, savings and loan
associations, credit unions, mortgage bankers, mortgage brokers affiliated
with nationally franchised real estate brokers, and other financial
institutions compete actively for new loans. Competition for home mortgages
in the past five years has been especially intense in the Bank's market
areas. The Bank competes for new loans principally through the interest rates
and fees it charges, the responsiveness of the Bank to its local markets, and
the efficiency in which it provides loan services.
Mergers among financial institutions have added competitive pressure.
Competition is expected to intensify as a consequence of interstate banking
laws now in effect in the majority of states which permit banking
organizations to expand geographically. Further, the Reigle-Neal Interstate
Banking and Branching Efficiency Act of 1994 has generally removed the
remaining restrictions on interstate acquisitions of banks and bank holding
companies, effective June 1, 1997, or sooner.
SUPERVISION AND REGULATION
General. The Registrant is a bank holding company, registered with the Board
of Governors of the Federal Reserve System (the "Federal Reserve") under the
BHC Act. As such, the Registrant and its subsidiaries are subject to the
supervision, examination, and reporting requirements of the BHC Act and the
regulations of the Federal Reserve.
The BHC Act requires every bank holding company to obtain the prior approval
of the Federal Reserve before: (i) it may acquire direct or indirect
ownership or control of any voting shares of any bank if, after such
acquisition, the bank holding company will directly or indirectly own or
control more than 5.0% of the voting shares of the bank; (ii) it or any of its
subsidiaries, other than a bank, may acquire all or substantially all of the
assets of the bank; or (iii) it may merge or consolidate with any other bank
holding company.
The BHC Act further provides that the Federal Reserve may not approve any
transaction that would result in a monopoly or would be in furtherance of any
combination or conspiracy to monopolize or attempt to monopolize the business
of banking in any section of the United States, or the effect of which may be
to substantially lessen competition in any section of the country, or that in
any other manner would be in restraint of trade, unless the anticompetitive
effects of the proposed transaction are clearly outweighed by the public
interest in meeting the convenience and needs of the community to be served.
The Federal Reserve is also required to consider the financial and managerial
resources and future prospects of the bank holding companies and banks concern
ed and the convenience and needs of the community to be served. Consideration
of financial resources generally focuses on capital adequacy, and
consideration of convenience and needs issues including the parties'
performance under the Community Reinvestment Act of 1977 (the "CRA"), both of
which are discussed below.
The BHC Act prohibits the Federal Reserve from approving a bank holding
company's application to acquire a bank or bank holding company located
outside the state in which the deposits of its banking subsidiaries were
greatest on the date the company became a bank holding company (New York in
the case of the Registrant), unless such acquisition is specifically
authorized by statute of the state in which the bank or bank holding company
to be acquired is located. New York has adopted national reciprocal interstate
banking legislation permitting New York-based bank holding companies to
acquire banks and bank holding companies in other states and allowing bank
holding companies located in states with reciprocal legislation to acquire
New York banks and bank holding companies. Under the provisions of the
Riegle-Neal Interstate Banking and Branching and Efficiency Act of 1994 (the
"Interstate Banking Act"), which was signed into law by President Clinton on
September 29, 1994, the existing restrictions on interstate acquisitions of
banks by bank holding companies, including the reciprocal interstate banking
legislation adopted by the state of New York, have been repealed. This allows
the Registrant and any other bank holding company located in New York to
acquire a bank located in any other state, and a bank holding located outside
New York is able to acquire any New York-based bank, in either case subject to
certain deposit percentage and other restrictions. The Interstate Banking
Act also generally provides that, after June 1, 1997, national and
state-chartered banks may branch interstate through acquisitions of banks in
other states. By adopting legislation prior to that date, a state has the
ability to either "opt in" or to prohibit interstate branching altogether.
The Registrant is also subject to the provisions of Article III-A of the New
York State Banking Law. Among other things, Article III-A requires the
approval of the New York Banking Department prior to the acquisition by a
bank holding company of direct or indirect ownership or control of 10% or
more of the voting stock of a banking institution, or the acquisition by a
bank holding company directly or indirectly through a subsidiary of all or
substantially all of the assets of a banking institution, or a merger or
consolidation with another bank holding company.
The BHC Act generally prohibits the Registrant from engaging in activities
other than banking or managing or controlling banks or other permissible
subsidiaries and from acquiring or retaining direct or indirect control of
any company engaged in any activities other than those activities determined
by the Federal Reserve to be so closely related to banking or
managing or controlling banks as to be a proper incident thereto. In
determining whether a particular activity is permissible, the Federal Reserve
must consider whether the performance of such an activity reasonably can be
expected to produce benefits to the public, such as greater convenience,
increased competition, or gains in efficiency, that outweigh possible adverse
effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest, or unsound banking practices. For
example, factoring accounts receivable, acquiring or servicing loans, leasing
personal property, conducting discount securities brokerage activities,
performing certain data processing services, acting as agent or broker in
selling credit life insurance and certain other types of insurance in
connection with credit transactions, and performing certain insurance
underwriting activities all have been determined by the Federal Reserve to be
permissible activities of bank holding companies. The BHC Act does not
place territorial limitations on permissible non-banking bank-related
activities of bank holding companies. Despite prior approval, the Federal
Reserve has the power to order a holding company or its subsidiaries to
terminate any activity or to terminate its ownership or control of any
subsidiary when it has reasonable cause to believe that continuation of such
activity or such ownership or control constitutes a serious risk to the
financial safety, soundness, or stability of any bank subsidiary of that bank
holding company.
The Bank, the single subsidiary bank of the Registrant, is a member of the
FDIC, and as such, its deposits are insured by the FDIC to the extent
provided by law. The Bank is also subject to numerous state and federal
statutes and regulations that affect its business, activities, and
operations, and it is supervised and examined by one or more federal bank
regulatory agencies.
Because the Bank is a national bank, it is subject to supervision and
regulation by the OCC. The OCC regularly examines the operations of the
subsidiary bank and has authority to approve or disapprove mergers,
consolidations, the establishment of branches, and similar corporate actions.
The OCC also has the power to prevent the continuance or development of
unsafe or unsound banking practices or other violations of law.
The Bank is subject to the provisions of the CRA. Under the terms of the CRA,
the appropriate federal bank regulatory agency is required, in connection
with its examination of a subsidiary institution, to assess such
institution's record in meeting the credit needs of the community served by
that institution, including those of low and moderate-income neighborhoods.
The regulatory agency's assessment of the institution's record is made
available to the public. Further, such assessment is required of any
institution which has applied to: (i) charter a national bank; (ii) obtain
deposit insurance coverage for a newly chartered institution; (iii) establish
a new branch office that will accept deposits; (iv) relocate an office; or
(v) merge or consolidate with, or acquire the assets or assume the
liabilities of, a federally regulated financial institution. In the case of
a bank holding company applying for approval to acquire a bank or other bank
holding company, the Federal Reserve will assess the records of each
subsidiary institution of the applicant bank holding company, and such
records may be the basis for denying the application.
In December 1993, the federal banking agencies proposed to revise their CRA
regulations in order to provide clearer guidance to depository institutions
on the nature and extent of their CRA obligations and the methods by which
those obligations would be assessed and enforced. In response to widespread
criticisms of the December 1993 proposal, the agencies, on September 26,
1994, issued a revised proposal. Under the proposal, the
process-based CRA assessment factors have been replaced with an evaluation
system that rates institutions based on their actual performance in meeting
community credit needs. The evaluation system used to judge an institution's
CRA performance consists of three tests: a lending test; an investment test;
and a service test. Each of these tests are applied by the institution's
federal regulator in an assessment context that takes into account such
factors as (i) demographic data about the community; (ii) the institution's
capacity and constraints; (iii) the institution's product offerings and
business strategy; and (iv) data on the prior performance of the institution
and similarly situated lenders.
The lending test -- the most important of the three tests for all institutions
other than wholesale and limited purpose (e.g., credit card banks) --
evaluates an institution's lending activities as measured by its home
mortgage loans, small business and farm loans, community development loans,
and, at the option of the institution, its consumer loans. The institution's
regulator weighs each of these lending categories to reflect their relative
importance to the institution's overall business and, in the case of
community development loans, the characteristics and needs of the
institution's service area and the opportunities available for this type of
lending.
The focus of the investment test is the degree to which the institution is
helping to meet the needs of its service area through qualified investments
that: (i) benefit low-to-moderate income individuals and small businesses or
farms; (ii) address affordable housing needs; or (iii) involve donations of
branch offices to minority or women's depository institutions. Assessment of
an institution's performance under the investment test would be based upon
the dollar amount of the institution's qualified investments, its use of
innovative or complex techniques to support community development
initiatives, and its responsiveness to credit and community development
needs.
The service test would evaluate an institution's systems for delivering
retail banking services, taking into account such factors as (i) the
geographic distribution of the institution's branch offices and automated
teller machines ("ATMs"), (ii) the institution's record of opening and
closing branch offices and ATMs, and (iii) the availability of alternative
product delivery systems such as home banking and loan production offices in
low-to-moderate income areas. The federal regulators also consider an
institution's community development services as part of the service test.
A separate community development test is applied to wholesale or limited
purpose financial institutions.
An institution's CRA rating will continue to be taken into account by its
regulator in considering various types of applications. In addition, an
institution receiving a rating of "substantial noncompliance" is subject to
civil money penalties or a cease and desist order under Section 8 of the
Federal Deposit Insurance Act (the "FDIA"). CRA remains a critical component
of the regulatory examination process. CRA examination results and related
concerns have been cited as a reason to reject and or modify branching and
merger applications by various federal and state banking agencies.
Payment of Dividends. The Registrant is a legal entity separate and distinct
from the Bank and its other subsidiaries. The principal source of cash flow
of the Registrant, including cash flow to pay dividends to its stockholders,
is dividends from the Bank. The subsidiary bank is required by the OCC to
obtain prior approval for the payment of dividends to the Registrant if the
total of all dividends declared by such subsidiary bank in any year would
exceed the total of such bank's net profits (as defined and
interpreted by regulation) for that year and the retained net profits (as
defined) for the preceding two years, less any required transfers to surplus.
There are also other statutory and regulatory limitations on the payment of
dividends by the Bank to the Registrant as well as the Registrant to its
stockholders. Without receiving dividends from the Bank the Registrant would
not be in a position to pay dividends to its stockholders.
If, in the opinion of a federal regulatory agency, an institution under its
jurisdiction is engaged in or is about to engage in an unsafe or unsound
practice (which, depending on the financial condition of the institution,
could include the payment of dividends), such agency may require, after
notice and a hearing, that such institution cease and desist from such
practice. The Federal Reserve, the OCC, and the FDIC, have indicated that
paying dividends that deplete an institution's capital base to an inadequate
level would be an unsafe and unsound banking practice. Under the Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA"), an insured
institution may not pay any dividend if it is undercapitalized, or if such
payment would cause it to become undercapitalized. See "Prompt Corrective
Action." Moreover, the Federal Reserve, the OCC, and the FDIC have issued
policy statements which provide that bank holding companies and insured banks
should generally only pay dividends out of current operating earnings.
At December 31, 1995, under dividend restrictions imposed under federal and
state laws, the Bank, without obtaining governmental approvals, could declare
aggregate dividends to the Registrant of approximately $12 million, provided
that the Bank would then be in compliance with one or more minimum capital
requirements. Moreover, federal bank regulatory authorities also have the
general authority to limit the dividends paid by insured banks if such
payments may be deemed to constitute an unsafe and sound practice.
Transactions With Affiliates. There are various restrictions on the extent
to which the Registrant and its non-bank subsidiaries can borrow or otherwise
obtain credit from the subsidiary bank. The Bank (and its subsidiaries) is
limited in engaging in borrowing and other "covered transactions" with
non-bank or non-savings bank affiliates to the following amounts: (i) in the
case of any such affiliate, the aggregate amount of covered transactions of
the subsidiary bank and its subsidiaries may not exceed 10% of the capital
stock and surplus of such subsidiary bank; and (ii) in the case of all
affiliates, the aggregate amount of covered transactions of the subsidiary
bank and its subsidiaries may not exceed 20% of the capital stock and surplus
of such subsidiary bank. "Covered transactions" are defined by statute to
include a loan or extension of credit, as well as a purchase of securities
issued by an affiliate, a purchase of assets (unless otherwise exempted by
the Federal Reserve), the acceptance of securities issued by the affiliate as
collateral for a loan and the issuance of a guarantee, acceptance, or letter
of credit on behalf of an affiliate. Covered transactions are also subject to
certain collateralization requirements. Further, a bank holding company and
its subsidiaries are prohibited from engaging in certain tie-in arrangements
in connection with any extension of credit, lease, or sale of property or
furnishing of services.
Capital Adequacy. The Registrant and the Bank are required to comply with
the capital adequacy standards established by the Federal Reserve in the case
of the Registrant, and the OCC in the case of the subsidiary bank. There are
two basic measures of capital adequacy for bank holding companies that have
been promulgated by the Federal Reserve: a risk-based measure and a leverage
measure. All applicable capital standards must be satisfied for a bank
holding company to be considered in compliance.
The risk-based capital standards are designed to make regulatory capital
requirements more sensitive to differences in risk profile among banks and
bank holding companies, to account for off-balance sheet exposure, and to
minimize disincentives for holding liquid assets. Assets and off-balance
sheet items are assigned to broad risk categories, each with appropriate
weights. The resulting capital ratios represent capital as a percentage of
total risk-weighted assets and off-balance sheet items.
The minimum guideline for the ratio of total capital ("Total
Capital") to risk-weighted assets (including certain off-balance-sheet items,
such as standby letters of credit) is 8.0%. At least half of the Total
Capital must be composed of common stock, minority interests in the equity
accounts of consolidated subsidiaries, noncumulative perpetual preferred
stock, and a limited amount of cumulative perpetual preferred stock, less
goodwill and certain other intangible assets ("Tier 1 Capital"). The remainder
may consist of subordinated debt, other preferred stock, and a limited
amount of loan loss reserves. At December 31, 1995, the Registrant's
consolidated Tier 1 Capital and Total Capital ratios were 14.0% and 15.2%,
respectively. The Bank's capital ratios are substantially similar to those of
the Registrant.
In addition, the Federal Reserve has established minimum leverage ratio
guidelines for bank holding companies. These guidelines provide for a minimum
ratio of Tier 1 Capital to average assets, less goodwill and certain other
intangible assets (the "leverage ratio"), of 3.0% for bank holding companies
that meet certain specified criteria, including having the highest regulatory
rating. All other bank holding companies generally are required to maintain a
leverage ratio of at least 3.0% plus an additional cushion of 100 to 200 basis
points. The Registrant's leverage ratio at December 31, 1995 was 9.5%. The
guidelines also provide that bank holding companies experiencing internal
growth or making acquisitions will be expected to maintain strong capital
positions substantially above the minimum supervisory levels without
significant reliance on intangible assets. Furthermore, the Federal Reserve
has indicated that it will consider a banking institutions "tangible Tier 1
Capital leverage ratio" (deducting all intangibles) and other indications of
capital strength in evaluating proposals for expansion or new activities.
Evergreen Bank is subject to risk-based and leverage capital requirements
adopted by the OCC. Evergreen Bank was in compliance with applicable minimum
capital requirements as of December 31, 1995.
Failure to meet capital guidelines could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business. See "Prompt Corrective
Action."
The federal bank regulators continue to indicate their desire to raise
capital requirements applicable to banking organizations beyond their current
levels. In this regard, the Federal Reserve and the OCC have, pursuant to
FDICIA, proposed an amendment to the risk-based capital standards which would
calculate the change in an institution's net economic value attributable to
increases and decreases in market interest rates and would require banks with
excessive interest rate risk exposure to hold additional amounts of capital
against such exposures.
Support of Subsidiary Bank. Under Federal Reserve policy, the Registrant is
expected to act as a source of financial strength to, and to commit resources
to support, the subsidiary bank. This support may be required at times when,
absent such Federal Reserve policy, the Registrant may not be inclined to
provide it. In addition, any capital loans by a bank holding company to the
subsidiary bank are subordinate in right of payment to deposits
and to certain other indebtedness of such subsidiary bank. In the event of a
bank holding company's bankruptcy, any commitment by the bank holding company
to a federal bank regulatory agency to maintain the capital of a subsidiary
bank will be assumed by the bankruptcy trustee and entitled to a priority of
payment.
Under the FDIA, a depository institution insured by the FDIC can be held
liable for any loss incurred by, or reasonably expected to be incurred by,
the FDIC after August 9, 1989 in connection with: (i) the default of a
commonly controlled FDIC-insured depository institution; or (ii) any
assistance provided by the FDIC to any commonly controlled FDIC-insured
depository institution "in danger of default." The FDIC's claim for damages
is superior to claims of stockholders of the insured depository institution
or its holding company, but is subordinate to claims of depositors, secured
creditors, and holders of subordinated debt (other than affiliates) of the
commonly controlled insured depository institution. The Bank is subject to
these cross-guarantee provisions. As a result, any loss suffered by the FDIC
in respect of the Bank would likely result in assertion of the
cross-guarantee provisions superior to the claims of the parent holding
company.
Prompt Corrective Action. FDICIA establishes a system of prompt corrective
action to resolve the problems of undercapitalized institutions. Under this
system, which became effective on December 19, 1992, the federal banking
regulators are required to establish five capital categories
("well-capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized," and "critically undercapitalized") and to
take certain mandatory supervisory actions, and are authorized to take other
discretionary actions, with respect to institutions in the three
undercapitalized categories, the severity of which will depend upon the
capital category in which the institution is placed. Generally, subject to a
narrow exception, the FDICIA requires the banking regulator to appoint a
receiver or conservator for an institution that is critically
undercapitalized. The federal banking agencies have specified by regulation
the relevant capital level for each category.
Under the rules implementing the prompt corrective action provisions, an
institution that (i) has a Total Capital ratio of 10% or greater, a Tier I
Capital ratio of 6.0% or greater, and a Leverage ratio of 5.0% or greater,
and (ii) is not subject to any written agreement, order, capital directive,
or prompt corrective action directive issued by the appropriate federal
banking agency, is deemed to be "well-capitalized." An institution with a
Total Capital ratio of 8.0% or greater, a Tier I Capital ratio of 4.0% or
greater, and a Leverage ratio of 4.0% or greater is considered to be
"adequately capitalized." A depository institution that has a Total Capital
ratio of less than 8.0%, a Tier I Capital ratio of less than 4.0%, or a
Leverage ratio of less than 4.0% is considered to be "undercapitalized." A
depository institution that has a Total Capital ratio of less than 6.0%, a
Tier I Capital ratio of less than 3.0%, or a Leverage ratio of less than 3.0%
is considered to be "significantly undercapitalized" and an institution that
has a tangible equity capital to assets ratio equal to or less than 2.0% is
deemed to be "critically undercapitalized." For purposes of the regulation,
the term "tangible equity" includes core capital elements counted as Tier I
capital for purposes of the risk-based capital standards plus the amount of
outstanding cumulative perpetual preferred stock (including related surplus),
minus all intangible assets with certain exceptions. A depository institution
may be deemed to be in a capitalization category that is lower than is
indicated by its actual capital position if it receives an unsatisfactory
examination rating.
An institution that is categorized as undercapitalized, significantly
undercapitalized, or critically undercapitalized, is required to submit an
acceptable capital restoration plan to its appropriate federal banking
agency. Under FDICIA, a bank holding company must guarantee that a subsidiary
depository institution meet its capital restoration plan, subject to certain
limitations. The obligation of a controlling bank holding company under
FDICIA to fund a capital restoration plan is limited to the lesser of 5.0% of
an undercapitalized subsidiary's assets or the amount required to meet
regulatory capital requirements.
The severity of the actions required to be taken by the appropriate federal
banking authorities increases as an institution's capital position
deteriorates. Among other actions, the mandates could include, under certain
circumstances, requiring recapitalization of or a capital restoration plan by
a depository institution, such as requiring the sale of new shares, a merger
with (or sale to) another institution (or holding company), restricting
certain transactions with banking affiliates, otherwise restricting
transactions with bank or non-bank affiliates, restricting interest rates
that the institution pays on deposits, restricting asset growth or reducing
total assets, altering, reducing, or terminating activities, holding a new
election of directors, dismissing any director or senior executive officer
who held office for more than 180 days immediately before the institution
became undercapitalized, employing qualified senior executive officers, or
ceasing to accept deposits from correspondent depository institutions.
Not later than 90 days after an institution becomes critically
undercapitalized, the appropriate federal banking agency for the institution
must appoint a receiver or, with the concurrence of the FDIC, a conservator,
unless the agency, with the concurrence of the FDIC, determines that the
purpose of the prompt corrective action provisions would be better served by
another course of action. Thereafter, an institution's regulator must
periodically reassess its determination to permit a particular critically
undercapitalized institution to continue to operate and must appoint a
conservator or receiver for the institution at the end of an approximately
one-year period following the institution's initial classification as
critically undercapitalized unless a number of stringent conditions are met,
including a determination by the regulator and the FDIC that the institution
has positive net worth and a certification by such agencies that the
institution is viable and not expected to fail.
At December 31, 1995, Evergreen Bank had the requisite capital levels to
qualify as well capitalized.
Brokered Deposits. The FDIC has adopted regulations governing the receipt of
brokered deposits. Under the regulations, a depository institution cannot
accept, rollover, or renew brokered deposits unless (i) it is well
capitalized or (ii) it is adequately capitalized and receives a waiver from
the FDIC. A depository institution that cannot receive brokered deposits
also cannot offer "pass-through" insurance on certain employee benefit
accounts. Whether or not it has obtained such a waiver, an adequately
capitalized depository institution may not pay an interest rate on any
deposits in excess of 75 basis points over certain prevailing market rates
specified by regulation. There are no such restrictions on a depository
institution that is well capitalized. Since Evergreen Bank had the requisite
capital levels to qualify as well capitalized as of December 31, 1995, the
Registrant believes the brokered deposits regulation will have no material
effect on the funding or liquidity of Evergreen Bank.
FDIC Insurance. Under the FDIC's risk related insurance assessment
system, all insured depository institutions are required to pay annual
assessments to the FDIC. An institution's risk classification is based on
assignment of the institution by the FDIC to one of three capital groups and
to one of three supervisory subgroups. The three supervisory subgroups are
group "A", financially solid institutions with only a few minor weaknesses,
Group "B", institutions with weaknesses which, if uncorrected, could cause
substantial deterioration of the institution and increased risk to the
insurance fund and Group "C", institutions with a substantial probability of
loss to the fund absent effective corrective action. The three capital
categories are well capitalized; adequately capitalized; and
undercapitalized. These three categories are substantially the as the prompt
corrective action categories previously described, with the undercapitalized
category including institutions that are undercapitalized, significantly
undercapitalized, and critically undercapitalized for prompt corrective
action purposes.
On January 31, 1995, the FDIC proposed a reduction in the insurance premium
rate for BIF-insured banks from a current range of 23 cents to 31 cents per
100 dollars of deposits, to a new range of 4 cents to 31 cents per 100
dollars of deposits once the BIF attained a reserve ratio (i.e., ratio of
reserves to insured deposits) of 1.25%. The FDIC determined that level was
reached as of May 31, 1995, and reduced the assessment range at that time to
the levels in its proposal. The FDIC has further indicated a willingness to
possibly reduce premium rates further in 1996. Because the evaluation of
reserves by the FDIC is an ongoing function, no 1996 savings to the Bank can
be currently forecast.
Under the FDIA, insurance of deposits may be terminated by the FDIC upon a
finding that the institution has engaged in unsafe and unsound practices, is
in an unsafe or unsound condition to continue operations, or has violated any
applicable law, regulation, rule, order, or condition imposed by the FDIC.
Safety and Soundness Standards. Federal banking agencies promulgate safety
and soundness standards relating to internal controls, information systems
and internal audit systems, loan documentation, credit underwriting, interest
rate exposure, asset growth, compensation, fees, and benefits. With respect
to internal controls, information systems, and internal audit systems, the
standards describe the functions that adequate internal controls and
information systems must be able to perform, including: (i) monitoring
adherence to prescribed policies; (ii) effective risk management; (iii)
timely and accurate financial, operational, and regulatory reporting; (iv)
safeguarding and managing assets; and (v) compliance with applicable laws and
regulations. The standards also include requirements that: (i) those
performing internal audits be qualified and independent; (ii) internal
controls and information systems be tested and reviewed; (iii) corrective
actions be adequately documented; and (iv) that results of an audit be made
available for review of management actions.
As in the case of internal controls and information systems, the proposal
establishes general principles and standards, rather than specific
requirements, that must be followed in other areas. For example, loan
documentation and credit underwriting practices must enable the institution
to make informed lending decision and assess credit risk on an ongoing basis.
Similarly, an institution must manage interest rate risk "in a manner that
is appropriate to the size of [the institution] and the complexity of its
assets and liabilities" and must conduct any asset growth in accordance with
a plan that has taken a variety of factors such as deposit volatility,
capital, and interest rate risk into account. The proposal also prohibits
"excessive compensation," which is defined as amounts paid that are
unreasonable or disproportionate to the services performed by an officer,
employee, director, or principal stockholder in light of all circumstances.
In order to help alert institutions and their regulators to deteriorating
financial conditions, the proposed rule also would impose a maximum ratio of
classified assets to total capital of 1.0 and, in the case of an institution
that had incurred a net loss over the last four quarters, would require that
institution to have sufficient capital to absorb a similar loss over the next
four quarters and still remain in compliance with its minimum capital
requirements.
Depositor Preference. The Omnibus Budget Reconciliation Act of 1993 provides
that deposits and certain claims for administrative expenses and employee
compensation against an insured depository institution would be afforded a
priority over other general unsecured claims against such an institution in
the "liquidation or other resolution" of such an institution by any receiver.
Legislative Proposals. Because of concerns relating to the competitiveness
and the safety and soundness of the industry, Congress continues to consider
a number of wide-ranging proposals for altering the structure, regulation,
and competitive relationships of the nation's financial institutions. Among
such bills are proposals to prohibit depository institutions and bank holding
companies from conducting certain types of activities, to subject depository
institutions to increased disclosure and reporting requirements, to alter the
statutory separation of commercial and investment banking, and to further
expand the powers of depository institutions, bank holding companies, and
competitors of depository institutions. It cannot be predicted whether or in
what form any of these proposals will be adopted or the extent to which the
business of the Registrant may be affected thereby.
NON-BANKING ACTIVITIES
The Bank does not currently generate any significant revenues from
non-banking activities, but it may subsequently engage in other permissible
activities for registered bank holding companies when suitable opportunities
develop. Any proposal for such further activities subject to approval by
appropriate regulatory authorities. See "Supervision and Regulation".
EMPLOYEES
As of year-end 1995, Evergreen and its affiliates had a total of 392
employees on a full time equivalent basis. Evergreen considers its employee
relations to be good.
FOREIGN OPERATIONS
Neither Evergreen nor Evergreen Bank engages in material operations in
foreign countries or have any outstanding loans to foreign investors. The
subsidiary bank maintains immaterial Canadian and other foreign bank accounts
and currency levels for use in the ordinary course of business.
STATISTICAL INFORMATION AND ANALYSIS
The material under the heading "Financial Review" in the 1995 Annual Report
is incorporated herein by reference as a presentation and discussion of
statistical data relating to Evergreen. The information with respect to such
tables should not be construed to imply any conclusions on the part of the
management of Evergreen that the results, causes, or trends indicated therein
will continue in the future. The nature and effects of governmental monetary
policy, supervision and regulation, future legislation, inflation and other
economic conditions and many other factors which affect interest
rates,investments, loans, deposits and other aspects of Evergreen's
operations are extremely complex and thus historical operations, earnings,
assets, and liabilities are not necessarily indicative of future performance.
See "Government Monetary Policy".
STATISTICAL DISCLOSURE REQUIRED BY BANK HOLDING COMPANIES
I. Distribution of Assets, Liabilities and Stockholders' Equity; Interest
rates and Interest Differential
The information set forth on pages 16 through 18 of Registrant's 1995 Annual
Report is incorporated herein by reference.
II. Investment Portfolio
The information set forth on page 25 of Registrant's 1995 Annual Report
is incorporated herein by reference.
III. Loan Portfolio
The information set forth on pages 20 through 23 of Registrant's 1995 Annual
Report is incorporated herein by reference.
Non-Performing Loans
The information set forth on pages 20 through 21 of Registrant's 1995 Annual
Report is incorporated herein by reference.
IV. Summary of Loan Loss Experiences
The information set forth on page 23 of Registrant's 1995 Annual Report is
incorporated herein by reference.
V. Deposits
The information set forth on page 19 of Registrant's 1995 Annual Report is
incorporated herein by reference.
VI. Return on Equity and Assets
The information set forth on page 27 of Registrant's 1995 Annual Report is
incorporated herein by reference.
ITEM 2. Properties
Registrant
Registrant has five physical properties which do not represent significant
holdings. The office facilities of the Registrant are located at 237 Glen
Street, Glens Falls, New York in a building owned by Evergreen Bank, N.A.
Evergreen Bank, N.A.
Evergreen Bank, N.A.'s main offices are also at 237 Glen Street, Glens Falls,
New York. Evergreen Bank owns in fee the buildings where 20 of the Bank's
offices are located. In addition, two offices are leased at the rate of
$2,045 per month through October 31, 1997, and two properties are owned by
the Registrant and leased to the Bank.
Item 3. Legal Proceedings
Evergreen is not presently involved in any material legal proceedings. The
Bank is involved in a number of ordinary and routine legal proceedings which
typically present, as one or more defenses by the borrower in a collection
action, assertions of lender liability on the part of the Bank. In the
aggregate, the Bank's legal proceedings involve claims which are not believed
to be material to the financial condition of the Bank.
ITEM 4. Submission of Matters to a Vote of Security Holders
There were no matters submitted to security holders during the fourth quarter
of 1995.
<TABLE>
Identification of Executive Officers
(pursuant to General Instruction G of Form 10-K)
Executive Officers of the Registrant
The following table sets forth certain information with respect to the
executive officers of Registrant:
<CAPTION>
Officers with Executive
Name Age Registrant or Bank Subsidiary Officer Since
<S> <C> <C> <C>
George W. Dougan 56 President and Chief 1994
Executive Officer of
Evergreen
Paul A. Cardinal 39 Executive Vice President 1995
and General Counsel of
Evergreen
Thomas C. Crowley 49 Executive Vice President 1994
Chief Credit Officer of Evergreen
Anthony J. Koenig 57 Executive Vice President 1986
and Chief Administrative
Officer of Evergreen
George L. Fredette 36 Senior Vice President 1995
Principal Financial Officer
of Evergreen
Michael P. Brassel 54 Regional President 1981
Plattsburgh Region
Jeffrey B. Rivenburg 48 Regional President 1994
Capital Region
John M. Fullerton 47 Executive Vice President 1988
of Trust and Investment of
Evergreen Bank
</TABLE>
None of the individuals named in the above table as an officer of Registrant
was selected to his/her position pursuant to any arrangement or understanding
with any other person, nor are there any family relationships between them.
Each of the above officers, except as noted below, has held the same or
another executive position with Registrant, Evergreen Bank for the past five
years.
George W. Dougan was elected President and Chief Executive Officer of
Evergreen and the Bank on March 10, 1994. Prior thereto he was Chairman of
the Board for the Bank of Boston (Florida Division) from June 1992 and Senior
Vice President and Director of Retail Banking, for the Bank of Boston, from
June 1988 to June 1992.
Paul A. Cardinal was elected Executive Vice President of Evergreen and the
Bank in May 1995. For more than five years prior thereto he was General
Counsel of Trans World Entertainment Corporation.
Thomas C. Crowley was elected Executive Vice President and Chief Credit
Officer of Evergreen and the Bank in May 1994. Prior thereto, he served as
Senior Vice President for Trustco Bank New York from 1993 to 1994. Prior to
1993 he served as Executive Vice President and Chief Credit Officer for Fleet
Bank of New York.
Anthony J. Koenig was elected Executive Vice President and Chief
Administrative Officer of Evergreen and the Bank in August 1993. He also
served as Regional President of the Capital Region from January 1986 to
January 1994.
George L. Fredette was elected Senior Vice President Finance of Evergreen and
the Bank, in November 1995. Prior thereto he was Vice President Finance for
the Bank. Prior to joining Evergreen he was Vice President and Chief
Financial Officer of Schenectady Federal Savings and Loan Association from
1989.
Michael P. Brassel was elected Regional President of the Bank's Plattsburgh
Region in January 1990. Prior thereto he served as Executive Vice President
and Cashier for Evergreen and the Bank since December, 1987.
Jeffrey B. Rivenburg was elected as Regional President of the Bank's Capital
Region October 1995. Prior thereto he was Executive Vice President Corporate
Banking Services of Evergreen Bank since August 1993 and was Manager of
Special Assets for Evergreen Bank from April 1993. Prior to joining Evergreen
he was Corporate Banking Department Manager for First American Bank of New
York from 1988.
John M. Fullerton was elected Executive Vice President of Trust and
Investments at Evergreen Bank in October 1993. Prior thereto he was
Executive Vice President of Retail Banking Services at Evergreen Bank from
June 1992 and Senior Vice President of Trust and Investment at Evergreen Bank
prior thereto.
Mr. Dougan is a director of Trans World Entertainment Corporation, a
publicly-traded specialty retailer traded on the NASDAQ National Market
System. None of the other individuals named above holds a directorship with
a company (except for Registrant) registered pursuant to Section 12 of the
Securities Exchange Act, or subject to the requirements of Section 15(d) of
that Act, or with a company which is registered as an Investment Company
under the Investment Company Act of 1940.
PART II
ITEM 5. Market for the Registrant's Common Equity and Related Stockholder
Matters
The information set forth on page 2 under caption "Common Stock Data" of the
Registrant's 1995 Annual Report to stockholders is incorporated herein by
reference.
ITEM 6. Selected Financial Data
The information set forth on page 27 under the caption "Summary of Selected
Financial Data" of the Registrant's 1995 Annual Report is incorporated herein
by reference.
ITEM 7. Management's Discussion and Analysis of Financial Conditions and
Results of Operation
The information set forth on pages 15 through 26 of Registrant's 1995 Annual
Report is incorporated herein by reference.
ITEM 8. Financial Statements and Supplementary Data
The information set forth on pages 28 through 48 of Registrant's 1995 Annual
Report is incorporated herein by reference.
ITEM 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
PART III
ITEM 10. Directors and Executive Officers of the Registrant
The information included under "Proposal One -- Election of Directors" in the
Registrant's Proxy Statement for its 1996 Annual Meeting of Stockholders, and
under "Executive Officers of the Registrant" in Part I of this report, is
hereby incorporated by reference.
ITEM 11. Executive Compensation
The information included under "Proposal One -- Election of Directors" in the
Registrant's Proxy Statement for its 1996 Annual Meeting of Stockholders, is
hereby incorporated by reference.
ITEM 12. Security Ownership of Certain Beneficial Owners and
Management
The information included under "Proposal One -- Election of Directors" in the
Registrant's Proxy Statement for its 1996 Annual Meeting of Stockholders, is
hereby incorporated by reference.
ITEM 13. Certain Relationships and Related Transactions
The information included under "Proposal One -- Election of Directors --
Certain Transactions" in the Registrant's Proxy Statement for its 1996 Annual
Meeting of Stockholders, is hereby incorporated by reference.
