UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended
September 30, 1998
Commission File Number 0-15572
FIRST BANCORP
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
North Carolina 56-1421916
-------------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
341 North Main Street, Troy, North Carolina 27371-0508
------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
(Registrant's telephone number, including area code) (910) 576-6171
--------------
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 twelve 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.
[ X ] YES [ ] NO
As of September 30, 1998, 3,021,470 shares of the registrant's Common
Stock, $5 par value, were outstanding. The registrant had no other classes of
securities outstanding.
EXHIBIT INDEX BEGINS ON PAGE 28
<PAGE>
INDEX
FIRST BANCORP AND SUBSIDIARIES
Page
Part I. Financial Information
Item 1 - Financial Statements
CONSOLIDATED BALANCE SHEETS -
September 30, 1998 and 1997
(With Comparative Amounts at December 31, 1997) 3
CONSOLIDATED STATEMENTS OF INCOME -
For the Periods Ended September 30, 1998 and 1997 4
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME -
For the Periods Ended September 30, 1998 and 1997 5
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY -
For the Periods Ended September 30, 1998 and 1997 6
CONSOLIDATED STATEMENTS OF CASH FLOWS -
For the Periods Ended September 30, 1998 and 1997 7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 8
Item 2 - Management's Discussion and Analysis of Consolidated
Results of Operations and Financial Condition 11
Item 3 - Quantitative and Qualitative Disclosures About Market Risk 22
Part II. Other Information
Item 5 - Other Information 25
Item 6 - Exhibits and Reports on Form 8-K 25
Signatures 27
Exhibit Cross Reference Index 28
-2-
<PAGE>
Part I. Financial Information
Item 1 - Financial Statements
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Balance Sheets
September 30, December 31, September 30,
($ in thousands-unaudited) 1998 1997 1997
--------- ------- -------
<S> <C> <C> <C>
ASSETS
Cash & due from banks, noninterest-bearing ......... $ 17,418 17,664 14,643
Due from banks, interest-bearing ................... 21,269 13,081 27
Federal funds sold ................................. 11,707 2,896 3,090
--------- ------- -------
Total cash and cash equivalents ............... 50,394 33,641 17,760
--------- ------- -------
Securities available for sale (costs of $39,171,
$49,995, and $52,922) ......................... 39,535 50,277 53,193
Securities held to maturity (fair values of $19,375,
$21,512, and $21,376) ......................... 18,589 20,856 20,814
Presold mortgages in process of settlement ......... 1,495 1,330 1,258
Loans .............................................. 345,295 280,513 260,699
Less: Allowance for loan losses ................ (5,391) (4,779) (4,728)
--------- ------- -------
Net loans ....................................... 339,904 275,734 255,971
--------- ------- -------
Premises and equipment ............................. 8,832 8,839 8,457
Accrued interest receivable ........................ 2,980 2,866 2,744
Intangible assets .................................. 5,995 6,487 5,192
Other .............................................. 2,813 2,639 2,694
--------- ------- -------
Total assets ............................... $ 470,537 402,669 368,083
========= ======= =======
LIABILITIES
Deposits: Demand - noninterest-bearing.............. $ 58,337 50,921 46,836
Savings, NOW, and money market ........... 148,535 135,805 124,349
Time deposits of $100,000 or more ........ 54,613 40,200 35,484
Other time deposits ...................... 151,015 134,298 120,781
--------- ------- -------
Total deposits ........................... 412,500 361,224 327,450
Short-term borrowings .............................. 13,000 -- --
Accrued interest payable ........................... 3,003 2,299 2,047
Other liabilities .................................. 2,401 2,381 2,859
--------- ------- -------
Total liabilities ............................. 430,904 365,904 332,356
--------- ------- -------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Balance Sheets
(continued)
September 30, December 31, September 30,
($ in thousands-unaudited) 1998 1997 1997
--------- ------- -------
<S> <C> <C> <C>
SHAREHOLDERS' EQUITY
Common stock, $5 par value per share
Authorized: 12,500,000 shares
Issued and outstanding: 3,021,470,
3,020,370, and 3,016,370 shares ............ 15,107 15,102 15,082
Capital surplus .................................... 3,869 3,861 3,831
Retained earnings .................................. 20,435 17,616 16,629
Accumulated other comprehensive income ............. 222 186 185
--------- ------- -------
Total shareholders' equity .................... 39,633 36,765 35,727
--------- ------- -------
Total liabilities and shareholders' equity $ 470,537 402,669 368,083
========= ======= =======
</TABLE>
See notes to consolidated financial statements.
-3-
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Income
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
($ in thousands, except per share data-unaudited) 1998 1997 1998 1997
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
INTEREST INCOME
Interest and fees on loans .................... $ 7,882 6,196 $ 22,252 17,244
Interest on investment securities:
Taxable interest income .................. 663 916 2,159 2,763
Tax-exempt interest income ............... 246 283 788 902
Other, principally overnight investments ...... 391 78 892 397
----------- --------- ----------- ---------
Total interest income .................... 9,182 7,473 26,091 21,306
----------- --------- ----------- ---------
INTEREST EXPENSE
Savings, NOW and money market ................. 869 740 2,493 2,019
Time deposits of $100,000 or more ............. 869 499 2,236 1,437
Other time deposits ........................... 1,971 1,596 5,741 4,582
Short-term borrowings ......................... 106 -- 106 3
----------- --------- ----------- ---------
Total interest expense ................... 3,815 2,835 10,576 8,041
----------- --------- ----------- ---------
Net interest income ........................... 5,367 4,638 15,515 13,265
Provision for loan losses ..................... 250 125 740 325
----------- --------- ----------- ---------
Net interest income after provision
for loan losses ............................ 5,117 4,513 14,775 12,940
----------- --------- ----------- ---------
NONINTEREST INCOME
Service charges on deposit accounts ........... 655 627 1,912 1,854
Commissions from insurance sales .............. 62 69 180 218
Other service charges, commissions and fees ... 390 249 1,144 804
Data processing fees .......................... -- 74 -- 216
Loan sale gains ............................... 66 -- 213 --
Securities losses ............................. -- (12) (3) (12)
----------- --------- ----------- ---------
Total noninterest income ................ 1,173 1,007 3,446 3,080
----------- --------- ----------- ---------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Income
(continued)
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
($ in thousands, except per share data-unaudited) 1998 1997 1998 1997
----------- --------- ----------- ---------
<S> <C> <C> <C> <C>
NONINTEREST EXPENSES
Salaries ...................................... 1,864 1,568 5,309 4,606
Employee benefits ............................. 416 317 1,191 1,021
----------- --------- ----------- ---------
Total personnel expense .................... 2,280 1,885 6,500 5,627
Net occupancy expense ......................... 270 247 758 715
Equipment related expenses .................... 231 223 666 652
Other operating expenses ...................... 1,222 1,246 3,889 3,598
----------- --------- ----------- ---------
Total noninterest expenses ............... 4,003 3,601 11,813 10,592
----------- --------- ----------- ---------
Income before income taxes .................... 2,287 1,919 6,408 5,428
Income taxes .................................. 805 651 2,230 1,795
----------- --------- ----------- ---------
NET INCOME .................................... $ 1,482 1,268 $ 4,178 3,633
=========== ========= =========== =========
Weighted average common shares
outstanding - basic ........................ 3,020,703 3,016,370 3,020,481 3,016,370
=========== ========= =========== =========
Weighted average common shares
outstanding - diluted ...................... 3,102,419 3,083,770 3,107,419 3,081,836
=========== ========= =========== =========
Earnings per share - basic .................... $ 0.49 0.42 $ 1.38 1.20
Earnings per share - diluted .................. 0.48 0.41 1.35 1.17
Cash dividends declared per share ............. 0.15 0.13 0.45 0.39
</TABLE>
See notes to consolidated financial statements
-4-
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Comprehensive Income
Three Months Ended Nine Months Ended
September 30, September 30,
-------------------- --------------------
($ in thousands-unaudited) 1998 1997 1998 1997
<S> <C> <C> <C> <C>
Net income ............................. $ 1,482 1,268 $ 4,178 3,633
------- ----- ------- -----
Other comprehensive income:
Unrealized gains on securities
available for sale:
Unrealized holding gains arising
during the period, pretax ...... 149 133 79 38
Tax expense .................. (69) (40) (45) (7)
Reclassification to realized losses -- 12 3 12
Tax benefit .................. -- (4) (1) (4)
------- ----- ------- -----
Other comprehensive income ............ 80 101 36 39
------- ----- ------- -----
Comprehensive income ................... $ 1,562 1,369 $ 4,214 3,672
======= ===== ======= =====
</TABLE>
See notes to consolidated financial statements.