PART IV
ITEM 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K
The following consolidated financial statements of Registrant and its
subsidiaries, and the accountants' report thereon, included on pages 28
through 48, inclusive, of Registrant's Annual Report to Stockholders for the
fiscal year ended December 31, 1995, are incorporated herein by reference:
Financial Statements:
Consolidated Statements of Income -- Years ended December 31, 1995, 1994 and
1993
Consolidated Statements of Condition -- December 31, 1995 and 1994
Consolidated Statements of Changes in Stockholders' Equity -- Years ended
December 31, 1995, 1994 and 1993
Consolidated Statements of Cash Flows -- Years ended December 31, 1995, 1994
and 1993
Notes to Consolidated Financial Statements
Financial Statement Schedules
(All financial statement schedules for Registrant and its subsidiaries have
been omitted as the required information is included in the consolidated
financial statements or the related notes thereto, is not required or is
inapplicable.)
The following exhibits are incorporated herein by reference:
Exhibit 3(a) Certificate of Incorporation (incorporated by reference to
Registrant's Registration Statement on Form S-14, Registration No.
2-71111).
Exhibit 10(a)* Employment Agreement dated as of February 7, 1994, between
Registrant and George W. Dougan (incorporated by referance to Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993).
Exhibit 10(b)* 1985 Incentive Stock Option Plan of the Registrant
(incorporated by referance to Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993).
Exhibit 10(c)* 1989 Stock Incentive Plan of the Registrant (incorporated by
referance to Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993).
Exhibit 10(d)* Deferred Compensation Plan(incorporated by referance to
Registrant's Annual Report on Form 10-K for the fiscal year ended December
31, 1993).
Exhibit 10(e)* Evergreen Bancorp, Inc. Plan for the Payment and Deferral of
Directors Fees (incorporated by referance to Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993).
The following exhibits are submitted herewith:
Exhibit 3(b) -- Bylaws
Exhibit 10(f)* -- 1995 Incentive Stock Option Plan of the Registrant
Exhibit 10(g)* -- 1995 Directors Stock Option Plan of the Registrant
Exhibit 10(h)* -- Supplemental Executive Retirement Plan
Exhibit 10(i)* -- Supplemental Chief Executive Retirement Plan
Exhibit 10(j)* -- Form of Change in Control Agreement
Exhibit 10(k)* -- Severance Agreement, dated April 18, 1995, with Paul A.
Cardinal
Exhibit 11 -- Computation of Net Income Per Common Share
Exhibit 13 -- Registrant's Annual Report to Stockholders for the year ended
December 31, 1995
Exhibit 21 -- Subsidiaries of Registrant
Exhibit 23 -- Consent of KPMG Peat Marwick to the use of its Report on the
Consolidated Financial Statements of Registrant
included in connection with previously filed registration statements of the
Registrant.
Exhibit 27 -- Financial Data Schedule
* Represents a management contract or compensatory plan or arrangement
required to be filed as an exhibit to this report pursuant to Item 14(c) of
this report.
The Registrant hereby agrees to furnish the Securities and Exchange
Commission upon request, copies of instruments outstanding, including
indentures, which define the rights of long-term debt security holders.
No reports on Form 8-K were filed for the three months ended December 31,
1995.
Signatures
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
EVERGREEN BANCORP, INC.
(Registrant)
By: /s/ George W. Dougan
GEORGE W. DOUGAN
President and Chief Executive Officer
(Principal Executive Officer)
March 21, 1996
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signatures Titles Dates
<S> <C> <C>
/s/ George W. Dougan Chairman of the Board
George W. Dougan of Directors 3/21/96
/s/ George L. Fredette Senior Vice President
George L. Fredette (Principal Financial and
Accounting Officer) 3/21/96
/s/ John W. Bishop Director 3/21/96
John W. Bishop
/s/ Dean V. Chandler Director 3/21/96
Dean V. Chandler
/s/ Carl R. DeSantis Director 3/21/96
Carl R. DeSantis
/s/ Robert F. Flacke Director 3/21/96
Robert F. Flacke
/s/ Michael D. Ginsburg Director 3/21/96
Michael D. Ginsburg
/s/ Samuel P. Hoopes Director 3/21/96
Samuel P. Hoopes
/s/ Joan M. Mannix Director 3/21/96
Joan M. Mannix
/s/ Anthony J. Mashuta Director 3/21/96
Anthony J. Mashuta
Phillip H. Morse Director 3/21/96
William E. Philion Director 3/21/96
/s/ Alan R. Rhodes Director 3/21/96
Alan R. Rhodes
/s/ Floyd H. Rourke Director 3/21/96
Floyd H. Rourke
/s/ Paul W. Tomlinson Director 3/21/96
Paul W. Tomlinson
/s/ Walter Urda Director 3/21/96
Walter Urda
/s/ Henry J. W. Vanderminden III Director 3/21/96
Henry J. W. Vanderminden III
</TABLE>
EVERGREEN BANCORP, INC.
1995 ANNUAL REPORT ON FORM 10-K
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
<S> <C>
3(b) Bylaws
10(f) 1995 Incentive Stock Option Plan
10(g) 1995 Directors Stock Option Plan
10(h) Supplemental Executive Retirement Plan
10(i) Supplemental Chief Executive Retirement Plan
10(j) Form of Change in Control Agreement
10(k) Severance Agreement, dated April 18, 1995, with Paul A. Cardinal
11 Computation of Net Income Per Common Share
13 Registrant's Annual Report to Stockholders for the year ended
December 31, 1995
21 Subsidiaries of Registrant
23 Consent of KPMG Peat Marwick.
27 Financial Data Schedule
</TABLE>
Exhibit 3 (b)
AMENDED AND RESTATED BY-LAWS
OF
EVERGREEN BANCORP, INC.
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "By-laws" means the by-laws of the Corporation, as amended from time to
time.
1.2 "Certificate of Incorporation" means the certificate of incorporation of
the Corporation, as amended, supplemented or restated from time to time.
1.3 "Corporation" means Evergreen Bancorp, Inc.
1.4 "General Corporation Law" means the General Corporation Law of the State
of Delaware, as amended from time to time.
1.5 "Office of the Corporation" means the executive office of the
Corporation, whether or not such executive office serves as the Corporation's
"registered office" under Section 131 of the General Corporation Law (or any
successor provision or provisions).
1.6 "Total number of directors" means the total number of directors
determined in accordance with Section 141(b) of the General Corporation Law
(or any successor provision or provisions) and Section 3.2 of the By-laws.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meeting. Every meeting of stockholders shall be held at the
office of the Corporation or at such other place within or without the State
of Delaware as shall be specified or fixed in the notice of such meeting or
in the waiver or notice thereof.
2.2 Annual Meeting. A meeting of stockholders shall be held annually for the
election of directors and the transaction of other business at such hour and
on such business day in March, April or May as may be determined by the Board
of Directors (the "Board") and designated in the notice of meeting.
2.3 Deferred Meeting for Election of Directors. If the annual meeting of
stockholders for the election of directors and the transaction of other
business is not held within the months specified in Section 2.2, the Board
shall call a meeting of stockholders for the election of directors and the
transaction of other business as soon thereafter as convenient.
2.4 Special Meetings. A special meeting of stockholders (other than a
special meeting for the election of directors), unless otherwise prescribed
by statute, may be called at any time by the Board or by the Chairman of the
Board or by the President. At any special meeting of stockholders only such
business may be transacted as is related to the purpose or purposes of such
meeting set forth in the notice thereof given pursuant to Section 2.6 of the
By-laws or in any waiver of notice thereof given pursuant to Section 2.7 of
the By-laws.
2.5 Fixing Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful
action, the Board may fix, in advance, a date as the record date for any such
determination of stockholders.
2.5.1 Such date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board and shall be:
(a) For the purpose of determining the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, not more
than sixty nor less than ten days before the date of such meeting;
(b) For the purpose of determining the stockholders entitled to consent to
corporate action in writing without a meeting, not more than ten days after
the resolution date; and
(c) For any other purpose, not more than sixty days prior to such action.
2.5.2 If no such record date is fixed:
(a) The record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the
meeting is held;
(b) The record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board is necessary, shall be the day on which the first written consent is
delivered to the Corporation; and
(c) The record date for determining stockholders for any purpose other than
those specified in (a) and (b) of this Section 2.5.2 shall be at the close of
business on the day on which the Board adopts the resolution relating
thereto.
When a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this Section 2.5 such
determination shall apply to any adjournment thereof, unless the Board fixes
a new record date for the adjourned meeting.
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in
Sections 2.5 and 2.7 of the By-laws, whenever under the General Corporation
Law or the Certificate of Incorporation or the By-laws, stockholders are
required or permitted to take any action at a meeting, written notice shall
be given stating the place, date and hour of the meeting and, in the case of
a special meeting, the purpose or purposes for which the meeting is called. A
copy of the notice of any meeting shall be given, personally or by mail, not
less than ten nor more than sixty days before the date of the meeting, to
each stockholder entitled to notice of or to vote at such meeting. If mailed,
such notice shall be deemed to be given when deposited in the United States
mail, with postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation. An affidavit of the Secretary or
an Assistant Secretary or of the transfer agent of the Corporation that the
notice required by this section has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein. When a meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which
the adjournment is taken, and at the adjourned meeting any business may be
transacted that might have been transacted at the meeting as originally
called. If, however, the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.7 Waivers of Notice. Whenever notice is required to be given to any
stockholder under any provision of the General Corporation Law or the
Certificate of Incorporation or the By-laws, a written waiver thereof, signed
by the stockholder entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a
stockholder at a meeting shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders need be specified in any written waiver of
notice.
2.8 List of Stockholders. The Secretary shall prepare and make, or cause to
be prepared and made, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order, and showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present.
2.9 Quorum of Stockholders; Adjournment. The holders of a majority of the
shares of stock entitled to vote at any meeting of stockholders, present in
person or represented by proxy, shall constitute a quorum for the transaction
of any business at such meeting. When a quorum is once present to organize a
meeting of stockholders, it is not broken by the subsequent withdrawal of any
stockholders. The holders of a majority of the shares of stock present in
person or represented by proxy at any meeting of stockholders, including an
adjourned meeting, whether or not a quorum is present, may adjourn such
meeting to another time and place.
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation every stockholder of record shall be entitled at every meeting
of stockholders to one vote for each share of capital stock standing in his
name on the record of stockholders determined in accordance with Section 2.5
of the By-laws. If the Certificate of Incorporation provides for more or less
than one vote for any share, on any matter, every reference in the By-laws or
the General Corporation Law to a majority or other proportion of stock shall
refer to such majority or other proportion of the votes of such stock. The
provisions of Sections 212 and 217 of the General Corporation Law (or any
successor provision or provisions) shall apply in determining whether any
shares of capital stock may be voted and the persons, if any, entitled to
vote such shares; but the Corporation shall be protected in treating the
persons in whose names shares of capital stock stand
on the record of stockholders as owners thereof for all purposes. At any
meeting of stockholders (at which a quorum was present to organize the
meeting), all matters, except as otherwise provided by law or by the
Certificate of Incorporation or by the By-laws, shall be decided by a
majority of the votes cast at such meeting by the holders of shares present
in person or represented by proxy and entitled to vote thereon, whether or
not a quorum is present when the vote is taken. All elections of directors
shall be by written ballot unless otherwise provided in the Certificate of
Incorporation. In voting on any other question on which a vote by ballot is
required by law or is demanded by any stockholder entitled to vote, the
voting shall be by ballot. Each ballot shall be signed by the stockholder
voting or by his proxy, and shall state the number of shares voted. On all
other questions, the voting may be viva voce. Every stockholder entitled to
vote at a meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the General Corporation
Law (or any successor provision or provisions).
2.11 Selection and Duties of Inspectors at Meetings of Stockholders.
The Board of Directors by resolution shall, in advance of any meeting of
stockholders, appoint one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated by the Board of Directors
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his
ability. The inspector or inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear, determine, and retain for a
reasonable period a record of the disposition of, any challenges made to any
determination by the inspectors, count and tabulate all votes, ballots or
consents, determine the result of the voting, certify their determination of
the number of shares represented at the meeting and their count of all votes
and ballots, and do such acts as are proper to conduct the election or vote
with fairness to all stockholders.
2.12 Organization. (a) At every meeting of stockholders, the chairman
of the Board, or in the absence of the chairman of the Board, the President,
or in the absence of both the Chairman of the Board and the President, a Vice
President, and in case more than one Vice President shall be present, that
Vice President designated by the Board (or in the absence of any such
designation, the most senior Vice President, based on age, present), shall
act a chairman of the meeting. The Secretary, or in his absence one of the
Assistant Secretaries, shall act as secretary of the meeting. In case none of
the officers above designated to act as chairman or secretary of the meeting,
respectively, shall be present, a chairman or a secretary of the meeting, as
the case may be, shall be chosen by a majority of the votes cast at such
meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
(b) At each meeting of stockholders, the chairman of the meeting shall fix
and announce the date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at the meeting and
shall determine the order of business and all other matters of procedure.
Except to the extent inconsistent with any such rules and regulations as
adopted by the Board of Directors, the chairman of the meeting may establish
rules, which need not be in writing, to maintain order for the conduct of the
meeting, including, without limitation, restricting attendance to bona fide
stockholders of record and their proxies and other persons in attendance at
the invitation of the chairman and making rules governing speeches and debates.
The chairman of the meeting acts in his or her absolute discretion, and his
or her rulings are not subject to appeal.
2.13 Written Consent of Stockholders Without a Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
by the General Corporation Law to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstandi
ng stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
Corporation. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation, the business and affairs of the Corporation shall be managed
by or under the direction of the Board. The Board may adopt such rules and
regulations, not inconsistent with the Certificate of Incorporation or the
By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by the By-laws, the Board may exercise all powers and
perform all acts which are not required, by the By-laws or the Certificate of
Incorporation or by law, to be exercised and performed by the stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of not
less than five nor more than twenty-five members. The total number and
classes of directors shall be fixed initially by the incorporator.
Thereafter, the total number of directors may be changed from time to time by
vote of the majority of the total number of directors then in office,
provided that such total number of directors may not be increased by more
than two between any two successive annual meetings of shareholders. Directors
need not be stockholders. Each director shall hold office until his
successor is elected and qualified or until his earlier death, resignation or
removal. Notwithstanding the foregoing, any director reaching the age of 70
during any term of office shall continue to be qualified to serve as a
director only until the next annual meeting of stockholders following his
70th birthday.
3.3 Election. Directors shall, except as otherwise required by law or by the
Certificate of Incorporation, be elected by a plurality of the votes cast at
a meeting of stockholders by the holders of shares entitled to vote in the
election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided in
the Certificate of Incorporation, newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the Board
for any other reason may be filled by vote of a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
or may be elected by a plurality of the votes cast by the holders of shares
of capital stock entitled to vote in the election at a special meeting of
stockholders called for that purpose. No increase in the total number of
directors or filling of newly created or vacant directorships shall affect
the class of any director in office prior to such increase or filling. A
director elected to fill a vacancy shall be elected to hold office until his
successor is elected and qualified, or until his earlier death, resignation
or removal.
3.5 Resignations. Any director may resign at any time by written notice to
the Corporation. Such resignation shall take effect at the time therein
specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective.
3.6 Removal of Directors. Subject to the provisions of Section 141(k) of the
General Corporation Law (or any successor provision or provisions), any or
all of the directors may be removed by the holders of a majority of the
shares then entitled to vote at an election of directors.
3.7 Compensation. Each director, in consideration of his service as such,
shall be entitled to receive from the Corporation such amount per annum or
such fees for attendance at directors' meetings, or both, as the Board may
from time to time determine, together with reimbursement for the reasonable
expenses incurred by him in connection with the performance of his duties.
Each director who shall serve as a member of any committee of directors in
consideration of his serving as such shall be entitled to such additional
amount per annum or such fees for attendance at committee meetings, or both,
as the Board may from time to time determine, together with reimbursement for
the reasonable expenses incurred by him in the performance of his duties.
Nothing contained in this section shall preclude any director from serving
the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.8 Place and Time of Meetings of the Board. Meetings of the Board, regular
or special, may be held at any place within or without the State of Delaware.
The times and places for holding meetings of the Board may be fixed from time
to time by resolution of the Board or (unless contrary to resolution of the
Board) in the notice of the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual
meeting of stockholders for the election of directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice
of such meeting, for the purposes of organization, the election of officers
and the transaction of other business. The annual meeting of the Board may be
held at any other time and place specified in a notice given as provided in
Section 3.11 of the By-laws for special meetings of the Board or in a waiver
of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held at
such times and places as may be fixed from time to time by the Board. Unless
otherwise required by the Board, regular meetings of the Board may be held
without notice. If any day fixed for a regular meeting of the Board shall be
a Saturday or Sunday or a legal holiday at the place where such meeting is to
be held, then such meeting shall be held at the same hour at the same place
on the first business day thereafter which is not a Saturday, Sunday or legal
holiday.
3.11 Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board or by the President or by any
two or more directors. Notice of each special meeting of the Board shall, if
mailed, be addressed to each director at the address designated by him for
that purpose or, if none is designated, at his last known address at least
four days before the date on which the meeting is to be held; or sent by
overnight courier to each director at his designated address at least two
days before the meeting (with delivery scheduled to occur no later than the
day before the meeting); or given orally by telephone or other means, or by
telegraph or telecopy, or by any other means comparable to any of the
foregoing, to each director at his designated address at least 24 hours
before the meeting; provided, however, that if less than four days' notice is
provided and one third of the members of the Board of Directors then in
office object in writing prior to or at the commencement of the meeting, such
meeting shall be postponed until four days after such notice was given
pursuant to this sentence (or such shorter period to which a majority of
those who objected in writing agree), provided that notice of such postponed
meeting shall be given in accordance with this Section 3.11. Every such
notice shall state the time and place of the meeting but need not state the
purposes of the meeting, except to the extent required by law.
If mailed, each notice shall be deemed given when deposited, with postage
thereon prepaid, in a post office or official depository under the exclusive
care and custody of the United States post office department. Such mailing
shall be by first class mail.
3.12 Adjourned Meetings. A majority of the directors present at any
meeting of the Board, including an adjourned meeting, whether or not a quorum
is present, may adjourn such meeting to another time and place. It shall not
be necessary to give to the directors present at the adjourned meeting notice
of the reconvened meeting or of the business to be transacted, other than by
announcement at the meeting that was adjourned; provided, however, notice of
such reconvened meeting, stating the date, time, and place of the reconvened
meeting, shall be given to the directors not present at the adjourned meeting
in accordance with the requirements of Section 3.11 hereof. Any business may
be transacted at any adjourned meeting that might have been transacted at the
meeting as originally called.
3.13 Waiver of Notice. Whenever notice is required to be given to any
director or member of a committee of directors under any provision of the
General Corporation Law or of the Certificate of Incorporation or By-laws, a
written waiver thereof, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice.
3.14 Organization. At each meeting of the Board, the Chairman of the
Board, or in the absence of the Chairman of the Board, the President, or in
the absence of the President, a chairman chosen by a majority of the
directors present, shall preside. The Secretary shall act as secretary at
each meeting of the Board. In case the Secretary shall be absent from any
meeting of the Board, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting
may appoint any person to act as secretary of the meeting.
3.15 Quorum of Directors. A majority of the total number of directors
shall constitute a quorum for the transaction of business or of any specified
item of business at any meeting of the Board.
3.16 Action by the Board. All corporate action taken by the Board or
any committee thereof shall be taken at a meeting of the Board, or of such
committee, as the case may be, except that any action required or permitted
to be taken at any meeting of the Board, or of any committee thereof, may be
taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee. Members of the
Board, or any committee designated by the Board, may participate in a meeting
of the Board, or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 3.16 shall constitute
presence in person at such meeting. Except as otherwise provided by the
Certificate of Incorporation or by law, the vote of a majority of the
directors present (including those who participate by means of conference
telephone or similar communications equipment) at the time of the vote, if a
quorum is present at such time, shall be the act of the Board.
3.17 Attendance. Any member of the Board of Directors who fails to
attend at least six (6) regular Board meetings during any calendar year shall
not be nominated to the Board of Directors at the expiration of his or her
term. Exceptions to this policy may be made for unavoidable absences, with
the consent of a majority of the Board of Directors.
ARTICLE 4
COMMITTEES OF THE BOARD
The Board may, by resolution passed by a majority of the directors then in
office, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
ARTICLE 5
OFFICERS
5.1 Officers. The Board shall elect a Chairman of the Board, a President, a
Secretary and a Treasurer, may elect or appoint one or more Vice Presidents
and such other officers as it may determine, and may authorize the Chairman
of the Board or the President to appoint such officers as the Board may
designate. The Board may designate one or more Vice Presidents as Executive
Vice Presidents, and may use descriptive words or phrases to designate the
standing, seniority or area of special competence of the Vice Presidents
elected or appointed by it. Each officer shall hold his office until his
successor is elected and qualified or until his earlier death, resignation or
removal in the manner provided in Section 5.2 of the By-laws. Any two or more
offices may be held by the same person. The Board may require any officer to
give a bond or other security for the faithful performance of his duties, in
such amount and with such sureties as the Board may determine. All officers
as between themselves and the Corporation shall have such authority and
perform such duties in the management of the Corporation as may be provided
in the By-laws or as the Board may from time to time determine.
5.2 Removal of Officers. Any officer elected or appointed by the Board may
be removed by the Board with or without cause. The removal of an officer
without cause shall be without prejudice to his contract rights, if any. The
election or appointment of an officer shall not of itself create contract
rights.
5.3 Resignations. Any officer may resign at any time by so notifying the
Board or the President or the Secretary in writing. Such resignation shall
take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of
an officer shall be without prejudice to the contract rights of the
Corporation, if any.
5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled for the
unexpired portion of the term in the manned prescribed in the By-laws for the
regular election or appointment to such office.
5.5 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is
also a director.
5.6 Chairman of the Board. The Chairman of the Board shall, if present,
preside at all meetings of the stockholders and at all meetings of the Board
of Directors. He shall be an ex officio member of all committees of the Board
of Directors. He may, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation. He may sign and execute in the name of the
Corporation, deeds, mortgages, bonds, contracts and other instruments, except
in cases where the signing and execution thereof shall be expressly delegated
in the By-laws to some other officer or agent of the Corporation or shall be
required by law otherwise to be signed or executed; and in general, he shall
perform all the duties incident to the office of Chairman of the Board and
such other duties as from time to time may be assigned to him by the Board.
5.7 President. The President shall be the chief executive officer of the
Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and of any duly
authorized committee of directors. The President shall, in the absence of the
Chairman of the Board and if present, preside at all meetings of the
stockholders and at all meetings of the Board. He may, with the Secretary or
the Treasurer or an Assistant Secretary or an Assistant Treasurer, sign
certificates for shares of capital stock of the Corporation. He may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments, except in cases where the signing and execution thereof
shall be expressly delegated by the Board or in the By-laws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed; and, in general, he shall perform all duties incident
to the office of President and such ether duties as from time to time may be
assigned to him by the Board. If at any time the Corporation does not have an
individual serving as President, the function of chief executive officer
shall be performed by such person as the Board designates.
5.8 Vice Presidents. The Board of Directors may designate a Vice President
to perform all of the duties of the Chairman of the Board and the President
in the absence of the Chairman of the Board and the President, and such Vice
President so acting shall have all the powers of and be subject to all
restrictions upon the Chairman of the Board and the President. Any Vice
President may also, with the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, sign certificates for shares of capital
stock of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the
Board, except in cases where the signing and execution thereof shall be
expressly delegated by the Board or in the By-laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed
or executed; and shall perform such other duties as from time to time may be
assigned to him by the Board or by the President.
5.9 Secretary. The Secretary, if present, shall act as secretary of all
meetings of the stockholders and of the Board, and shall keep the minutes
thereof in the proper book or books to be provided for that purpose; he shall
see that all notices required to be given by the Corporation are duly given
and served; he may, with the Chairman of the Board or the President or a Vice
President, sign certificates for shares of capital stock of the Corporation;
he shall be custodian of the seal of the Corporation and may seal with the
seal of the Corporation, or a facsimile thereof, all certificates for shares
of capital stock of the Corporation and all documents the execution of which
on behalf of the Corporation under its corporate seal is authorized in
accordance with the provisions of the By-laws; he shall have charge of the
stock ledger and also of the other books, records and papers of the
Corporation relating to its organization and management as a Corporation, and
shall see that the reports, statements and other documents required by law
are properly kept and filed; and shall, in general, perform all the duties
incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board or by the President.
5.10 Treasurer. The Treasurer shall have charge and custody of, and be
responsible for, all funds, securities and notes, of the Corporation; receive
and give receipts for moneys due and payable to the Corporation from any
sources whatsoever; deposit all such moneys in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with these By-laws; against proper vouchers, cause such funds to
be disbursed by checks or drafts on the authorized depositories of the
Corporation signed in such manner as shall be determined in accordance with
any provisions of the By-laws, and be responsible for the accuracy of the
amounts of all moneys so disbursed; regularly enter or cause to be entered in
books to be kept by him or under his direction full and adequate account of
all moneys received or paid by him for the account of the Corporation; have
the right to require, from time to time, reports or statements giving such
information as he may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the Chairman of the Board or the President or the Board,
whenever the Chairman of the Board or the President or the Board,
respectively, shall require him so to do, an account of the financial
condition of the Corporation and of all his transactions as Treasurer;
exhibit at all reasonable times his books of account and other records to any
of the directors upon application at the office of the Corporation where such
books and records are kept; and, in general, perform all the duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to him by the Board or by the Chairman of the Board or by the
President; and he may sign with the Chairman of the Board or the President or
a Vice President certificates for shares of capital stock of the Corporation.
5.11 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by
the Board or by the Chairman of the Board or by the President. Assistant
Secretaries and Assistant Treasurers may, with the Chairman of the Board or
the President or a Vice President, sign certificates for shares of capital
stock of the Corporation.
ARTICLE 6
EXECUTION OF INSTRUMENTS
6.1 Execution of Contracts. The Board may authorize any officer, employee or
agent, in the name and on behalf of the Corporation, to enter into any
contract or execute and satisfy any instrument, and any such authority may be
general or confined to specific instances, or otherwise limited.
6.2 Loans. The Chairman of the Board or the President or any other officer,
employee or agent authorized by the By-laws or by the Board may effect loans
and advances at any time for the Corporation from any bank, trust company or
other institutions or from any firm, corporation or individual and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other certificates or evidences of indebtedness of the Corporation, and, when
authorized by the Board so to do, may pledge and hypothecate or transfer any
securities or other property of the Corporation as security for any such
loans or advances. Such authority conferred by the Board may be general or
confined to specific instances or otherwise limited.
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the payment
of money out of the funds of the Corporation and all notes or other evidences
of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed
shall be deposited from time to time to the order of the Corporation in such
banks, trust companies or other depositories as the Board may select or as
may be selected by an officer, employee or agent of the Corporation to whom
such power may from time to time be delegated by the Board.
6.5 Mechanical Endorsements. The Chairman of the Board, President, Vice
President or the Secretary may authorize any endorsement on behalf of the
Corporation to be made by such mechanical means or stamps as any of such
officers may deem appropriate.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. Consistent with the provisions of 158
of the General Corporation Law (or any successor provision or provisions),
every holder of capital stock of the Corporation shall be entitled to have a
certificate in such form as shall be approved by the Board and signed by, or
in the name of the Corporation by, the Chairman of the Board or the President
or a Vice President and by the Secretary or an assistant Secretary or the
Treasurer or an assistant Treasurer, and may be sealed with the seal of the
Corporation or a facsimile thereof. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
any certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may, unless
otherwise ordered by the Board, be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at
the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the
Corporation shall be made only on the books of the Corporation by the holder
thereof or by his duly authorized attorney appointed by a power of attorney
duly executed and filed with the Secretary or a transfer agent of the
Corporation, and on surrender of the certificate or certificates representing
such shares of capital stock properly endorsed for transfer and upon payment
of all necessary transfer taxes. Every certificate exchanged returned or
surrendered to the Corporation shall be marked "Canceled," with the date of
cancellation, by the Secretary or an Assistant Secretary or the transfer
agent of the Corporation. A person in whose name shares of capital stock
shall stand on the books of the Corporation shall be deemed the owner thereof
to receive dividends, to vote as such owner and for all other purposes as
respects the Corporation. No transfer of shares of capital stock shall be
valid as against the Corporation, its stockholders and creditors for any
purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have
been entered on the books of the Corporation by an entry showing from and to
whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agents and registry offices or
agents at such place or places as may be determined from time to time by the
Board.
7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of
any shares of capital stock of the Corporation shall immediately notify the
Corporation of any loss, destruction, theft or mutilation of the certificate
representing such shares, and the Corporation may issue a new certificate to
replace the certificate alleged to have been lost, destroyed, stolen or
mutilated. The Board may, in its discretion, as a condition to the issue of
any such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his legal representatives, to make proof
satisfactory to the Board of such loss, destruction, theft or mutilation and
to advertise such fact in such manner as the Board may require, and to give
the Corporation and its transfer agents and registrars, or such of them as
the Board may require, a bond in such form, in such sums and with such surety
or sureties as the Board may direct, to indemnify the Corporation and its
transfer agents and registrars against any claim that may be made against any
of them on account of the continued existence of any such certificate so
alleged to have been lost, destroyed, stolen or mutilated and against any
expense in connection with such claim.
7.5 Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with the By-laws or with the Certificate of
Incorporation, concerning the issue, transfer and registration of
certificates representing shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the transfer
or registration of transfer of capital stock of the Corporation, if permitted
by Section 202 of the General Corporation Law (or any successor provision or
provisions) and noted conspicuously on the certificate representing such
capital stock, may be enforced against the holder of the restricted capital
stock or any successor or transferee of the holder including an executor,
administrator, trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing such capital stock, a
restriction, even though permitted by Section 202 of the General Corporation
Law (or any successor provision or provisions), shall be ineffective except
against a person with actual knowledge of the restriction. A restriction on
the transfer or registration of transfer of capital stock of the Corporation
may be imposed either by the Certificate of Incorporation or by an agreement
among any number of stockholders and the Corporation. No restriction so
imposed shall be binding with respect to capital stock issued prior to the
adoption of the restriction unless the holders of such capital stock are
parties to an agreement or voted in favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate of
Incorporation and of law, the Board:
7.7.1 May declare and pay dividends or make other distributions on the
outstanding shares of capital stock in such amounts and at such time or times
as, in its discretion, the condition of the affairs of the Corporation shall
render advisable;
7.7.2 May use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or Purchase warrants therefor, in accordance with law, or any of
its bonds, debentures, notes, scrip or other securities or evidences or
indebtedness;
7.7.3 May set aside from time to time out of such surplus or net profits
such sum or sums as, in is discretion, it may think proper, as a reserve fund
to meet contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any purpose it may think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of
the fact:
(a) That he is or was a director or an officer of the Corporation; or
(b) That he, being at the time a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise (collectively, "another enterprise" or "other
enterprise"), whether either in case (a) or in case (b) the basis of such
proceeding is alleged action or inaction (x) in an official capacity as a
director or officer of the Corporation, or as a director, officer, employee
or agent of such other enterprise, or (y) in any other capacity related to
the Corporation or such other enterprise while so serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent not prohibited by Section 145 of the
Delaware General Corporation Law (or any successor provision or provisions)
as the same exists or may hereafter be amended (but, in the case of any such
amendment, with respect to alleged action or inaction occurring prior to such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), against
all expenses (including attorneys' fees), judgments, fines, and amounts paid
in settlement actually and reasonably incurred by him in connection therewith
The persons indemnified by this Article 8 are hereinafter referred to as
"Indemnitees." Such indemnification as to such alleged action or inaction
shall continue as to an Indemnitee who has after such alleged action or
inaction ceased to be a director or officer of the Corporation, or director,
officer, employee or agent of such other enterprise; and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
Notwithstanding the foregoing, except as may be provided in the By-laws or by
the Board of Directors, the Corporation shall not indemnify any such
Indemnitee in connection with a proceeding (or portion thereof) initiated by
such Indemnitee (but this prohibition shall not apply to a counterclaim,
cross-claim or third-party claim brought by the Indemnitee in any proceeding)
unless such proceeding (or portion thereof) was authorized by the Board of
Directors. The right to indemnification conferred in this Article 8: (i)
shall be a contract right; (ii) shall not be affected adversely to any
Indemnitee by any amendment of these By-laws with respect to any alleged
action or inaction occurring prior to such amendment; and (iii) shall,
subject to any requirements imposed by law and the By-laws, include the right
to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition.
Section 8.2 Relationship to Other Rights and Provisions Concerning
Indemnification. The rights to indemnification and to the advancement of
expenses conferred in this Article 8 shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, the
Certificate of Incorporation, these By-laws, any agreement, vote of
stockholders or disinterested directors or otherwise. The By-laws may contain
such other provisions concerning indemnification, including provisions specify
ing reasonable procedures relating to and conditions to the receipt by
Indemnitees of indemnification, provided that such provisions are not
inconsistent with the provisions of this Article 8.
Section 8.3 Agents and Employees. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any employee or agent
of the Corporation (or any person serving at the Corporation's request as a
director, officer, employee or agent of another enterprise) or to any person
who is or was a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or
merger or who is or was serving at the request of such affiliate, predecessor
or subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of another enterprise, in each case as determined
by the Board of Directors to the fullest extent of the provisions of this
Article 8 in cases of the indemnification and advancement of expenses of
directors and officers of the Corporation, or to any lesser extent (or
greater extent, if permitted by law) determined by the Board of Directors.
Section 8.4 Undertakings for Advances of Expenses. If and to the extent the
General Corporation Law requires, an advancement by the Corporation of
expenses incurred by an Indemnitee pursuant to clause (iii) of the last
sentence of Section 8.1 of this Article 8 (hereinafter an "advancement of
expenses") shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such
Indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Article 8 or
otherwise.
Section 8.5 Claims for Indemnification. If a claim for indemnification under
Section 8.1 of this Article 8 is not paid in full by the Corporation within
60 days after it has been received in writing by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 days, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by
the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the Indemnitee to enforce a right to an advancement of expenses)
it shall be a defense that, and in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the
Corporation shall be entitled to recover such expenses only upon a final
adjudication that, the Indemnitee has not met the applicable standard of
conduct set forth in Section 145 of the Delaware General Corporation Law (or
any successor provision or provisions). Neither the failure of the
Corporation (including the Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of
conduct set forth in Section 145 of the Delaware General Corporation Law (or
any successor provision or provisions), nor an actual determination by the
Corporation (including the Board of Directors, independent legal counsel, or
its stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to have or retain such
advancement of expenses, under this Article 8 or otherwise, shall be on the
Corporation.
Section 8.6 Insurance. The Corporation shall have power to purchase and
maintain insurance, at its expense, to protect itself and any person who is
or was a director, officer, employee or agent of the Corporation or another
enterprise against any expense, liability, or loss asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of Sections 8.1 and 8.3 of these By-laws
or under Section 145 of the General Corporation Law (or any successor
provision or provisions) or any other provision of law.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. The Corporation shall keep correct and
complete books and records of account and shall keep minutes of the
proceedings of the stockholders, the Board and any committee of the Board.
The Corporation shall keep at the office designated in the Certificate of
Incorporation or at the office of the transfer agent or registrar of the
Corporation, a record containing the names and addresses of all stockholders,
the number and class of shares held by each and the dates when they respective
ly became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account,
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs, or any other information storage device,
provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by law,
the Board shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
inspection of the stockholders.
ARTICLE 10
SEAL
The Board may adopt a corporate seal which shall be in the form of a circle
and shall bear the full name of the Corporation and the year of its
incorporation.
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall be determined, and may be changed,
by resolution of the Board.
ARTICLE 12
VOTING OF SHARES HELD
Unless otherwise provided by resolution of the Board, the President may, from
time to time, appoint one or more attorneys or agents of the Corporation, in
the name and on behalf of the Corporation, to cast the votes which the
Corporation may be entitled to cast as a stockholder or otherwise in any
other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of stock or other securities of such
other corporation, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause
to be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may himself
attend any meeting of the holders of the stock or other securities of any
such other corporation and thereat vote or exercise any or all other powers
of the Corporation as the holder of such stock or other securities of such
other corporation.
ARTICLE 13
AMENDMENTS
The By-laws may be altered, amended, supplemented or repealed, or new By-laws
may be adopted, by vote of the holders of the shares entitled to vote in the
election of directors. The By-laws may be altered, amended, supplemented or
repealed, or new By-laws may be adopted, by the Board. Any By-laws adopted,
altered, amended, or supplemented by the Board may be altered, amended, or
supplemented or repealed by the stockholders entitled to vote thereon.
Effective 1/1/96
Exhibit 10(f)
EVERGREEN BANCORP, INC.
1995 STOCK INCENTIVE PLAN
Effective Date: April 20, 1995
EVERGREEN BANCORP, INC.
1995 STOCK INCENTIVE PLAN
I. PURPOSE
The purpose of the Evergreen Bancorp, Inc. (henceforth the "Bank") 1995 Stock
Incentive Plan (henceforth the "Plan") is to advance the interests of the
Bank and its shareholders by aiding the Bank in attracting, retaining and
motivating key employees of the Bank and its Affiliates.
II. DEFINITIONS
A. "Affiliate" means:
1. A member of a controlled group of corporations of which the Bank is a
member or;
2. An unincorporated trade or business which is under common
control with the Bank as determined in accordance with
Section 414(c) of the Internal Revenue Code of 1986, as amended (henceforth
the "Code") and regulations issued thereunder.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in Section 1563(a) of the Code
determined without regard to Section 1563(a)(4) and (e)(3)(C) of the Code.
B. "Award" means the grant of any Stock Option, Limited Alternate Right or
Conditional Share granted under the Plan.
C. "Board" means the Board of Directors of the Bank.
D. "Change in Control" means, for purposes of the Plan, an event of the
nature that:
1. Would be required to be reported in response to Item 1(a) of the
current report on Form 8-k, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (henceforth the
"Exchange Act"); or,
2. Results in a Change in Control of the Bank within the meaning of the
Change in Bank Control Act, as amended and the Rules and Regulations
promulgated by the Federal Deposit Insurance Company (henceforth the "FDIC")
at 12 C.F.R. Section 303.4(a) as in effect on the date hereof; or,
3. Without limitation such a Change in Control shall be deemed to have
occurred at such time as:
a. Any "person" (as the term is used in Section 13(d) and 14(d) of the
Exchange Act), or group of persons acting in concert, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly, of any class of equity securities of the Bank representing 25%
or more of a class of equity securities except for any securities purchased
by the Bank's employee stock ownership plan and trust; or,
b. Individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Bank's shareholders was approved by the Committee serving under an
Incumbent Board, shall be considered as though he were a member of the
Incumbent Board for purposes of this clause (b); or,
c. A plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or similar transaction occurs in
which the Bank is not the resulting entity; or,
d. A Plan of reorganization, merger, consolidation, sale of all or
substantially all of the assets of the Bank is adopted by the stockholders of
the Bank, seeking stockholder approval of a plan or similar transaction with
one or more corporations as a result of which the outstanding shares of the
class of securities then subject to such plan or transaction would be
exchanged for or converted into cash or property, securities not issued by
the Bank or any combination thereof; or,
e. A tender offer is made for 25% or more of the voting securities of the
Bank then outstanding.
E. "Code" means the Internal Revenue Code of 1986, as amended.
F. "Committee" means the Human Resources and Nominating Committee of the
Board. Such committee shall be comprised at all times solely of at least
three non-employee directors, all of whom are "disinterested directors" as
that term is defined under Rule 16b-3 of the Exchange Act promulgated by the
Securities and Exchange Commission.
G. "Common Stock" means the $3.33-1/3 par value common stock of the Bank.
H. "Conditional Share" means a share of the Common Stock of the Bank, such
share becoming the sole property of a Participant upon the fulfillment of
performance and/or tenure requirements as set forth by the Committee pursuant
to Section VIII of the Plan.
I. "Date of Grant" means the date an Award is made to a Participant.
J. "Disability" means any physical or mental condition which may
reasonably be expected to be permanent and which renders the Member incapable
of continuing as an employee for his customary Hours of Employment, provided,
however, that such disability originated while the Member was in the active
service of the Employer and (1) did not arise while engaged in or as a result
of having engaged in an illegal or criminal act or an act contrary to the
best interests of the Employer or (2) did not result from habitual
drunkenness or addiction to narcotics or a self-inflicted injury while sane
or insane or (3) did not result from voluntary or involuntary service in the
Armed Forces of the United States, any of its allies or any other foreign
country which prevents a return to employment with the Employer, and for
which the Employee receives a military pension. To aid the Committee and
determining whether such disability exists, the Committee may require, as a
condition precedent to the receipt of any benefits hereunder, that the
Employee submit to examinations by one or more duly licensed and practicing
physicians selected by the Committee.
K. "Fair Market Value" means the closing price of the Common Stock of the
Bank on the date such Common Stock is to be valued.
L. "Normal Retirement" means retirement at the normal or early retirement
date as set forth in any tax-qualified retirement/pension plan of the Bank.
If no such plan is in place, it shall mean termination of employment at or
after age 65.
M. "Participant" means an employee of the Bank or its Affiliates selected
by the Committee to participate in the Plan for the current Plan year.
N. "Plan Year" means a calendar year commencing on or after January 1,
1995.
O. "Stock Option" shall mean a right granted to a Participant to purchase
Common Stock of the Bank at a specified price (the "Strike Price") for a
specified period. Such Stock Options may be granted by the Committee as
either:
1. Incentive Stock Options--Those Stock Options so specified by the
Committee at the Date of Grant as being intended to comply with the
provisions of Section 422 of the Internal Revenue Code of 1986 as from time
to time amended; or,
2. Non-Qualified Stock Options--Those Stock Options so specified by the
Committee at the Date of Grant as not being intended to qualify as Incentive
Stock Options.
P. "Stock Option Agreement" shall mean the Agreement entered into between
the Bank and the Participant pursuant to the terms of the Banks' 1995 Stock
Incentive Plan.
Q. "Termination for Cause" means the termination upon an intentional
failure to perform stated duties or breach of a fiduciary duty involving
personal dishonesty, or willful violation of any law, rule or regulation or
order of a court or governmental agency (other than traffic violations or
similar offenses).
III. ADMINISTRATION
A. The Plan shall be administered by the Committee. The Committee shall
act by vote or written consent of a majority of its members.
B. Subject to the express provisions and limitations of the Plan as stated
herein, the Committee may adopt such rules, regulations, guidelines and
procedures as it deems appropriate for the proper administration of the Plan
and may make whatever determinations and interpretations it deems to be
necessary or advisable in connection with such administration.
C. All determinations and interpretations made by the Committee shall be
binding and conclusive on all Participants and on their legal representatives
and beneficiaries.
D. The Committee may take no action which would reduce or eliminate any
previously vested benefit of any Participant under this Plan without the
written consent of the Participant.
IV. PARTICIPATION
A. Each Plan Year, the Committee shall, in its sole discretion, determine
which employees of the Bank and its Affiliates shall participate in the Plan.
Participation in the Plan for one Plan Year is neither a guarantee of
participation in future Plan Years nor a guarantee of future employment.
B. At the time an employee is named as a Participant in the Plan, the
Committee shall notify such Participant of the Award. Such notification shall
identify:
1. The number of Stock Options granted (if any) and their terms and
conditions, including whether such stock options carry Limited Alternate
Rights; and,
2. The number of Conditional Shares granted (if any) and their terms and
conditions.
V. INCENTIVE STOCK OPTIONS
A. The Committee shall have the right to grant Incentive Stock Options to
a Participant pursuant to this Section V. A Stock Option Award shall not be
considered an Incentive Stock Option unless it is specifically designated as
such in the Stock Option Agreement.
B. Incentive Stock Options shall be granted at the Fair Market Value of
the Common Stock on the Date of Grant except as provided in Section VI below.
C. No Incentive Stock Option may be exercisable for a period of at least
one year following the Date of Grant.
D. No Incentive Stock Options shall be exercisable for more than 10 years
following the Date of Grant.
E. Incentive Stock Options may be exercised by tendering cash, a certified
check, Common Stock then owned by the Participant or any combination thereof,
to the Office of the Secretary of the Bank, provided that any shares of
Common Stock tendered which were acquired through a previous Stock Option
exercise were held by the Participant for at least six months from the Date
the Grant pursuant to which they were acquired was granted.
F. Incentive Stock Options shall be exercisable for one year following
death or disability; for three months following Normal Retirement or
termination of employment by the Bank for reasons other than Cause. Incentive
Stock Options shall be immediately forfeited if an employee terminates
employment for any other reason, or if the Bank terminates employment for
Cause. Notwithstanding the foregoing, Incentive Stock Options shall in no
event be exercisable after the date specified in the Stock Option Agreement
relating thereto.
G. All Incentive Stock Options shall become immediately vested and
exercisable in the event of a Change in Control of the Bank.
H. To the extent that the aggregate Fair Market Value of Common Stock with
respect to which Incentive Stock Options are exercisable for the first time
by a Participant during any calendar year under the Plan and any other Plan
of the Bank or an Affiliate of the Bank exceeds $100,000, such Stock Options
shall be treated as Non-Qualified Stock Options.
I. No Incentive Stock Option shall be granted to a Participant who, at the
time of the grant, owns stock representing more than ten percent (10%) of the
total combined voting power of all classes of stock either of the Bank or any
Affiliate of the Bank, unless the purchase price of the shares or Common
Stock purchasable upon exercise of such Incentive Stock Option is at least
one hundred ten percent (110%) of the Fair Market Value (at the time the
Incentive Stock Option is not exercisable more than five (5) years from the
date it is granted.
VI. NON-QUALIFIED STOCK OPTIONS
A. The Committee shall have the right to grant Non-Qualified Stock Options
to a Participant pursuant to this Section VI. All Stock Option Awards shall
be presumed to be Non-Qualified Stock Options unless it is specifically
stated to the contrary in a Stock Option agreement.
B. Non-Qualified Stock Options shall be granted at any price at least
equal to the Fair Market value of the Common Stock on the Date of Grant.
C. No Non-Qualified Stock Options shall be exercisable for more than 10
years following the Date of Grant.
D. Non-Qualified Stock Options shall be exercised by tendering cash, a
certified check, Common Stock then owned by the Participant, or any
combination thereof to the Office of the Secretary of the Bank, provided that
any shares of Common Stock tendered which were acquired through a previous
Stock Option exercise were held by the Participant for at least six months
from the Date the Grant pursuant to which they were acquired was granted.
E. Non-Qualified Stock Options shall be exercisable for their remaining
term following death or Disability or Normal Retirement, for three years
following termination of employment by the Bank for reasons other than Cause,
and shall be immediately forfeited if an employee terminates employment for
an other reason, or the Bank terminates employment for Cause. Not
withstanding the foregoing, Non-Qualified Stock Options shall in no event be
exercisable after the date specified in the Stock Option Agreement relating
thereto.
F. All Non-Qualified Stock Options shall become immediately vested and
exercisable in the event of a Change in Control of the Bank.
VII. LIMITED ALTERNATE RIGHTS
A. The Committee may, in its sole discretion, grant Limited Alternate
Rights in tandem with any Stock Option Award.
B. Limited Alternate Rights shall entitle the holder to receive, in lieu
of exercising the Stock Option to which such Limited Alternate Rights relate
(in which event such Stock Option shall terminate), an amount in cash equal
to 100 percent of the excess of the Fair Market Value of the Common Stock on
the date of exercise times the number of rights tendered, over the aggregate
Strike Price of the Stock Options to which the Limited Alternate Rights
relate.
C. Limited Alternate Rights shall only become vested and exercisable;
1. If there is a Change in Control of the Company; and,
2. The Stock Option to which the Limited Alternate Right is attached has
been held by the Participant for a period of at least six months at the time
the Change in Control has occurred.
VIII. CONDITIONAL SHARES
A. The Committee shall have the right to grant Conditional Shares to a
Participant pursuant to this Section VIII.
B. Conditional Shares represent the right to receive free of any
restrictions, shares of Common Stock on the completion of specified
performance and/or tenure requirements as set forth in a Participant's
Conditional Share agreement by the Committee. At the discretion of the
Committee, such shares may be issued to the Participant at the time of the
grant, provided such shares bear a restrictive legend specifying that such
shares cannot be sold or otherwise transferred by the Participant.
C. Conditional Shares shall be vested in full following death or
Disability or Normal Retirement. If a Participant terminates employment with
the Bank for any other reason, all unvested Conditional Shares shall be
forfeited, except as may be determined in the judgment of the Committee.
D. All Conditional Shares shall become immediately vested in the event of
a Change in Control of the Company.
E. A Participant holding Conditional Shares shall be entitled to receive
dividends and exercise voting rights with respect to such Conditional Shares
even though such Conditional Shares have not vested.
IX. DESIGNATION OF BENEFICIARY
A Participant may, with the consent of the Committee, designate a person or
persons to receive or exercise, in the event of the Participant's death, any
Award to which the Participant would have been entitled. Such designation
will be made upon forms supplied by and delivered to the Bank and may be
revoked in writing. If a Participant fails to effectively designate a
beneficiary, then the Participant's estate, or legal representative, will be
deemed to be the beneficiary. Except as provided in this Section IX and
except for transfers by will or laws of descent and distribution, all awards
granted pursuant to the Plan shall be non-transferable.
X. MISCELLANEOUS PROVISIONS
A. Tax Withholding--The Company's obligations under the Plan shall be
subject to applicable federal, state, and local tax withholding requirements.
Federal, state, and local withholding tax due at the time of a grant or upon
the exercise of any Award may, in the discretion of the Committee, be paid in
shares of Common Stock already owned by the Participant upon such terms and
condition as the Committee shall determine. If the Participant shall fail to
pay, or make arrangements satisfactory to the Committee for the payment, to
the Company of all such federal, state and local taxes required to be
withheld by the Company, then the Company shall, to the extent permitted by
law, have the right to refuse to issue the shares of Common Stock relating to
the Award and/or to deduct from any payment of any kind otherwise due to such
Participant an amount equal to any federal, state, or local taxes of any kind
required to be withheld by the Company.
B. Amendment--The Board of Directors may at any time, and from time to
time, modify or amend the Plan; provided, shareholder approval as required by
Section XI shall be required for any amendment which (1) materially increases
the benefits to Participants under the Plan, (2) materially increases the
number of shares of Common Stock which may be issued under the Plan, or (3)
materially modifies the requirements of eligibility for participation in the
Plan. No modification or amendment to the Plan may adversely affect the
rights of a Participant relating to any previously granted Award without such
Participant's consent. The Plan may not be amended more than once during any
six-month period to comply with Section 16 requirements.
C. Termination--The Board may at any time terminate the Plan, provided
that such termination shall not adversely affect the rights of a Participant
relating to any previously granted Award without such participant's consent.
D. Applicable Law--The Plan will be administered in accordance with the
laws of the State of New York, to the extent not governed by relevant
provisions of federal law.
D. Shares Authorized--The Committee shall be authorized to make Awards of
Stock Options, Conditional Shares or any combination thereof representing up
to 300,000 shares of Common Stock.
F. Maximum Award--No Participant may receive an Award of Stock Options,
Conditional Shares or any combination thereof representing more than 50,000
shares in any Plan Year.
G. Recapitalization--In the event of a recapitalization in the form of
stock dividend, split, distribution, subdivision or combination of Common
Stock of the Company, resulting in a change in the number of shares of Common
Stock outstanding, the Committee shall make the appropriate adjustment in the
number and exercise price of shares subject to the Plan, Options and
Conditional Shares outstanding.
XI. EFFECTIVE DATE OF THE PLAN
The Plan shall become effective upon the date on which it is approved by a
majority vote of the shareholders of record of the Bank at the 1995 annual
meeting. The Plan shall terminate on the tenth anniversary of said approval,
or such earlier date as determined by the Board.
Effective Date: April 20, 1995
Exhibit 10(g)
Evergreen Bancorp, Inc.
1995 Directors Stock Option Plan
Effective Date: April 20, 1995
Evergreen Bancorp, Inc.
1995 Directors Stock Option Plan
I. PURPOSE
The purpose of the Evergreen Bancorp, Inc. (henceforth the "Bank") 1995
Directors Stock Option Plan (henceforth the "Plan") is to advance the
interests of the Bank and its shareholders by aiding the Bank in attracting,
retaining and motivating high quality directors for the Bank.
II. DEFINITIONS
A. "Affiliate" means:
1. A member of a controlled group of corporations of which the Bank is a
member or;
2. An unincorporated trade or business which is under common control with
the Bank as determined in accordance with Section 414(c) of the Internal
Revenue Code of 1986, as amended (henceforth the "Code") and regulations
issued thereunder.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in Section 1563(a) of the Code
determined without regard to Section 1563(a)(4) and (e)(3)(C) of the Code.
B. "Award" means the grant of a Stock Option under the Plan.
C. "Board" means the Board of Directors of the Bank.
D. "Change in Control" means, for the purposes of the Plan, an event of
the nature that:
1. Would be required to be reported in response to Item 1(a) of the
current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (henceforth the
"Exchange Act"); or,
2. Results in a Change in Control of the Bank within the meaning of the
Change in Bank Control Act, as amended and the Rules and Regulations
promulgated by the Federal Deposit Insurance Company (henceforth the "FDIC")
at 12 C.F.R. Section 303.4(a) as in effect on the date hereof; or,
3. Without limitation such a Change in Control shall be deemed to have
occurred at such time as:
a. Any "person" (as the term is used in Section 13(d) and 14(d) of the
Exchange Act), or group of persons acting in concert, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly, of any class of equity securities of the Bank representing 25%
or more of a class of equity securities except for any securities purchased
by the by the Bank's employee stock ownership plan and trust; or,
b. Individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Bank's shareholders was approved by the Nominating Committee serving
under an Incumbent Board, shall be considered as though he were a member of
the Incumbent Board for purposes of this clause (b); or,
c. A plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or similar transaction occurs in
which the Bank is not the resulting entity; or,
d. A plan of reorganization, merger, consolidation, sale of all or
substantially all of the assets of the Bank is adopted by the stockholders of
the Bank, by someone other than the current management of the Bank, seeking
stockholder approval of a plan or similar transaction with one or more
corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction would be exchanged for or
converted into cash or property, securities not issued by the Bank or any
combination thereof; or,
e. A tender offer is made for 25% or more of the voting securities of the
Bank then outstanding.
E. "Code" means the Internal Revenue Code of 1986, as amended.
F. "Common Stock" means the $3.33-1/3 par value common stock of the Bank.
G. "Date of Grant" means the date an Award is made to a Participant.
H. "Disability" means any physical or mental condition which may
reasonably be expected to be permanent and which renders the Member incapable
of continuing as an employee for his customary Hours of Employment, provided,
however, that such disability originated while the Member was in the active
service of the Employer and (1) did not arise while engaged in or as a result
of having engaged in an illegal or criminal act or an act contrary to the
best interests of the Employer or (2) did not result from habitual
drunkenness or addiction to narcotics or a self-inflicted injury while sane
or insane or (3) did not result from voluntary or involuntary service in the
Armed Forces of the United States, any of its allies or any other foreign
country which prevents a return to employment with the Employer, and for
which the Employee receives a military pension. To aid the Committee in
determining whether such disability exists, the Committee may require, as a
condition precedent to the receipt of any benefits hereunder, that the
Employee submit to examinations by one or more duly licensed and practicing
physicians selected by the Committee.
I. "Fair Market Value" means the closing price of the Common Stock of the
Bank on the date such Common Stock is to be valued.
J. "Normal Retirement" means a Participant termination from Board service
after the Participant's 70th birthday.
K. "Participant" means a non-employee Director of the Bank.
L. "Plan Year" means a calendar year commencing on or after January 1,
1995.
M. "Stock Option" shall mean a right granted to a Participant to purchase
Common Stock of the Bank at a specified price (the "Strike Price") for a
specified period. All Stock Options granted under this Plan are Non-Qualified
Stock Options which are not intended to comply with Section 422 of the
Internal Revenue Code of 1986 as amended.
N. "Termination for Cause" means the termination upon an intentional
failure to perform stated duties or breach of a fiduciary duty involving
personal dishonesty, or willful violation of any law, rule or regulation or
order of a court or governmental agency (other than traffic violations or
similar offenses).
III. ADMINISTRATION
A. The Plan shall be administered by the Executive Vice President and
Chief Administrative Officer (henceforth the "Administrator").
B. Subject to the express provisions and limitations of the Plan as stated
herein, the Administrator may adopt such procedures as he/she deems
appropriate for the proper administration of the Plan and make whatever
determinations and interpretations he/she deems to be necessary or advisable
in connection with such administration.
C. The Administrator may take no action which would reduce or eliminate
any previously vested benefit of any Participant under this Plan without the
written consent of the Participant.
IV. PARTICIPATION
A. Each Plan Year, each Participant shall receive a grant of 200 Stock
Options, effective immediately following the Annual Shareholders' meeting, to
those directors then in office, and pro-rated if a director is elected other
than at the Annual Shareholders' meeting.
V. STOCK OPTIONS
A. All Stock Options granted under this Plan shall be Non-Qualified Stock
Options.
B. The strike price for Stock Options shall be equal to the Fair Market
Value of the Common Stock on the Date of Grant.
C. All Stock Options shall be exercisable for 10 years following the Date
of Grant, except as otherwise provided in this Section V.
D. Subject to paragraph V.G. below, all Stock Options shall become fully
exercisable on the first anniversary of the Date of Grant.
E. Stock Options may be exercised, by tendering cash, a certified check,
Common Stock then owned by the participant or any combination thereof, to the
office of the Secretary of the Bank, provided that any shares of Common Stock
tendered which were acquired through a previous Stock Option exercise were
held by the Participant for at least six months from the date the Award
pursuant to which they were acquired was granted.
F. Stock Options shall be exercisable for their remaining term following
death or Disability or Normal Retirement. If a Participant ceases to be a
Director of the Bank for any other reason, other than Cause, Stock Options
shall be exercisable for three years following the Director's end of service
on the Board. If the Director is removed for Cause, all Stock Options shall
be immediately canceled. Not withstanding the foregoing, Stock Options shall
in no event be exercisable for more than ten years following the Date of Grant.
G. All Stock Options shall become immediately vested and exercisable in
the event of a Change in Control of the Bank.
VI. DESIGNATION OF BENEFICIARY
A Participant may designate a person or persons to receive or exercise, in
the event of the Participant's death, an Award to which the Participant would
have been entitled. Such designation will be made upon forms supplied by and
delivered to the Bank and may be revoked in writing. If a Participant fails
to effectively designate a beneficiary, then the Participant's estate, or
legal representative, will be deemed to be the beneficiary.
VII. MISCELLANEOUS PROVISIONS
A. Amendment--The Board of Directors may at any time, and from time to
time, modify or amend the Plan, provided, however, the Plan may not be
amended more than once during any six-month period to comply with Section 16
requirements.
B. Termination--The Board may at any time terminate the Plan, provided
that such termination shall not adversely affect the rights of a Participant
relating to any previously granted Award without such participant's consent.
C. Applicable Law--The Plan will be administered in accordance with the
laws of the State of New York to the extent not governed by relevant
provisions of federal law.
D. Shares Authorized--The Bank shall be authorized to make Awards of
Stock Options to Purchase up to 30,000 Shares of Common Stock.
E. Recapitalization--In the event of a recapitalization in the form of
stock dividend, split, distribution, subdivision or combination of Common
Stock of the Company, resulting in a change in the number of shares of Common
Stock outstanding, the Committee shall make the appropriate adjustment in the
number and exercise price of shares subject to the Plan, Options and
Conditional Shares outstanding.
VIII. EFFECTIVE DATE OF THE PLAN
The Plan shall become effective upon the date on which it is approved by a
majority vote of the shareholders of record of the Bank at the 1995 annual
meeting. The Plan shall terminate on the tenth anniversary of said approval,
or such earlier date as determined by the Board.
Effective Date: April 20, 1995
Exhibit 10 (h)
Evergreen Bancorp, Inc.
Supplemental Executive Retirement Plan
Article 1
Purpose
The purpose of the Evergreen Bancorp, Inc. (Henceforth referred to as the
"Bank") Supplemental Executive Retirement Plan (henceforth referred to as the
"Plan") is to enable the Bank and its Affiliates to retain and reward key
executive talent which the Bank deems necessary to its business success.
Article 2
Definitions
For purposes of the Plan, the following words and phrases shall have the
following meanings unless a different meaning is plainly required by the
context. Whenever used, the masculine pronoun shall include the feminine
pronoun and the feminine pronoun shall include the masculine and the singular
shall include the plural and the plural shall include the singular.
2.1 Accrued Benefit: The Normal Form of Retirement Income payable at Normal
Retirement Date in an amount equal to the benefit determined under Section
5.1 based on the Participant's Final Average Compensation and Credited
Years of Service to the date to be last ceased to be an Active Participant.
2.2 Actuarial Equivalent: A form of benefit differing in time, period, or
manner of payment, that replaces another and has the same value, based on
actuarial assumptions, as the benefit or amount it replaces, shall be
determined, as follows:
a. For purposes of determining a lump sum value of any benefit payable,
the Unisex Pension 1984 Mortality Table, with the interest rates promulgated
by the Pension Benefit Guaranty Corporation as in effect on the first day of
the Plan Year during which such lump sum is to be paid or such determination
is to be made, as applicable, will be used.
b. For purposes of determining the amount of any optional form of
retirement income payable other than a lump sum distribution, the 1983 Group
Annuity Mortality Table (1983 GAM) for males, with interest at seven and
one-half percent (7.50%) will be used.
c. If any benefit is payable before a Participant's Normal Retirement
Date, the Participant's benefit payable shall be reduced by 5/9 of 1% for
each of the first 60 months and by 5/18 of 1% for each of the next 60 months
by which commencement of benefits precedes the Participant's Normal
Retirement Date. If any benefit is to commence more than 120 months before a
Participant's Normal Retirement Date, the Accrued Benefit payable will be
further reduced in accordance with the 1983 Group Annuity Mortality Table
(1983 GAM) for males, with interest at seven and one-half percent (7.50%).
2.3 Affiliate:
a. A member of a controlled group of corporations of which the Bank is a
member or;
b. An unincorporated trade or business which is under common control with
the Bank as determined in accordance with Section 414(c) of the Internal
Revenue Code of 1986, as amended (henceforth the "Code") and regulations
issued thereunder.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in Section 1563(a) of the Code
determined without regard to Section 1563(a)4 and (e)(3)(C) of the Code.
2.4 Anniversary Date: Each January 1.
2.5 Administrator: The Compensation Committee of the Board of Directors of
the Bank, or such individual as they shall appoint to administer the Plan.
2.6 Bank: Evergreen Bancorp, Inc., any successor, and any Affiliates.
2.7 Beneficiary: The person or persons designated to receive benefits under
the Plan in the event of the Participant's death.
2.8 Board: The Board of Directors of the Bank.
2.9 Change in Control: An event of the nature that:
a. Would be required to be reported in response to Item 1(a) of the
current report on Form F-3, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (henceforth the
"Exchange Act"); or,
b. Results in a Change in Control of the Bank within the meaning of the
Change in Bank Control Act, as amended, and the Rules and Regulations
promulgated by the Federal Deposit Insurance Company (henceforth the "FDIC")
at 12 C.F.R. Section 303.4(a) as in effect on the date hereof; or,
c. Without limitation such a Change in Control shall be deemed to have
occurred at such time as:
1. Any "person" (as the term is used in Section 13(d) and 14(d) of the
Exchange Act), or group of persons acting in concert, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly, of any class of equity securities of the Bank representing 25%
or more of a class of equity securities except for any securities purchased
by the Bank's employee stock ownership plan and trust; or,
2. Individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Bank's shareholders was approved by the same Committee serving under an
Incumbent Board, shall be, for purposes of this clause (2) considered as
though he were a member of the Incumbent Board; or,
3. A plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or similar transaction occurs in
which the Bank is not the resulting entity; or,
4. A proxy statement shall be distributed soliciting proxies from
stockholders of the Bank, by someone other than the current management of the
Bank, seeking stockholder approval of a plan or similar transaction with one
or more corporations as a result of which the outstanding shares of the class
of securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank; or
5. A tender offer is made for 25% or more of the voting securities of the
Bank then outstanding.
2.10 Code: The Internal Revenue Code of 1986, as it may from time to
time be amended.
2.11 Committee: "Committee" means the Human Resources and Nominating
Committee of the Board of Directors of the Bank.
Such Committee shall be comprised at all times of at
least three non-employee directors, all of whom are "disinterested directors"
as that term is defined under Rule 16b-3 of the Exchange Act promulgated by
the Securities and Exchange Commission.
2.12 Compensation: For purposes of this Plan, only the following items
shall be included in determination of remuneration for determination of
benefits.
a. Salary; and,
b. Cash bonuses whether paid currently or deferred under either a
qualified or non-qualified arrangement; without regard to any limits imposed
by Section 415 of the Code.
2.13 Covered Compensation: For each Participant, the average of the
taxable wages bases for the 35 calendar years ending with the year the
Participant attains social security retirement age.
2.14 Disability: Any physical or mental condition which may reasonably
be expected to be permanent and which renders the Participant incapable of
continuing as an Employee in his customary job, provided, however, that such
disability originated while the Participant was in the active service of the
Company and (1) did not arise while engaged in or as a result of having
engaged in an illegal or criminal act or an act contrary to the best
interests of the Company or (2) did not result from habitual drunkenness or
addiction to narcotics or a self-inflicted injury while sane or insane. To
aid the Committee in determining whether such disability exist, the Committee
may require, as a condition precedent to receipt of any benefits hereunder,
that the Participant submit to examinations by one or more duly licensed and
practicing physicians selected by the Committee.
2.15 Early Retirement: The termination of a Participant's employment
with the Bank for reasons other than death or disability after the later of
the date the Participant attains age 55 or completes 10 years of service with
the Bank.
2.16 Effective Date: The date on which this Plan is approved by the
Board.
2.17 Employee: Any person in the employ of the Bank for whom the Bank
is required to contribute Federal Insurance Contribution Act taxes.
2.18 Final Average Compensation: The Compensation of a Participant
averaged over thirty-six consecutive months which produce the highest average
of the 120 completed months (or the number of completed months if less than
120) ending before the first day of the month coincident with on next
following the Participant's Normal or actual Retirement date, whichever is
applicable, or, if applicable and earlier, the first day of the month
following the date such Participant ceases to be an Active Participant.
2.19 Normal Form of Benefit: A pension benefit payable for the life of
the Participant beginning on the first day of the month following Normal
Retirement, in equal monthly installments and ceasing on the last day of the
month preceding the death of the Participant.
2.20 Normal Retirement: Termination of service with the Bank on or
after the sixty-fifth birthday of the Participant.
2.21
Participant: An individual of the Bank selected by the Committee to
participate in the Plan.
a. An Active Participant is a Participant who is currently an Employee of the
Bank.
b. An Inactive Participant is a Participant who is no longer an Active
Participant.
2.22 Plan: This Senior Management Supplemental Retirement Plan, as it
may be from time to time amended.
2.23 Plan Year: A 12-month period commending on the first day of the
Bankis fiscal year.
2.24 Year of Service: Being in the employ of the Bank for a Plan Year.
Article 3
Administration of the Plan
3.1 The Plan shall be administered by the Committee. The Committee shall act
by vote or written consent of a majority of its members.
3.2 Subject to the expressed provisions and limitations of the Plan as
stated herein this Plan document, the Committee may adopt such rules,
regulations, guidelines, and procedures as it deems appropriate for the
proper administration of the Plan and make whatever determinations and
interpretations it deems to be necessary or advisable.
3.3 All determinations and interpretations made by the Committee shall be
binding and conclusive on all Participants and on their legal representatives
and beneficiaries.
Article 4
Eligibility
4.1 The Committee may select Employees who, in the Committee's sole
discretion, are key Employees of the Bank, to participate in the Plan.
4.2 No Participant shall have a right to any benefit under the Plan if his
employment with the Bank is terminated for any reason other than death,
Disability or Early or Normal Retirement.
4.3 If a Participant has engaged in activities which, in the determination
of the Board, are detrimental to the Bank, the Committee may terminate the
Participant's participation in the Plan. In such event, no benefit shall be
payable under this Plan, and if a Participant is currently receiving benefits
under this Plan, such benefits shall cease.
4.4 In there is a Change of Control of the Bank, Section 4.2 and Section 4.3
of the Plan shall become inoperative.
Article 5
Benefits
5.1 Upon Normal Retirement:
a. An Active Participant shall be entitled to receive the Actuarial
Equivalent of the monthly Normal form of Retirement Benefit equal to 1/12 of
the amount set forth below.
43.5% of such Participant's Final Average Compensation plus 15% of the
Participant's Final Average Compensation in excess of Covered Compensation,
reduced by 1/30 for each Year of Service less than 30, reduced by any amounts
payable under the Employees' Retirement Plan of Evergreen Bancorp, Inc.,
restated as of January 1, 1989, and from time to time amended.
b. An Inactive Member shall be entitled to receive the Actuarial
Equivalent of his Accrued Benefit.
c. If a Participant is eligible to receive a benefit under this Plan, and
he has participated in a pre-1995 deferred compensation plan maintained by
the Bank, his benefit under this Plan shall further be reduced by an amount
established by the Committee at the time he is notified of his status as a
Participant in this Plan.
d. The Committee shall have the right in its sole discretion for purposes
of determining the benefit pursuant to subsection 5.1(a) to grant additional
Years of Service to a Participant.
5.2 Upon Early or Disability Retirement: Upon Retirement at his Early or
Disability Retirement Date, a Participant shall be entitled to receive the
Actuarial Equivalent of his Accrued Benefit as of such Retirement Date.
5.3 Upon Other Termination of Employment: Upon termination of service for
reasons other than Retirement Date, a vested Participant shall be entitled to
receive his benefit under Section 5.1 or 5.2 of this Plan by filing an
election within 30 days of termination of service with the Committee.
Article 6
Vesting
6.1 Upon completion of five Years of Service, a Participant shall be fully
vested in his benefit under this Plan.
6.2 If a Participant shall become Disabled as defined in this Plan, he shall
become fully vested in his benefit under this Plan.
6.3 If there is a Change in Control as defined in this Plan, a Participant
shall become fully vested in his benefit under this Plan.
Article 7
Optional Forms of Payment
7.1 In lieu of the Normal Form of Retirement Income, a Participant may elect
to receive his retirement income under one of the following optional forms.
The retirement income payable under an optional form shall be the Actuarial
Equivalent of the Participant's Accrued Benefit.
a. Joint and 100% Survivor provides a reduced income during the Participant's
lifetime. Upon his death, if the Participant's Beneficiary survives him, the
same income will continue to the Participant's Beneficiary until the
Beneficiary's death. Only one individual may be named as a Beneficiary.
b. Joint and 50% Survivor provides a reduced income during the Participant's
lifetime. Upon death, if the Participant's Beneficiary survives him, the 50%
of the Participant's income will continue to the Participant's Beneficiary
until the Beneficiary's death. Only one individual may be named as a
Beneficiary.
c. Lump Sum provides a lump-sum distribution of the Actuarial Equivalent
value of the Accrued Benefit to the Participant. Any lump sum distribution in
excess of $10,000 may be paid only with the expressed approval of the
Committee.
d. Automatic Spouse Benefit: If a Participant does not elect a form of
payout, or if the Participant dies before payments commence, a married
Participant shall automatically be assumed to have elected a joint and 50%
survivor benefit.
Article 8
Beneficiary Designation
8.1 Each participant shall have the right at any time to designate any person
or persons as his Beneficiary, to whom any death benefits which the
Participant may have elected shall be payable.