-5-
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Shareholders' Equity
Accumulated
Common Stock Other Share-
------------------- Capital Retained Comprehensive holders'
(In thousands, except per share - unaudited) Shares Amount Surplus Earnings Income Equity
- -------------------------------------------- ------ ------ ------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Balances, January 1, 1997 ............... 3,016 $ 15,082 3,831 14,173 146 33,232
Net income .............................. 3,633 3,633
Cash dividends declared ($0.39 per share) (1,177) (1,177)
Other comprehensive income .............. 39 39
----- -------- ----- ------ --- ------
Balances, September 30, 1997 ............ 3,016 $ 15,082 3,831 16,629 185 35,727
===== ======== ===== ====== === ======
Balances, January 1, 1998 ............... 3,020 $ 15,102 3,861 17,616 186 36,765
Net income .............................. 4,178 4,178
Cash dividends declared ($0.45 per share) (1,359) (1,359)
Common stock issued under
stock option plans ................. 1 5 8 13
Other comprehensive income .............. 36 36
----- -------- ----- ------ --- ------
Balances, September 30, 1998 ............ 3,021 $ 15,107 3,869 20,435 222 39,633
===== ======== ===== ====== === ======
<CAPTION>
As of As of
September September
30, 1998 30, 1997
---------- ---------
<S> <C> <C>
Supplemental disclosure of components of
Accumulated Other Comprehensive Income:
Unrealized gain on securities
available for sale, pretax $ 364 271
Tax expense (142) (86)
------ ---
Total Accumulated Other
Comprehensive Income $ 222 185
====== ===
</TABLE>
See notes to consolidated financial statements.
-6-
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Cash Flows
Nine Months Ended
September 30,
----------------------
($ in thousands-unaudited) 1998 1997
-------- -------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income ................................................................ $ 4,178 3,633
Adjustments to reconcile net income to
net cash provided by operating activities:
Provision for loan losses ............................................ 740 325
Net security premium amortization (discount accretion) ............... 138 (8)
Securities losses .................................................... 3 12
Loan sale gains ...................................................... (213) --
Loan fees and costs deferred, net of amortization .................... 35 25
Depreciation of premises and equipment ............................... 554 532
Amortization of intangible assets .................................... 492 406
Realized and unrealized other real estate losses ..................... -- 16
Provision for deferred income taxes ................................. 37 (13)
Increase in accrued interest receivable .............................. (114) (332)
Decrease in intangible pension asset ................................. -- 236
Decrease (increase) in other assets .................................. (185) 119
Increase in accrued interest payable ................................. 704 165
Increase (decrease) in other liabilities ............................. (40) 324
-------- ------
Net cash provided by operating activities ............................ 6,329 5,440
-------- ------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of securities available for sale ........................... (18,488) (28,754)
Purchases of securities held to maturity ............................. (755) (1,222)
Proceeds from sales of securities available for sale ................. 1,015 8,361
Proceeds from maturities/issuer calls of securities available for sale 28,171 21,209
Proceeds from maturities/issuer calls of securities held to maturity . 3,005 2,710
Proceeds from sales of loans ......................................... 7,060 --
Net increase in loans ................................................ (71,821) (38,097)
Purchases of premises and equipment .................................. (753) (1,267)
-------- ------
Net cash used in investing activities ................................ (52,566) (37,060)
-------- ------
CASH FLOWS FROM FINANCING ACTIVITIES
Net increase in deposits ............................................. 51,276 29,589
Proceeds from short-term borrowings, net ............................. 13,000 --
Cash dividends paid .................................................. (1,299) (1,116)
Proceeds from issuance of common stock ............................... 13 --
-------- ------
Net cash provided by financing activities ............................ 62,990 28,473
-------- ------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS .......................... 16,753 (3,147)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD ............................ 33,641 20,907
-------- ------
CASH AND CASH EQUIVALENTS, END OF PERIOD .................................. $ 50,394 17,760
======== ======
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
First Bancorp and Subsidiaries
Consolidated Statements of Cash Flows
Nine Months Ended
September 30,
----------------------
($ in thousands-unaudited) 1998 1997
-------- -------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest ............................................................. $ 9,872 7,876
Income taxes ......................................................... 2,201 1,700
Non-cash transactions:
Foreclosed loans transferred to other real estate .................... 29 82
Increase in fair value of securities available for sale .............. 79 38
Premises and equipment transferred to other real estate .............. 206 --
Loans to facilitate sales of other real estate ....................... -- 17
</TABLE>
See notes to consolidated financial statements.
-7-
<PAGE>
First Bancorp And Subsidiaries
Notes To Consolidated Financial Statements
(unaudited) For the Periods Ended September 30, 1998 and 1997
- --------------------------------------------------------------------------------
NOTE 1
In the opinion of the Company, the accompanying unaudited consolidated financial
statements contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly the consolidated financial position of the
Company as of September 30, 1998 and 1997 and the consolidated results of
operations and consolidated cash flows for the periods ended September 30, 1998
and 1997. Reference is made to the Annual Report on Form 10-K filed with the SEC
for a discussion of accounting policies and other relevant information with
respect to the consolidated financial statements.
NOTE 2
The Company adopted Statement of Financial Accounting Standards No. 128,
"Earnings Per Share," as of December 31, 1997. As required by the standard, all
prior year earnings per share amounts have been restated and computed under the
provisions of the new standard. Basic earnings per share were computed by
dividing net income by the weighted average common shares outstanding. Diluted
earnings per share includes the potentially dilutive effects of the Company's
1994 Stock Option Plan. The following is a reconciliation of the numerators and
denominators used in computing basic and diluted earnings per share:
<TABLE>
<CAPTION>
For the Three Months Ended September 30,
-----------------------------------------------------------------------------------
1998 1997
--------------------------------------- ------------------------------------------
($ in thousands except per Income Shares Income Shares
share amounts) (Numer- (Denom- Per Share (Numer- (Denom- Per Share
ator) inator) Amount ator) inator) Amount
---------- --------- -------- ---------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS
Net income ................ $ 1,482 3,020,703 $ 0.49 $ 1,268 3,016,370 $ 0.42
======== =============
Effect of Dilutive Securities
Effect of stock option plan -- 81,716 -- 67,400
---------- --------- ---------- ----------
Diluted EPS
Net income plus assumed
exercises of options
$ 1,482 3,102,419 $ 0.48 $ 1,268 3,083,770 $ 0.41
========== ========= ======== ========== ========= =============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
For the Nine Months Ended September 30,
--------------------------------------------------------------------------------------
1998 1997
--------------------------------------- ---------------------------------------------
($ in thousands except per Income Shares Income Shares
share amounts) (Numer- (Denom- Per Share (Numer- (Denom- Per Share
ator) inator) Amount ator) inator) Amount
---------- --------- -------- ---------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS
Net income ................ $ 4,178 3,020,481 $ 1.38 $ 3,633 3,016,370 $ 1.20
======== =============
Effect of Dilutive Securities
Effect of stock option plan -- 86,938 -- 65,466
--------- --------- -------- --------- --------- -------------
Diluted EPS
Net income plus assumed
exercises of options ... $ 4,178 3,107,419 $ 1.35 $ 3,633 3,081,836 $ 1.17
========= ========= ======== ========= ========= =============
</TABLE>
-8-
<PAGE>
On January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" which establishes standards
for reporting and display of comprehensive income and its components in a full
set of financial statements. Comprehensive income is defined as the change in
equity during a period for non-owner transactions and is divided into net income
and other comprehensive income. Other comprehensive income includes revenues,
expenses, gains, and losses that are excluded from earnings under current
accounting standards. This statement does not change or modify the reporting or
display in the income statement. Comparative financial statements have been
presented as required by the statement.
The Financial Accounting Standards Board (FASB) has issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information." This statement requires management to
report selected financial data and descriptive information about reportable
operating segments and is effective for periods beginning after December 15,
1997. This statement does not require application in interim financial
statements in the initial year of adoption. The requirements of this standard
will be applied in a manner relevant for the Company beginning with the
financial statements for the year ended December 31, 1998.