8.2 The designation of a Beneficiary shall become effective when it is filed
in writing with the Committee.
8.3 The filing of a Beneficiary designation shall be accompanied by a
statement of the Actuarial Equivalent the Participant elects in lieu of the
Normal Form of Benefit.
8.4 The Participant may revoke a beneficiary designation at any time by
filing a new election with the Committee.
Article 9
Amendment of the Plan
9.1 The Board may at any time amend the Plan in whole or in part, provided,
however, that no amendment shall be effective to reduce the benefit under the
Plan to any Participant without the consent of all Participants in the Plan.
Written notice of any amendment shall be given to each Participant.
Article 10
Miscellaneous
10.1 Participants and their Beneficiaries, heirs, successors, and assigns
shall have no legal or equitable rights, interests, or other claims in any
property or assets of the Bank. The Bank's obligation under this Plan shall
be that of an unfunded and unsecured promise of the Bank to pay money in the
future.
10.2 The Bank may offset any amounts payable under the Plan against any
debts, obligations, or other liabilities owed by the Participant to the Bank
at the time benefits become payable under the Plan.
10.3 Neither a Participant nor any other person shall have the right
to assign, sell, transfer, pledge, anticipate, mortgage, or otherwise
encumber, transfer, hypothecate, or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof, which are expressly
declared to be unassignable and nontransferable.
10.4 Nothing herein contained shall be construed as a contract of
employment, nor as giving any Participant any right to be retained in the
employ of the Bank.
10.5 All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, or neuter as the identity of the person or
persons may require. As the context may require, singular may be read as
plural and plural as singular.
10.6 Should any provision of this Plan or any regulation adopted
herein under be deemed or held to be unlawful or invalid for any reason, such
fact shall not adversely affect the other provisions or regulations unless
such invalidity shall render impossible or impractical the functioning of the
Plan, and in such case, the appropriate parties shall immediately adopt a new
provision or regulation to take the place of the one held illegal or invalid.
10.7 The titles and headings of the Articles and sections of this Plan
are for the convenience of reference only, and in the event of any conflict,
the text rather than such titles or headings shall control.
10.8 This Plan shall be governed by the laws of the State of New York.
Exhibit 10(i)
EVERGREEN BANCORP, INC.
SUPPLEMENTAL CHIEF EXECUTIVE RETIREMENT PLAN
Article 1
Purpose
The Board of Directors of Evergreen Bancorp, Inc. and its wholly owned
subsidiary, Evergreen Bank, N.A. (collectively, the "Bank"), considers the
establishment and maintenance of a sound and vital management to be essential
to protecting and enhancing the best interests of the Bank and its
shareholders. In this connection, the Bank recognizes that, as is the case
with many publicly held corporations, the possibility of a change in control
may arise and that such possibility, could result in the distraction or
departure of the Chief Executive Officer to the detriment of the Bank.
Accordingly, the Board of Directors of the Bank has determined that
appropriate steps should be taken through the establishment of this Evergreen
Bancorp, Inc. Supplemental Chief Executive Retirement Plan to reinforce and
encourage the Chief Executive Officer's continued attention to his assigned
duties without distraction in circumstances arising from the possibility of a
change in control of the Bank.
Article 2
Definitions
For purposes of the Plan, the following words and phrases shall have the
following meanings unless a different meaning is plainly required by the
context. Whenever used, the masculine pronoun shall include the feminine
pronoun and the feminine pronoun shall include the masculine and the singular
shall include the plural and the plural shall include the singular.
2.1 Accrued Benefit: The retirement income benefit payable at Normal
Retirement Date under this Plan, in an amount determined under Section 5.1
based on the Participant's Final Average Compensation and the Credited Years of
Service to the date the Participant last ceased to be an Active Participant.
2.2 Actuarial Equivalent: A form of benefit differing in time, period, or
manner of payment, that replaces another and has the same value, based on
actuarial assumptions, as the benefit or amount it replaces, shall be
determined, as follows:
a. For purposes of determining a lump sum value of any benefit payable,
the Unisex Pension 1984 Mortality Table, with the interest rates promulgated
by the Pension Benefit Guaranty Corporation as in effect on the first day of
the Plan Year during which such lump sum is to be paid or such determination
is to be made, as applicable, will be used.
b. For purposes of determining the amount of any optional form of
retirement income payable other than a lump sum distribution, the 1983 Group
Annuity Mortality Table (1983 GAM) for males, with interest at seven and
one-half percent (7.50%) will be used.
c. If any benefit is payable before a Participant's Normal Retirement
Date, the Participant's benefit payable shall be reduced by 5/9 of 1% for
each of the first 60 months and by 5/18 of 1% for each of the next 60 months
by which commencement of benefits precedes the Participant's Normal
Retirement Date.
2.3 Affiliate:
a. A member of a controlled group of corporations of which the Bank is a
member; or
b. An unincorporated trade or business which is under common control with
the Bank as determined in accordance with Section 414(c) of the Internal
Revenue Code of 1986, as amended (henceforth the "Code") and regulations
issued thereunder.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in Section 1563(a) of the Code
determined without regard to Section 1563(a)4 and (e)(3)(C) of the Code.
2.4 Anniversary Date: Each January 1.
2.5 Administrator: The Human Resource and Nominating Committee of the Board
of Directors of the Bank, or such successor committee or individual as they
shall duly appoint to administer the Plan.
2.6 Bank: Evergreen Bancorp, Inc., together with its wholly owned
subsidiary, Evergreen Bank, N.A., any successors thereto, and any Affiliates.
2.7 Beneficiary: The person or persons designated by a Participant to
receive benefits under the Plan in the event of the Participant's death.
2.8 Cause: The Bank's termination of any Participant's employment for
"Cause" shall mean (i) the commission of any intentional acts or conduct by
the Participant involving moral turpitude; (ii) any gross negligence by the
Participant in complying with the terms of his employment agreement, if any,
or otherwise in performing his required duties for the Bank; (iii) the
commission of any intentional act of dishonesty in the performance of the
Participant's duties for the Bank; (iv) deliberate and intentional refusal by
Participant during the term of this Agreement, other than by reason of
incapacity due to illness or accident, to obey lawful directives from the
Board of Directors of the Bank, or if the Participant shall have breached any
obligation under this Agreement and such breach of this Agreement shall
result in a demonstrable, material injury to the Bank, and the Participant
shall have failed to remedy such alleged breach within thirty (30) days from
his receipt of written notice from the Secretary of the Bank demanding that
he remedy such alleged breach. For any claimed termination for "Cause" there
shall be delivered to the Participant a certified copy of a resolution of the
Board of Directors of the Bank adopted by the affirmative vote of not less
than that number of directors equal to two-thirds of the entire membership,
whether or not present, at a meeting called and held for that purpose and at
which the Participant was given an opportunity to be heard, finding that the
Participant was responsible for the conduct set forth above.
2.9 Change in Control: An event of the nature that:
a. Would be required to be reported in response to Item 1(a) of the
current report on Form F-3, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 (henceforth the
"Exchange Act"); or
b. Results in a Change in Control of the Bank within the meaning of the
Change in Bank Control Act, as amended, and the Rules and Regulations
promulgated by the Federal Deposit Insurance Company (henceforth the "FDIC")
at 12 C.F.R. Section 303.4(a) as in effect on the date hereof; or
c. Without limitation such a Change in Control shall be deemed to have
occurred at such time as:
1. Any "person" (as the term is used in Section 13(d) and 14(d) of the
Exchange Act), or group of persons acting in concert, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) directly
or indirectly, of any class of equity securities of the Bank representing 25%
or more of a class of equity securities except for any securities purchased
by the Bank's employee stock ownership plan and trust; or
2. Individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof,
provided that any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Bank's shareholders was approved by the same Committee serving under an
Incumbent Board, shall be, for purposes of this clause (2) considered as
though he were a member of the Incumbent Board; or
3. A plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or similar transaction occurs in
which the Bank is not the resulting entity; or
4. A proxy statement shall be distributed soliciting proxies from
stockholders of the Bank, by someone other than the current management of the
Bank, seeking stockholder approval of a plan or similar transaction with one
or more corporations as a result of which the outstanding shares of the class
of securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank; or
5. A tender offer is made for 25% or more of the voting securities of the
Bank then outstanding.
2.12 Compensation: For purposes of this Plan, only the following items
shall be included in determination of remuneration for determination of
benefits:
a. Salary; and
b. Cash bonuses, whether either of the foregoing is paid currently or
deferred under either a qualified or non-qualified arrangement; without
regard to any limits imposed by Section 415 of the Code.
2.13 Covered Compensation: For each Participant, the average of the
taxable wages bases for the 35 calendar years ending with the year the
Participant attains social security retirement age or age 65, whichever
occurs earlier.
2.14 Disability: Any physical or mental condition which may reasonably
be expected to be permanent and which renders the Participant incapable of
continuing as an Employee in his customary job, provided, however, that such
disability originated while the Participant was in the active service of the
Company and (1) did not arise while engaged in or as a result of having
engaged in an illegal or criminal act or an act contrary to the best
interests of the Company or (2) did not result from habitual drunkenness or
addiction to narcotics or a self-inflicted injury while sane or insane. To
aid the Committee in determining whether such disability exist, the Committee
may require, as a condition precedent to receipt of any benefits hereunder,
that the Participant submit to examinations by one or more duly licensed and
practicing physicians selected by the Committee.
2.15 Early Retirement: The election of the Participant to commence
receiving benefits that have vested hereunder following termination of the
Participant's employment with the Bank, for reasons other than death or
disability, after the later to occur of the following: (a) the date the
Participant attains age 55; or (b) the date the Participant completes at
least five full Years of Service with the Bank; provided, however, that the
requirement of five full Years of Service shall be waived if a Change in Contr
ol shall occur or the Participant becomes subject to a Disability.
2.16 Effective Date: October 1, 1995.
2.17 Employee: Any person in the employ of the Bank for whom the Bank
is required to contribute Federal Insurance Contribution Act taxes.
2.18 Final Average Compensation: The Compensation of a Participant
averaged over thirty-six consecutive months which produce the highest average
of the 60 completed months (or the number of completed months if less than
60) ending before the first day of the month coincident with on next
following the Participant's Normal or actual Retirement date, whichever is
applicable, or, if applicable and earlier, the first day of the month
following the date such Participant ceases to be an Active Participant.
2.19 Normal Form of Benefit: A pension benefit payable under the
Qualified Plan for the life of the Participant, beginning on the first day of
the month following Normal Retirement, in equal monthly installments and
ceasing on the last day of the month preceding the death of the Participant.
2.20 Normal Retirement: Termination of service with the Bank on or
after the sixty-fifth birthday of the Participant.
2.21 Participant: An Employee of the Bank selected by the Committee to
participate in the Plan.
a. An Active Participant is a Participant who is currently an Employee of
the Bank.
b. An Inactive Participant is a Participant who is no longer an Active
Participant.
2.22 Plan: This Supplemental Chief Executive Retirement Plan, as it
may be from time to time amended.
2.23 Plan Year: A 12-month period commending on the first day of the
Bank's fiscal year.
2.24 Qualified Plan: The Bank's Employees' Retirement Plan of
Evergreen Bancorp, Inc., restated as of January 1, 1989, and from time to
time amended, or under any successor plan thereto.
2.25 Year of Service: Being in the employ of the Bank for an entire
Plan Year.
Article 3
Administration of the Plan
3.1 The Plan shall be administered by the Committee. The Committee shall act
by vote or written consent of a majority of its members.
3.2 Subject to the expressed provisions and limitations of the Plan as
stated herein this Plan document, the Committee may adopt such rules,
regulations, guidelines, and procedures as it deems appropriate for the
proper administration of the Plan and make whatever determinations and
interpretations it deems to be necessary or advisable.
3.3 All determinations and interpretations made by the Committee shall be
binding and conclusive on all Participants and on their legal representatives
and beneficiaries.
Article 4
Eligibility
4.1 The Committee may select Employees who, in the Committee's sole
discretion, are key Employees of the Bank, to participate in the Plan. Such
Employees shall withdraw from participation in the supplemental retirement
plan in effect on the Effective Date for senior executives, but shall not be
precluded by the terms of this Plan from consideration to participate in
subsequent supplemental retirement plans, if any, that may be adopted by the
Bank after the Effective Date.
4.2 No Participant shall have a right to any benefit under the Plan if his
employment with the Bank is terminated for any reason other than death,
Disability or Early or Normal Retirement, unless the termination is caused by
or otherwise related to a Change in Control.
4.3 If a Participant has engaged in activities which, in the determination
of the Board, are detrimental to the Bank, the Committee may terminate the
Participant's participation in the Plan. In such event, no benefit shall be
payable under this Plan, and if a Participant is currently receiving benefits
under this Plan, such benefits shall cease.
4.4 In there is a Change of Control of the Bank, Section 4.2 and Section 4.3
of the Plan shall thereafter become inoperative.
Article 5
Benefits
5.1 Upon Normal Retirement:
a. An Active Participant shall be entitled to receive the Actuarial
Equivalent of the monthly Normal Form of Retirement Benefit equal to 1/12 of
the amount determined by:
i. Multiplying the Participant's Compensation by forty percent (40%); and
ii. Subtracting from the amount determined pursuant to Section 5.1(a)(i) an
amount equal to the monthly Normal Form Benefit then payable under the
Qualified Plan.
b. An Inactive Member shall be entitled to receive the Actuarial
Equivalent of his Accrued Benefit.
c. If a Participant is eligible to receive a benefit under this Plan, and
he has participated in a supplemental retirement plan maintained by the Bank
prior to the Effective Date, his benefit under this Plan shall further be
reduced by any amounts actually paid to the Participant under such earlier
supplemental retirement plan.
d. The Committee shall have the right in its sole discretion for purposes
of determining the benefit pursuant to subsection 5.1(a) to grant additional
Years of Service to a Participant.
5.2 Upon Early or Disability Retirement: Upon Retirement at Early
Retirement, a Participant shall be entitled to receive the Actuarial
Equivalent of his Accrued Benefit as of such Retirement Date.
5.3 Upon Termination for Cause: If a Participant is terminated for Cause
prior to a Change in Control, then no benefits shall be payable under this
Plan.
Article 6
Vesting
6.1 The benefits under this Plan shall become fully vested upon a
Participant reaching Normal Retirement Age, completion of five full Years of
Service, or upon a Change in Control, whichever occurs earlier.
6.2 If a Participant shall become subject to Disability, as defined in this
Plan, he shall become fully vested in his benefit under this Plan.
6.3 If there is a Change in Control as defined in this Plan, a Participant
shall become fully vested in his benefit under this Plan.
Article 7
Optional Forms of Payment
7.1 In lieu of the Normal Form of Retirement Income, a Participant may elect
to receive his retirement income under one of the following optional forms.
The retirement income payable under an optional form shall be the Actuarial
Equivalent of the Participant's Accrued Benefit.
a. Joint and 100% Survivor provides a reduced income during the
Participant's lifetime. Upon his death, if the Participant's Beneficiary
survives him, the same income will continue to the Participant's Beneficiary
until the Beneficiary's death. Only one individual may be named as a
Beneficiary.
b. Joint and 50% Survivor provides a reduced income during the
Participant's lifetime. Upon death, if the Participant's Beneficiary survives
him, the 50% of the Participant's income will continue to the Participant's
Beneficiary until the Beneficiary's death. Only one individual may be named
as a Beneficiary.
c. Lump Sum provides a lump-sum distribution of the Actuarial Equivalent
value of the Accrued Benefit to the Participant. Any lump sum distribution in
excess of $10,000 may be paid only with the expressed approval of the
Committee.
d. Automatic Spouse Benefit: If a Participant does not elect a form of
payout, or if the Participant dies before payments commence, a married
Participant shall automatically be assumed to have elected a joint and 50%
survivor benefit.
Article 8
Beneficiary Designation
8.1 Each participant shall have the right at any time to designate any
person or persons as his Beneficiary, to whom any death benefits which the
Participant may have elected shall be payable.
8.2 The designation of a Beneficiary shall become effective when it is filed
in writing with the Bank, with a copy provided to the Committee.
8.3 The filing of a Beneficiary designation may be accompanied by a
statement of the Actuarial Equivalent the Participant elects in lieu of the
Normal Form of Benefit.
8.4 The Participant may revoke a beneficiary designation at any time by
filing a new election with the Committee.
Article 9
Amendment of the Plan
9.1 The Board may at any time amend the Plan in whole or in part; provided,
however, that no amendment shall be effective to reduce the benefits under
the Plan to any Participant without the consent of all Participants in the
Plan, which consent may be withheld in the sole discretion of any
Participant. Written notice of any proposed amendment shall be given to each
Participant.
Article 10
Miscellaneous
10.1 Participants and their Beneficiaries, heirs, successors, and
assigns shall have no legal or equitable rights, interests, or other claims
in any property or assets of the Bank. The Bank's obligation under this Plan
shall be that of an unfunded and unsecured promise of the Bank to pay money
in the future.
10.2 The Bank may offset any amounts payable under the Plan against
any debts, loans, obligations, or other liabilities owed by the Participant
to the Bank at the time benefits become payable under the Plan.
10.3 Neither a Participant nor any other person shall have the right
to assign, sell, transfer, pledge, anticipate, mortgage, or otherwise
encumber, transfer, hypothecate, or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof, which are expressly
declared to be unassignable and nontransferable.
10.4 Nothing herein contained shall be construed as a contract of
employment, nor as giving any Participant any right to be retained in the
employ of the Bank.
10.5 All pronouns and any variations thereof shall be deemed to refer
to the masculine, feminine, or neuter as the identity of the person or
persons may require. As the context may require, singular may be read as
plural and plural as singular.
10.6 Should any provision of this Plan or any regulation adopted
herein under be deemed or held to be unlawful or invalid for any reason, such
fact shall not adversely affect the other provisions or regulations unless
such invalidity shall render impossible or impractical the functioning of the
Plan, and in such case, the appropriate parties shall immediately adopt a new
provision or regulation to take the place of the one held illegal or invalid.
10.7 The titles and headings of the Articles and sections of this Plan
are for the convenience of reference only, and in the event of any conflict,
the text rather than such titles or headings shall control.
10.8 This Plan shall be governed by and construed in accordance with
the laws of the State of New York.
Adopted: 10/1/95
Exhibit 10(j)
[Form of Change in Control Agreement--
Evergreen Bancorp, Inc.]
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this "Agreement"), dated this _____ day of
_____, 1994, by and between EVERGREEN BANCORP, INC., a Delaware corporation
(the "Corporation"), and ___________________________________________ (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Corporation wishes to assure itself and its subsidiaries' key
employees of continuity of management and objective judgment in the event of
any actual or contemplated Change in Control of the Corporation, and the
Executive is a key employee of [the Corporation] [The First National Bank of
Glens Falls, a wholly owned banking subsidiary of the Corporation (the
"Bank")] [Keeseville National Bank, a wholly owned banking subsidiary of the
Corporation (the "Bank")] [The Evergreen Bank, a wholly owned banking
subsidiary of the Corporation (the "Bank")] and is an integral part of
management of [the Corporation] [the Bank]; and
WHEREAS, this Agreement is not intended to materially alter the compensation
and benefits that the Executive could reasonably expect to receive in the
absence of a Change in Control of the Corporation, and this Agreement
accordingly will be operative only upon circumstances relating to an actual
or anticipated change in control of the Corporation.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
I. OPERATION OF AGREEMENT
This Agreement shall be effective immediately upon its execution by the
parties hereto, but anything in this Agreement to the contrary
notwithstanding, neither the Agreement nor any provision hereof shall be
operative unless, during the term of this Agreement, there has been a Change
in Control of the Corporation, as defined in Article III below. Upon such a
Change in Control of the Corporation during the term of this Agreement, all
of the provisions hereof shall become operative immediately.
II. TERM OF AGREEMENT
The term of this Agreement shall be for an initial three (3) year period
commencing on the date hereof, and shall be renewable at the end of the first
year of such initial three (3) year period and annually thereafter, for an
additional one (1) year period following the initial three (3) year period
and prior extensions thereof in the sole discretion of the Compensation
Committee and upon such terms and conditions as the Compensation Committee
may authorize at such time.
III. DEFINITIONS
1. "Board" or "Board of Directors"--the Board of Directors of Evergreen
Bancorp, Inc.
2. "Cause"--Either
(i) any act that constitutes, on the part of the Executive, (A) fraud,
dishonesty, a felony or gross malfeasance of duty, and (B) that directly
results in material injury to [the Corporation] [the Bank]; or
(ii) conduct by the Executive in his office with [the Corporation]
[the Bank] that is grossly inappropriate and demonstrably likely to lead to
material injury to [the Corporation] [the Bank], as determined by the Board
acting reasonably and in good faith; provided, however, that in the case
of (ii) above, such conduct shall not constitute Cause unless the Board
shall have delivered to the Executive notice setting forth with specificity
(A) the conduct deemed to qualify as Cause, (B) reasonable action that would
remedy such objection, and (C) a reasonable time (not less than thirty
(30) days) within which the Executive may take such remedial action, and
the Executive shall not have taken such specified remedial action within
such specified reasonable time.
3. "Change in Control"--Either
(i) the acquisition, directly or indirectly, by any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) within any twelve (12) month period of securities of the Corporation
representing an aggregate of twenty-five percent (25%) or more of the
combined voting power of the Corporation's then outstanding securities; or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board, cease for any reason to
constitute at least a majority thereof, unless the election of each new
director was approved in advance by a vote of at least a majority of the
directors then still in office who were directors at the beginning of the
period; or
(iii) consummation of (a) a merger, consolidation or other business
combination of the Corporation with any other "person" (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Actio of 1934, as
amended) or affiliate thereof, other than a merger, consolidation or business
combination which would result in the outstanding common stock of the
Corporation immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into common stock of the surviving
entity or a parent of affiliate thereof) at least sixty (60%) of the
outstanding common stock of the Corporation or such surviving entity or
parent or affiliate thereof outstanding immediately after such merger,
consolidation or business combination, or (b) a plan of complete liquidation
of the Corporation or an agreement for the sale or disposition by the
Corporation of all or substantially all of the Corporation's assets; or
(iv) the occurrence of any other event or circumstance which is not covered
by (i) through (iii) above which the Board determines affects control of the
Corporation and, in order to implement the purposes of this Agreement as set
forth above, adopts a resolution that such event or circumstance constitutes
a Change in Control for the purposes of this Agreement.
4. "Code"--The Internal Revenue Code of 1986, as amended.
5. "Compensation Committee"--The Human Resources and Nominating Committee
of the Board of Directors of the Corporation, or any successor committee.
6. "Disability"--The Executive's inability probable and expected as a
result of physical or mental incapacity to substantially perform his duties
for [the Corporation] [the Bank] on a full time basis for a period of six (6)
months. The determination of whether the Executive suffers a Disability shall
be made by a physician acceptable to both the Executive (or his personal
representative) and the Corporation.
7. "Excess Severance Payment"--The term "Excessive Severance Payment"
shall have the same meaning as the term "excess parachute payment" defined in
Section 280G(b)(1) of the Code.
8. "Involuntary Termination"--Termination of the Executive's employment
by the Executive following a Change in Control which, in the reasonable
judgement of the Executive, is due to (i) a change in the Executive's
responsibilities, position (including status, office, title, reporting
relationships or working conditions), authority or duties (including changes
resulting from the assignment to the Executive of any duties inconsistent
with his positions, duties or responsibilities as in effect immediately prior
to the Change in Control); or (ii) a reduction in the Executive's
compensation or benefits as in effect immediately prior to the Change in
Control, or (iii) a forced relocation of the Executive's primary place of
employment to a place more than fifty (50) miles from the Executive's primary
place of employment immediately prior to the Change in Control. Involuntary
Termination does not include retirement (including early retirement) within
the meaning of [the Corporation's] [the Bank's] retirement plan, or death or
Disability of the Executive.
9. "Present Value"--The term "Present Value" shall have the same meaning
as provided in Section 280G(d)(4) of the Code.
10. "Severance Payment"--The term "Severance Payment" shall have the same
meaning as the term "parachute payment" defined in Section 280G(b)(2) of the
Code.
11. "Reasonable Compensation"--The term "Reasonable Compensation" shall
have the same meaning as provided in Section 280G(b)(4) of the Code.
IV. BENEFITS UPON TERMINATION FOLLOWING A CHANGE IN CONTROL
1. Termination--The Executive shall be entitled to, and the Corporation
shall pay or provide to the Executive, the benefits described in Section 2
below if (a) a Change in Control occurs during the term of this Agreement,
and (b) the Executive's employment is terminated within two (2) years
following the Change in Control either (i) by [the Corporation] [the Bank]
(other than for Cause or by reason of the Executive's death or Disability) or
(ii) by the Executive pursuant to Involuntary Termination; provided, however,
that if:
(a) during the term of this Agreement there is a public announcement of a
proposal for a transaction that, if consummated, would constitute a Change in
Control or the Board receives and decides to explore an expression of
interest with respect to a transaction which, if consummated, would lead to a
Change in Control (either transaction being referred to herein as the
"Proposed Transaction"); and
(b) the Executive's employment is thereafter terminated by [the Corporation]
[the Bank] other than for Cause of by reason of the Executive's death or
Disability; and
(c) the Proposed Transaction is consummated within one (1) year after the
date of termination of the Executive's employment, then, for the purposes
of this Agreement, a Change in Control shall be deemed to have occurred
during the term of this Agreement and the termination of the Executive's
employment shall be deemed to have occurred within two (2) year following
a Change in Control.
2. Benefits to be Provided--If the Executive become eligible for benefits
under Section 1 above, the Corporation shall pay or provide to the Executive
the benefits set forth in this Section 2.
(a) Salary--The Executive will continue to receive his current salary
(subject to withholding of all applicable taxes and any amounts referred to
in Section 2(c) below) for a period of twelve (12) months from his date of
termination in the same manner as it was being paid as of the date of
termination [; provided, however, that the salary payments provided for
hereunder shall be paid in a single lump sum payment, to be paid not later
than thirty (30) days after his termination of employment; provided further,
that the amount of such lump sum payment shall be determined by taking the
salary payments to be made and discounting them to their Present Value]. For
purposes hereof, the Executive's "current salary" shall be the highest rate
in effect during the six-month period prior to the Executive's termination.
(b) Bonuses--The Executive shall receive payments from the Corporation for
the twelve (12) months following the month in which his employment is
terminated in an amount for each such month equal to one-twelfth of the
average of the bonuses paid to him for the two calendar years immediately
preceding the year in which such termination occurs. Any bonus amounts that
the Executive had previously earned from [the Corporation] [the Bank] but
which may not yet have been paid as of the date of terminations shall not be
affected by this provision.
[The total of the bonus amounts determined herein shall be paid in
substantially equal monthly installments over the over the twelve (12) month
period following the date of termination.] [The bonus amounts determined
herein shall be paid in a single lump sum payment, to be paid not later than
30 days after termination of employment; provided, further, that the amount
of such lump sum payment shall be determined by taking the bonus payments (as
of the payment date) to be made and discounting them to their Present Value.]
(c) Health and Life Insurance Coverage--The health and life insurance
benefits coverage provided to the Executive at his date of termination shall
be continued at the same level and in the same manner as if his employment
had not terminated (subject to the customary changes in such coverages if the
Executive retires, reaches age 65 or similar events), beginning on the date
of such termination and ending on the date twelve (12) months from the date
of such termination. Any additional coverages the Executive had at
termination, including dependent coverage, will also be continued for such
period at the same level and on the same terms as provided to the Executive
immediately prior to his termination, to the extent permitted by the
applicable policies or contracts. Any costs Executive was paying for such
coverages at the time of termination shall be paid by the Executive [by
payroll deduction for amounts payable to the Executive under (a) or (b)
above] [by separate check payable to [the Corporation] [the Bank] each month
in advance]. If the terms of any benefit plan referred to in this Section do
not permit continued participation by the Executive, then the Corporation
will arrange for other coverage at its expense providing substantially
similar benefits as it can find for other officers in similar positions.
(d) Employee Retirement Plans--To the extent permitted by the applicable
plan, the Executive will be fully vested in and will be entitled to continue
to participate, consistent with past practices, in all employee retirement
plans maintained by [the Corporation] [the Bank] in effect as of his date of
termination. The Executive's participation in such retirement plans shall
continue for a period of twelve (12) months from the date of termination of
his employment (at which point he will be considered to have terminated
employment within the meaning of the plans) and the compensation payable to
the Executive under (a) and (b) above shall be treated (unless otherwise
excluded) as compensation under the plan. If full vesting and continued
participation in any plan is not permitted, the Corporation shall pay to the
Executive and, if applicable, his beneficiary, a supplemental benefit equal
to the Present Value on the date of termination of employment of the excess
of (i) the benefit the Executive would have been paid under such plan if he
had been fully vested and had continued to be covered for the 12 month period
as if the Executive had earned compensation described under (a) and (b) above
and had made contributions sufficient to earn the maximum matching
contribution, if any, under such plan (less any amounts he would have been
required to contribute), over (ii) the benefit actually payable to or on
behalf of the Executive under such plan. For purposes of determining the
benefit under (i) in the preceding sentence, contributions deemed to be made
under a defined contribution plan will be deemed to be invested in the same
manner as the Executive's account under such plan at the time of termination
of employment. The Corporation shall pay such supplemental benefits (if any)
[in a lump sum] [at the same time and in the same manner as coincides with
the payment of benefits to the Executive under such plans].
(e) Career Counseling--The Corporation will provide career counseling and
out placement services on an individual basis to the Executive as the
Corporation deems appropriate and for a reasonable period following the
Executive's termination of employment; provided, however, that the
Corporation's obligation to provide such services shall terminate at such
time, if any, as the cost of such services exceeds $_________.
(f) Effect of Lump Sum Payment--The lump sum payment under (a) or (b) above
shall not alter the amounts the Executive is entitled to receive under the
benefit plans described in (c) and (d) above. Benefits under such plans shall
be determined as if the Executive had remained employed and received such
payments over a period of twelve (12) months.]
(g) Effect on Death or Retirement--The benefits payable or to be provided
under this Agreement shall continue in the event of the Executive's death and
shall be payable to his estate or named beneficiary. The benefits payable or
to be provided under this Agreement shall cease in the event of the
Executive's election to commence retirement benefits under [the
Corporation's] [the Bank's] retirement plan.
(h) Limitation on Amount--Notwithstanding anything in this Agreement to the
contrary, any benefits payable or to be provided to the Executive by the
Corporation or its affiliates, whether pursuant to this Agreement or
otherwise, which are treated as Severance Payments shall be modified or
reduced in the manner provided in (h) below to the extent necessary so that
the benefits payable or to be provided to the Executive under this Agreement
that are treated as Severance Payments, as well as any payments or benefits
provided outside of this Agreement that are so treated, shall not cause the
Corporation to have paid an Excess Severance Payment. In computing such
amount, the parties shall take into account all provisions of Internal
Revenue Code Section 280G, including making appropriate adjustments to such
calculation for amounts established to be Reasonable Compensation.
(i) Modification of Amount--In the event that the amount of any Severance
Payments that would be payable to or for the benefit of the Executive under
this Agreement must be modified or reduced to comply with this Section 2, the
Executive shall direct which Severance Payments are to be modified or
reduced; provided, however, that no increase in the amount of any payment or
change in the timing of the payment shall be made without the consent of the
Corporation.
(j) Avoidance of Penalty Taxes--This Section 2 shall be interpreted so as to
avoid the imposition of excise taxes on the Executive under Section 4999 of
the Code or the disallowance of a deduction to the Corporation [or to the
Bank] pursuant to Section 280G(a) of the Code with respect to amounts payable
under this Agreement or otherwise.
(k) Additional Limitation--In addition to the limits otherwise provided in
this Section 2, to the extent permitted by law, the Executive may in his sole
discretion elect to reduce any payments he may be eligible to receive under
this Agreement to prevent the imposition of excise taxes on the Executive
under Section 4999 of the Code.
(l) No Obligation to Fund--The agreement of the Corporation (or its
successor) to make payments to the Executive hereunder shall represent solely
the unsecured obligation of the Corporation (and its successor), except to
the extent the Corporation (or its successors) in its sole discretion elects
in whole or in part to fund its obligations under this Agreement pursuant to
a trust arrangement or otherwise.
VI. MISCELLANEOUS
1. Contract Non-Assignable. The parties acknowledge that this Agreement has
been entered into due to, among other things, the special skills of the
Executive, and agree that this Agreement may not be assigned or transferred
by the Executive, in whole or in part, without the prior written consent of
the Corporation. Any business entity succeeding to all or substantially all
of the business of the Corporation by purchase, merger, consolidation, sale
of assets or otherwise, shall be bound by this Agreement.
2. Other Agents. Nothing in this Agreement is to be interpreted as limiting
the Corporation from employing other personnel on such terms and conditions
as may be satisfactory to the Corporation.
3. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered or seven days after mailing if mailed,
first class, certified mail, postage prepaid:
To the Corporation: Evergreen Bancorp, Inc.
237 Glen Street
Glens Falls, NY 12801
ATTN: Compensation Committee
To the Executive: Evergreen Bancorp, Inc.
237 Glen Street
Glens Falls, NY 12801
Any party may change the address to which notices, requests, demands and
other communications shall be delivered or mailed by giving notice thereof to
the other party in the same manner provided herein.
4. Provisions Severable. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be invalid, illegal
or unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this
Agreement, all of which shall remain in full force and effect.
5. Waiver. Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition or of any other term or condition or of any other term or condition
of this Agreement, unless such waiver is contained in a writing signed by the
party making the waiver.
6. Amendments and Modifications. This Agreement may be amended or modified
only by a writing signed by both parties hereto, which make specific
reference to this Agreement.
7. Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the
State of New York.
8. Arbitration of Disputes; Expenses. The parties agree that all disputes
that may arise between them relating to the interpretation or performance of
this Agreement, including matters relating to any funding arrangements for
the benefits provided under this Agreement, shall be determined by binding
arbitration through an arbitrator approved by the American Arbitration
Association or other arbitrator mutually acceptable to the parties. The award
of the arbitrator shall be final and binding upon the parties and judgment
upon the award rendered may be entered in any court having jurisdiction. In
the event the Executive incurs legal fees and other expenses in seeking to
obtain or to enforce any rights or benefits provided by this Agreement and
its successful in obtaining or enforcing any such rights or benefits through
settlement, arbitration or otherwise, the Corporation shall promptly pay the
Executive's reasonable legal fees and expenses incurred in enforcing this
Agreement. Except to the extent provided in the preceding sentence, each
party shall pay its own legal feels and other expenses associated with the
arbitration, provided that the fee for the arbitration shall be shared
equally.
9. Indemnity. The Executive shall be entitled to the benefits of the
indemnity currently applicable to the Executive, if any, as provided by the
Corporation's articles of incorporation or bylaws. Any changes to the
articles of incorporation or bylaws reducing the indemnity granted to
officers shall not affect the rights granted hereunder. The Corporation may
not reduce these indemnity benefits confirmed to the Executive hereunder
without the written consent of the Executive.
10. Termination of Prior Agreements. The Executive hereby agrees to a mutual
termination, effective as of the effective date of this Agreement, of any
prior existing change in control agreement or agreements (by whatever name),
providing benefits to the Executive upon a termination of employment
following a change in control of the Corporation, to which he and the
Corporation are parties, and as to such prior agreements, if any, the
Executives releases all claims, rights and entitlements.
11. Regulatory Approvals. This Agreement, and the rights and obligations of
the parties hereto, shall be subject to approval of the same by any and all
regulatory authorities having jurisdiction over the Corporation [or the Bank]
to the extent such approval is required by law, regulation, or order or by
the terms of that certain Memorandum of Understanding, dated March 19, 1993,
by and among the Corporation, the Federal Reserve Bank of New York, and
Superintendent of Banks of the New York State Banking Department [or that
certain Agreement, dated March 23, 1993, by and between the Bank and the
Office of the Comptroller of the Currency].