As of January 1, 1998, the Company also adopted Statement of Financial
Accounting Standards No. 132, "Employers Disclosures about Pensions and Other
Postretirement Benefits." This statement standardizes the disclosure
requirements of pensions and other postretirement benefits. This statement does
not change any measurement or recognition provisions, and thus has not and is
not expected to materially impact the Company.
The Financial Accounting Standards Board has also issued Statement of Financial
Accounting Standards No. 133, "Accounting for Derivative Instruments and Hedging
Activities." This Statement establishes accounting and reporting standards for
derivative instruments, including certain derivative instruments embedded in
other contracts, (collectively referred to as derivatives) and for hedging
activities. This Statement is effective for all fiscal quarters of fiscal years
beginning after June 15, 1999. Because the Company has not historically and does
not currently employ the use of derivatives, this Statement is not expected to
impact the Company.
NOTE 3
Certain amounts reported in the prior periods' financial statements have been
reclassified to conform with the presentation for September 30, 1998. These
reclassifications had no effect on net income or shareholders' equity for the
periods presented, nor did they materially impact trends in financial
information.
NOTE 4
Based on management's evaluation of the loan portfolio, current economic
conditions and other risk factors, the Company's allowance for loan losses was
$5,391,000 as of September 30, 1998 compared to $4,779,000 and $4,728,000 as of
December 31, 1997 and September 30, 1997, respectively. Nonperforming assets are
defined as nonaccrual loans, loans past due 90 or more days and still accruing
interest, restructured loans and foreclosed, repossessed and idled properties.
For each of the periods presented, the Company had no loans past due 90 or more
days and still accruing interest. Nonperforming assets are summarized as
follows:
-9-
<PAGE>
<TABLE>
<CAPTION>
September 30, December 31, September 30,
($ in thousands) 1998 1997 1997
---------------- ---- ---- ----
<S> <C> <C> <C>
Nonperforming loans:
Nonaccrual loans ...................... $ 575 957 1,148
Restructured loans ................... 251 326 291
--------- ----- -----
Total nonperforming loans ................ 826 1,283 1,439
Foreclosed, repossessed, and idled
properties (included in other assets) 515 560 404
--------- ----- -----
Total nonperforming assets ............... $ 1,341 1,843 1,843
========= ===== =====
Nonperforming loans to total loans ....... 0.24% 0.46% 0.55%
Allowance for loan losses to
nonperforming loans .................. 652.66% 372.49% 328.56%
Nonperforming assets as a percentage of
loans and foreclosed, repossessed,
and idled properties .................. 0.39% 0.66% 0.71%
Nonperforming assets to total assets ..... 0.28% 0.46% 0.50%
Allowance for loan losses to total loans . 1.56% 1.70% 1.81%
</TABLE>
NOTE 5
Loans are shown on the Consolidated Balance Sheets net of approximately $10,000
of unearned income for each of the periods presented.
-10-
<PAGE>
Item 2 - Management's Discussion and Analysis of Consolidated
Results of Operations and Financial Condition
RESULTS OF OPERATIONS
OVERVIEW
Net income for the three months ended September 30, 1998 was $1,482,000, a
16.9% increase over the $1,268,000 reported in the third quarter of 1997. Basic
earnings per share for the third quarter of 1998 amounted to $0.49, an increase
of 16.7% over the $0.42 recorded in third quarter of 1997. Diluted earnings per
share for the third quarter of 1998 amounted to $0.48, an increase of 17.1% over
the $0.41 recorded in the third quarter of 1997.
Net income for the nine months ended September 30, 1998 was $4,178,000, a
15.0% increase over the $3,633,000 reported for the first nine months of 1997.
Basic earnings per share for the nine months ended September 30, 1998 increased
15.0% to $1.38 per share compared to $1.20 per share reported for the same nine
month period in 1997. Earnings per share on a diluted basis amounted to $1.35
per share for the nine months ended September 30, 1998, a 15.4% increase over
the $1.17 per share for the same nine months of 1997.
The increase in net income for the three and nine month periods ended
September 30, 1998 is primarily due to an increase in net interest income earned
by the Company. Net interest income increased 15.7% and 17.0% for the three and
nine month periods ended September 30, 1998, respectively, when compared to the
same three and nine month periods of 1997. The increases in net interest income
are largely attributable to loan and deposit growth, the effects of which were
partially offset by lower net interest margins. Also partially offsetting the
increases in net interest income were higher provisions for loan losses for the
three and nine month periods ended September 30, 1998 as compared to the same
periods of 1997, which were recorded in response to the high growth in loans
experienced by the Company. Noninterest income increased by 16.5% and 11.9% for
the three and nine month periods ended September 30, 1998, respectively, when
compared to the same periods of 1997. The increases in noninterest income were
partially due to gains of $66,000 and $213,000 recorded for the three and nine
month periods ended September 30, 1998, respectively, realized from the sale of
commercial loans. These loans were sold primarily to maintain a proper balance
between the amount of loans and deposits that the Company maintains. Without
these gains, noninterest income increased 9.9% for the three months ended
September 30, 1998 and 5.0% for the nine months ended September 30, 1998.
Noninterest expenses increased by 11.2% and 11.5% for the three and nine month
periods ended September 30, 1998, respectively, when compared to the same
periods of 1997, due primarily to the increase in the Company's branch network.
COMPONENTS OF EARNINGS
Net interest income is the largest component of earnings, representing the
difference between interest and fees generated from earning assets and the
interest costs of deposits and other funds needed to support those assets. Net
interest income for the third quarter of 1998 increased by $729,000, or 15.7%,
compared to the third quarter of 1997, while net interest income for the first
nine months of 1998 increased by $2,250,000, or 17.0%, compared to the first
nine months of 1997. The increase in net interest income was due to growth in
the Company's loans and deposits. The Company's total loans at September 30,
1998 of $345.3 million were 32.4% higher than the $260.7 million recorded at
September 30, 1997. Average loans outstanding for the third quarter of 1998 and
the first nine months of 1998 were 32.9% and 33.5%, respectively, greater than
the average loans outstanding for the comparable periods of
-11-
<PAGE>
1997. The Company's total deposits at September 30, 1998 of $412.5 million were
26.0% higher than the $327.5 million recorded at September 30, 1997. Average
deposits outstanding for the third quarter of 1998 and the first nine months of
1998 were 25.5% and 23.8%, respectively, greater than the average deposits
outstanding for the comparable periods of 1997. Contributing to the deposit
growth was the Company's November 1997 branch purchase that included $14 million
in deposits. No loans were acquired in the branch purchase.
Partially offsetting the incremental net interest income earned on the loan
and deposit growth was a reduction in the Company's net interest margin caused
by a flatter yield curve and a highly competitive pricing environment. The
Company's tax-equivalent net interest margin for the third quarter of 1998
decreased 55 basis points to 5.14% from the 5.69% margin realized in the third
quarter of 1997, while the net interest margin for the first nine months of 1998
was 38 basis points lower than for the first nine months of 1997 (5.32% vs.
5.70%). The decrease in the Company's net interest margin was a result of lower
yields on interest earning assets, as well as a higher cost of funds. The
following table presents average rates earned/paid by the Company for the third
quarter of 1998 compared to the third quarter of 1997:
<TABLE>
<CAPTION>
For the Three For the Three
Months Ended Months Ended
September 30, September 30,
1998 1997
---- ----
<S> <C> <C>
Yield on loans .................................. 9.25% 9.67%
Yield on taxable securities ..................... 6.21% 6.65%
Yield on non-taxable securities (tax equivalent). 8.60% 8.69%
Yield on other interest earning assets,
primarily overnight funds ..................... 5.62% 5.41%
Yield on all interest earning assets ............ 8.69% 9.04%
Weighted average rate on savings, NOW,
and money market deposits ..................... 2.37% 2.37%
Rate on time deposits greather than $100,000 .... 5.88% 5.74%
Rate on other time deposits ..................... 5.38% 5.30%
Rate on short-term borrowings .................. 5.67% n/a
Rate on all interest bearing liabilities ........ 4.24% 4.04%
Interest rate spread ............................ 4.45% 5.00%
</TABLE>
Partially offsetting the effect of the increase in net interest income on
net income was an increase in the provision for loan losses recorded by the
Company, which was higher in 1998 for both the three and nine month periods
ended September 30, 1998 than it was for the comparable periods of 1997. The
$250,000 provision for loan losses for the third quarter of 1998 was twice the
$125,000 recorded in the third quarter of 1997. The $740,000 provision for loan
losses for the nine months ended September 30, 1998 was 127.7% higher than the
$325,000 recorded in the nine months ended September 30, 1997. These increases
in the provision for loan losses were primarily in response to the higher loan
growth experienced by the Company in 1998 compared to 1997, and not credit
quality concerns. Loans grew by $64.8 million in the first nine months of 1998
compared to $37.7 million for the first nine months of 1997, while credit
quality ratios at September 30, 1998 are improved compared to September 30, 1997
(see discussion below). Provisions for loan losses are based on management's
evaluation of the loan portfolio, as discussed under "Summary of Loan Loss
Experience" below.
-12-
<PAGE>
Noninterest income increased $166,000, or 16.5%, to $1,173,000 in the third
quarter of 1998 from $1,007,000 for the third quarter of 1997. Noninterest
income for the first nine months of 1998 increased $366,000, or 11.9%, to
$3,446,000 compared to $3,080,000 for the first nine months of 1997. The
increases in noninterest income were partially due to the sales of commercial
loans that resulted in pretax gains of $66,000 and $213,000 for the three and
nine month periods in 1998, respectively. These loans were 1998 originations.
There were no similar gains from loan sales recorded in 1997. These loans were
sold primarily to maintain a proper balance between the amount of loans and
deposits that the Company maintains. Without these gains, noninterest income
increased 9.9% for the three months ended September 30, 1998 and 5.0% for the
nine months ended September 30, 1998. The increases in noninterest income in
1998 not due to the loan sales were primarily a result of increases in fees
collected on presold mortgage originations and ATM surcharges on non-customer
transactions. The increases in these revenues were largely offset by the absence
of data processing revenue that the Company earned in 1997 from its lone
third-party data processing customer that was acquired by another financial
institution and thus terminated its contract with the Company in the fourth
quarter of 1997. Fees collected on presold mortgage originations increased by
$157,000 to $365,000 for the first nine months of 1998 as a result of heavy
mortgage loan origination volume. The Company began assessing a surcharge on
non-customer ATM transactions in March 1998. This income amounted to $99,000 for
the nine months ended September 30, 1998. The Company earned $216,000 in the
first nine months of 1997 from the aforementioned data processing client that
was not replaced in 1998.
Noninterest expenses increased by $402,000, or 11.2%, from $3,601,000 to
$4,003,000, for the third quarter of 1998 compared to the third quarter of 1997.
Noninterest expenses for the first nine months of 1998 increased $1,221,000, or
11.5%, over the first nine months of 1997. The increases for both periods are
due primarily to the Company's growth in its branch network, which has grown
from 30 to 35 branches since January 1, 1997, as well as growth in its customer
base and the corresponding expenses necessary to process, manage and service the
Company's 32% increase in loans and 26% increase in deposits. Personnel expense,
the single largest component of noninterest expense, increased 21.0% and 15.5%
for the three and nine month periods ended September 30, 1998, respectively,
compared to the same periods of 1997. These increases were primarily due to
additional employees associated with the Company's growth as well as normal wage
increases for substantially all Company employees that occurred in January 1998.
Income taxes increased $154,000, or 23.7%, for the third quarter of 1998
over the third quarter of 1997. This reflects an effective tax rate of 35.2% for
the third quarter of 1998 compared to 33.9% for the third quarter of 1997. The
effective tax rate for the nine months ended September 30, 1998 was 34.8%
compared to 33.1% for the same nine months of 1997. The increase in the
effective tax rates for the respective periods was due to the Company deriving a
smaller percentage of its earnings from tax-exempt securities.
FINANCIAL CONDITION
The Company's total assets were $470.5 million at September 30, 1998, an
increase of $102.4 million, or 27.8%, from the $368.1 million at September 30,
1997. Interest-earning assets increased by 29.1%, from $339.1 million to $437.9
million, compared to September 30, 1997. Loans, the primary interest-earning
asset, increased by $84.6 million, or 32.4% during this same period. Deposits
increased $85.1 million, or 26.0%, to support the asset growth, of which
approximately $14 million was acquired in the Company's November 1997 branch
purchase in Lillington. The increase in deposits occurred in all significant
categories with noninterest bearing demand deposits increasing by $11.5 million,
or 24.6%;
-13-
<PAGE>
savings, NOW and money market accounts increasing by $24.2 million, or 19.5%;
time deposits of $100,000 or more increasing by $19.1 million, or 53.9%; and
other time deposits increasing by $30.2 million, or 25.0%. The 53.9% increase in
time deposits of $100,000 or more was due to the Company more aggressively
pricing these deposits to provide funding for the strong loan growth
experienced. The Company has not traditionally engaged in obtaining deposits
through brokers and had no such deposits during 1997 or 1998. Since December 31,
1997, the Company has experienced increases of 18.7%, 16.9%, and 14.2% in
earning assets, total assets and deposits, respectively.
NONPERFORMING ASSETS
Nonperforming assets are defined as nonaccrual loans, loans past due 90 or
more days and still accruing interest, restructured loans and foreclosed,
repossessed and idled properties. For each of the periods presented, the Company
had no loans past due 90 or more days and still accruing interest. Nonperforming
assets are summarized as follows:
<TABLE>
<CAPTION>
September 30, December 31, September 30,
($ in thousands) 1998 1997 1997
---------------- ---- ---- ----
<S> <C> <C> <C>
Nonperforming loans:
Nonaccrual loans ..................... $ 575 957 1,148
Restructured loans ................... 251 326 291
--------- --- -----
Total nonperforming loans ............... 826 1,283 1,439
Foreclosed, repossessed, and idled
properties (included in other assets) 515 560 404
--------- --- -----
Total nonperforming assets .............. $ 1,341 1,843 1,843
========= ===== =====
Nonperforming loans to total loans ...... 0.24% 0.46% 0.55%
Allowance for loan losses to
nonperforming loans ................ 652.66% 372.49% 328.56%
Nonperforming assets as a percentage of
loans and foreclosed, repossessed,
and idled properties ................. 0.39% 0.66% 0.71%
Nonperforming assets to total assets .... 0.28% 0.46% 0.50%
Allowance for loan losses to total loans 1.56% 1.70% 1.81%
</TABLE>
Management has reviewed the collateral for the nonperforming assets,
including nonaccrual loans, and has included this review among the factors
considered in the evaluation of the allowance for loan losses discussed below.
A loan is placed on nonaccrual status when, in management's judgment, the
collection of principal or interest appears doubtful. While a loan is on
nonaccrual status, the Company's policy is that all cash receipts are applied to
principal. Once the recorded principal balance has been reduced to zero, future
cash receipts are applied to recoveries of any amounts previously charged off.
Further cash receipts are recorded as interest income to the extent that any
interest has been foregone. The accrual of interest is discontinued on all loans
that become 90 days past due with respect to principal or interest. In some
cases, where borrowers are experiencing financial difficulties, loans may be
restructured to provide terms significantly different from the originally
contracted terms.
Nonperforming loans are defined as nonaccrual loans and restructured loans.
As of September 30, 1998, December 31, 1997 and September 30, 1997,
nonperforming loans were approximately 0.24%, 0.46%, and 0.55%, respectively, of
the total loans outstanding at such dates. Nonaccrual loans as of September 30,
1998 decreased $573,000, or 49.9%, from September 30, 1997 to approximately
$575,000
-14-
<PAGE>
and are lower by approximately $382,000, or 39.9%, since year-end. The decrease
in nonaccrual loans at September 30, 1998 as compared to December 31, 1997 and
September 30, 1997 is primarily attributable to generally improved loan quality,
as well as the full payout of two nonaccrual relationships each totaling
approximately $230,000 that occurred in the fourth quarter of 1997 and the first
quarter of 1998 (one payout of $230,000 in each quarter). As of September 30,
1998, the borrower with the largest nonaccrual loan owed a balance of $220,000
while the average nonaccrual loan balance was approximately $24,000. If the
nonaccrual loans and restructured loans as of September 30, 1998 and 1997 had
been current in accordance with their original terms and had been outstanding
throughout the nine month periods (or since origination or acquisition if held
for part of the nine month periods), gross interest income in the amounts of
approximately $42,000 and $79,000 for nonaccrual loans and $20,000 and $21,000
for restructured loans would have been recorded for the nine months ended
September 30, 1998 and 1997, respectively. Interest income on such loans that
was actually collected and included in net interest income in the nine months
ended September 30, 1998 and 1997 amounted to approximately $7,000 and $31,000,
respectively, for nonaccrual loans (prior to their being placed on nonaccrual
status) and $19,000 and $16,000, respectively, for restructured loans.