12. Regulatory Intervention. Notwithstanding any term of this Agreement to
the contrary, this Agreement is subject to the following terms and
conditions:
(a) The Corporation's obligations to provide compensation or other benefits
to Executive under this Agreement may be suspended if the Corporation has
been served with a notice of charges by the appropriate federal banking
agency under provisions of Section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818) directing the Corporation to cease making payments required
hereunder; provided, however, that
(i) The Corporation shall seek in good faith with its best efforts to oppose
such notice of charges as to which there are reasonable defenses;
(ii) In the event the notice of charges is dismissed or otherwise resolved in
a manner that will permit the Corporation to resume its obligations to
provide compensation or other benefits hereunder, the Corporation shall
immediately resume such payments and shall also pay Executive the
compensation withheld while the contract obligations were suspended, except
to the extent precluded by such notice; and
(iii) During the period of suspension, the vested rights of the contracting
parties shall not be affected, except to the extent precluded by such notice.
(b) The Corporation's obligations to provide compensation or other benefits
to Executive under this Agreement shall be terminated to the extent a final
order has been entered by the appropriate federal banking agency under
provisions of Section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818)
directing the Corporation not to make the payments required hereunder;
provided, however, that the vested rights of the contracting parties shall
not be affected by such order, except to the extent precluded by such order.
(c) The Corporation's obligations to provide compensation or other benefits
to Executive under this Agreement shall be terminated or limited to the
extent required by the provisions of any final regulation or order of the
Federal Deposit Insurance Corporation promulgated under Section 18(k) of the
Federal Deposit Insurance Act (12 U.S.C. 1828(k)) limiting or prohibiting any
"golden parachute payment" as defined therein, but only to the extent that
the compensation or payments to be provided under this Agreement are so
prohibited or limited.
(d) Notwithstanding the foregoing, the Corporation shall not be required to
make any payments under this Agreement prohibited by law.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed
on its behalf by this duly authorized officers and the Executive has hereunto
set his hand, as of the date and year first above written.
EVERGREEN BANCORP, INC.
By: _______________________________
Title: _____________________________
Attest: ______________________________
Title: _______________________________
(CORPORATE SEAL)
EXECUTIVE
______________________________
________________________(SEAL)
Exhibit 10(k)
April 18, 1995
Paul A. Cardinal
19 County Clare Lane
Niskayuna, New York 12309
re: Severance Agreement
Dear Paul:
Evergreen Bancorp, Inc. (collectively, the "Bank"), is willing to induce you
to join the Bank by offering you the severance benefits described below:
1. Term of Agreement. This Agreement shall commence on the Effective Date and
shall continue in effect for the period of your employment with the Bank.
2. Severance Agreement. (a) You shall be entitled to the severance benefits
herein if your employment with the Bank is ever terminated for any reason
other than for Cause. Termination for "Cause" shall mean termination for the
following reasons: (i) the willful engaging by you in illegal conduct that
materially and demonstrably damages the Bank's business or reputation; or
(ii) any conduct in the course of your employment that constitutes, in the
Bank's reasonable judgment, gross negligence, fraud, embezzlement or any acts
of moral turpitude that result or are intended to result, directly or
indirectly, to your personal enrichment at the Bank's expense. No act or
failure to act on your part shall be considered "willful" unless done, or
omitted to be done, by you in bad faith and without reasonable belief that
your action or omission was in, or not opposed to, the best interests of the
Bank.
(b) If your employment is ever terminated without Cause by the Bank, or if
you resign from the Bank within 30 days after your principal location of
employment is moved more than 50 miles without your permission or your salary
is reduced below your initial starting salary of $120,000, then the Bank
shall thereafter pay you your base salary for the 12 months immediately
following the effective date of separation at the rate in effect just prior
to the time a notice of termination is given (which amount shall not be less
than the annual rate of $120,000), plus any currently available benefits
(including health, disability and retirement). Any awards (including both the
cash, bonus and stock components) which, pursuant to the terms of any
applicable plans, had already been earned or become payable as of the date of
separation, but which had not yet been paid to you, shall be due and payable
within 30 days after the effective date of separation.
3. Effective Date. This Agreement shall be effective as of the date of your
acceptance.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return it to the Bank, which will then constitute our
agreement.
Sincerely,
EVERGREEN BANCORP, INC.
By: /s/ George W. Dougan
George W. Dougan, Chairman, President & Chief Executive Officer
ACCEPTED:
/s/ Paul A. Cardinal
Paul A. Cardinal
April 18 , 1995
<TABLE>
Exhibit 11
Evergreen Bancorp, Inc.
Computation of Net Income Per Common Share
(Dollars in Thousands, except Per Share Amounts)
<CAPTION>
Year Ended December 31,
1995 1994 1993
<S> <C> <C> <C>
Net Income Per Common Share
Weighted Average Common Shares Outstanding 4,715,000 4,728,000 4,697,000
Net Income $ 8,380 $ 7,265 $ (3,326)
Net Income per Common Share $ 1.78 $ 1.54 $ (.71)
Net Income Per Common Share--Primary
Weighted Average Common Shares Outstanding 4,715,000 4,728,000 4,697,000
Dilutive Common Stock Options 38,000 16,000 5,000
Weighted Average Common shares and
Common Share Equivalents Outstanding 4,753,000 4,744,000 4,702,000
Net Income $ 8,380 $ 7,265 $ (3,326)
Net Income per Common Share--Primary $ 1.76 $ 1.53 $ (.71)
Net Income Per Common Share--Fully Diluted
Weighted Average Common Shares Outstanding 4,715,000 4,728,000 4,697,000
Dilutive Common Stock Options 66,000 16,000 5,000
Weighted Average Common shares and
Common Share Equivalents Outstanding 4,781,000 4,744,000 4,702,000
Net Income $ 8,380 $ 7,265 $ (3,326)
Net Income per Common Share--Fully Diluted $ 1.75 $ 1.53 $ (.71)
</TABLE>
Exhibit 13
(PAGE 1)
Managing Our Natural Resources
The year 1995 will be recorded as one of the best in the history of Evergreen
Bancorp. We began the year in a strong position and ended it in an even
stronger one through the judicious management of our natural resources.
Though natural resources are usually thought of as inherent to the earth, we
believe that ours are inherent to Evergreen. Our financial strength itself
has become a formidable natural resource. We have in place an uncommonly
talented management group. Operating as "Team Evergreen," they have forged
excellent strategic alliances and instilled a renewed commitment throughout
our entire work force. The most important natural resource, of course, is our
community banking franchise. It is the essence of our being.
In this report you will learn how all of the natural resources have been
managed and are being managed to increase the value of our franchise for its
stockholders.
(PAGE 2)
Our Strength has Become a Natural Resource...
Common Stock Data
Evergreen Bancorp's common stock is traded on the NASDAQ National Market
System under the symbol EVGN. There were 1,654 stockholders of record as of
December 31, 1995. The range of the high and low sales prices, as reported by
NASDAQ, and the quarterly cash dividends paid for the years 1995 and 1994 are
shown below.
<TABLE>
<CAPTION>
1995 High Low Div. Paid
<S> <C> <C> <C>
1st Quarter $17.25 $14.75 $0.10
2nd Quarter 18.34 16.25 0.10
3rd Quarter 21.25 17.75 0.10
4th Quarter 23.25 20.50 0.15
</TABLE>
<TABLE>
<CAPTION>
1994 High Low Div. Paid
<S> <C> <C> <C>
1st Quarter $18.00 $12.25 $ --
2nd Quarter 17.25 13.50 --
3rd Quarter 18.00 16.25 --
4th Quarter 17.75 13.75 .05
</TABLE>
For information on restrictions relating to the payment of cash dividends,
see Note 11 of Notes to Consolidated Financial Statements.
<TABLE>
Financial Highlights
(Dollars -- except per share data -- expressed in thousands)
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
Net Income/(Loss) $8,380 $7,265 $(3,326)
Per Share:
Net Income/(Loss) 1.78 1.54 (.71)
Cash Dividends .45 .05 .19
Book Value 17.71 15.51 14.82
Average Shares Outstanding 4,715,000 4,728,000 4,697,000
Year End:
Assets $871,423 $833,618 $831,359
Loans, Net of
Unearned Income 592,198 577,329 577,351
Deposits 750,224 735,821 736,028
Stockholders' Equity 83,045 73,601 69,885
</TABLE>
(PAGE 3)
Corporate Profile
Evergreen Bancorp, Inc. (NASDAQ: EVGN) is a one-bank holding company
headquartered in Glens Falls, New York. Its subsidiary, Evergreen Bank, N.A.,
operates 24 banking locations in a 250-mile area of eastern New York, from 50
miles south of Albany to the Canadian border.
Within this region the bank provides its corporate, institutional and
individual customers with a wide range of deposit, lending, trust and
investment services. Throughout its 142-year history Evergreen has pursued
the essential mission of a community bank: to provide exemplary service and
responsiveness to its customers and local communities.
Evergreen Bank, N.A.,with assets exceeding $861 million, is among the leading
community banks in its franchise area.
Annual Meeting
The Annual Meeting of Shareholders will be held in the Adirondack Room of the
Queensbury Hotel, 88 Ridge Street, Glens Falls, New York at 10:00 a.m. on
April 16, 1996.
Form 10-K
A copy of the Company's Form 10-K annual report is available without charge
to shareholders on written request to Kathleen G. Martinez, Secretary, 237
Glen Street, Glens Falls, New York 12801.
(PAGE 4)
George W. Dougan
Chairman and Chief Executive Officer
(PAGE 5)
Chairman's Message
To Our Valued Shareholders:
At this time last year, we had just laid the foundation.
Responding to a difficult 1993, Evergreen had marshaled its natural resources
to stage a significant turnaround according to a new strategic plan. We had
envisioned this plan as the foundation for our sustained progress in 1995.
That vision, I am pleased to report, has been fulfilled. Following closely on
the successes of 1994, Evergreen made substantial progress in several key
financial areas:
* We recorded four quarters of solid profit and overall growth in net
income.
* We reduced non-performing loans by nearly 70%.
* We lowered operating expenses to increase profit and strengthen our
foundation for the future.
* We saw strong stock performance and increased our dividend to $.15 per
share.
As a result, Evergreen Bancorp experienced one of the strongest years in its
history -- in a weak regional economy -- even while positioning itself for
sustained growth in the years to come.
Solid growth in 1995...
Last year such growth came from a number of areas:
Growth in financial performance. Our baseline financial figures continued
upward. Evergreen's 1995 net income of $8.4 million represents a 15% increase
over 1994's net income of $7.3 million.
Growth in loans. Evergreen experienced a 4% increase in net loans to $580.1
million. This increase came despite a $20 million bulk sale of commercial
loans and foreclosed real estate during the third quarter. Aggressive
marketing efforts led to other strong year-end figures: loan-to-deposit ratio
of 78.9%, net interest margin of 5%.
Growth in asset quality. Perhaps our most dramatic news of 1995 comes in
asset quality. Partly because of the bulk sale mentioned previously,
Evergreen's non-performing loans declined from $19.4 million at the end of
1994 to $5.9 million in 1995 -- a decline of 70%. As a result, the allowance
for loan losses as a percentage of non-performing loans improved from 97% at
the end of 1994 to 205% in 1995. Additionally, non-performing assets on a
whole decreased $20.1 million from $29.9 million at the end of 1994 to $9.8
million in 1995, or 67%. Even with this success, we will not relax our
diligence in resolving the remaining non-performers and monitoring current
credits.
Growth in operating efficiency. Evergreen took steps in 1995 that will reduce
costs in 1996 -- and so improve operating efficiencies -- on three important
fronts. First, the bulk sale eliminated the expense of managing, maintaining
and disposing of the assets involved. Second, in the third quarter we
eliminated fully 10% of our full-time-equivalent positions through staff
reductions, early retirements and restructuring. Finally, we formed a
standing committee to encourage and implement cost-saving suggestions from
employees -- many of which were implemented in the fourth quarter. While these
initiatives will not have their greatest effect until 1996, we have already
seen improvement in our efficiency ratio in the fourth quarter of 1995.
Growth in stock performance. Our shareholders have been rewarded for their
patience and continued confidence in two ways. By the end of 1995,
Evergreen's share price had risen 52% over 1994, far exceeding the
performance of our competitors' stock. A second reward for our shareholders
came in increased dividends: the dividend of $.05 per share in fourth quarter
1994 increased to $.15 per share by the end of 1995, and to $.20 in first
quarter 1996.
(PAGE 6)
These positive figures, however, only have meaning if they come from an
underlying strength in the franchise. A look at the initiatives behind the
figures reveals that strength.
...through strong initiatives.
We developed an even stronger management team. In reorganizing "Team
Evergreen" for efficiency, we added to its profit potential. First, the
appointment of a new Capital Region President should help us develop more
profitable commercial relationships in what is, by far, the area where we
have the most potential to capture market share. We have also brought
first-rate management skills into asset quality, finance and branch
administration.
In most organizations such changes can be difficult. But because we maintain
an intelligent, motivated staff at every level, we were able to make the
changes almost effortlessly. This remarkable depth of human resources
provides us with an unusually stable and talented base for future growth.
We positioned our Trust and Investment Group for significant growth. During
1995 Evergreen laid the foundation for aggressive business development in
trust and investment. To optimize our capabilities, we expanded our
facilities and staff in all regions, with special emphasis on the market
segment with the highest potential, the Capital Region.
These efforts have already shown results. At the end of 1995, assets under
management stood at $427.8 million, an increase of 14% over the end of 1994.
Although the strong financial markets accounted for some of that growth, new
business in the last quarter showed significant gains, with over $10 million
in new accounts.
We seized market opportunities in lending and deposits. This past year
Evergreen tailored its products and services specifically to maximize growth
in a soft regional economy. Among other areas, we saw significant
opportunities for profitable, creditworthy business in consumer installment
lending, home equity products and indirect dealer loans. Our aggressive
response has caused these three areas to pace Evergreen's loan growth in
1995.
Specifically, our development efforts led to record loan levels in indirect
business. Eighty percent of our branches also broke records in consumer
loans, partly due to the introduction of a Nice 'n Easy Touchtone Loan
service. Proactive marketing yielded significant increases in home equities
and mortgage lending. As a result, total retail loans outstanding net of
unearned income increased $41.7 million, or 13%, over year-end 1994.
But retail lending was not the only contributor; Evergreen also made
substantial progress in commercial loans. Our new small business term loan
appealed directly to the substantial number of small businesses in our
market, and staffing changes have enabled us to better utilize resources for
each lending group and region.
On the deposit side two new products, Premium Savings and Money Market, have
drawn the emerging affluent customer, while Privilege 50 continues its
success in servicing and capturing the mature market. From these and other
initiatives, deposits increased 2% in 1995 at a time when bank deposits were
flowing into mutual funds.
We have used alliances to broaden our capabilities. Offering the top-quality
services of a large bank and the personal service of a community bank has
long been a key to Evergreen's continued strength and profitability. In 1995
we furthered that winning combination by building alliances that broaden our
capabilities while enabling us to maintain flexibility.
(PAGE 7)
Taken together, these alliances have helped us reduce
costs and increase market penetration. Our vendor
partnership for data processing and information technology has
expanded to include items processing; as such, it represents a cost-effective
alternative to our in-house unit. This alliance also positions us to offer
advanced technology-based services that are on the horizon, from PC-based
banking to customer call centers.
A second vendor developed the software for our Nice 'n Easy Touchtone Loan
service, which has already shown its profit potential throughout our region.
Through other vendors we have also acquired database marketing software
systems that enable us to cross-sell our existing customers more effectively.
What's ahead for 1996?
Our success in 1995 demonstrates the enduring market for a profitable,
well-managed, customer-focused community bank. Evergreen is now positioned to
penetrate that market as never before -- with a franchise that gains strength
even as it grows impressively.
We look to achieve positive results in 1996 with a number of concrete
initiatives:
* A new private banking package aimed at drawing high net worth
customers -- and thus achieving greater penetration in this lucrative market.
* An aggressive effort to develop our commercial loan base through personal
service and a community banking emphasis.
* Continued diligence to improve asset quality and resolve the small number
of non-performing loans that remain.
* Expansion of the retail lending market, partly through the delivery of
more consumer products through the Nice 'n Easy Touchtone Loan.
* Introduction of a deposit relationship product for the middle market
segment.
* Repurchase of common stock under a program begun in 1995 that authorizes
repurchases up to $4.75 million.
* An improvement in our efficiency ratio resulting from our cost-reduction
efforts in 1995.
The staple, of course, is aggressive marketing and product delivery to both
current and prospective customers. We will also consider opportunities for
branch openings or acquisitions that make good financial sense, particularly
in regions where we are underrepresented.
Clearly, we do not plan to rest on our laurels. Our substantial gains in 1995
have shown us new horizons in enhancing Evergreen's strength and value. In
that sense, the wise management of our many natural resources has put us
squarely in a new era. It is our plan -- no, our commitment -- to make the most
of it for our shareholders.
George W. Dougan
Chairman and Chief Executive Officer
(PAGE 9)
Team Evergreen:
Building the Bank with a Talented Natural Resource
Since he took the helm at Evergreen two years ago, George Dougan has molded
Evergreen's proven professionals into a solid, cohesive management team. The
process continued this past year when Evergreen reorganized its team for
efficiency and promoted staff experts to top positions in critical areas.
With these improvements our refurbished "Team Evergreen" is better equipped
than ever to carry out a simple mission: providing the right mix of products
and services for maximum profitability. That mission saw fulfillment at new
levels and in many ways in 1995.
Retail Banking: Retaining customers for the long run
To increase profitability in the retail sector, a bank must maintain and grow
its customer base through responsive service, products that fill customer
needs and active cross-selling. In 1995 "Team Evergreen" addressed all three,
thereby generating a solid return for shareholders.
In services, our improved turnaround on all consumer loans often translated
into best-in-market delivery and additional market share. Competitive pricing
of personal loans has increased Evergreen's lending stature in its largest
growth area, the Capital Region. We achieved further penetration in that
crucial region with the introduction of our Nice 'n Easy Touchtone Loan,
through which customers can apply for loans over the telephone, 24 hours a
day, seven days a week.
In terms of products, the success of Evergreen's new Premium Savings and
Money Market accounts has given the bank increased market share among
affluent customers. We also continue to advance in the very profitable, and
largely untapped, mature market through our well-positioned senior product,
Privilege 50.
Even the best products and services cannot bring profitability without
effective marketing, and there is no more cost-effective strategy than
cross-selling to existing customers. With the installation of new database
marketing software in 1995, we now can better identify potential for new
business among those customers. The concept of "relationship
marketing" -- designing our marketing and products around current needs --
helps us invest our marketing dollars in the areas of greatest potential.
The goal: to establish long-term relationships with our customers -- and
long-term stability for our shareholders.
"Understanding our customers and marketplace is key to the successful
achievement of our sales goals in 1996. With our ambitious cross-sell
programs in the branches, a concentration on the use of data-based marketing
and the team concept of sales and referrals, we're strategically poised for
profitable growth in the retail area."
Daniel J. Burke, Senior Vice President, Retail Banking
(PAGE 10)
"Automation and technology will give us the ability to remain consistent with
the service we provide our customers -- which ultimately relates back to the
bottom line. Consistently superior customer service leads to growth."
George Fredette, Senior Vice President, Finance
Research and Development: Equipping customers for the future
Technology has improved the face of banking at every turn. It provides
faster, more convenient service for customers -- and thus builds market share.
At the same time, by automating many processes it provides banks with
significant cost savings and higher operational efficiency.
To capitalize on these advantages, Evergreen in 1995 formed active task
forces to evaluate available technologies. From those task forces came
several key ideas. For instance, by transforming our Customer Service
Department into an advanced call center, we will offer many branch
functions -- such as transferring funds and opening
new accounts -- by telephone.
The resulting convenience adds to our competitive advantage, and the
technology realizes cost savings over traditional customer service.
Other technologies can help streamline internal bank functions. In the near
future, we plan the implementation of a document imaging system, which
promises faster customer service at substantially lower cost for the bank.
"We've hired exceptionally talented and experienced individuals -- the kind of
expertise that enables us to make decisions quickly and soundly, allowing us
to be responsive to the customer, giving us a definite competitive advantage
in the trust and investment area."
John Fullerton, Executive Vice President, Evergreen Trust & Investment Group
Trust and Investment: Poised for new markets
Vital portions of our service area hold great potential for trust and
investment. In 1995 Evergreen prepared major initiatives to fulfill that
potential.
Perhaps most significantly, we introduced our Trust & Investment
Group into the Capital Region. By staffing that office with specialists in
employee benefits, estate planning and investment management, we can now
actively pursue new business in a region that we were not able to serve
effectively in the past.
While penetration of these critical market segments has already yielded
results, we expect to see our efforts build substantial market share in 1996
and beyond. To address another vital area, we have aimed our efforts at high
net worth individuals and the lucrative market that they represent. Evergreen
plans to introduce private banking in 1996 to meet their needs and open doors
for related trust business.
Commercial Banking: Gaining ground with business
From new management to new products, Evergreen in 1995 made significant
strides in commercial lending.
On the management side our new Capital Region President brings extensive
corporate banking expertise to his position. That expertise, located in a
geographic area with significant growth potential, will help us develop our
niche as a long-term business partner for small and midsize companies. Staff
changes in all geographic regions have molded the commercial side of Team
Evergreen into an experienced, professional unit that specializes in building
market share.
Throughout our service area we have instituted a new calling program to
provide business customers with individual attention and superior
service -- the type of service that satisfies these customers and builds a
strong market base. In products we broke new ground with the introduction of
the Small Business Solution,
"The changes that we've made to the commercial side of the bank have resulted
in our being closer to our customers -- providing the kind of personal service
that our larger competitors can't provide. That gives us added value in our
marketplace."
Thomas C. Crowley, Executive Vice President, Chief Credit Officer
(PAGE 11)
a small business term loan that offers a
three-day turnaround. Due to that quick response time, the loan proved
successful in all regions and enables us to continue to expand our niche in
the small business market.
Moving toward a future of growth
From retail to trust to corporate banking, Evergreen has readied itself for a
future of growth. Our efforts aim squarely at securing and increasing our
customer base as a vital part of that future. To do so, we must offer truly
relevant products and services. We must exploit today's technology to meet
the needs of tomorrow's market. In short, we must engage our customers in
long-term relationships for a stable future.
At Evergreen we have prepared ourselves to meet those challenges and increase
our customer base because our customers are the natural resource that will
guide our bank profitably toward the 21st century.
Strategic Alliances:
A Natural Resource for Growth
"Operationally, we have the same technology available to us as the larger
banks, but we also have the advantage of flexibility -- being quick on our feet
and responding as a community bank."
Tony Koenig, Executive Vice President and Chief Administrative Officer
Evergreen's unique market niche provides a unique challenge. To increase
market share, we must provide a larger bank's range of services while
maintaining the flexibility and "human touch" of community banks -- all within
reasonable cost limits. In 1995 as in past years, we have artfully maintained
that balance through alliances with high-quality vendors, suppliers and
business partners. These alliances have generated market penetration and cost
savings in several areas:
Internal bank functions.
In 1995 we added items processing to the list of operations outsourced to
ALLTEL, a national provider of services to the banking industry. By
subcontracting this function, along with our information processing and
application software needs, we can provide the same level of expertise as
larger banks. This allows us to compete in our market while realizing
substantial savings to the bottom line.
Precision marketing efforts. This year we introduced a Marketing Customer
Information File (MCIF) software system through a partnership with MPI, Inc.
By tracking significant customer information, MCIF has enabled us to know our
customers better -- and cross-sell them more effectively.
Innovative products. A crucial vendor alliance continues to maintain the
software for our automated Tellerphone service. Thanks to this alliance, we
attained cost efficiency in software development and maintenance while
acquiring the tools to improve our trademark customer service.
Cost-effective services. The success of our Nice 'n Easy Touchtone Loan
derives partly from Evergreen's deft utilization of software developer
Creative Solutions. Among the programs that support this new service is a
credit-scoring program, which allows customers to apply for loans by phone
and receive approval in ten minutes or less. This system has allowed us to
further penetrate markets without adding offices.
National trust partnerships. Our alliance with Fidelity Investments
Institutional Services Company, a renowned third-party provider of investment
services, enables our Trust & Investment Group to better serve professional
groups in all regions, thus enhancing our fee income.
By continuing to form alliances with first-rate, cost-effective vendors, Team
Evergreen can better respond to our market areas in ways that gain market
share while realizing significant cost savings.
(PAGE 13)
Our Community Banking Franchise:
A Shareholder's Natural Resource
One of Evergreen's greatest strengths lies in its best-kept secret: the
connection between community banking and shareholder value.
Indeed, even many community banks fail to see the connection. To understand
why our community franchise is so important for our shareholders, consider
three key ingredients of our environment:
Our market potential is tremendous. Even with our recent strides in achieving
market penetration, we still enjoy excellent prospects for new business
within our service area. In the Glens Falls region we have dominant market
share in some products but significant room for growth in others; we
penetrate a high percentage of the total households but have substantial
cross-sell potential. For the Capital and Plattsburgh regions our current
market share suggests a large pool of potential new customers.
Our customers do business with good corporate citizens. Evergreen's service
area is characterized by familiarity: its people know one another, volunteer
with one another and very often do business with one another. Not
surprisingly, they place a high priority on working with companies that serve
local communities and provide personal service. Maintaining a high community
profile and individual customer attention generates substantial good will -- an
indispensable asset in this market.
Our larger competitors have abandoned the community niche. As in most parts
of the country today, acquisitions and mergers of larger banks have presented
unique opportunities for a bank of our size. Because the larger banks
invariably curtail services and personal attention, many of their customers
become disenchanted and become ideal prospects for our brand of community
banking.
To put it simply: every day Evergreen does business in a high-potential
market that values attention to customer and community. Even so, few area
banks include that value in their corporate profiles. Clearly, the niche of
community banking -- and its healthy market share -- is wide open for us to
pursue.
Evergreen leads the way in community banking
And we pursue it with enthusiasm. Time and again, Evergreen presents itself
as offering the two crucial components of community banking: individual
customer attention and good local citizenship.
In terms of customer attention, we know that our most important natural
resource is our ability to recognize customers as individuals. Part of that
ability comes from internal tools, such as our new database marketing system
and commercial calling programs. But a larger part comes from the close ties
we maintain with our customers: keeping the decision-making process closer to
them, making it easier for them to get the banking services they need. As a
result we can design our products, services and marketing efforts around
specific customer needs and thereby gain market share over competitors who
are less familiar with local needs.
We also learn about our customers and gain their respect by serving as an
outstanding corporate citizen. Perhaps no other event highlights this as well
as the South Glens Falls Holiday Parade. A signature event for many years,
this holiday tradition was in danger of ending in 1995 when its local sponsor
went out of business. The parade had become an event treasured by children
and parents alike, and when we learned of its potential demise, we
volunteered to keep it alive. Our entire organization gave time and energy to
bring this holiday tradition to the community. As a result the first annual
Evergreen Holiday Parade was a smashing success. Significantly, its renaming
also provides an ongoing reminder of our concern for local communities.
While important, the holiday parade is only one part of our community
involvement. Over the past eight years, the annual Evergreen Tennis & Golf
Tournaments have raised over $100,000 for the American Heart Association.
(PAGE 14)
In 1995 our employee volunteers walked, ran and donated hundreds of hours to
nonprofit organizations. And our officers involved themselves in no fewer
than 144 community concerns in the past year alone.
Continuing our leadership for 1996
At Evergreen we know that our success depends on the loyalty of our
customers. That loyalty, as we have seen, comes from our commitment to
customer service and community involvement. In 1996 we plan to maximize our
commitment -- and increase the value of our franchise -- by offering services
like private banking that address the needs of customers in our service area.
At the same time we will further develop markets in our franchise region with
enhanced distribution systems, ranging from new locations to new technology.
We will implement only those systems that have the greatest potential to
enhance our franchise value.
We will also continue our community involvement in earnest. Our people are
dedicated to remaining a relevant part of our customers' lives, and
management is committed to translating our loyalty into increasing
shareholder value. With community banking firmly in place, Evergreen is in an
ideal position to capture additional market share. Indeed, we believe that we
have managed our community banking franchise -- our most precious natural
resource -- both wisely and well.
"We can't let the term `community banking' become a cliche.
If it does, then we become irrelevant.
It's our job to make it relevant every single day."
Paul Cardinal, Executive Vice President, General Counsel
(PAGE 15)
FINANCIAL REVIEW
Overview of Performance
The principal source of earnings for the Evergreen Bancorp, Inc. is its
single banking subsidiary, Evergreen Bank, N.A., the surviving bank from the
1994 merger of the Company's three banking subsidiaries. All discussions
herein refer to the banking activities of the Company's banking subsidiary
unless otherwise noted.
In 1995, the Company earned $8,380,000 or $1.78 per share compared to 1994
net income of $7,265,000 or $1.54 per share. This represents a $1.12 million
increase from the prior year. Income for the year was primarily affected by a
reduction in FDIC insurance expense of $938,000, and a reduction of income
tax expense of $773,000. The reduction of income tax expense is largely
attributable to tax benefits derived from the bulk sale of certain loan and
real estate assets. These items were offset by a reduction of fee income from
credit card merchant discounts of $662,000. Net income for 1994 increased
$10.6 million when compared to 1993.
Average assets for 1995 totaled $849.8 million, an increase of $11.6 million
or 1.4% from the 1994 average of $838.2 million. This compares to the 1994
decrease from 1993 of $33.2 million or 3.8%. The return on average assets in
1995 was .99% as compared to .87% and (.38%) in 1994 and 1993, respectively.
The year-to-year increase in the return on average assets is primarily due to
increased levels of net income.
The return on average stockholders' equity was 10.6% for 1995 as compared to
10.1% and (4.7)% for 1994 and 1993, respectively.
On September 29, 1995, Evergreen consummated a bulk sale (the "Bulk Sale") of
certain performing and non-performing loans and Other Real Estate Owned
(OREO) for approximately $13,250,000. The assets sold carried a book value of
approximately $20,000,000 and the loan loss reserve was reduced by
approximately $6,345,000 as a result of the sale. In addition the Company
recognized additional writedowns on OREO and fees from the sale of
approximately $900,000.
Also during 1995, the Company announced and completed a work force reduction
of administrative personnel amounting to approximately 10% of staff. As a
result of the reduction in force the Company incurred expenses of
approximately $462,000 in severance pay, termination benefits and related
expenses.
Net Interest Income
Net interest income represents the most significant component of the
Company's earnings. Changes in net interest income from period to period
result from increases or decreases in the average balances (volume) of
earning assets and interest bearing liabilities, increases or decreases in
the average rates earned and paid on such assets and liabilities, the
Company's ability to manage its earning asset portfolio and the availability
of particular sources of funds and investment opportunities. The Analysis of
Variance in Net Interest Income Due to Volume and Rates exhibit on page 18
presents an analysis of the increases and decreases in interest income and
interest expense which resulted from changes in
volume and changes in rates during the periods presented herein.
Net interest income on a taxable equivalent basis for 1995 increased $123,000
or .3%, from that for 1994. This increase resulted primarily from an
increase in rates received on earning assets. Rising rates served to increase
interest income $5.3 million while increasing interest expense $4.1,
resulting in additional tax equivalent net interest income of $1.2 million.
However, the increase in interest income from increases in the volume of
earning assets of $.7 million was more than offset by increases in interest
expense of $1.8 million from increases in the volume of costing liabilities,
resulting in a decrease in tax equivalent net interest income of $1.1
million.
The net interest margin on a tax equivalent basis decreased slightly, by 7
basis points to 5.07% in 1995 compared to 5.14% in 1994. The yield on average
earning assets increased 62 basis points from 7.89% in 1994 to 8.51% in 1995.
Average rates paid on interest bearing liabilities increased 85 basis points
to 4.13% in 1995 from 3.28% in 1994. In 1994 the net interest margin
increased 33 basis points from 4.81% in 1993.
During 1995, average earning assets increased $12.7 million or 1.6%. This is
a direct result of increases in average fed funds sold of $15.6 million as
all other earning assets categories, including loans and investment
securities, declined slightly. The decrease in loans and increase in fed
funds sold was a result of relatively weak loan demand in the early portion
of 1995 and the Bulk Sale transaction. Should fed funds continue to increase
at the expense of loans and securities, net interest income would be
negatively impacted as loans and securities typically generate yields in
excess of those obtainable on fed funds sold.
The increase in average earning assets was funded by an increase in average
stockholders' equity of $8.0 million or 11.1% and an increase in interest
bearing liabilities of $7.2 million or 1.1%.
The increase in interest bearing liabilities resulted primarily from
increases in time deposits of $68.8 million, short term borrowings of $2.4
million, and long term debt of $1.9 million. These increases were offset by a
decrease in Savings, NOW and MMDA balances of $65.9 million. The decrease in
those account types was a result of depositors moving balances to higher
yielding time deposits as spreads between core deposit and time deposit rates
increased in late 1994 and early 1995.
(PAGES 16 & 17)
<TABLE>
NET INTEREST INCOME -- AVERAGE RATES AND YIELDS
($000 Omitted)
<CAPTION>
1995 1994 1993
Interest Interest Interest
Average Income/ Average Income/ Average Income/
Balance Expense Yield/Rate Balance Expense Yield/Rate Balance Expense Yield/Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Assets
Loans
Taxable $561,276 $51,871 9.24% $562,149 $47,080 8.38% $584,094 $47,866 8.19%
Tax Exempt 17,840 1,664 9.33 18,329 1,660 9.06 19,262 1,983 10.29
Securities Held to
Maturity and Securities
Available for Sale
Taxable 179,435 11,536 6.43 179,761 11,055 6.15 185,221 11,431 6.17
Tax Exempt 19,952 1,779 8.92 20,985 2,094 9.98 23,747 2,458 10.35
Federal Funds Sold 22,864 1,361 5.95 7,261 320 4.41 8,710 256 2.94
Interest Bearing Deposits
with Banks 373 17 4.56 579 7 1.21 16 -- --
Total Earning Assets 801,740 68,228 8.51 789,064 62,216 7.89 821,050 63,994 7.79
Allowance for Loan Losses (16,748) (19,480) (18,779)
Cash and Due from Banks 28,436 30,808 34,847
Other Non-Earning Assets 36,396 37,844 34,300
Total Assets $849,824 $838,236 $871,418
Liabilities and
Stockholders' Equity
Regular Savings,
NOW and MMDAs $347,575 9,801 2.82% $413,426 $11,052 2.67% $434,370 $12,858 2.96%
Time Deposits 298,703 16,365 5.48 229,915 9,832 4.28 241,720 10,963 4.54
Short-Term Borrowings 8,220 532 6.47 5,855 236 4.03 7,998 245 3.06
Long-Term Debt 12,970 874 6.74 11,029 563 5.10 8,897 466 5.24
Total Interest
Bearing Liabilities 667,468 27,572 4.13 660,225 21,683 3.28 692,985 24,532 3.54
Demand Deposits 92,976 96,835 99,269
Other Liabilities 9,098 8,941 8,425
Stockholders' Equity 80,282 72,235 70,739
Total Liabilities and
Stockholders' Equity $849,824 $838,236 $871,418
Net Interest Income
(Tax Equivalent Basis) 40,656 40,533 39,462
Tax Equivalent Adjustment (1,057) (1,229) (1,382)
Net Interest Income $39,599 $39,304 $38,080
Net Interest Rate Spread 4.38% 4.61% 4.25%
Net Interest Margin 5.07% 5.14% 4.81%
Non-accrual loans are included in the above analysis and the related income
on these loans is deemed immaterial.