The FASB has issued SFAS No. 114, "Accounting by Creditors for Impairment of
a Loan," which requires that all creditors value all specifically reviewed loans
for which it is probable that the creditor will be unable to collect all amounts
due according to the terms of the loan agreement at the present value of
expected cash flows, market price of the loan, if available, or value of the
underlying collateral. Expected cash flows are required to be discounted at the
loan's effective interest rate.
The FASB also has issued SFAS No. 118, "Accounting by Creditors for
Impairment of a Loan - Income Recognition and Disclosures," that amends Standard
No. 114 to allow a creditor to use existing methods for recognizing interest
income on an impaired loan and by requiring additional disclosures about how a
creditor recognizes interest income related to impaired loans.
SFAS No.'s 114 and 118 do not apply to large groups of smaller-balance
homogenous loans that are collectively evaluated for impairment. For the
Company, these loans include residential mortgage and consumer installment
loans.
Consistent with SFAS No. 114, management considers loans to be impaired
when, based on current information and events, it is probable the Company will
be unable to collect all amounts due according to the contractual terms of the
loan agreement. Impaired loans are measured using either the discounted expected
cash flows or the value of collateral method. While a loan is considered to be
impaired, the Company's policy is that all cash receipts are applied to
principal. Once the recorded principal balance has been reduced to zero, future
cash receipts are applied to recoveries of any amounts previously charged off.
Further cash receipts are recorded as interest income to the extent that any
interest has been foregone.
At September 30, 1998, December 31, 1997, and September 30, 1997 the
recorded investment in loans that are considered to be impaired under SFAS No.
114 was $29,000, $398,000, and $512,000, respectively, all of which were on a
nonaccrual basis. The changes in the level of impaired loans at the respective
period ends is primarily attributable to improved loan quality, as well as the
payouts of the two $230,000 loans mentioned above that occurred in the fourth
quarter or 1997 and the first quarter of 1998. The related allowance for loan
losses for these impaired loans as determined in accordance with SFAS No. 114
was $4,000, $60,000, and $107,000, respectively. There were no impaired loans
for which there was no related allowance determined in accordance with the
statement. The average recorded investments in impaired loans during the nine
month period ended September 30, 1998, the year
-15-
<PAGE>
ended December 31, 1997, and the nine months ended September 30, 1997 were
approximately $138,000, $654,000, and $718,000, respectively. For the same
periods, the Company recognized no interest income on those impaired loans
during the period that they were considered to be impaired.
In addition to the nonperforming loan amounts discussed above, management
believes that an estimated $1,300,000-$1,500,000 of loans that are currently
performing in accordance with their contractual terms may potentially develop
problems, depending upon the particular financial situations of the borrowers
and economic conditions in general. These loans were considered in determining
the appropriate level of the allowance for loan losses. See "Summary of Loan
Loss Experience" below. Loans classified for regulatory purposes as loss,
doubtful, substandard, or special mention that have not been disclosed in the
problem loan amounts above do not represent or result from trends or
uncertainties which management reasonably expects will materially impact future
operating results, liquidity, or capital resources, or represent material
credits about which management is aware of any information which causes
management to have serious doubts as to the ability of such borrowers to comply
with the loan repayment terms.
As of September 30, 1998, December 31, 1997 and September 30, 1997, the
Company owned foreclosed, repossessed, and idled assets totaling approximately
$515,000, $560,000, and $404,000, respectively, which consisted principally of
several parcels of foreclosed real estate. The Company's management has reviewed
recent appraisals of these properties and believes that their fair values, less
estimated costs to sell, exceed their respective carrying values as of the dates
presented.
SUMMARY OF LOAN LOSS EXPERIENCE
The allowance for loan losses is created by direct charges to operations.
Losses on loans are charged against the allowance in the period in which such
loans, in management's opinion, become uncollectible.
Recoveries during the period are credited to this allowance.
The factors that influence management's judgment in determining the amount
charged to operating expense include past loan loss experience, composition of
the loan portfolio, evaluation of possible future losses and current economic
conditions.
The Company's bank subsidiary uses a loan analysis and grading program to
facilitate its evaluation of possible future loan losses and the adequacy of its
allowance for loan losses, otherwise referred to as its loan loss reserve. In
this program, a "watch list" is prepared and monitored monthly by management and
is tested quarterly by the bank's Internal Audit Department. The list includes
loans that management identifies as having potential credit weaknesses in
addition to loans past due 90 days or more, nonaccrual loans and remaining
unpaid loans identified during previous examinations.
Based on management's evaluation of the loan portfolio and economic
conditions, a provision for loan losses of $250,000 was added to the allowance
for loan losses during the three months ended September 30, 1998. The $250,000
provision for loan losses was double the $125,000 recorded in the third quarter
of 1997. The $740,000 provision for loan losses for the nine months ended
September 30, 1998 was 127.7% higher than the $325,000 recorded in the nine
months ended September 30, 1997. The increase in the provision for loan losses
was primarily in response to the higher loan growth experienced by the Company
in 1998 compared to 1997, and not credit quality concerns. Loans grew by $64.8
million in the first nine months of 1998 compared to $37.7 million for the first
nine months of 1997, while credit quality ratios at September 30, 1998 were
improved compared to September 30, 1997. At September 30, 1998, the allowance
stood at $5,391,000, compared to $4,779,000 at December 31, 1997 and $4,728,000
-16-
<PAGE>
at September 30, 1997. At September 30, 1998, the allowance for loan losses was
approximately 653% of total nonperforming loans, compared to corresponding
percentages of 372% at December 31, 1997 and 329% at September 30, 1997.
The allowance for loan losses was 1.56%, 1.70% and 1.81% of total loans as
of September 30, 1998, December 31, 1997 and September 30, 1997, respectively.
The allowance for loan losses as a percentage of total loans has been gradually
decreasing since its high of 2.81% at September 30, 1994. The September 30, 1994
high of 2.81% was an increase from the 1.79% ratio at June 30, 1994 due
primarily to an addition to the allowance of $2.5 million that was recorded in
the third quarter of 1994 in connection with a corporate acquisition in which a
higher risk loan portfolio was assumed. The general decrease in the ratio of
allowance for loan losses to total loans since then has been largely due to
charge-offs associated with that portfolio, strong recent loan growth, as well
as generally improved overall loan quality. Management believes the reserve
levels are adequate to cover possible loan losses on the loans outstanding as of
each reporting date. It must be emphasized, however, that the determination of
the reserve using the Company's procedures and methods rests upon various
judgments and assumptions about future economic conditions and other factors
affecting loans. No assurance can be given that the Company will not in any
particular period sustain loan losses that are sizable in relation to the
amounts reserved or that subsequent evaluations of the loan portfolio, in light
of conditions and factors then prevailing, will not require significant changes
in the allowance for loan losses or future charges to earnings. In addition,
various regulatory agencies, as an integral part of their examination process,
periodically review the Company's allowances for loan losses and losses on other
real estate. Such agencies may require the Company to recognize additions to the
allowances based on their judgments about information available at the time of
such examinations.
For the periods indicated, the following table summarizes the Company's balances
of loans outstanding, average loans outstanding, changes in the allowance for
loan losses arising from charge-offs and recoveries by category, and additions
to the allowance for loan losses that have been charged to expense.
-17-
<PAGE>
<TABLE>
<CAPTION>
Nine Months Year Nine Months
Ended Ended Ended
September 30, Dec. 31, September 30,
($ in thousands) 1998 1997 1997
--------- ------- -------
<S> <C> <C> <C>
Loans outstanding at period end ........... $ 345,295 280,513 260,699
========= ======= =======
Average loans outstanding during period ... $ 317,155 245,596 237,485
========= ======= =======
Allowance for loan losses at
beginning of period .................... $ 4,779 4,726 4,726
Loans charged off:
Commercial, financial and agricultural . (35) (61) (25)
Real estate - mortgage ................. (44) (449) (336)
Installment loans to individuals ....... (166) (311) (230)
--------- ------- -------
Total charge-offs ................... (245) (821) (591)
--------- ------- -------
Recoveries of loans previously charged-off:
Commercial, financial and agricultural . 21 89 81
Real estate - mortgage ................. 16 38 21
Installment loans to individuals ....... 80 141 117
Other .................................. -- 31 49
--------- ------- -------
Total recoveries .................... 117 299 268
--------- ------- -------
Net charge-offs ........................... (128) (522) (323)
Provision for loan losses ................. 740 575 325
--------- ------- -------
Allowance for loan losses at end of period $ 5,391 4,779 4,728
========= ===== =====
Ratios:
Annualized net charge-offs to average
loans during period .................. 0.05% 0.21% 0.18%
Allowance for loan losses to
loans at end of period ............... 1.56% 1.70% 1.81%
Allowance for loan losses as a multiple
of annualized net charge-offs ........ 31.53x 9.16x 10.94x
Provision for loan losses as a percent
of net charge-offs ................... 578.13% 110.15% 100.62%
Recoveries of loans previously charged-
off as a percent of loans charged-off 47.76% 36.42% 45.35%
</TABLE>
Based on the results of the aforementioned loan analysis and grading
program and management's evaluation of the allowance for loan losses at
September 30, 1998, there have been no material changes to the allocation of the
allowance for loan losses among the various categories of loans since December
31, 1997.
<PAGE>
LIQUIDITY
The Company's liquidity is determined by its ability to convert assets to
cash or acquire alternative sources of funds to meet the needs of its customers
who are withdrawing or borrowing funds, and to maintain required reserve levels,
pay expenses and operate the Company on an ongoing basis. The Company's primary
liquidity sources are net income from operations, cash and due from banks,
federal funds sold and other short-term investments. In addition, the Company
(through its bank subsidiary) has
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<PAGE>
the ability, on a short-term basis, to purchase federal funds from other
financial institutions and has an available line of credit with the Federal Home
Loan Bank in place that can provide short or long term financing. The Company
has not traditionally had to rely on these sources of credit as a source of
liquidity. The Company has experienced an increase in its loan to deposit ratio
(83.7% at September 30, 1998 compared to 79.6% a year earlier) as a result of
the significant loan growth that has reduced the Company's liquidity sources. To
ensure satisfactory liquidity, during the second quarter of 1998 the Company
increased its available line of credit with the Federal Home Loan Bank of
Atlanta (the "FHLB") from $36 million to $50 million. In addition, during the
third quarter of 1998, the Company made periodic draws and repayments on this
line of credit on an overnight basis to maintain liquidity ratios at levels
complying with the Company's internal policies. At September 30, 1998, the
Company had outstanding borrowings with the FHLB totaling $13 million, while the
average amount outstanding for the third quarter was $7.4 million. The Company's
management believes its liquidity sources are at an acceptable level and remain
adequate to meet its operating needs.
CAPITAL RESOURCES
The Company is required by its own policies and by applicable federal
regulations to maintain certain capital levels. The Company's ratio of stated
capital to total assets exceeded 8% as of September 30, 1998 and 1997, and
December 31, 1997. In an effort to achieve a measurement of capital adequacy
that is sensitive to the individual risk profiles of financial institutions, the
various financial institution regulators have minimum capital guidelines that
categorize various components of capital and types of assets and measure capital
adequacy in relation to the financial institution's relative level of those
capital components and the level of risk associated with various types of assets
of that financial institution. The guidelines call for minimum adjusted total
capital of 8% of risk-adjusted assets. As of September 30, 1998, the Company's
total risk-based capital ratio was 11.11%.
In addition to the risk-based capital requirements described above, the
Company is subject to a leverage capital requirement, which calls for a minimum
ratio of leverage capital, as defined in the regulations, to quarterly average
total assets of 3-5%. As of September 30, 1998, the Company's leverage capital
ratio was 7.41%.
The Company is not aware of any recommendations of regulatory authorities
or otherwise which, if they were to be implemented, would have a material effect
on its liquidity, capital resources, or operations.
-19-
<PAGE>
As of September 30, 1998, December 31, 1997 and September 30, 1997, the
Company was in compliance with all existing regulatory capital requirements, as
summarized in the following table:
<TABLE>
<CAPTION>
September 30, Dec. 31, September 30,
($ in thousands) 1998 1997 1997
- ---------------- ---- ---- ----
<S> <C> <C> <C>
Tier I capital:
Total stated shareholders' equity $ 39,633 36,765 35,727
Less: Intangible assets 5,995 6,487 5,192
Unrealized gain
on securities available for
sale, net of income taxes 222 186 185
------------ ------- -------
Total Tier I leverage capital 33,416 30,092 30,350
Tier II capital:
Allowable allowance for loan losses 4,178 3,466 3,217
------------ ------- -------
Total capital $ 37,594 33,558 33,567
============ ====== ======
Risk-adjusted assets $ 340,425 283,924 262,735
Tier I risk-adjusted assets (includes Tier I
capital adjustments) 334,208 277,251 257,358
Tier II risk adjusted assets (includes Tiers I
and II capital adjustments) 338,386 280,717 260,575
Quarterly average total assets 456,878 386,291 362,601
Adjusted quarterly average total assets
(includes Tier I capital adjustments) 450,661 379,618 357,224
Risk-based capital ratios:
Tier I capital 10.00% 10.85% 11.79%
Minimum required Tier I capital 4.00% 4.00% 4.00%
Total risk-based capital 11.11% 11.95% 12.88%
Minimum required total risk-based capital 8.00% 8.00% 8.00%
Leverage capital ratios:
Tier I leverage capital ratio 7.41% 7.93% 8.50%
Minimum required Tier I leverage capital 3-5.00% 3-5.00% 3-5.00%
</TABLE>
UPDATE ON YEAR 2000
The Company recognizes and is addressing the potentially severe
implications of the "Year 2000 Issue." The "Year 2000 Issue" is a general term
used to describe the various problems that may result from the improper
processing of dates and date-sensitive calculations as the Year 2000 approaches.
This issue is caused by the fact that many of the world's existing computer
programs use only two digits to identify the year in the date field of a
program. These programs were designed and developed without considering the
impact of the upcoming change in the century and could experience serious
malfunctions when the last two digits of the year change to "00" as a result of
identifying a year designated "00" as the year 1900 rather than the year 2000.
<PAGE>
This misidentification could prevent the Company from being able to engage in
normal business operations, including, among other things, miscalculating
interest accruals and the inability to process customer transactions. Because of
the potentially serious ramifications of the Year 2000 Issue, the Company is
taking the Year 2000 Issue very seriously.
The Company's Technology Committee, which is comprised of a cross-section
of the Company's employees, is leading the Company's Year 2000 efforts and
involving all employees of the Company in
-20-
<PAGE>
ensuring that the Company is properly prepared for the Year 2000. The Company's
Board of Directors has approved a plan submitted by the Technology Committee
that was developed in accordance with guidelines set forth by the Federal
Financial Institutions Examination Council. This plan has three primary phases
related to internal Year 2000 compliance.
The first phase of the Company's efforts to address the Year 2000 Issue was
to inventory all known Company processes that could reasonably be expected to be
impacted by the Year 2000 Issue and their related vendors, if applicable. This
inventory of processes and vendors included not only typical computer processes
such as the Company's transaction applications systems, but all known processes
that could be impacted by micro-chip malfunctions. These include but are not
limited to the Company's alarm system, phone system, check ordering process, and
ATM network. This phase is complete, although it is periodically updated as
necessary.
The Company's second phase in addressing the Year 2000 Issue was to contact
all third party vendors, request documentation regarding their Year 2000
compliance efforts, and analyze the responses. This was a significant phase
because the Company does not perform in-house programming, and thus is dependent
on external vendors to ensure and modify, if necessary, the hardware, software,
or service they provide to the Company to be Year 2000 compliant. This phase is
now virtually complete and the Company is currently following up on any issues
or concerns identified in the responses received, as necessary.
The next phase for the Company under the plan is to complete a
comprehensive testing of all known processes. Initially, processes are to be
tested on a stand-alone basis and then the testing will involve multiple
interfacing processes. Testing of the Company's processes has begun and is
scheduled to be substantially complete by the end of 1998. Management plans for
any corrective actions to be implemented to ensure that the Company is fully
prepared for the Year 2000 by the end of the first quarter of 1999. The most
significant phase of testing is the testing of the Company's core software
applications. Upgrades of the core software applications currently used by the
Company were received from the software vendor in June 1998 and were represented
to be Year 2000 compliant by the vendor. These applications were successfully
loaded onto the Company's hardware system in early July 1998 and Year 2000
testing began in September 1998. While testing is not complete, to date the
Company has not identified any significant problems or deficiencies in the
applications.