Portions of income earned on certain Commercial Loans, U.S. Government
Obligations and Obligations of State and Political Subdivisions are exempt
from Federal and/or State taxation. Appropriate adjustments have been made to
reflect the equivalent amount of taxable income that would have been
necessary to generate an equal amount of after tax income. The taxable
equivalent adjustment is based on a marginal Federal income tax rate of 35%
in 1995 and 34% in 1994, and 1993 along with a marginal State income tax rate
of 9.675%, 10.13%, and 10.35% in 1995, 1994 and 1993 respectively.
For the purposes of this analysis, Securities Available for Sale are stated
at average amortized cost and Stockholders' Equity is unadjusted for the
effects of SFAS No. 115.
</TABLE>
(PAGE 18)
<TABLE>
ANALYSIS OF VARIANCE IN NET INTEREST INCOME DUE TO VOLUME AND RATES
The following table sets forth the dollar amounts of interest income (on a
taxable equivalent basis) and interest expense and changes therein resulting
from changes in volume and changes in rate. The change in interest due to
both rate and volume has been allocated to change due to volume and change
due to rate based on the percentage relationship of such variances to each
other.
<CAPTION>
1995 vs. 1994 1994 vs. 1993
Total Increase/(Decrease) Total Increase/(Decrease)
Increase/ Due to Change in Increase/ Due to Change in
(Decrease) Volume Rate (Decrease) Volume Rate
Interest Earned: ($000 Omitted)
<S> <C> <C> <C> <C> <C> <C>
Loans
Taxable $4,791 $ (73) $4,864 $ (786) $(1,823) $1,037
Tax-Exempt 4 (45) 49 (323) (93) (230)
Investment Securities
Taxable 481 (20) 501 (376) (336) (40)
Tax-Exempt (315) (100) (215) (364) (278) (86)
Federal Funds Sold 1,041 895 146 64 (47) 111
Interest Bearing Deposits 10 (3) 13 7 4 3
Changes in Total Interest Income 6,012 654 5,358 (1,778) (2,573) 795
Interest Expense Incurred:
Regular Savings, NOW and MMDAs (1,251) (1,832) 581 (1,806) (600) (1,206)
Time Deposits 6,533 3,368 3,165 (1,131) (521) (610)
Short-Term Borrowings 296 118 178 (9) (75) 66
Long-Term Debt 311 110 201 97 109 (12)
Changes in Total Interest Expense 5,889 1,764 4,125 (2,849) (1,087) (1,762)
Change in Net Interest Income $ 123 $(1,110) $1,233 $1,071 $(1,486) $2,557
</TABLE>
Income Taxes
Income tax expense for 1995 was $3.0 million as compared to income tax
expense of $3.8 million in 1994 and an income tax benefit of $1.2 million in
1993.
The effective income tax rates were 27%, 34% and 27% for 1995, 1994 and 1993,
respectively. The marginal rate for Federal Income Taxes was 34% in 1995,
1994 and 1993. Income taxes for financial reporting purposes differ from the
amount computed by applying the statutory rate to income before taxes. The
difference is due primarily to tax-exempt income from certain loans and
investment securities and nondeductible expenses. The decrease in the
effective tax rate for 1995 is primarily a result of New York State tax
benefits resulting from the Bulk Sale and re-evaluations of reserves related
to deferred Federal tax assets in light of the sale. Refer to Note 9 of the
Notes to Consolidated Financial Statements for a more comprehensive analysis
of the provision for income taxes.
The Company accounts for income taxes in conformity with Statement of
Financial Accounting Standards No. 109 (SFAS No. 109), Accounting for Income
Taxes. SFAS No. 109 adopts what is known as the liability method of
accounting for deferred taxes. The liability method requires recognition of a
tax liability, or asset, for the deferred tax consequences of events that
have occurred at the date of the financial statements. Subsequent changes in
tax rates and other tax law provisions are to be reflected in the measurement
of those tax liabilities and assets and are to be recognized in net income
when the changes are enacted.
(PAGE 19)
Asset/Liability Management
The Company, in order to insure that the risk to earnings from changes in
interest rates is maintained within acceptable limits, manages these risks
through its asset/liability management function.
Asset/liability management at Evergreen consists primarily of, the interest
rate sensitivity "gap" analysis, and simulations of net interest income under
alternative balance sheet structures incorporating a "rate shock" to measure
earnings volatility due to an immediate increase or decrease in market
interest rates of up to 200 basis points. The Company has established
guidelines for acceptable levels of interest rate risk and monitors the
effects of changing interest rates and potential changes in interest rates on
a continuous basis under the supervision of the corporate Asset/Liability
Committee.
The following table shows the interest rate sensitivity gaps as of December
31, 1995:
<TABLE>
<CAPTION>
Balance Maturing or Subject to Repricing
After 3 Mo. After 1 Year
Within But Within But Within After
3 Months 1 Year 5 Years 5 Years Total
Interest-Earning Assets: ($000 Omitted)
<S> <C> <C> <C> <C> <C>
Securities Available for Sale
at Amortized Cost $ 34,841 $ 35,001 $103,561 $ 16,592 $189,995
Securities Held to Maturity 1,894 5,183 12,455 3,596 23,128
Commercial Loans 172,340 16,730 22,766 18,537 230,373
Mortgage Loans 75,906 49,102 72,255 49,304 246,567
Other Earning Assets 24,503 25,055 76,359 1,941 127,858
Total Earning Assets 309,484 131,071 287,396 89,970 817,921
Excess Fair Value Over Cost of Securities
Available for Sale 790
Other Assets 52,712
Total Assets $871,423
Interest-Bearing Liabilities:
Savings $ 33,861 $ -- $101,584 $ -- $135,445
NOW and Money Market
Deposit Accounts 102,387 -- 102,386 -- 204,773
Certificates of Deposit over $100M 43,464 19,883 7,267 -- 70,614
Other Time Deposits 79,909 95,061 62,555 4,487 242,012
Securities Sold Under Agreement
to Repurchase and Federal
Funds Purchased 400 -- -- -- 400
Other Short-Term Borrowings 2,860 -- -- -- 2,860
Long-Term Debt 6,055 436 8,466 8,518 23,475
Total Interest-Bearing Liabilities 268,936 115,380 282,258 13,005 679,579
Demand Deposits 97,380
Other Liabilities & Equity 94,464
Total Liabilities & Equity $871,423
Interest Rate Sensitivity Gap $ 40,548 $ 15,691 $ 5,138 $ 76,965
Cumulative Interest Rate Sensitivity Gap $ 40,548 $ 56,239 $ 61,377 $138,342 $138,342
</TABLE>
Interest rate gap analysis provides a static viewpoint of the repricing
characteristics of the entire balance sheet. It is prepared by scheduling
assets and liabilities into time bands based on their next opportunity to
reprice.
In computing the interest rate sensitivity gap, securities available for sale
and securities held to maturity are determined to reprice at the earlier of
maturity (including scheduled monthly principal repayments and anticipated
principal prepayments of securities collateralized by mortgages) or the
contractual repricing date. Monthly amortization and prepayments of fixed
rate mortgage loans have been adjusted to reflect anticipated principal
repayments above contractual terms, all other loans are presented based on
contractual
(PAGE 20)
terms. Savings, NOW and Money Market deposit accounts are
allocated based on management assumptions as to their interest rate
sensitivity over an entire interest rate cycle even though they are subject
to immediate withdrawal.
At December 31, 1995 the Company exhibited a positive, or asset sensitive,
gap position. Consequently, if interest rates continue to fall, and all other
variables remained fixed, it may be assumed that net interest income would
decrease. Were rates to increase, net interest income might be expected to
increase if all other variables remained constant.
Simple gap analysis measures the Company's exposure at a particular point in
time. Moreover, gap analysis does not adequately reveal timing differences
within broad time frames, delays in the repricing of certain assets or
liabilities when market rates change, or changes in spreads between different
markets. Accordingly, management supplements its gap analysis with simulation
analysis of net interest income under a variety of alternative market
interest rate scenarios. The Company's simulation modeling indicates the
potential changes to net interest income under the various rate shock
scenarios employed are well within the guidelines of acceptable levels.
The Company does not currently utilize derivative instruments such interest
rate options, futures, or swaps to manage the Company's interest rate risk,
although it may do so from time to time in the future.
The following table sets forth the maturities of the Company's consolidated
loan portfolio, excluding Real Estate Mortgage, Installment, and Other Loans
(loans are categorized based on the contract time period rather than based on
when the loan reprices):
<TABLE>
<CAPTION>
($000 Omitted)
Loans at December 31, 1995, Maturing: Within Within After
1 Year <F1> 1 to 5 Years 5 Years Total
<S> <C> <C> <C> <C>
Commercial $58,178 $102,845 $69,350 $230,373
Real Estate Construction 1,992 -- -- 1,992
Total $60,170 $102,845 $69,350 $232,365
Loans Maturing After 1 Year:
With Pre-Determined Interest Rate $ 37,606
With Floating Interest Rate 134,589
Total $172,195
<FN>
<F1> Includes demand loans having no stated schedule of prepayments and no
stated maturity and certain time loans that, in the ordinary course of
business, will be renewed, in whole or in part as to principal amount,
at interest rates prevailing at the date of renewal.
</TABLE>
Non-Performing Assets
Non-performing assets consist of non-performing loans, other real estate and
other forms of repossessed assets. Non-performing loans are composed of (1)
loans on a non-accrual basis, (2) loans which are contractually past due 90
days or more as to interest or principal payments but have not been
classified as non-accrual and (3) loans whose terms have been restructured to
provide a reduction or deferral of interest or principal because of a
deterioration in the financial position of the borrower.
The Company's policy with regard to non-accrual loans varies by the type of
loan involved. Generally, commercial, financial and agricultural loans are
placed on a non-accrual status when they are 90 days past due unless they are
well secured and in the process of collection, or regardless of the past due
status of the loan when management determines that the complete recovery of
principal and interest is in doubt. As a matter of general policy, consumer
loans are charged off after they become 120 days past due unless they are
well secured and in the process of collection; however, in some instances,
consumer loans are classified non-accrual when payments are past due 90 days.
Mortgage loans are not generally placed on a non-accrual basis unless it
is determined that the value or marketability of real estate securing the loans
has deteriorated to the point that a potential loss of principal or interest
exists. Once a loan is on a non-accrual basis, interest is recorded only as
received and only if the loan principal is deemed fully collectible. Interest
payments received on loans not deemed fully collectible are applied against
the principal balance until management determines that the principal balance
is fully collectible. Interest previously accrued on non-accrual loans which
has not been paid is reversed and charged against income during the period in
which the loan is placed on non-accrual status. Interest on restructured
loans is only recognized in current income at the renegotiated rate and then
only to the extent that such interest is deemed collectible.
Non-performing assets were $9,772,000 at December 31, 1995. This represents a
decrease of $20,150,000 from $29,922,000 at December 31, 1994. Non-performing
loans decreased $13,513,000 since December 31, 1994 to $5,912,000 at
December 31, 1995. This decrease in non-performing assets was primarily the
result of the Bulk Sale.
Other real estate net of transfers, losses and write-downs, decreased
$6,535,000 since December 31, 1994 to $3,784,000 at December 31, 1995.
Non-accrual loans decreased $9,568,000 from $14,139,000 at December 31, 1994
to $4,571,000 at December 31, 1995. Management continually evaluates the
adequacy of the collateral on non-performing loans and charges off that
portion of the loan not considered recoverable.
(PAGE 21)
Management considers restructuring a loan when the facts and circumstances
indicate that working with the borrower will
maximize potential for principal repayment while minimizing
the risk of loss. Restructured loans decreased $2,518,000 during 1995 to
$138,000 at December 31, 1995. The balance represents loans whose original
terms have been modified as to payment schedule or rate of interest, all of
these loans are past due 90 days at December 31, 1995. The majority of the
restructured loans have small balances and are secured by real estate.
The decrease in other real estate represents loans transferred to other real
estate of $2,586,000 since December 31, 1994 offset by losses and
write-downs of $781,000 and net proceeds received on other real estate sales
of $8,340,000 for the year ended December 31, 1995.
The following table presents information concerning non-performing assets:
<TABLE>
<CAPTION>
December 31,
($000 Omitted) 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
COMMERCIAL LOANS
Non-Accrual $4,191 $13,951 $32,299 $43,236 $ 5,347
Past Due 90 Days and Still Accruing 387 1,053 1,430 5,878 16,706
Restructured 138 2,656 1,476 3,196 1,117
Total Non-Performing Commercial 4,716 17,660 35,205 52,310 23,170
REAL ESTATE LOANS
Non-Accrual 334 188 406 14 311
Past Due 90 Days and Still Accruing 491 1,172 1,255 1,125 2,576
Total Non-Performing Mortgage 825 1,360 1,661 1,139 2,887
INSTALLMENT LOANS
Non-Accrual 46 -- -- 44 69
Past Due 90 Days and Still Accruing 325 405 282 731 988
Total Non-Performing Installment 371 405 282 775 1,057
Total Non-Performing Loans 5,912 19,425 37,148 54,224 27,114
Other Real Estate 3,784 10,319 2,750 1,798 1,057
Repossessed Assets -- Other 76 178 606 930 104
Total Non-Performing Assets $9,772 $29,922 $40,504 $56,952 $28,275
Non-Performing Assets as a Percent of Total Loans --
Net of Unearned Income 1.65% 5.18% 7.02% 9.17% 4.49%
</TABLE>
Of the $4.6 million of loans in non-accrual status as of December 31, 1995,
approximately $4.3 million represents loans which are secured, primarily by
real estate.
At December 31, 1995, the allowance for loan losses as a percent of total
non-performing loans was 204.9 percent. This compares to 96.5 percent at
December 31, 1994. The coverage percent at December 31, 1995, compares
favorably to that ratio for peer group institutions.
In addition to the total non-performing loans set forth above, other
"classified" loans were $13.5 million at December 31, 1995, compared to
$13.1 million at December 31, 1994. These are loans for which management has
information which indicates that the borrower may not be able to comply with
present payment terms. Since there is some doubt about the ability of these
borrowers to comply with payment terms, management has taken these loans
under greater consideration in determining the adequacy of the allowance for
loan losses.
(PAGE 22)
Loans
The total loan portfolio, net of unearned income, increased $14.9 million to
$592.2 million at the end of 1995 compared to $577.3 million at year end
1994. Increases in residential real estate and consumer loans were offset by
continued decreases in commercial loan balances.
Commercial loans decreased by $26.8 million in 1995 to a balance of $230.4
million, following a decrease of $44.6 million in 1994 to $257.2 million. The
decrease in the commercial loan portfolio in 1995 and 1994 was accompanied by
significant improvements in the credit quality of the loan portfolio, as
management resolved significant portions of its non-performing loans through
workouts and also, in 1995, the Bulk Sale. For 1996, management currently
expects the commercial loan portfolio to remain relatively stable. However,
meaningful growth in the commercial loan portfolio is dependent on improved
economic conditions in the upstate New York regions in which the Company
operates.
Residential mortgage loans increased to $244.6 million at December 31, 1995,
a $14.8 million increase over 1994's balance of $229.8 million. In 1994,
residential mortgage loans increased by $25.5 over 1993. The increase in 1995
was attributed to improved focus on residential loan origination,
notwithstanding a decline in refinancing opportunities as interest rates
rose. The significant increase in residential loans in 1994 over 1993 was
largely attributed to the lower mortgage interest rates that made refinancing
attractive to many homeowners.
Consumer loans increased to $114.9 million at December 31, 1995, a $27.5
million increase over 1994's balance of $87.4 million. The significant
increase in Consumer Loans in 1995 was due primarily to the introduction of
new products such as the Touch-Tone Loan Program, and improved penetration
into the automobile dealer indirect markets. The most significant portion of
the new consumer loans in 1995 were secured by first liens on automobiles. In
1996, continued success of the Touch-Tone Loan Program may decrease the
proportion of the Company's Consumer Loans that are secured. Consumer loans
increased by $19.6 million in 1994 over 1993, this was primarily attributed
to a new focus in the automobile dealer indirect market.
The following table sets forth the classification of the Evergreen
consolidated loans, net of unearned income, by major category:
<TABLE>
<CAPTION>
($000 Omitted)
December 31, 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Commercial $230,373 $257,152 $301,756 $359,137 $343,418
Real Estate Construction 1,992 2,574 2,538 2,127 2,629
Real Estate Mortgage 244,575 229,799 204,276 194,535 202,279
Installment 114,874 87,352 67,794 63,899 78,729
Other 384 452 987 1,281 2,452
Total Loans $592,198 $577,329 $577,351 $620,979 $629,507
</TABLE>
Allowance for Loan Losses
The Company's allowance for loan losses decreased $6.6 million from $18.8
million at December 31, 1994 to $12.2 million at December 31, 1995. The
principal cause of the reduction was a net charge off of $6.3 million taken
as a result of the Bulk Sale. The Bulk Sale and other resolutions of
non-performing assets has caused the Company's ratios of allowance for loan
losses to non-performing loans and non-performing assets to steadily improve.
The provision for loan losses amounted to $1.8 million for 1995 as compared
to $2.2 million for 1994, a decrease of $.4 million or 18.6%. This decrease
resulted from improvements in the credit quality of the loan portfolio during
1995. The improved credit quality is reflected in the decrease in
non-performing loans of approximately $13 million at December 31, 1995, to
$5.9 million, a nearly 70% decrease from 1994's level of non-performing
loans. In 1994, the provision for loan losses was $2.2 million, a significant
decrease from 1993's level of $15.4 million, when the Company recorded
reserves for the higher level of non-performing loans at that time.
The allowance for loan losses represents amounts available for future credit
losses and reflects management's ongoing detailed review of certain
individual credits, as well as analysis of the historic net charge off
experience of the portfolio, an evaluation of current and anticipated
economic conditions, peer group statistics and other pertinent factors. Based
on these analyses, the Company believes that its year end reserve is
adequate.
Loans (or portions thereof) deemed uncollectible are charged against the
allowance, while recoveries of amounts previously charged off are added to
the allowance. Provisions for loan losses charged to earnings are added to
the allowance. Amounts are charged off once the probability of loss has been
determined, with consideration given to factors such as the customer's
financial condition, underlying collateral and guarantees, and general and
industry economic conditions.
(PAGE 23)
The following table summarizes year-end loan balances, average loans
outstanding and changes in the allowance for loan losses due to loan losses,
recoveries and additions charged to expense:
<TABLE>
<CAPTION>
($000 Omitted)
Year Ended December 31, 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Amount of Loans Outstanding End of Year
(Less Unearned Income) $592,198 $577,329 $577,351 $620,979 $629,507
Average Loans Outstanding During Year
(Less Average Unearned Income) $579,116 $580,478 $603,356 $629,014 $631,839
Balance of Allowance at Beginning of Year $ 18,752 $ 18,754 $ 13,357 $ 8,842 $ 5,840
Loans Charged Off:
Commercial, Financial and Agricultural (8,569) (4,021) (10,597) (8,625) (4,358)
Real Estate (227) (283) (321) (257) (47)
Consumer (742) (477) (919) (741) (842)
Total Loans Charged Off (9,538) (4,781) (11,837) (9,623) (5,247)
Recoveries of Loans Previously Charged Off:
Commercial, Financial and Agricultural 881 2,275 1,586 219 36
Real Estate 16 84 43 42 4
Consumer 204 209 228 202 111
Total Recoveries 1,101 2,568 1,857 463 151
Net Loans Charged Off (8,437) (2,213) (9,980) (9,160) (5,096)
Additions to Allowance Charged
to Operating Expense 1,800 2,211 15,377 13,675 8,098
Balance of Allowance at End of Year $ 12,115 $ 18,752 $ 18,754 $ 13,357 $ 8,842
Total Non-Performing Loans as a Percent
of Total Loans -- Net of Unearned Income 1.00% 3.36% 6.43% 8.73% 4.31%
Net Charge-Offs as Percent of Average Loans Outstanding
During Year (Less Average Unearned Income) 1.46 .38 1.65 1.46 .81
Net Charge-Offs as Percent of Allowance
at Beginning of Year 44.99 11.80 74.72 103.60 87.26
Allowance as Percent of Loans Outstanding
at End of Year (Less Unearned Income) 2.05 3.25 3.25 2.15 1.40
Allowance as Percent of Non-Performing Loans Outstanding
at End of Year (Less Unearned Income) 204.92 96.54 50.48 24.63 32.61
</TABLE>
(PAGE 24)
Other (Non-Interest) Income
Non-Interest income decreased $1,292,000 or17.2% in 1995 as compared to 1994
which was a decrease of $590,000 from 1993. Service charges on deposit
accounts increased $24,000 or 0.9% in 1995 over 1994, and decreased $289,000,
or 9.5% in 1994 versus 1993. Trust Department fees decreased $177,000 or 7.4%
in 1995, following an increase of $105,000 in 1994. Credit card merchant
discount decreased $662,000 from the 1994 level which decreased $592,000
from 1993. The 100.0% and 47.2% decrease in 1995 and 1994 respectively are
attributable to the sale of the merchant card portfolio in the first quarter
of 1994. Similar expense reductions were realized through the sale.
Net losses on security transactions of $137,000 and $93,000 during 1995 and
1994, respectively were the result of management's decision to replace
certain under performing securities.
Miscellaneous other income decreased $433,000 in 1995 or 24.2%, following an
increase of $355,000 or 24.7% in 1994. The decrease in other income in the
current year and increase in 1994 over 1993 was caused primarily by a
$152,000 liquidating dividend received by the Company from its past data
processor and a $202,000 gain on the sale of the credit card merchant
portfolio. Management does not see a material change in the trend of other
income in the foreseeable future.
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
Trust Department
Fees $2,213 $2,390 $2,285
Services Charges on
Deposit Accounts 2,791 2,767 3,056
Credit Card Merchant Discount -- 662 1,254
Net (Loss)/Gain on Security
Transactions (137) (93) 76
Miscellaneous
Other Income 1,357 1,790 1,435
Total $6,224 $7,516 $8,106
</TABLE>
Other (Non-Interest) Expenses
Non-Interest expense decreased $928,000 or 2.8% in 1995 following a decrease
of $1,832,000 or 5.2% in 1994. The decreases were primarily due to a $938,000
decrease in FDIC insurance during 1995 and a $1,417,000 decrease in net loss
of other real estate during 1994.
Salaries and benefits, which represent the largest portion of other
non-interest expense, recorded an increase in 1995 of $677,000 or 4.5% from
1994 and an increase of $1,109,000, or 7.9% increase over 1993. 1995's
increase over 1994 was primarily the result of merit increases and expenses
associated with the Corporate reduction in force. 1994's increase over 1993
primarily was the result of the Company's moving to fully staff its new
credit quality function in 1994. The full time equivalent staff was 392 and
428 at year-end 1995 and 1994, respectively.
FDIC insurance expense decreased $938,000 or 46.8% in 1995, to $1,065,000
from $2,003,000 in 1994, which was a $50,000 or 2.6% increase over the 1993
expense. The FDIC has indicated that the Bank Insurance Fund has been
recapitalized in 1995, and has indicated a willingness to further reduce
rates in 1996.
Professional fees decreased $251,000, or13.1%, in 1995, to $1,659,000 from
$1,910,000 in 1994. The principal force behind this expense decrease is
lesser utilization of lawyers and consultants engaged to assist in the
reduction of non-performing assets.
Total non-interest expense as a percentage of average assets was 3.8%, 4.0%
and 4.1% in 1995, 1994 and 1993, respectively. This ratio decreased primarily
due to salaries and benefits expense increases being offset by decreases in
FDIC insurance, credit card interchange fees, professional fees and net
losses on other real estate.
Management, except as noted above, does not anticipate a material change in
the trend of other non-interest expenses in the foreseeable future.
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
Salaries & Benefits $15,809 $15,132 $14,023
FDIC Insurance 1,065 2,003 1,953
Data Processing 2,092 2,092 1,955
Professional Services 1,659 1,910 2,826
Occupancy 2,017 1,819 1,983
Furniture & Equipment 1,852 1,881 2,016
Advertising 729 878 864
Net Loss on Other Real Estate 781 869 2,286
Supplies and Printing 1,038 760 823
Credit Card Interchange Fees -- 496 1,021
Miscellaneous
Other Expenses 5,558 5,688 5,610
Total $32,600 $33,528 $35,360
</TABLE>
(PAGE 25)
Liquidity
Liquidity represents a banking enterprise's continuing ability to meet its
funding needs, such as loan demand and the maturity or withdrawal of deposits
and other financial obligations. In addition to maintaining liquid assets,
factors such as capital position, profitability, asset quality and
availability of funding, affect a bank's ability to meet its liquidity needs.
The Company's primary sources of liquidity continue to be federal funds sold,
securities available for sale and investment securities maturing within one
year.
The securities available for sale portfolio was created in 1992 largely from
securities previously held as investment securities. The available for sale
portfolio is carried at estimated fair value and is available to support
funding requirements.
Other sources of liquidity include repayment of loans and the federal funds
market (a vehicle banks use to trade surplus funds). There is also balance
sheet liquidity in the form of assets that can collateralize securities to be
offered for sale or borrowings. The Company, through the bank subsidiary, has
the availability to borrow up to $42.2 million from the Federal Home Loan
Bank of New York (FHLB) (upon purchase of required FHLB stock) through its
line of credit program. In addition, the subsidiary bank is eligible to
borrow up to 30% of assets under the FHLB advance program subject to FHLB
stock level requirements, collateral requirements and individual advance
approvals based on FHLB credit standards. The Company also has the
availability to borrow up to $7.6 million at the Federal Reserve Discount
Window along with informal federal funds purchase agreements with correspondent
banks of up to $13.0 million. When the Company experiences a net outflow of
funds, maturing certificates of deposit with other banks and maturing
long-term investments are not reinvested until sufficient excess funds are
available. The Company on average during 1995 sold $22.9 million daily in
federal funds, in contrast, purchases and other short-term borrowings
averaged $8.2 million. Net cash provided by operating activities was $15.1
million for 1995 as compared to $12.8 million for 1994. Net cash used by
investing activities was $29.0 million in 1995 compared to net cash used of
$6.6 million in 1994. This increase is primarily a result of net increases in
loans, net of loan sales, compared to the prior year of $13.2 million and
securities of $10.2 million. Net cash provided by financing activities
increased $26.5 million to $23.0 million in 1995. This increase is primarily
a result of a $14.4 million increase in cash flow from deposits and $13.5
million in additions to long term-borrowings. The level of cash and cash
equivalents was $43.6 million at December 31, 1995.
The Company has no significant capital expenditure commitments outstanding at
December 31, 1995. Capital expenditures in 1995 of approximately $1.3 million
consisted primarily of office furniture, data processing equipment and
software. In 1996, the Company may begin to expand the number of branches
from the current number of 24, but no commitments have yet been made. Such
expenditures would not be expected to be material.
The Parent Company (see Note 17 to the financial statements)
held cash and readily liquefiable assets of $1.0 million.
Securities
The Company's securities portfolio in the aggregate increased to $214 million
at December 31, 1995, a $17.1 million increase over 1994's balance of $196.9
million. In 1994, the aggregate securities portfolio decreased by $12.1
million from 1993. This decrease was primarily associated with declines of
fair value in the available for sale portfolio. The increase in the
securities portfolio in 1995 was largely attributed to the Company's improved
liquidity, due primarily to proceeds from the Bulk Sale and moderate loan
demand. Securities held to maturity comprise a diminishing proportion,
approximately 10%, of the aggregate securities portfolio at December 31,
1995. This is consistent with management's objective to maintain flexibility
and adequate liquidity by classifying most securities as available for sale.
The following table displays the distribution of the securities portfolio by
major category and maturity:
<TABLE>
Securities Available for Sale & Securities Held to Maturity
As of December 31, 1995:
<CAPTION>
($000 Omitted)
U.S. Treasury State and Total Securities Available for Sale
& Agency<F1> Political Subdivisions Other and Securities Held to Maturity
Amortized Fair Amortized Fair Amortized Fair Amortized Fair
Cost Yield Value Cost Yield Value Cost Yield Value Cost Yield Value
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
0-1 year $ 37,663 5.22% $ 37,565 $ 6,657 6.69% $ 6,762 $ 31 7.13% $ 32 $ 44,351 5.44% $ 44,359
1-5 years 99,207 6.60 100,069 6,415 7.07 6,761 3,795 6.46 3,701 109,417 6.62 110,531
5-10 years 12,982 6.69 12,965 5,717 8.61 6,529 -- -- -- 18,699 7.28 19,494
Over 10 years 40,402 7.43 40,651 254 5.40 265 -- -- -- 40,656 7.42 40,916
Total $190,254 6.51% $191,250 $19,043 7.38% $20,317 $3,826 6.48% $3,733 $213,123 6.59% $215,300
Avg. Maturity: 3.0 years 3.2 years 2.8 years 3.0 years
<FN>
<F1> Includes $157,386 of mortgage-backed securities which are secured by
agencies of the U.S. government.
</TABLE>
(PAGE 26)
Capital
At December 31, 1995, and 1994 stockholders' equity was $83.0 million and
$73.6 million, respectively. This represents an increase of $9.4 million
or 12.8%. This compares to an increase of $3,716,000 or 5.3% for 1994 versus
to 1993. The 1995 increase primarily represents the retention of $6.3 million
of earnings in 1995 and a $4.3 million available for sale securities
adjustment, net of deferred tax expense. During 1995, the Company paid $2.1
million in dividends or $.45 per share and purchased approximately 103,000
shares of treasury stock at a cost of $2.0 million. The adequacy of the
Company's capital is reviewed by management on an ongoing basis in relation
to the size, composition and quality of the Company's resources and in
conjunction with regulatory guidelines and industry standards.
In early 1990, United States bank regulators issued guidelines with respect
to the capital adequacy of banks and bank holding companies. These guidelines
supplement the existing definitions of capital for regulatory purposes and
establish minimum capital standards related to the level of assets and
off-balance sheet exposures, adjusted for credit risk. Specifically, the
guidelines categorize assets on and off-balance sheet into four
risk-weightings and require banking institutions to maintain minimum ratios
of capital to risk-weighted assets. Tier 1 capital is essentially comprised
of tangible stockholders' equity for common stock and certain perpetual
preferred stock, and Tier 2 capital includes a portion of the reserve for
loan losses, certain qualifying long-term debt and preferred stock that does
not qualify as Tier 1. The regulatory minimum for Tier 1 capital is 4.0% of
risk-adjusted assets while the minimum for the aggregate of Tier 1 and Tier 2
capital is 8.0%.
The Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) and
the Federal Deposit Insurance Corporation Improvement Act (FDICIA) are laws
enacted that have or will change various aspects of the banking industry. In
part these laws deal with regulatory oversight and reporting.
The following table sets forth the Company's risk based capital ratios as of
December 31, 1995 and 1994, and the minimum regulatory guidelines effective
for year-end 1995:
<TABLE>
<CAPTION>
Evergreen Evergreen Minimum
Regulatory Bancorp, Inc. Bancorp, Inc. Regulatory
Ratios Dec. 31, 1995 Dec. 31, 1994 Guidelines
<S> <C> <C> <C>
Leverage Ratio 9.5% 9.2% 3.0%
Tier 1 14.0% 13.5% 4.0%
Total Capital 15.2% 14.8% 8.0%
</TABLE>
<TABLE>
Rate of Internal Capital Generation
<CAPTION>
1995 1994 1993
<S> <C> <C> <C>
Return on
Average Assets .99% .87% (.38)%
Average Equity to
Average Assets 9.29 8.62 8.12
Return on
Average Equity 10.61 10.06 (4.70)
Earnings Retention Ratio 74.70 96.75 N/A
Internal Capital
Generation Ratio<F1> 7.93 9.73 N/A
N/A Not applicable when a net loss exists.
<FN>
<F1> Return on average equity times earnings retention ratio equal internal
capital generation ratio.
</TABLE>
Description of Business
Evergreen Bancorp, Inc. is registered as a bank holding company with the
Board of Governors of the Federal Reserve System under the Bank Holding
Company Act of 1956. It is regulated and supervised by the Board of Governors
of the Federal Reserve System. The Company has as its principal assets, the
outstanding shares of Evergreen Bank, N.A. Outside of its ownership of
Evergreen Bank, N.A., Evergreen Bancorp owns only a nominal amount of assets,
including an inactive venture capital subsidiary.
Evergreen Bank, N.A.'s principal banking office is located at 237 Glen
Street, Glens Falls, New York. In addition it operates 24 branches located in
seven counties in northeastern New York State as well as drive-in facilities
in Glens Falls and Granville and a separate operations center in downtown
Glens Falls. At December 31, 1995 Evergreen Bank, N.A. had assets of $861.3
million, deposits of $750.3 million and equity of $79.7 million.
Evergreen Bank, N.A. is a member of the Federal Reserve System and is subject
to regulations and supervision by the Federal Reserve and the Comptroller of
the Currency. Through Evergreen Bank, N.A., the holding company engages in
commercial and retail banking as well as trust services. A complete range of
banking services is provided including all forms of demand deposits, time
deposits and repurchase agreements as well as consumer, mortgage, business
and agricultural loans.
Evergreen Bank, N.A. offers safe deposit facilities, night depository, credit
cards and collection services. In addition, Evergreen Bank, N.A. facilitates
municipal bond transactions for customers and provides computer services with
respect to payroll processing and account reconciliation.
Evergreen Venture Capital, Inc. was formed for the purpose of financing small
businesses with high growth potential. This subsidiary is currently inactive
and has no assets, liabilities or equity as of December 31, 1995.
Evergreen Real Estate Appraisers, formed for the purpose of performing
appraisals of residential and commercial properties, was liquidated during
1995.