Another part of the Company's Year 2000 plan is to assess the Year 2000
readiness of its significant borrowers and depositors. Through the use of
questionnaires and personal contacts, the Company has assessed the Year 2000
readiness of significant borrowers and depositors of the Company. Customers who
the Company has Year 2000 concerns about are being counseled on the Year 2000
Issue, urged to take action, and placed on an internal watch list that will be
updated on a quarterly basis and reviewed and monitored by the Company for any
potential effects on the Company. The initial list of these customers will be
completed in the fourth quarter of 1998 and evaluated by management. Based on
the information gathered to date, management of the Company believes that the
number and magnitude of customers with potential Year 2000 problems will not be
significant. Prospective new loan customers are also assessed for Year 2000
compliance as a part of the underwriting process of significant loans.
<PAGE>
In the Company's 1997 Form 10-K, the Company disclosed an estimated range
of total costs to address the Year 2000 Issue to be from $100,000 to $150,000.
During the second quarter of 1998, management determined that the estimated cost
to modify the Company's automated teller machines (ATMs) would likely be higher
than originally projected. As a result, the Company now projects the total costs
to address the Year 2000 Issue to be from $175,000 to $200,000. Other than the
estimated
-21-
<PAGE>
cost to make the Company's ATMs Year 2000 compliant, the Company has not
identified any processes that will require significant expenditures to address
the Year 2000 Issue. The majority of these costs are expected to be incurred and
expensed by the Company during the fourth quarter of 1998 or the first quarter
of 1999. Year 2000 project costs during the three and nine month periods ended
September 30, 1998 amounted to $20,000. Although funding of the Year 2000
project costs will come from normal operating cash flow, the expenses associated
with the Year 2000 Issue will directly reduce otherwise reported net income for
the Company.
Management of the Company believes that the potential effects on the
Company's internal operations of the Year 2000 Issue can and will be addressed
prior to the Year 2000. However, if required modifications or conversions are
not made or are not completed on a timely basis prior to the Year 2000, the Year
2000 Issue could disrupt normal business operations. The most reasonably likely
worst case Year 2000 scenarios foreseeable at this time would include the
Company temporarily not being able to process, in some combination, various
types of customer transactions. This could affect the ability of the Company to,
among other things, originate new loans, post loan payments, accept deposits or
allow immediate withdrawals, and, depending on the amount of time such a
scenario lasted, could have a material adverse effect on the Company. Because of
the serious implications of these scenarios, the primary emphasis of the
Company's Year 2000 efforts is to correct, with complete replacement if
necessary, any systems or processes whose Year 2000 test results are not
satisfactory prior to the Year 2000. Nevertheless, should one of the most
reasonably likely worst case scenarios occur in the Year 2000, the Company is
also in the process of formalizing a contingency plan (that should be complete
by January 1999) that would allow for limited transactions, including the
ability to make certain deposit withdrawals, until the Year 2000 problems are
remediated.
The costs of the Year 2000 project and the date on which the Company plans
to complete Year 2000 compliance are based on management's best estimates, which
were derived using numerous assumptions of future events such as the
availability of certain resources (including internal and external resources),
third party vendor plans and other factors. However, there can be no guarantee
that these estimates will be achieved at the cost disclosed or within the time
frame indicated, and actual results could differ materially from these plans.
Factors that might affect the timely and efficient completion of the Company's
Year 2000 project include, but are not limited to, vendors' abilities to
adequately correct or convert software and the effect on the Company's ability
to test its systems, the availability and cost of personnel trained in the Year
2000 area, the ability to identify and correct all relevant computer programs
and similar uncertainties.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
INTEREST RATE RISK (INCLUDING QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT
MARKET RISK)
Net interest income is the Company's most significant component of
earnings. Notwithstanding changes in volumes of loans and deposits, the
Company's level of net interest income is continually at risk due to the effect
that changes in general market interest rate trends have on interest yields
earned and paid with respect to the various categories of earnings assets and
interest-bearing liabilities. It is the Company's policy to maintain portfolios
of earning assets and interest-bearing liabilities with maturities and repricing
opportunities that will afford protection, to the extent practical, against wide
interest rate fluctuations. The Company's exposure to interest rate risk is
analyzed on a regular basis by management using standard GAP reports, maturity
reports, and an asset/liability software model that simulates future
-22-
<PAGE>
levels of interest income and expense based on current interest rates, expected
future interest rates, and various intervals of "shock" interest rates. Over the
years, the Company has been able to maintain a fairly consistent net yield on
average earning assets (net interest margin). Over the past ten fiscal years the
net interest margin has not varied by more than 25 basis points in any single
fiscal year and the lowest net interest margin realized over that same period is
within 60 basis points of the highest. While the Company can not guarantee
similar stability in the net interest margin in the future, at this time
management does not expect significant fluctuations. The Company has experienced
a decrease in its net interest margin during 1998, and it is likely that the
Company's net interest margin for fiscal 1998 will be more than 25 basis points
lower than the 5.65% realized during 1997 - see additional discussion in the
"Components of Earnings" section above.
As of September 30, 1998, the Company had approximately $91 million more in
interest-bearing liabilities that are subject to interest rate changes within
one year than earning assets. This generally would indicate that net interest
income would experience downward pressure in a rising interest rate environment
and would benefit from a declining interest rate environment. However, this
method of analyzing interest sensitivity only measures the magnitude of the
timing differences and does not address earnings, market value, or management
actions. Also, interest rates on certain types of assets and liabilities may
fluctuate in advance of changes in market interest rates, while interest rates
on other types may lag behind changes in market rates. In addition to the
effects of "when" various rate-sensitive products reprice, market rate changes
may not result in uniform changes in rates among all products. For example,
included in interest-bearing liabilities at September 30, 1998 subject to
interest rate changes within one year are deposits totaling $148.5 million
comprised of NOW, savings, and certain types of money market deposits with
interest rates set by management. These types of deposits historically have not
repriced coincidentally with or in the same proportion as general market
indicators. Thus, the Company believes that near term net interest income would
not likely experience significant downward pressure from rising interest rates.
Similarly, management would not expect a significant increase in near term net
interest income from falling interest rates. As of September 30, 1998,
approximately 88% of interest-earning assets could be repriced within five years
and substantially all interest-bearing liabilities could be repriced within five
years.
The Company has no market risk sensitive instruments held for trading
purposes, nor does it maintain any foreign currency positions. The following
table presents the expected maturities of the Company's other than trading
market risk sensitive financial instruments. The following table also presents
the fair values of market risk sensitive instruments as estimated in accordance
with Statement of Financial Accounting Standards No. 107, "Disclosures About
Fair Value of Financial Instruments."
-23-
<PAGE>
<TABLE>
<CAPTION>
Expected Maturities of Market Sensitive
---------------------------------------------------------------------------
Instruments Held at September 30, 1998
Average Estimated
Interest Fair
($ in thousands) 1 Year 2 Years 3 Years 4 Years 5 Years Beyond Total Rate (1) Value
- ---------------- ------ ------- ------- ------- ------- ------ ----- -------- -----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Debt Securities- at
amortized cost (2) $ 23,603 7,285 11,526 2,153 4,179 7,698 56,444 7.13% $ 57,597
Loans - fixed (3) .... 37,333 26,874 31,334 15,903 43,529 21,841 176,814 8.97% 176,823
Loans - adjustable (3) 80,071 19,493 19,066 12,631 21,121 15,524 167,906 9.10% 167,906
-------- ----- ------ ----- ----- ----- ------ --------
Total .............. $141,007 53,652 61,926 30,687 68,829 45,063 401,164 8.77% $402,326
======== ====== ====== ====== ====== ====== ======= ==== ========
Savings, NOW, and
money market
deposits ........... $148,535 -- -- -- -- -- 148,535 2.24% $148,535
Time deposits ........ 172,099 22,653 6,424 1,936 2,506 10 205,628 5.46% 206,278
-------- ----- ------ ----- ----- ----- ------ --------
Total .............. $320,634 22,653 6,424 1,936 2,506 10 354,163 4.11% $354,813
======== ====== ===== ===== ===== ===== ======= ==== ========
</TABLE>
(1) Tax-exempt securities are reflected at a tax-equivalent basis using a 34%
tax rate.
(2) Callable securities with above market interest rates at September 30, 1998
are assumed to mature at their call date for purposes of this table.