(PAGE 27)
<TABLE>
SUMMARY OF SELECTED FINANCIAL DATA
<CAPTION>
For the years ended December 31 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C>
Summary of Operations:
($000 Omitted)
Interest Income $ 67,171 $ 60,987 $ 62,612 $ 70,708 $ 79,694
Interest Expense 27,572 21,683 24,532 32,951 42,033
Net Interest Income 39,599 39,304 38,080 37,757 37,661
Provision for Loan Losses 1,800 2,211 15,377 13,675 8,098
Net Interest Income After
Provision for Loan
Losses 37,799 37,093 22,703 24,082 29,563
Other Income 6,224 7,516 8,106 11,476 7,319
Other Expenses 32,600 33,528 35,360 30,545 26,966
Income/(Loss) Before Income Taxes 11,423 11,081 (4,551) 5,013 9,916
Applicable Income Taxes/(Benefit) 3,043 3,816 (1,225) 1,403 2,907
Net Income/(Loss) $ 8,380 $ 7,265 $ (3,326) $ 3,610 $ 7,009
Per Common Share:
Net Income/(Loss) $ 1.78 $ 1.54 $ (.71) $ .77 $ 1.49
Cash Dividends .45 .05 .19 .76 .73
Average Balance Sheet Data (unaudited):
($000 Omitted)
Total Assets $849,824 $838,236 $871,418 $894,192 $855,498
Loans Net of Unearned Income and Allowance 562,368 560,998 584,577 618,369 623,489
Deposits 739,254 740,176 775,359 795,803 756,273
Stockholders' Equity 78,987 72,235 70,739 73,810 72,273
Return on Equity and Assets:
Return on Average Assets .99% .87% (.38)% .40% .82%
Return on Average Equity 10.61 10.06 (4.70) 4.89 9.70
Dividend Payout Ratio 25.30 3.25 N/A 98.75 48.94
Average Equity to Average Asset Ratio 9.29 8.62 8.12 8.25 8.45
</TABLE>
(PAGE 28)
<TABLE>
CONSOLIDATED STATEMENTS OF INCOME
<CAPTION>
($000 Omitted)
(Except Per Share Data)
For the Years Ended December 31 1995 1994 1993
<S> <C> <C> <C>
INTEREST INCOME
Interest and Fees on Loans $ 52,971 $ 48,231 $ 49,299
Interest and Dividends on Securities
Available for Sale and Held to Maturity:
U.S. Government and Agency Obligations 10,550 9,594 9,628
State and Municipal Obligations 1,718 2,179 2,299
Other 554 656 1,130
Interest on Balances with Banks 17 7 --
Interest on Federal Funds Sold 1,361 320 256
Total Interest Income 67,171 60,987 62,612
INTEREST EXPENSE
Interest on Deposits:
Regular Savings, NOW and Money
Market Deposit Accounts 9,801 11,052 12,858
Certificates of Deposit (in Denominations
of $100,000 or More) 3,492 1,419 1,348
Other Time 12,873 8,413 9,615
Interest on Short-Term Borrowings 532 236 245
Interest on Long-Term Debt 874 563 466
Total Interest Expense 27,572 21,683 24,532
Net Interest Income 39,599 39,304 38,080
Provision for Loan Losses (Note 5) 1,800 2,211 15,377
Net Interest Income after Provision
for Loan Losses 37,799 37,093 22,703
OTHER INCOME
Trust Department Income 2,213 2,390 2,285
Service Charges on Deposit Accounts 2,791 2,767 3,056
Credit Card Merchant Discount -- 662 1,254
Net (Losses)/Gains on Security Transactions (137) (93) 76
Other 1,357 1,790 1,435
Total Other Income 6,224 7,516 8,106
OTHER EXPENSE
Salaries and Employee Benefits 15,809 15,132 14,023
FDIC Insurance 1,065 2,003 1,953
Professional Services 1,659 1,910 2,826
Net Occupancy Expense of Bank Premises 2,017 1,819 1,983
Furniture and Equipment Expense 1,852 1,881 2,016
Net Loss on Other Real Estate 781 869 2,286
Other (Note 12) 9,417 9,914 10,273
Total Other Expense 32,600 33,528 35,360
Income/(Loss) Before Income Taxes 11,423 11,081 (4,551)
Applicable Income Taxes/(Benefit) (Note 9) 3,043 3,816 (1,225)
NET INCOME/(LOSS) $ 8,380 $ 7,265 $ (3,326)
Average Net Shares Outstanding 4,715,000 4,728,000 4,697,000
Net Income/(Loss) Per Common Share $ 1.78 $ 1.54 $ (.71)
See Notes to Consolidated Financial Statements.
</TABLE>
(PAGE 29)
<TABLE>
CONSOLIDATED STATEMENTS OF CONDITION
<CAPTION>
As of December 31 ($000 Omitted)
1995 1994
<S> <C> <C>
ASSETS
Cash and Cash Equivalents:
Cash and Due from Banks $ 31,021 $ 32,592
Federal Funds Sold 12,600 2,000
Total Cash and Cash Equivalents 43,621 34,592
Securities Available for Sale (Note 3) 190,785 161,079
Securities Held to Maturity (Note 3) 23,128 35,803
Loans (Note 4) 599,037 588,522
Less: Allowance for Loan Losses (Note 5) (12,115) (18,752)
Unearned Income (6,839) (11,193)
Net Loans 580,083 558,577
Bank Premises and Equipment (Note 6) 13,694 13,946
Other Real Estate Owned 3,784 10,319
Other Assets 16,328 19,302
TOTAL ASSETS $871,423 $833,618
LIABILITIES AND STOCKHOLDERS' EQUITY
Deposits:
Demand $ 97,380 $ 98,628
Regular Savings, NOW Accounts and
Money Market Deposit Accounts 340,218 372,381
Certificates of Deposit
(In Denominations of $100,000 or More) 70,614 61,485
Other Time 242,012 203,327
TOTAL DEPOSITS 750,224 735,821
Short-Term Borrowings (Note 7):
Securities Sold Under Agreements to Repurchase and
Federal Funds Purchased 400 1,418
Other 2,860 3,000
Total Short-Term Borrowings 3,260 4,418
Accrued Taxes and Other Liabilities 11,419 9,309
Long-Term Debt (Note 8) 23,475 10,469
TOTAL LIABILITIES 788,378 760,017
STOCKHOLDERS' EQUITY
Common Stock $3.33 1/3 Par Value: Shares Authorized 20,000,000,
Shares Issued 4,810,983 in 1995 and 4,765,253 in 1994 16,036 15,884
Surplus 6,680 6,141
Undivided Profits 63,065 56,811
Market Over/(Under) Cost of Securities
Available For Sale Net of Deferred Tax 474 (3,857)
Common Stock Subscribed by ESOP (967) (1,120)
Treasury Stock (122,268 Shares in 1995 and 19,359 in 1994) (2,243) (258)
TOTAL STOCKHOLDERS' EQUITY 83,045 73,601
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $871,423 $833,618
See Notes to Consolidated Financial Statements.
</TABLE>
(PAGE 30)
<TABLE>
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
<CAPTION>
($000 Omitted)
Common Market
Stock Over/(Under)
Common Undivided Treasury Subscribed Cost of
Stock Surplus Profits Stock By ESOP Securities Total
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1993 $15,709 $5,614 $54,000 $ (258) $(1,392) $ -- $73,673
Net Loss -- 1993 -- -- (3,326) -- -- -- (3,326)
Cash Dividends
($.19 per share) -- -- (892) -- -- -- (892)
Stock Issued (22,730 shares) 76 226 -- -- -- -- 302
Stock Vested in ESOP -- -- -- -- 128 -- 128
Balance at December 31, 1993 15,785 5,840 49,782 (258) (1,264) -- 69,885
Net Income -- 1994 -- -- 7,265 -- -- -- 7,265
Cash Dividends
($.05 per share) -- -- (236) -- -- -- (236)
Stock Issued (29,789 shares) 99 301 -- -- -- -- 400
Stock Vested in ESOP -- -- -- -- 144 -- 144
Change in Valuation
Allowance on Securities -- -- -- -- -- (3,857) (3,857)
Balance at December 31, 1994 15,884 6,141 56,811 (258) (1,120) (3,857) 73,601
Net Income -- 1995 -- -- 8,380 -- -- -- 8,380
Cash Dividends
($.45 per share) -- -- (2,126) -- -- -- (2,126)
Stock Issued (45,730 shares) 152 539 -- -- -- -- 691
Purchase of Treasury Stock
(102,909 shares) -- -- -- (1,985) -- -- (1,985)
Stock Vested in ESOP -- -- -- -- 153 -- 153
Change in Valuation
Allowance on Securities -- -- -- -- -- 4,331 4,331
Balance at December 31, 1995 $16,036 $6,680 $63,065 $(2,243) $ (967) $ 474 $83,045
See Notes to Consolidated Financial Statements.
</TABLE>
(PAGE 31)
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
<CAPTION>
($000 Omitted)
For the Years Ended December 31, 1995 1994 1993
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income/(Loss) $ 8,380 $ 7,265 $ (3,326)
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Proceeds from Sale of Credit Card Receivables -- -- 358
Net Change in Unearned Loan Fees 52 123 (80)
Net Change in Other Assets and Other Liabilities 707 89 1,146
Loss/(Gain) on Sale of Loans, Securities
and Other Real Estate 136 43 (285)
Decrease/(Increase) in Deferred Tax Benefit 1,489 (210) (1,797)
Loss on Write-Down of Other Real Estate 781 869 2,286
Loss on Disposition of Assets -- 31 185
Depreciation 1,515 1,572 1,711
Provision for Loan Losses 1,800 2,211 15,377
Amortization of Premiums & Accretion of
Discounts on Securities, Net 214 767 2,328
Net Cash Provided By Operating Activities 15,074 12,760 17,903
Cash Flows From Investing Activities:
Proceeds from Sales of Securities Available for Sale 8,404 24,872 2,184
Proceeds from Maturities of Securities Available for Sale 42,278 34,172 17,354
Purchases of Securities Available for Sale (73,505) (46,606) (32,734)
Proceeds from Sales of Securities Held to Maturity -- -- 3,974
Proceeds from Maturities of Securities Held to Maturity 23,021 3,043 57,068
Purchases of Securities Held to Maturity (10,361) (10,670) (48,092)
Proceeds from Sales of Loans 18,480 6,676 15,024
Change in Credit Card and Check Overdraft Receivables 331 100 865
Proceeds from Sales of Other Real Estate 8,340 2,300 3,842
Net (Increase)/Decrease in Loans (44,754) (19,778) 10,610
Capital Expenditures (1,263) (732) (1,166)
Net Cash (Used)/Provided by Investing Activities (29,029) (6,623) 28,929
Cash Flows From Financing Activities:
Net Increase/(Decrease) in Deposits 14,403 (207) (71,123)
Net (Decrease)/Increase in Short-Term Borrowings (1,158) (5,382) 5,449
Payments on Long Term Debt (341) (5,283) (227)
Proceeds from Issuance of Long-Term Debt 13,500 7,200 --
Proceeds from Issuance of Common Stock 691 400 302
Payments for Purchase of Treasury Shares (1,985) -- --
Dividends Paid (2,126) (236) (892)
Net Cash Provided/(Used) by Financing Activities 22,984 (3,508) (66,491)
Net Increase/(Decrease) in Cash and Cash Equivalents 9,029 2,629 (19,659)
Cash and Cash Equivalents at Beginning of Year 34,592 31,963 51,622
Cash and Cash Equivalents at End of Year $ 43,621 $ 34,592 $ 31,963
Supplemental Disclosure of Cash Flows:
Interest Paid $ 28,271 $ 21,366 $ 24,813
Taxes Paid $ 3,388 $ 4,068 $ 1,847
Supplemental Schedule of Non-Cash Investing and Financing Activities:
Certain properties which were foreclosed upon or title was otherwise
transferred to the Company were transferred from loans to other real estate
in the amount of $2,586,000, $10,738,000 and $7,005,000 in 1995, 1994, and
1993, respectively.
The Company borrowed $1,600,000 which was used to subscribe for common stock
of the Company in 1990. Payments were made on the ESOP loan in the amount of
$153,000, $144,000 and $128,000 in 1995, 1994 and 1993, respectively.
As a result of the adoption of SFAS No. 115, securities available for sale
are recorded at fair value. The unrealized gain on these securities was
$790,000 at December 31, 1995. The adjustment to stockholders' equity for the
unrealized gain was $474,000 net of deferred income tax expense of $316,000
which is included as a decrease in the deferred tax asset. At December 31,
1994 securities available for sale had an unrealized loss of $6,429,000. The
adjustment to stockholders' equity net of deferred income tax benefit of
$2,572,000, was $3,857,000.
See Notes to Consolidated Financial Statements.
</TABLE>
(PAGE 32)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 Summary of Significant Accounting Policies
The accounting and reporting policies of Evergreen Bancorp, Inc. (Company)
and its subsidiaries, are in accordance with generally accepted accounting
principles and general practices within the banking industry. The following
is a summary of the significant accounting policies used in the preparation
of the consolidated financial statements.
Consolidation -- The consolidated financial statements include the accounts of
the Company and its wholly-owned subsidiaries after elimination of
significant inter-company accounts and transactions.
Securities -- Management determines the appropriate classification of
securities at the time of purchase. If management has the intent and the
Company has the ability at the time of purchase to hold securities until
maturity, they are classified as securities held to maturity and carried at
amortized historical cost. If securities are purchased for the purpose of
selling them in the near term, they are classified as a trading securities
and are reported at fair value with unrealized holding gains and losses
reflected in current earnings. All other debt and equity securities are
classified as securities available for sale and are reported at fair value,
with net unrealized gains and losses reported, net of income taxes, as a
separate component of stockholders' equity. Premiums are amortized and
discounts accreted using a method which approximates the level-yield method.
Gains or losses on security transactions are based on the adjusted cost of
specific securities sold. Securities gains and losses are included in other
income. On January 1, 1994, the Company adopted Statement of Financial
Accounting Standards No. 115 (SFAS No. 115) Accounting for Certain
Investments in Debt and Equity Securities, and has provided the required
disclosures in Note 3.
Loans -- Loans are stated at the principal amount outstanding, net of unearned
discount and deferred fees. Interest on loans is computed by methods which
result in level rates of return on principal amounts outstanding. Net
deferred fees are amortized as yield adjustments using methods that provide
for a constant level-yield on the loan.
Commercial loans which are 90 days past due are placed on a non-accrual
status unless they are well secured and in the process of collection, or
regardless of the past due status of the loan when management determines that
the complete recovery of principal and interest is in doubt. Consumer loans
are generally charged off after they become 120 days past due. Mortgage loans
are not generally placed on a non-accrual basis unless the value of the real
estate has deteriorated to the point that a potential loss of principal or
interest exists. Amortization of related deferred fees is suspended when a
loan is placed on a non-accrual status.
On May 31, 1993, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 114, Accounting by Creditors for
Impairment of a Loan, (SFAS No. 114). SFAS No. 114, was amended by SFAS No.
118, Accounting by Creditors for Impairment of a Loan -- Income Recognition
and Disclosure, (SFAS No. 118). These Statements prescribe recognition
criteria for loan impairment and measurement methods for certain impaired
loans, and loans whose terms are modified in a troubled debt restructuring
subsequent to the adoption of SFAS No. 114. As of January 1, 1995, the
Company has adopted the provisions of SFAS No. 114 and SFAS No. 118 and has
provided the required disclosures. The accompanying financial statements
reflect the effect of these new pronouncements. Details of the effect of
these new statements are included in Note 4. The adoption of SFAS No. 114
and SFAS No. 118 did not have a material effect on the Company's consolidated
financial position or results of operations.
In May 1995, the Financial Accounting Standards Board issued SFAS No. 122,
Accounting for Mortgage Servicing Rights, which amends SFAS No. 65 Accounting
for Certain Mortgage Banking Activities. SFAS No. 122 requires that entities
recognize as separate assets, the right to service mortgage loans for others,
regardless of how those servicing rights are acquired. Additionally, SFAS
No. 122 requires that the capitalized mortgage servicing rights be assessed
for impairment based on the fair value of those rights, and that impairment,
if any, be recognized through a valuation allowance. The Company will adopt
SFAS No. 122 in the first quarter of 1996. The adoption of SFAS No. 122 will
result in increased gains recognized on the sale of mortgage loans when
servicing rights are retained, offset by the amortization of the capitalized
mortgage servicing rights. Based on current volume of mortgage loans sold on
a servicing retained basis, management does not anticipate the adoption of
SFAS No. 122 will have a material effect on the Company's consolidated
financial position or results of operations.
Allowance for Loan Losses -- The allowance for loan losses is utilized to
absorb losses in the loan portfolio. Provisions for loan losses are charged
to operating expense and added to the allowance for loan losses. Losses are
charged to the allowance and recoveries are credited to it. As a result of
the adoption of SFAS No. 114, the allowance for loan losses related to loans
that are identified for evaluation in accordance with SFAS No. 114 is based
on discounted cash flows using the loans initial effective interest rate or
the fair value of the collateral for certain collateral dependent loans. The
allowance is maintained at a level deemed appropriate by management to
adequately provide for known and inherent risks in the present portfolio.
This evaluation is inherently subjective as it requires material estimates
including the amounts and timing of future cash flows expected to be received
on impaired loans that may be susceptible to significant change. While
management uses available information to recognize losses on loans, future
additions to the allowance may be necessary based on changes in economic
conditions. In addition, various regulatory agencies, as an integral part of
their examination process, periodically review the Company's allowance for
losses on loans. Such agencies may require the Company to recognize additions
to the allowance based on their judgements of information available to them
at the time of examination.
Bank Premises and Equipment -- Bank premises and equipment are stated at cost
less accumulated depreciation. Depreciation and amortization of bank premises
and equipment and leasehold improvements are calculated primarily by the
straight-line method over an estimated useful life ranging from 3 to 40 years
for financial reporting purposes and by accelerated methods for income tax
purposes.
Other Real Estate -- Includes real estate held for sale which has been acquired
through foreclosure or a similar conveyance of title. These assets are
reported at fair value at acquisition date, and subsequently reported at the
lower of its new cost basis or fair value less estimated costs to sell. Fair
value is determined by appraisal of the asset. Any asset writedown at the
date of acquisition is charged to the allowance for loan losses. Subsequent
write down, gain or expense incurred is included in other non-interest expense.
In May 1995, the Financial Accounting Standards Board issued SFAS No. 121,
Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed of. Various assets are excluded from the scope of SFAS
No. 121, including financial instruments which constitute the majority of the
Company's assets. For long-lived assets included in the scope of SFAS No.
121, such as premises and equip-
(PAGE 33)
ment, an impairment loss must be recognized
when the estimate of total undiscounted future cash flows attributable to the
asset is less than the asset's carrying amount. Measurement of the impairment
loss is determined by reducing the carrying amount of the asset to its fair
value. Long-lived assets to be disposed of such as other real estate or
premises to be sold, are reported at the lower of carrying amount or fair
value less cost to sell. The Company will adopt SFAS No. 121 in the first
quarter of 1996. Management anticipates that the adoption of SFAS No. 121
will not have a material effect on the Company's consolidated financial
statements.
Income Taxes -- The Company and its subsidiaries file consolidated Federal and
State income tax returns. Certain income and expense items are reported in
different time periods for financial statement purposes, than for income tax
purposes. Deferred income taxes are provided in recognition of such
differences. The Financial Accounting Standards Board issued statement No.
109 Accounting for Income Taxes which changed the Company's method of
accounting for income taxes from the deferred method required under APB 11 to
the asset and liability method. The Company adopted the provision of SFAS
No. 109 effective January 1, 1993 and has provided the required disclosures
in Note 9.
Retirement Plans -- The employees of the Company and its subsidiaries are
covered by non-contributory pension plans which cover substantially all
employees.
Earnings Per Share -- Earnings per common share is based on the daily average
of common shares outstanding during each year.
In October 1995, the Financial Accounting Standards Board issued SFAS No.
123, Accounting for Stock-Based Compensation, which establishes a fair value
based method of accounting for employee stock options, such as the Company's
stock option plans, or similar equity instruments. Under SFAS No. 123,
entities can recognize stock-based compensation expense in the basic
financialstatements using either (i) the intrinsic value based approach
set forth in the APB Opinion No. 25 or (ii) the fair value based method
introduced in SFAS No. 123. Entities electing to remain with the accounting in
APB Opinion 25, must make pro forma disclosures of net income and earnings per
share, as if the fair value based method of accounting defined in SFAS No. 123
had been applied. Under the method currently utilized by the Company (APB
Opinion No. 25), compensation expense is determined based upon the option's
intrinsic value, or the excess (if any) of the market price of the underlying
stock at the measurement date over the amount the employee is required to pay.
Under the fair value based method introduced by SFAS No. 123, compensation
expense is based on the option's estimated fair value at the grant date and is
generally recognized over the vesting period. Management anticipates that it
will elect to continue to measure stock-based compensation costs in
accordance with APB Opinion No. 25 and will adopt the pro forma disclosure
requirements of SFAS No. 123 in 1996.
Statement of Cash Flows -- Cash and cash equivalents as shown in the
Consolidated Statements of Condition and Statements of Cash Flow consist of
cash, balances due from banks and federal funds sold.
Financial Instruments -- The Company is a party to certain financial
instruments with off balance sheet risk such as commitments to extend credit
and standby letters of credit. The Company's policy is to record such
instruments when funded.
Use of Estimates -- Management of the Company has made a number of estimates
and assumptions relating to the reporting of assets and liabilities and the
disclosure of contingent assets and liabilities to prepare these financial
statements in conformity with generally accepted accounting principles.
Actual results could differ from those estimates.
(PAGE 34)
Note 2 Cash Balances
Cash balances on deposit at the Federal Reserve to meet regulatory
requirements amounted to $6,584,000 on December 31, 1995 and $6,176,000 on
December 31, 1994.
Note 3 Securities
On January 1, 1994, the Company adopted SFAS No. 115. Upon the adoption of
SFAS No. 115, the Company transferred the following securities into the
"available for sale" category from the "held to maturity" category:
<TABLE>
<CAPTION>
($000 Omitted)
Amortized Estimated
Cost Fair Value
<S> <C> <C>
U.S. Government
and Agency Obligations $ 17,109 $ 17,982
Mortgage-backed Securities 96,446 97,417
Other Securities 5,341 5,349
Total $118,896 $120,748
</TABLE>
Into the "held to maturity" category from the "available for sale" category.
<TABLE>
<CAPTION>
Amortized Estimated
Cost Fair Value
<S> <C> <C>
State and Political
Subdivisions $20,504 $22,633
</TABLE>
Securities available for sale carried at $143,261,000 on December 31, 1995
and $132,879,000 on December 31, 1994 were pledged to secure public and trust
deposits, short-term repurchase agreements, and for other purposes.
The amortized cost and estimated fair value of securities available for sale
at December 31, 1995 by maturity, are shown in the accompanying table.
Securities available for sale are listed by contractual maturity except for
collateralized mortgage obligations which are listed by average life.
Expected maturities will differ from contractual maturities because issuers
may have the right to call or prepay obligations with or without call or
prepayment penalties.
<TABLE>
<CAPTION>
($000 Omitted)
Estimated
Amortized Fair
Cost Value
<S> <C> <C>
Due in one year or less $ 37,694 $ 37,597
Due after one year
through five years 103,003 103,770
Due after five years
through ten years 8,896 8,767
Due after ten years -- --
Mortgage-backed securities
due after ten years 40,402 40,651
$189,995 $190,785
</TABLE>
Proceeds from sales of securities available for sale during 1995, 1994 and
1993 were $8,404,000, $24,872,000 and $2,184,000 respectively. Gross gains of
$31,000 and $133,000 and gross losses of $168,000 and $226,000 were realized
on those sales during 1995 and 1994 respectively. Gross gains of $30,000 and
no gross losses were realized on sales in 1993.
At January 1, 1995, the net unrealized loss on securities available for sale,
net of the income tax effect, was $3,857,000. At December 31, 1995, the net
unrealized gain on securities available for sale, net of the income tax
effect, was $474,000 representing a $4,331,000 increase from January 1,
1995. At December 31, 1994 securities available for sale had an unrealized
loss of $6,429,000. The adjustment to stockholders' equity net of deferred
income tax benefit of $2,572,000, was $3,857,000.
Securities Available For Sale at December 31, 1995, and 1994 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
Gross Gross Estimated Gross Gross Estimated
Amortized Unrealized Unrealized Fair Amortized Unrealized Unrealized Fair
Cost Gains Losses Value Cost Gains Losses Value
<S> <C> <C> <C> <C> <C> <C> <C> <C>
U.S. Government
& Agency Obligations $ 28,783 $ 418 $ 7 $ 29,194 $ 48,610 $130 $ 559 $ 48,181
Mortgage-backed Securities 157,386 1,303 831 157,858 113,113 24 5,837 107,300
Other Securities 3,826 1 94 3,733 5,785 1 188 5,598
$189,995 $1,722 $932 $190,785 $167,508 $155 $6,584 $161,079
</TABLE>
(PAGE 35)
Securities Held to Maturity at December 31, 1995 and 1994 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
Gross Gross Estimated Gross Gross Estimated
Amortized Unrealized Unrealized Fair Amortized Unrealized Unrealized Fair
Cost Gains Losses Value Cost Gains Losses Value
<S> <C> <C> <C> <C> <C> <C> <C> <C>
U.S. Government
& Agency Obligations $ 4,085 $ 113 $-- $ 4,198 $ 4,900 $ -- $224 $ 4,676
States & Political
Subdivisions 19,043 1,275 1 20,317 30,903 786 37 31,652
$23,128 $1,388 $ 1 $24,515 $35,803 $786 $261 $36,328
</TABLE>
The amortized cost and estimated fair value of Securities Held to
Maturity at December 31, 1995 by maturity, are shown in the accompanying table.
Securities Held to Maturity are listed by contractual maturity except for
collateralized mortgage obligations which are listed by average life.
Expected maturities will differ from contractual maturity because issuers may
have the right to call or prepay obligations with or without call or
prepayment penalties.
Securities Held to Maturity carried at $16,437,000 on December 31, 1995 and
$22,790,000 on December 31, 1994 were pledged to secure public and trust
deposits, short-term repurchase agreements, and for
other purposes.
There were no proceeds from sales, gains or losses recorded during 1995 or
1994. During 1993 proceeds were $3,974,000, resulting in gross gains of
$46,000 and no gross losses.
<TABLE>
<CAPTION>
($000 Omitted)
Amortized Estimated
Cost Fair Value
<S> <C> <C>
Due in one year or less $ 6,657 $ 6,762
Due after one year
through five years 6,414 6,761
Due after five years
through ten years 9,803 10,727
Due after ten years 254 265
$23,128 $24,515
</TABLE>
Note 4 Loans
Loans at December 31, 1995 and 1994 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
<S> <C> <C>
Commercial $230,771 $257,152
Real Estate Mortgage 247,183 232,373
Installment 120,654 98,545
Other 429 452
599,037 588,522
Less:
Allowance for
Loan Losses 12,115 18,752
Unearned Income 6,839 11,193
18,954 29,945
Net Loans $580,083 $558,577
</TABLE>
The following table presents information concerning non-performing loans:
<TABLE>
<CAPTION>
($000 Omitted)
December 31,
1995 1994 1993
<S> <C> <C> <C>
Non-Accrual $4,571 $14,139 $32,705
Past due 90+ days 1,203 2,630 2,967
Restructured 138 2,656 1,476
$5,912 $19,425 $37,148
</TABLE>
At December 31, 1995 the recorded investment in loans considered to be
impaired under SFAS No. 114 was $4,571,000. Included in this amount is
$341,000 of impaired loans for which the related allowance for credit losses
is $201,000 and $4,230,000 of impaired loans that as a result of write downs
do not have an allowance for credit losses. The average recorded investment
in impaired loans during the year ended December 31, 1995 was approximately
$10,708,000. For the year ended December 31, 1995 the Company recognized
interest income on those impaired loans of $41,000, which is recognized using
the cash basis method of income recognition.
(PAGE 36)
Interest that would have been recorded on the non-accrual and restructured
loans had they remained current, would have been $634,000, $1,656,000, and
$2,426,000, in 1995, 1994 and 1993, respectively. Of those amounts, $195,000,
$333,000, and $349,000 were recognized as interest income. There were no unused
loan commitments on non-accrual and restructured loans at December 31, 1995.
Certain directors and executive officers of the Company and its subsidiaries,
including their immediate families and companies of which they were principal
owners, had loan transactions with the subsidiary bank. Such loans were made
in the ordinary course of business and on substantially the same terms,
including interest rates and collateral, as comparable loans made to others.
Total loans to these persons and companies at December 31, 1995 and 1994,
respectively, amount to $12,941,000 and $11,171,000. During 1995, $4,730,000
of new loans were made, repayments of $2,960,000 were received.
Note 5 Allowance for Loan Losses
Changes in the allowance for loan losses for the years ended December 31,
1995, 1994 and 1993 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
Balance at beginning of year $18,752 $18,754 $ 13,357
Provision for loan losses 1,800 2,211 15,377
Recoveries during period 1,101 2,568 1,857
Losses charged to allowance (9,538) (4,781) (11,837)
Balance at end of year $12,115 $18,752 $ 18,754
</TABLE>
Note 6 Bank Premises and Equipment
Premises and equipment at December 31, 1995 and 1994 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
<S> <C> <C>
Land $ 1,975 $ 1,975
Buildings 15,531 15,468
Furniture, fixtures
and equipment 12,032 12,507
29,538 29,950
Less accumulated
depreciation (15,844) (16,004)
Premises and
equipment, net $ 13,694 $ 13,946
Depreciation expense amounted to $1,515,000 in 1995, $1,572,000 in 1994, and
$1,711,000 in 1993.
</TABLE>
Note 7 Short-Term Borrowings
Short-term interest bearing liabilities, including Securities Sold Under
Agreements to Repurchase and Federal Funds Purchased, with maturities of less
than one year and their related average interest rates for the years ended
December 31, 1995, 1994 and 1993 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
Amount Avg. Int. Rate Amount Avg. Int. Rate Amount Avg. Int. Rate
<S> <C> <C> <C> <C> <C> <C>
Amount Outstanding
at December 31:
Securities Sold Under
Agreement to Repurchase $ 400 5.23% $ 1,418 3.53% $ 3,500 2.58%
Federal Funds Purchased -- -- -- -- 2,900 3.13%
Other 2,860 5.15% 3,000 5.21% 3,400 2.78%
Total $ 3,260 5.16% $ 4,418 4.75% $ 9,800 2.81%
Maximum amount outstanding
at any month end $13,225 5.63% $26,129 4.44% $28,414 3.23%
Average amount outstanding
during the year $ 8,220 6.47% $ 5,855 4.03% $ 7,998 3.06%
</TABLE>
(PAGE 37)
Note 8 Long-Term Debt
Long-term debt at December 31, 1995 and 1994 consisted of:
<TABLE>
<CAPTION>
($000 Omitted)
December 31,
1995 1994
<S> <C> <C>
IDA Revenue Bonds $ 1,805 $ 2,040
Fixed Rate Note 123 148
Federal Home Loan Bank 20,580 7,161
ESOP Loan 967 1,120
Total long-term debt $23,475 $10,469
</TABLE>
Contractual principal payments due under long-term debt:
<TABLE>
<CAPTION>
($000 Omitted)
<S> <C>
1996 $5,685
1997 729
1998 780
1999 829
2000 6,930
2001 and years thereafter 8,522
</TABLE>
IDA revenue bonds were issued in connection with construction of two
subsidiary branch locations. The bonds carry interest rates ranging from 6.8%
to 7.5% and mature in annual installments ending in 2001. The fixed rate note
was issued in connection with the purchase of an operational facility. The
note carries an 8% interest rate and matures in 1999. The ESOP loan is a
floating rate loan which carried a rate of 8.5% at December 31, 1995, and
matures in 2000. The Federal Home Loan Bank of New York debt consists of
four separate advances with terms as follows; a $5,000,000 floating rate note
that resets monthly and matures in November of 1996, the interest rate on
this note was 6.88% at December 31, 1995; a $6,000,000 note with a fixed rate
of 5.94% maturing in December of the year 2000; an amortizing advance with a
current balance of $7,470,000 with a rate of 6.67% and a final maturity in
October of the year 2005; and an amortizing advance with a current balance of
$2,110,000, a rate of 6.97% and a final maturity in April of the year 2009.
Note 9 Income Taxes
As discussed in Note 1, the company adopted SFAS No. 109 effective January 1,
1993. The adoption of SFAS No. 109 did not have a material effect on the
financial statements. In accordance with SFAS No. 109, deferred income tax
assets and liabilities are computed based on temporary differences between
the financial reporting basis and tax basis of assets and liabilities that
result in taxable or deductible amounts in the future based on enacted tax
laws and rates applicable to periods in which the differences are expected to
affect taxable income. The components of the income tax provision are
presented as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
Current tax expense:
Federal $1,162 $3,077 $ 532
State 392 949 40
Total current tax expense 1,554 4,026 572
Deferred tax expense/(benefit):
Federal 1,489 (210) (1,797)
State -- -- --
Total deferred tax
expense/(benefit) 1,489 (210) (1,797)
Total income taxes
expense/(benefit) $3,043 $3,816 $(1,225)
</TABLE>
(PAGE 38)
A reconciliation from income taxes at the statutory rate to the effective tax
included in the Consolidated Statement of Income for the years ended December
31, 1995, 1994 and 1993, is as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
% Pretax % Pretax % Pretax
Amount Income Amount Income Amount Income
<S> <C> <C> <C> <C> <C> <C>
Tax expense/(benefit)
at statutory rate $3,851 34% $3,768 34% $(1,547) 34%
Effect of tax exempt
interest income (699) (6) (635) (6) (889) 19
State income taxes, net of
federal income tax benefit 259 2 626 6 26 (1)
Alternative minimum tax -- -- -- -- 342 (7)
Deferred tax valuation
reserve (decrease)/increase (425) (3) (29) -- 925 (20)
Other, net 57 -- 86 -- (82) 2
Total income
tax expense/(benefit) $3,043 27% $3,816 34% $(1,225) 27%
</TABLE>
Under Statement 109, the tax effects of temporary differences that gave rise
to significant portions of the deferred tax assets and deferred tax
liabilities at December 31, 1995, 1994 and 1993 were as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
Deductible Taxable Deductible Taxable Deductible Taxable
Temporary Temporary Temporary Temporary Temporary Temporary
Differences Differences Differences Differences Differences Differences
<S> <C> <C> <C> <C> <C> <C>
Lease financing -- $ 14 -- $ 33 -- $114
Depreciation -- 351 -- 387 -- 374
Prepaid expenses -- 291 -- 715 -- 214
Pension and deferred remuneration $ 2,235 -- $ 2,089 -- $ 1,699 --
Deferred loan fees, net 394 -- 409 -- 460 --
Provision for loan losses 3,700 -- 5,900 -- 5,866 --
Valuation of other real estate 395 -- 293 -- -- --
Unused AMT credit carry forward -- -- 425 -- 474 --
Other, net 5 -- 6 -- 9 --
Total 6,729 656 9,122 1,135 8,508 702
Valuation reserve (1,454) -- (1,879) -- (1,908) --
Deferred tax asset 5,275 -- 7,243 -- 6,600 --
Deferred tax liability -- $656 -- $1,135 -- $702
Net deferred tax asset
at December 31, 4,619 6,108 5,898
Net deferred tax asset
at January 1, 6,108 5,898 4,101
Deferred tax (expense)/
benefit for year
ended December 31, $(1,489) $ 210 $ 1,797
</TABLE>
The net deferred tax asset, as shown above, does not include the deferred tax
liability of $316,000 at December 31, 1995 or the deferred tax asset of
$2,572,000 at December 31, 1994 related to the tax effects of the unrealized
appreciation in 1995 and depreciation in 1994 of the available for sale
portfolio.
The valuation reserve, established by management at December 31, 1995, 1994
and 1993 considered the historical level of taxable income in the prior years
as well as the time period that the items giving rise to the net deferred tax
asset will turn around. The net deferred tax asset at December 31, 1995, 1994
and 1993 does not reflect the potential state deferred tax benefit of the net
deductible temporary differences noted above.
(PAGE 39)
Note 10 Stockholders' Equity
During 1985 the Company adopted its Incentive Stock Option Plan, under which
up to 202,500 shares of common stock may be granted. During 1989, the Company
adopted its stock incentive plan under which up to 135,000 shares of common
stock may be issued. During 1995 the Company adopted its Stock Incentive Plan
under which up to 300,000 shares of common stock may be issued. Also during
1995 the Company adopted its Director's Stock Option Plan under which up to
30,000 shares of common stock may be issued. Payment for shares purchased
under these plans may be made in cash or common stock of the Company at fair
market value. The unexercised options have not been included in the
calculation of earnings per share because the effect is immaterial. Of the
180,900 options outstanding at December 31, 1995, 170,900 are exercisable.
The following table shows the activity for the option plans for the years
ended December 31, 1995 and 1994:
<TABLE>
<CAPTION>
Options Options Options
Outstanding Options Options Expired/ Outstanding
January 1 Granted Exercised Forfeited December 31
Option
Price 1995 1994 1995 1994 1995 1994 1995 1994 1995 1994
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
$11.13 1,000 5,000 -- -- -- 4,000 -- -- 1,000 1,000
$12.50 33,500 35,500 -- -- 5,000 2,000 -- -- 28,500 33,500
$12.72 4,425 10,425 -- -- -- 6,000 -- -- 4,425 4,425
$12.75 300 300 -- -- -- -- -- -- 300 300
$13.83 -- 24,226 -- -- -- 10,575 -- 13,651 -- --
$14.25 88,500 -- -- 104,250 24,250 -- -- 15,750 64,250 88,500
$14.50 3,500 2,000 -- 1,500 2,000 -- -- -- 1,500 3,500
$15.30 -- -- 19,000 -- 1,500 -- 1,000 -- 16,500 --
$16.12 51,000 -- -- 51,000 6,000 -- -- -- 45,000 51,000
$17.17 8,925 10,425 -- -- -- -- -- 1,500 8,925 8,925
$17.44 -- -- 10,500 -- -- -- -- -- 10,500 --
</TABLE>
During 1994 the Company granted an executive officer the right to receive
5,000 shares of common stock. In accordance with the terms of the grant the
officer received 2,500 shares in 1995. Receipt of the remaining 2,500 shares
depends on continued employment in 1996.
In March 1995, the Company announced a program to repurchase common shares in
an amount not to exceed 5% of the then outstanding shares, at an aggregate
purchase price not to exceed $4.75 million. Under the program shares will be
repurchased from time to time, at managements discretion, in the open market
or through negotiated transactions. During 1995, approximately 103,000 shares
were purchased at a cost of $1,985,000.
The closing price per share for the Company's stock was $23.25 at December
31, 1995.
(PAGE 40)
Note 11 Dividend Restrictions
Under the National Bank Act, the approval of the Office of the Comptroller of
the Currency ("OCC") is required if dividends declared by subsidiary bank in
any year exceed the net profits of that year, as defined, combined with the
retained net profit for the two preceding years. At December 31, 1995,
Evergreen's subsidiary bank could, without approval of the OCC, declare
dividends aggregating $12,206,000, plus 1996 income.
Note 12 Other Operating Expenses
The components of Other Operating Expenses are as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
Data processing $2,092 $2,092 $ 1,955
Advertising 729 878 864
Supplies and printing 1,038 760 823
Credit card
interchange fees -- 496 1,021
Other 5,558 5,688 5,610
$9,417 $9,914 $10,273
</TABLE>
Note 13 Employee Benefit Plans
The Company maintains a trusteed non-contributory pension plan covering
substantially all full-time employees. Assuming retirement at age 65 after 30
years or more of service, the benefits are computed as the sum of forty three
and one-half percent of average compensation, as defined in the plans, for
the highest three consecutive years in the final ten years of service
("compensation base") plus fifteen percent of such compensation base in
excess of covered compensation. The annual benefit is proportionately reduced
for each year of credited service less than thirty years. The amounts
contributed to the plan are determined annually on the basis of (a) the
maximum amount that can be deducted for federal income tax purposes or (b)
the amount certified by a consulting actuary as necessary to avoid an
accumulated funding deficiency as defined by the Employee Retirement Income
Security Act of 1974. Contributions are intended to provide not only for
benefits attributed to service to date but also for those expected to be
earned in the future. Assets of the plan are primarily invested in common
stock and government securities.
The following table sets forth the plan's funded status and amounts
recognized in the Company's statements of condition at December 31, 1995,
1994 and 1993.
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
ACTUARIAL PRESENT VALUE OF BENEFIT OBLIGATIONS:
Accumulated benefit obligation, including vested benefits of
$9,834,000 in 1995, $8,080,000 in 1994, and $9,146,000 in 1993 $ (9,886) $ (8,116) $ (9,237)
Projected benefit obligation for service rendered to date $(12,298) $(10,382) $(12,223)
Plan assets at fair value 12,239 10,045 10,408
Plan assets in deficit of projected benefit obligation (59) (337) (1,815)
Unrecognized prior service cost 153 162 172
Unrecognized net (loss)/gain from past experiences different
from that assumed and effects of changes in assumptions (1,519) (992) 1,038
Unrecognized net asset at January 1, 1987 being recognized
over 22.5 years (206) (222) (237)
Accrued pension cost $ (1,631) $ (1,389) $ (842)
NET PENSION COST FOR 1995, 1994 AND 1993
INCLUDED THE FOLLOWING COMPONENTS:
Service cost-benefits earned during the period $ 414 $ 510 $ 464
Interest cost on projected benefit obligation 794 750 723
Expected return on plan assets (881) (706) (820)
Net amortization and deferral (13) (6) (7)
Net periodic pension cost $ 314 $ 548 $ 360
</TABLE>
The weighted-average discount rate and rate of increase in future
compensation levels used in determining the actuarial present value of the
projected benefit obligation were 7.0 percent and 4.0 percent for 1995, 8.0
percent and 4.5 percent for 1994, and 6.5 percent and 4.0 percent for 1993.
The expected long-term rate of return on assets was 8.0 percent, 9.0 percent
and 7.0 percent in 1995, 1994 and 1993 respectively. During 1995, in addition
to the net periodic pension cost, the Company recognized pension expense of
$137,000 from curtailments and special termination benefits associated with
the Company's planned reduction in force. There is also a profit sharing plan
that covers all employees. For the years 1995, 1994 and 1993 there was no
provision charged to operations.
(PAGE 41)
The Company has an Employees Stock Purchase Plan which all employees are
eligible to join after six months of service. Employees may authorize the
bank to withhold up to $200 biweekly from salary to be deposited with the
plan's agent. The plan provides that the Company contribute an amount equal
to 33% of each partici-pant's contribution up to a maximum employee
investment of $100 biweekly. Company contributions under the plan amounted to
$79,000 for 1995, $93,000 for 1994, and $78,000 for 1993.
In 1984, the Company established a 401(k) plan. All employees are eligible to
join after specific service requirements. The Company contributed 25% of the
total contribution made by employees for the year. Total 401(k) expense for
1995 was $69,000, the expense for 1994 and 1993 totaled $68,000 for each
year.
There are also executive supplemental retirement plans. The plans' funded
status and amounts recognized in the Company's consolidated financial
statements are as follows:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994 1993
<S> <C> <C> <C>
ACTUARIAL PRESENT VALUE OF BENEFIT OBLIGATIONS:
Accumulated benefit obligation $(1,509) $(1,358) $(1,551)
Projected benefit obligation for service rendered to date $(1,509) $(1,358) $(1,551)
Plan assets at fair value -- -- --
Projected benefit obligation in excess of plan assets (1,509) (1,358) (1,551)
Unrecognized net (loss) from past experience different
from that assumed and effects of changes in assumptions 250 128 225
Unrecognized net obligations at the beginning of the year
being recognized over 15 years 99 115 131
Additional liability recognized (349) (243) (356)
Accrued pension cost $(1,509) $(1,358) $(1,551)
NET PENSION COST FOR 1995, 1994 AND 1993
INCLUDED THE FOLLOWING COMPONENTS:
Service cost-benefits earned during the period $ 76 $ -- $ 98
Interest cost on projected benefit obligation 97 91 94
Net amortization 16 21 273
Net periodic pension cost $ 189 $ 112 $ 465
</TABLE>
The weighted-average discount rate used in determining the actuarial present
value of the projected benefit obligation was 7.0 percent, 8.0 percent and
7.0 percent for 1995, 1994 and 1993 respectively.
The rate of increase in future compensation levels used in determining the
actuarial present value of the projected benefit obligation was 4.0 percent,
0.0 percent and 4.0 percent for 1995, 1994 and 1993, respectively.
In addition to the Company's non-contributory defined benefit retirement
plan, the Company provides a defined benefit postretirement
plan which provides medical benefits to employees, who have at
least attained 55 years of age and 15 years of service (provided the sum of
age and service is at least 75), as well as life insurance benefits to
employees who, at a minimum, have attained 55 years of age and have 10 years
of service. The postretirement health care portion of the plan is
contributory, with participant contributions adjusted annually, and contains
other cost-sharing features such as deductibles and coinsurance. While the
amount of a participants contribution varies depending upon age and service,
the Company has set a maximum dollar amount it will pay for medical benefits
regardless of age or service. The accounting for the plan is based on the
level of cost sharing as of January 1, 1995. The funding policy of the plan
is to pay claims and/or insurance premiums as they come due.
(PAGE 42)
The Company adopted Statement of Financial Accounting Standards No. 106,
"Employers' Accounting for Postretirement Benefits Other Than Pensions" (SFAS
No. 106) as of January 1, 1993. As permitted under the transition provisions
of SFAS No. 106, the Company has opted to amortize the accumulated
postretirement benefit obligation as of the January 1, 1993 adoption date
(the transition obligation) over a period of twenty years, as a component of
net periodic postretirement benefit cost.
The following table presents the amounts recognized in the Company's
consolidated Statement of Financial Condition as of
<TABLE>
<CAPTION>
($000 Omitted)
December 31, 1995 1994 1993
<S> <C> <C> <C>
ACCUMULATED POSTRETIREMENT BENEFIT OBLIGATION:
Retirees $(1,716) $(1,680) $(1,460)
Fully eligible active plan participants (170) (166) (443)
Other active plan participants (294) (288) (660)
(2,180) (2,134) (2,563)
Plan assets at fair value -- -- --
Accumulated postretirement benefit obligation (2,180) (2,134) (2,563)
Unrecognized transition obligation 1,844 1,952 2,060
Unrecognized past service costs (166) (180) --
Unrecognized gain from changes in assumptions 3 3 316
Accrued postretirement benefit cost included
in other liabilities $ (499) $ (359) $ (187)
NET PERIOD POSTRETIREMENT BENEFIT COST
(IN THOUSANDS) FOR THE YEARS ENDED
DECEMBER 31, 1995, 1994 AND 1993
INCLUDE THE FOLLOWING COMPONENTS:
Service cost $ 34 $ 34 $ 51
Interest cost 143 136 173
Net amortization and deferral of actual results
differing from assumptions (14) (3) --
Net amortization of transition amount 108 108 108
Net periodic postretirement benefit cost $ 271 $ 275 $ 332
</TABLE>
The discount rate used in determining the accumulated postretirement benefit
obligation was 7.0%, 7.0%, and 6.5% at December 31, 1995, 1994 and 1993,
respectively. For measurement purposes, a 6.0%, a 6.0% and a 13.0% annual
rate of increase in the per capita cost of covered health care benefits were
assumed for pre-age 65 medical coverage in 1995, 1994 and 1993, respectively.
In 1995 and 1994 the rate was assumed to remain at 6%. In the 1993
calculation the rate moves to 6% by 2000 and remains at that level
thereafter. The health care cost trend rate assumption has a significant
effect on the amounts reported. To illustrate, increasing the assumed health
care cost trend rates by one percentage point in each year would increase the
accumulated postretirement benefit obligation as of December 31, 1995, by
approximately 8.4% and the net periodic postretirement benefit cost by
approximately 10.2%.
(PAGE 43)
Note 14 Employee Stock Ownership Plan (ESOP)
On December 15, 1989, the Company established an Employee Stock Ownership
Plan (ESOP) which purchased 100,000 newly issued and 59,700 outstanding
shares of the Company's common stock. Funds for the purchase of these shares
were obtained through a borrowing from an unrelated financial institution.
The shares issued to the ESOP and the related borrowing are reflected in the
Company's statements of financial condition as common stock subscribed and
long term debt. During 1995, a portion of the borrowing was paid off by the
Company releasing approximately 16,000 shares which were allocated to
participating employees.
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
<S> <C> <C>
Administration $ 18 $ 18
Interest expense 131 117
Employer contribution 396 329
</TABLE>
Note 15 Commitments and Contingent Liabilities
The Company (through its subsidiary bank) is a party to certain financial
instruments with off-balance sheet risk in the normal course of business to
meet the financing needs of its customers. These financial instruments
include commitments to extend credit and standby letters of credit. Those
instruments involve, to varying degrees, elements of credit risk in excess of
the amount recognized on the statement of financial condition. The contract
amounts of those instruments reflect the extent of involvement the Company
has in particular classes of financial instruments.
The Company's exposure to credit loss in the event of nonperformance by the
other party to the commitments to extend credit and standby letters of credit
is represented by the contractual notional amount of those instruments. The
Company uses the same credit policies in making commitments as it does for
on-balance sheet instruments.
Unless otherwise noted, the Company does not require collateral or other
security to support off-balance sheet financial instruments with credit risk.
Contract amounts of financial instruments that represent credit risk as of
December 31, 1995 and 1994 are as follows:
<TABLE>
<CAPTION>
($000 Omitted)
December 31, 1995 1994
<S> <C> <C>
Commercial Commitments $50,500 $41,566
Unused Home Equity Lines 29,074 24,685
Unused Overdraft Lines 6,653 6,686
Mortgage Commitments 3,316 2,354
Standby Letters of Credit 7,647 12,638
Total $97,190 $87,929
</TABLE>
Commitments to extend credit are agreements to lend to a customer as
long as there is no violation of any condition established
in the contract. Commitments generally have fixed expiration dates or other
termination clauses and may require payment of a fee. Since many of the
commitments are expected to expire without being fully drawn upon, the total
commitment amounts do not necessarily represent future cash requirements. The
Company evaluates each customer's creditworthiness on a case-by-case basis.
The amount of collateral, if any, required by the Company upon the extension of
credit is based on management's credit evaluation of the customer. Mortgage
and construction loan commitments are secured by a first lien on real estate.
Collateral on extensions of credit for commercial loans varies but may
include accounts receivable, inventory, property, plant and equipment, and
income producing commercial property.
Standby letters of credit are conditional commitments issued to guarantee the
performance of a customer to a third party. Those guarantees are primarily
issued to support borrowing arrangements. The credit risk involved in issuing
standby letters of credit is essentially the same as that involved in
extending loan facilities to customers.
The Company grants commercial, consumer and residential loans to customers
throughout its marketing area. Although the Company has a diversified loan
portfolio, a substantial portion of its debtor's ability to honor their
contracts is dependent upon the real estate and construction related sectors
of economy and the tourism industry. Variable rate mortgage loans are granted
with terms which set various interest rate caps for annual and life of the
loan interest rate changes.
There are no legal proceedings against the Company or its subsidiaries in
1995 or 1994 which in the opinion of management would result in a liability
which would have a significant effect on the consolidated financial position
of the Company.
(PAGE 44)
Note 16 Fair Value of Financial Instruments
The Financial Accounting Standards Board issued Statement No. 107,
Disclosures about Fair Value of Financial Instruments,
(SFAS 107), which requires that
the Company disclose estimated fair values for its financial instruments.
SFAS No. 107 defines fair value of financial instruments as the amount at
which the instrument could be exchanged in a current transaction between
willing parties other than in a forced or liquidation sale. SFAS No. 107 defines
a financial instrument as cash, evidence of ownership interest in an entity, or
a contract that imposes on one entity a contractual obligation to deliver
cash or another financial instrument to a second entity or to exchange other
financial instruments on potentially unfavorable terms with a second entity
and conveys to that second entity a contractual right to receive cash or
another financial instrument from the first entity or to exchange other
financial instruments on potentially favorable terms with the first entity.
Fair value estimates are made at a specific point in time, based on relevant
market information and information about the financial instrument. These
estimates do not reflect any premium or discount that could result from
offering for sale at one time the Company's entire holdings of a particular
financial instrument. Because no market exists for a significant portion of
the Company's financial instruments, fair value estimates are based on
judgements regarding future expected net cash flows, current economic
conditions, risk characteristics of various financial instruments, and other
factors. These estimates are subjective in nature and involve uncertainties
and matters of significant judgement and therefore cannot be determined with
precision. Changes in assumptions could significantly affect the estimates.
Fair value estimates are based on existing on and off balance sheet financial
instruments without attempting to estimate the value of anticipated future
business and the value of assets and liabilities that are not considered
financial instruments. Significant assets and liabilities that are not
considered financial assets or liabilities include the deferred tax
liabilities and property, plant and equipment. In addition, the tax
ramifications related to the realization of the unrealized gains and losses
can have a significant effect on fair value estimates and have not been
considered in the estimates of fair value under SFAS No. 107.
In addition there are significant intangible assets that SFAS 107 does not
recognize, such as the value of "core deposits", the Company's branch network
and other items generally referred to as "goodwill".
The following table presents the carrying amounts and fair values of the
Company's financial instruments at December 31, 1995 and 1994:
<TABLE>
<CAPTION>
($000) Omitted
1995 1994
Footnote Carrying Estimated Carrying Estimated
Number Value Fair Value Value Fair Value
<S> <C> <C> <C> <C> <C>
Derivatives None -- -- -- --
Trading instruments None -- -- -- --
Nontrading instruments:
Cash and cash equivalents 16 $ 43,621 $ 43,621 $ 34,592 $ 34,592
Loans (net) 4 580,083 593,646 558,577 563,657
Securities 3 213,913 215,300 196,882 197,407
Deposit Liabilities 16 (750,224) (752,784) (735,821) (735,123)
Short-Term Borrowings and Long-Term Debt 16 (26,735) (27,197) (14,887) (14,620)
</TABLE>
Securities
The carrying amounts for short-term investments approximate fair value
because they mature in 90 days or less and do not present unanticipated
credit concerns. The fair value of longer-term investments and mortgage
backed securities, except certain state and municipal securities, is
estimated based on bid prices published in financial newspapers or bid
quotations received from securities dealers. The estimated fair value of
certain state and municipal securities is not readily available through
market sources, therefore, the fair value estimates are based on quoted
market prices of similar instruments, adjusted for differences between the
quoted instruments and the instruments being valued. See Note 3 Securities
for detail disclosure of investment and mortgage-backed securities.
Loans
Fair values are estimated for portfolios of loans with similar financial
characteristics. Loans are segregated by type such as commercial, consumer,
real estate, and other loans. Each loan category is further segmented into
fixed and adjustable rate interest terms and by performing and non-performing
categories.
The following table presents information for loans at December 31:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
Carrying Estimated Carrying Estimated
Amount Fair Value Amount Fair Value
<S> <C> <C> <C> <C>
Commercial $230,373 $227,262 $257,152 $247,749
Real Estate Mortgage 246,567 250,444 232,373 228,409
Installment 114,874 115,548 87,352 87,048
Other 384 392 452 451
Loans (net of unearned income) 592,198 593,646 577,329 563,657
Less: allowance for loan losses (12,115) -- (18,752) --
$580,083 $593,646 $558,577 $563,657
</TABLE>
(PAGE 45)
The estimated fair value of performing commercial loans, lease finance
receivables and installment loans is calculated by
discounting scheduled cash flows through the estimated maturity using
estimated market discount rates that reflect the credit and interest rate
risk inherent in the loan. The estimate of maturity is based on the
contractual term of the loans to maturity. Performing real estate loans fair
value is estimated based on dealer quotations for conforming loans adjusted
for a factor based on the Company's loans primarily being non-conforming. The
fair value of the loans not readily available through market sources is
estimated by discounting anticipated cash flows using an appropriate current
discount rate to determine their fair value.
Estimated fair value for significant non-performing loans is based on recent
external appraisals and discounting of cash flows. Estimated cash flows are
discounted using a rate commensurate with the risk associated with the
estimated cash flows. Assumptions regarding credit risk, cash flows and
discount rates are judgmentally determined using available market information
and specific borrower information.
Deposit Liabilities and Long-Term Debt
Under SFAS 107, the fair value of deposits with no stated maturity, such as
non-interest bearing demand deposits, savings, NOW accounts, money market and
checking accounts, is estimated to be the amount payable on demand as of
December 31, 1995 and 1994. The estimated fair value of certificates of
deposit is based on the discounted value of contractual cash flows. The
discount rate is estimated using the rates currently offered for deposits of
similar remaining maturities.
The fair value estimates do not include the benefit that results from the
low-cost funding provided by the deposit liabilities compared to the cost of
borrowing funds in the market.
The estimated fair value of long term debt is based on the discounted value
of contractual cash flows. The discount rate is estimated using the current
rates offered to the Company for debt with the same remaining maturities.
Other Financial Instruments
The fair value of cash and cash equivalents, accrued interest receivable,
accrued interest payable and short-term borrowings are estimated to be book
value at December 31, 1995 and 1994, respectively.
Commitments to Extend Credit, Standby Letters
of Credit, and Financial Guarantees Written
The fair value of commitments to extend credit is estimated using the fees
currently charged to enter into similar agreements, taking into account the
remaining terms of the agreements and the present creditworthiness of the
counterparties. For fixed rate loan commitments, fair value also considers
the difference between current levels of interest rates and the committed
rates. The estimated fair value of financial guarantees written and letters
of credit is based on fees currently charged for similar agreements or on the
estimated cost to terminate them or otherwise settle the obligations with the
counterparties. Fees, such as these, are not a major part of the Company's
business and in the Company's business territory are not a "normal business
practice", therefore, book value approximates fair value.
The following table presents information for deposits and long-term debt at
December 31:
<TABLE>
<CAPTION>
($000 Omitted)
1995 1994
Carrying Estimated Carrying Estimated
Value Fair Value Value Fair Value
<S> <C> <C> <C> <C>
Non-interest bearing demand $ 97,380 $ 97,380 $ 98,628 $ 98,628
Savings and NOW 258,296 258,296 271,482 271,482
Money market deposit accounts 81,922 81,922 100,899 100,899
Certificates of deposit:
Maturing in six months or less 177,546 178,085 119,850 120,207
Maturing between six months
and one year 64,977 65,203 60,386 60,235
Maturing between one and
three years 42,560 42,870 59,285 59,141
Maturing beyond three years 27,543 29,028 25,291 24,531
Short-Term Borrowings and Long-Term Debt 26,735 27,197 14,887 14,620
</TABLE>
(PAGE 46)
Note 17 Parent Company Only Condensed Financial Statements
<TABLE>
Condensed Statements of Income
<CAPTION>
($000 Omitted)
1995 1994 1993
Years Ended December 31,
<S> <C> <C> <C>
INCOME
Dividends from Banking Subsidiaries $4,200 $ 272 $ 892
Interest on Securities and Time Deposits 43 43 45
Interest on Securities Purchased Under
Agreement to Resell 43 10 48
Net Securities Transactions -- 25 --
Other Income 3 10,045 --
Total Income 4,289 10,395 985
EXPENSES
Salaries and Employee Benefits 605 6,466 726
Other Expenses 668 4,579 1,491
Total Expenses 1,273 11,045 2,217
Income/(Loss) Before Income Tax Benefit
and Equity in Undistributed Net
Income or Loss of Subsidiaries 3,016 (650) (1,232)
Income Tax Benefit 406 295 1,803
Income/(Loss) Before
Equity in Undistributed
Net Income of Subsidiaries 3,422 (355) 571
Equity in Undistributed
Net Income of Subsidiaries 4,958 7,620 (3,897)
NET INCOME/(LOSS) $8,380 $ 7,265 $(3,326)
</TABLE>
<TABLE>
Condensed Statements of Condition
<CAPTION>
($000 Omitted)
1995 1994
December 31,
<S> <C> <C>
ASSETS
Cash $ 50 $ 1,323
Investments in Subsidiaries 79,734 70,565
Securities 508 508
Securities Purchased Under Agreement
to Resell and Time Deposits in Banks 905 --
Premises and Equipment 5,696 5,922
Other Assets 3,894 2,708
TOTAL ASSETS $90,787 $81,026
LIABILITIES
Long-Term Debt $ 2,895 $ 3,308
Other Liabilities 4,847 4,117
TOTAL LIABILITIES 7,742 7,425
STOCKHOLDERS' EQUITY 83,045 73,601
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $90,787 $81,026
</TABLE>
(PAGE 47)
<TABLE>
Parent Company Only
Statements of Cash Flows
<CAPTION>
($000 Omitted)
Years Ended December 31,
1995 1994 1993
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net Income/(Loss) $ 8,380 $ 7,265 $(3,326)
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Gain on Sale of Assets (3) (25) --
Decrease in Interest Receivable -- 2 1
Net Amortization 5 3 1
Depreciation 228 212 197
(Decrease)/Increase in Accrued Expenses (57) 1,221 590
Increase/(Decrease) in Accrued Taxes Payable 787 (1,043) (603)
Decrease/(Increase) in Prepaid Expenses 76 (131) (19)
Increase in Taxes Receivable (1,172) (599) (703)
Increase in Cash Surrender Value (95) (62) (118)
Undistributed (Earnings)/Losses of Affiliates (4,958) (7,620) 3,897
Liquidation of Subsidiary 120 -- --
Net Cash Provided/(Used) By Operating
Activities 3,311 (777) (83)
Cash Flows From Investing Activities:
Proceeds From Sales of Investment Securities -- 440 --
Net Change in Short-Term Investments (905) 1,900 800
Proceeds from Sales of Fixed Assets 71 -- --
Capital Expenditures (70) (238) (2)
Net Cash (Used)/Provided by Investing
Activities (904) 2,102 798
Cash Flows From Financing Activities:
Principal Payments on Long-Term Debt (260) (295) (227)
Payments for Purchase of Treasury Shares (1,985) -- --
Proceeds from Issuance of Common Stock 691 400 302
Dividends Paid (2,126) (236) (892)
Net Cash Used by Financing Activities (3,680) (131) (817)
Net (Decrease)/Increase in Cash and
Cash Equivalents (1,273) 1,194 (102)
Cash and Cash Equivalents:
Beginning of Year 1,323 129 231
End of Year $ 50 $ 1,323 $ 129
Cash and Cash Equivalents are cash in demand
deposit accounts at the subsidiary bank.
Supplemental disclosure of Cash Flows:
Interest Paid $ 242 $ 242 $ 188
Supplemental Schedule of Non-Cash Financing Activities: Payments were made on
the Company's ESOP loan in the amount of $153,000, $144,000, and $128,000 in
1995, 1994 and 1993, respectively.
</TABLE>
Basis of Presentation
Investments in subsidiaries are recorded using the equity method of
accounting and represent 100% ownership of Evergreen Bank, N.A. and Evergreen
Venture Capital Corp. The Parent Company recognizes income and expenses using
the accrual method of accounting.
The Statement of Changes in Stockholders' Equity and the specifics of the
Stockholders' Equity section of the Statement of Condition are not included
since such amounts would be repetitive of those presented in the Consolidated
Financial Statements.
(PAGE 48)
Note 18 Unaudited Interim Financial Information
Following is a summary of unaudited quarterly financial information for each
quarter of 1995 and 1994.
<TABLE>
<CAPTION>
($000 Omitted)
(Except Per Share Data)
1995 Quarters Eended 1994 Quarters Ended
3/31 6/30 9/30 12/31 3/31 6/30 9/30 12/31
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Interest Income $16,074 $16,903 $17,025 $17,169 $14,460 $14,899 $15,495 $16,133
Net Interest Income 9,867 9,900 9,995 9,837 9,273 9,525 10,143 10,363
Provision for Loan Losses 540 540 360 360 611 520 540 540
Income Before Income Taxes 3,046 2,746 2,251 3,380 2,524 2,491 3,019 3,047
Net Income 2,032 1,831 2,050 2,467 1,676 1,709 1,901 1,979
Per Share: Net Income .43 .39 .43 .53 .36 .36 .40 .42
</TABLE>
Independent Auditors' Report
KPMG Peat Marwick LLP
Certified Public Accountants
74 North Pearl Street
Albany, New York 12207
The Board of Directors and Stockholders
Evergreen Bancorp, Inc.:
We have audited the accompanying consolidated statements of condition of
Evergreen Bancorp, Inc. and subsidiaries as of December 31, 1995 and 1994,
and the related consolidated statements of income, changes in stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1995. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Evergreen
Bancorp, Inc. and subsidiaries at December 31, 1995 and 1994, and the results
of their operations and their cash flows for each of the years in the
three-year period ended December 31, 1995, in conformity with generally
accepted accounting principles.
January 26, 1996
(PAGE 49)
Board of Directors
George W. Dougan
Chairman and CEO
Evergreen Bancorp, Inc.
John W. Bishop
Construction Executive
Retired
Dean V. Chandler
President
Agency Insurance Brokers, Inc.
Carl R. DeSantis, Sr.
Vice Chairman of the Board
Evergreen Bancorp, Inc.
Vice Chairman and Director
Franchise Associates, Inc.
Robert F. Flacke
President
Fort William Henry Corp.
Director
Finch Pruyn & Co., Inc.
Michael D. Ginsburg
President
Broad Street Carwash, Inc.
Partner
M & R Ginsburg Partners
Samuel P. Hoopes
Director
Finch Pruyn & Co., Inc.
Vice President, Retired
Joan M. Mannix
Real Estate Developer
Anthony J. Mashuta
President
Cool Insuring Agency, Inc.
Phillip H. Morse
Chairman of the Board
NAMIC USA Corporation
NAMIC International, Inc.
Retired
William E. Philion
President and CEO
Glens Falls Hospital Retired
Finch Pruyn & Co., Inc. Director
NAMIC USA Corporation Director
Alan R. Rhodes
Attorney
Bartlett, Pontiff,
Steward & Rhodes P.C.
Floyd H. Rourke
Chairman of the Board and President
Sandy Hill Corp. Retired
Director
Finch Pruyn & Co., Inc.
Paul W. Tomlinson
President
Salem Farm Supply, Inc.
Retired
Walter Urda
President
Irontech Industries, Inc.
Henry J.W. Vanderminden III
President and Treasurer
Telescope Casual Furniture, Inc.
Directors Emeriti
F. Earl Bach
Gerald J. Buckley
Donald S. Creal
John V. Hallett
Donald D. Hanks
Paul E. Lavine
Warren E. Rouillard
Bjarne G. Soderstrom
(PAGE 50)
Team Evergreen
Corporate Management and Officers
Executive Officers
George W. Dougan, President, Chief Executive Officer and Chairman
Michael P. Brassel, Regional President, Plattsburgh Region
Paul A. Cardinal, Executive Vice President, General Counsel
Thomas C. Crowley, Executive Vice President, Chief Credit Officer
George L. Fredette, Senior Vice President, Finance
John M. Fullerton, Executive Vice President, Trust and Investments
Anthony J. Koenig, Executive Vice President, Chief Administrative Officer
Jeffrey B. Rivenburg, Regional President, Albany Region
Corporate Banking, Loan Originations and Loan Servicing:
Left to right: Julia S. Girard, Vice President, Loan Originations; Michael P.
Brassel, Regional President, Plattsburgh Region; Ervin M. Murray, Vice
President, Director of Loan Operations; Thomas C. Crowley, Executive Vice
President, Chief Credit Officer (seated); Jeffrey B. Rivenburg, Regional
President, Capital Region; Kathie L. Duncan, Senior Vice President,
Commercial Loan Officer.
Finance:
Left to right: Susan D. M. Bonner, Assistant Vice President, Finance; Douglas
P. Sturges,Vice President, Controller (seated); John S. Porter, Vice
President, Municipal Banking Officer; George L. Fredette, Senior Vice
President, Finance.
Asset Quality:
Left to right: Julie A. Sullivan, Vice President, Loan Quality; David
Krupski, Vice President, Credit Officer; Kenneth J. Cartledge, Senior Vice
President, Asset Quality (seated); Melvin A. Gugino, Vice President, Manager,
Special Assets.
(PAGE 51)
Operations, Administration and Compliance:
Left to right: Barbara B. Glenn, Senior Vice President, Human Resources;
Michael R. Kaplan, Director, IT Systems (seated); Anthony J. Koenig,
Executive Vice President, Chief Administrative Officer; Kenneth K. Vanier,
Compliance Officer; Kathleen G. Martinez, Senior Vice President,
Operations/Administration.
Retail Banking and Marketing:
Left to right: Maureen A.Vedder; Vice President, Director of Marketing;
Daniel J. Burke, Senior Vice President, Retail Banking;
David V. Cerri,Vice President, Branch Administration.
Auditing, Legal and Loan Review:
Left to right: Larry E. Blanchard, Senior Vice President, Director of
Auditing; Paul A. Cardinal, Executive Vice President, General Counsel;
Patrick T. Day, Vice President, Loan Review Manager.
Trust and Investment:
Left to right: Carolyn J. Anderson, Vice President, Manager, Employee Benefit
Trust; Carter A. White, Vice President and Senior Investment Officer; John M.
Fullerton, Executive Vice President, Evergreen Trust & Investment Group;
William N. Hendricks III, Vice President, Trust Officer.
(PAGE 52)
Glens Falls Region
Glens Falls
Main Office, 237 Glen Street
Auto Bank, 28 Maple Street*
Bolton Landing
Main Street
Corinth
97 Main Street*
Granville
6 Main Street
Auto Bank, 100 Quaker Street*
Greenwich
146 Main Street*
Hudson Falls
124 Main Street
Kingsbury
Main Street*
Lake George
Canada Street*
Queensbury
Queensbury Plaza, Quaker Road*
Evergreen Plaza, Aviation Road*
Salem
Main Street*
South Glens Falls
99 Main Street*
Warrensburg
137 Main Street*
Plattsburgh Region
Plattsburgh
714 Route 3*
136 Margaret Street*
Keeseville
1744 Route 22*
Peru
2990 Main Street*
Chazy
9679 Route 9
Plattsburgh Region
Advisory Board
James H. Andre
Michael P. Brassel
Lawrence W. Carpenter
Dean V. Chandler
Larry W. Jeffords
William O. Morgan
Celine R. Paquette
Capital Region
Albany
302 Central Avenue*
125 State Street
East Greenbush
71 Troy Road*
Hudson
177 Fairview Avenue*
*Evergreen ATM locations, 24-hour banking
Capital Region
Advisory Board
Ronald H. Laberge
Patrick T. Maney
Anthony J. Mashuta
Edward P. McConville
Charles M. Staro
Walter Urda
Exhibit 21
EVERGREEN BANCORP, INC.
1995 ANNUAL REPORT ON FORM 10-K
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
Name of Significant Subsidiary * % Owned Jurisdiction of Incorporation
<S> <C> <C>
Evergreen Bank, National Association 100 United States
* Subsidiaries of the Registrant that have been omitted are inactive or in
the process of being liquidated.
</TABLE>
Exhibit 23
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Evergreen Bancorp, Inc.:
We consent to incorporation by reference in the Registration Statements on
Form S-8 (No. 33-27062), Form S-8 (No. 2-71111) and Form S-8 (No. 33-4488) of
Evergreen Bancorp, Inc. of our report dated January 26, 1996, relating to the
consolidated statements of condition of Evergreen Bancorp, Inc. and
subsidiaries as December 31, 1995 and 1994, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1995 which report
appears in the December 31, 1995 Annual Report on Form 10-K of Evergreen
Bancorp, Inc.
KPMG Peat Marwick LLP
March 21, 1996
<TABLE> <S> <C>
<ARTICLE> 9
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 30,887
<INT-BEARING-DEPOSITS> 134
<FED-FUNDS-SOLD> 12,600
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 190,785
<INVESTMENTS-CARRYING> 23,128
<INVESTMENTS-MARKET> 24,515
<LOANS> 592,198
<ALLOWANCE> 12,115
<TOTAL-ASSETS> 871,423
<DEPOSITS> 750,224
<SHORT-TERM> 3,260
<LIABILITIES-OTHER> 11,419
<LONG-TERM> 23,475
<COMMON> 16,036
0
0
<OTHER-SE> 67,009
<TOTAL-LIABILITIES-AND-EQUITY> 871,423
<INTEREST-LOAN> 52,971
<INTEREST-INVEST> 12,822
<INTEREST-OTHER> 1,378
<INTEREST-TOTAL> 67,171
<INTEREST-DEPOSIT> 26,166
<INTEREST-EXPENSE> 27,572
<INTEREST-INCOME-NET> 39,599
<LOAN-LOSSES> 1,800
<SECURITIES-GAINS> (137)
<EXPENSE-OTHER> 32,600
<INCOME-PRETAX> 11,423
<INCOME-PRE-EXTRAORDINARY> 11,423
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,380
<EPS-PRIMARY> 1.78
<EPS-DILUTED> 1.75
<YIELD-ACTUAL> 5.07
<LOANS-NON> 4,571
<LOANS-PAST> 1,203
<LOANS-TROUBLED> 138
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 18,752
<CHARGE-OFFS> 9,538
<RECOVERIES> 1,101
<ALLOWANCE-CLOSE> 12,115
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 12,115
</TABLE>