Mortgage-backed securities and collateralized mortgage obligations are
assumed to mature, lump sum, in the year consistent with their estimated
weighted average life.
(3) Excludes nonaccrual loans and allowance for loan losses.
The Company's fixed rate earning assets have estimated fair values that are
slightly higher than their carrying value. This is due to the yields on these
portfolios being slightly higher than market yields at September 30, 1998 for
instruments with maturities similar to the remaining term of the portfolios due
to a generally declining interest rate environment during the year. The
estimated fair value of the Company's time deposits is higher than its book
value for the same reason.
FORWARD LOOKING STATEMENTS
The foregoing discussion contains statements that could be deemed
forward-looking statements within the meaning of Section 21E of the Securities
Exchange Act of 1934 and the Private Securities Litigation Reform Act, which
statements are inherently subject to risks and uncertainties. Forward-looking
statements are statements that include projections, predictions, expectations or
beliefs about future events or results or otherwise are not statements of
historical fact. Such statements are often characterized by the use of
qualifying words (and their derivatives) such as "expect," "believe,"
"estimate," "plan," "project," or other statements concerning opinions or
judgment of the Company and its management about future events. Factors that
could influence the accuracy of such forward-looking statements include, but are
not limited to, the financial success or changing strategies of the Company's
customers, actions of government regulators, the level of market interest rates,
and general economic conditions.
-24-
<PAGE>
Part II. Other Information
Item 5 - Other Information
The bylaws of the Company establish an advance notice procedure for
shareholder proposals to be brought before a meeting of shareholders of the
Company. Subject to any other applicable requirements, only such business may be
conducted at a meeting of the shareholders as has been brought before the
meeting by, or at the direction of, the Board of Directors or by a shareholder
who has given to the Secretary of the Company timely written notice, in proper
form, of the shareholder's intention to bring that business before the meeting.
The presiding officer at such meeting has the authority to make such
determinations.
To be timely, notice of other business to be brought before any meeting must
generally be received by the Secretary of the Company within 60 to 90 days in
advance of the shareholders' meeting. The notice of any shareholder proposal
must set forth the various information required under the bylaws. The person
submitting the notice must provide, among other things, the name and address
under which such Shareholder appears on the Company's books and the class and
number of shares of the Company's capital stock that are beneficially owned by
such Shareholder. Any shareholder desiring a copy of the Company's bylaws will
be furnished one without charge upon written request to the Secretary of the
Company at the Company's headquarters.
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibits
The following exhibits are filed with this report or, as noted, are
incorporated by reference. Management contracts, compensatory plans
and arrangements are marked with an asterisk (*).
3.a.i Copy of Articles of Incorporation of the Registrant and amendments
thereto, was filed as Exhibit 3(a) to the Registrant's Registration
Statement Number 33-12692, and is incorporated herein by reference.
3.a.ii Copy of the amendment to Articles of Incorporation - adding a new
Article Nine, filed as exhibit 3(e) to the Company's Annual Report on
Form 10-K for the year ended December 31, 1988, and is incorporated
herein by reference.
3.b.i Copy of the Bylaws of the Registrant and amendments thereto, was
filed as Exhibit 3(b) to the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1994, and is incorporated herein by
reference.
10 Material Contracts
10.a Data processing Agreement dated October 1, 1984 by and between Bank
of Montgomery (First Bank) and Montgomery Data Services, Inc. was
filed as Exhibit 10(k) to the Registrant's Registration Statement
Number 33-12692, and is incorporated herein by reference.
10.b First Bank Salary and Incentive Plan, as amended, was filed as
Exhibit 10(m) to the Registrant's Registration Statement Number
33-12692, and is incorporated herein by reference. (*)
-25-
<PAGE>
10.c First Bancorp Savings Plus and Profit Sharing Plan (401(k) savings
incentive plan and trust), as amended January 25, 1994 and July 19,
1994, was filed as Exhibit 10(c) to the Company's Annual Report on
Form 10-KSB for the year ended December 31, 1994, and is incorporated
herein by reference. (*)
10.d Directors and Officers Liability Insurance Policy of First Bancorp,
dated July 16, 1991, was filed as Exhibit 10(g) to the Company's
Annual Report on Form 10-K for the year ended December 31, 1991, and
is incorporated herein by reference.
10.e Indemnification Agreement between the Company and its Directors and
Officers was filed as Exhibit 10(t) to the Registrant's Registration
Statement Number 33-12692, and is incorporated herein by reference.
10.f First Bancorp Employees' Pension Plan, as amended on August 16, 1994,
was filed as Exhibit 10(g) to the Company's Annual Report on Form
10-KSB for the year ended December 31, 1994, and is incorporated
herein by reference. (*)
10.g First Bancorp Senior Management Supplemental Executive Retirement
Plan dated May 31, 1993, was filed as Exhibit 10(k) to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1993,
and is incorporated herein by reference. (*)
10.h First Bancorp Senior Management Split-Dollar Life Insurance
Agreements between the Company and the Executive Officers, as amended
on December 22, 1994, was filed as Exhibit 10(i) to the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1994,
and is incorporated herein by reference. (*)
10.i First Bancorp 1994 Stock Option Plan was filed as Exhibit 10(n) to
the Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1994, and is incorporated herein by reference. (*)
10.j Severance Agreement between the Company and Patrick A. Meisky dated
December 29, 1995 was filed as Exhibit 10(o) to the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1995, and is
incorporated by reference. (*)
10.k Amendment to the First Bancorp Savings Plus and Profit Sharing Plan
(401(k) savings incentive plan and trust), dated December 17, 1996,
was filed as Exhibit 10(m) to the Company's Annual Report on Form
10-KSB for the year ended December 31, 1996, and is incorporated
herein by reference. (*)
10.l Employment Agreement between the Company and James H. Garner dated
August 17, 1998.
10.m Employment Agreement between the Company and Anna G. Hollers dated
August 17, 1998.
10.n Employment Agreement between the Company and Teresa C. Nixon dated
August 17, 1998.
27.1 Financial Data Schedules pursuant to Article 9 of Regulation S-X for
the nine months ended September 30, 1998.
(b) There were no reports filed on Form 8-K during the quarter ended September
30, 1998.
-26-
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FIRST BANCORP
November 10, 1998 BY: /s/ James H. Garner
--------------------
James H. Garner
President
(Principal Executive Officer),
Treasurer and Director
November 10, 1998 BY: /s/ Anna G. Hollers
-------------------
Anna G. Hollers
Executive Vice President
and Secretary
November 10, 1998 BY: /s/ Eric P. Credle
------------------
Eric P. Credle
Vice President
and Chief Financial Officer
-27-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT CROSS REFERENCE INDEX
Exhibit Page(s)
- ------- -------
<S> <C> <C>
3.a.i Copy of Articles of Incorporation of the Registrant *
3.a.ii Copy of the amendment to Articles of Incorporation *
3.b.i Copy of the Bylaws of the Registrant *
10.a Data processing Agreement by and between Bank of Montgomery (First
Bank) and Montgomery Data Services, Inc. *
10.b First Bank Salary and Incentive Plan, as amended *
10.c First Bancorp Savings Plus and Profit Sharing Plan (401(k) savings
incentive plan and trust), as amended *
10.d Directors and Officers Liability Insurance Policy of First Bancorp *
10.e Indemnification Agreement between the Company and its Directors and
Officers *
10.f First Bancorp Employees' Pension Plan *
10.g First Bancorp Senior Management Supplemental Executive Retirement Plan *
10.h First Bancorp Senior Management Split-Dollar Life Insurance Agreements
between the Company and the Executive Officers *
10.i First Bancorp 1994 Stock Option Plan *
10.j Severance Agreement between the Company and Patrick A. Meisky *
10.k Amendment to the First Bancorp Savings Plus and Profit Sharing Plan
(401(k) savings incentive plan and trust) *
10.l Employment Agreement between the Company and James H. Garner dated
August 17, 1998. 29
10.m Employment Agreement between the Company and Anna G. Hollers dated
August 17, 1998. 35
10.n Employment Agreement between the Company and Teresa C. Nixon dated
August 17, 1998. 41
27.1 Financial Data Schedule pursuant to Article 9 of Regulation S-X for
the nine months ended September 30, 1998 (SEC copy only) 47
* Incorporated herein by reference.
</TABLE>
-28-
Exhibit 10.l
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated and effective this 17th day of August, 1998,
between FIRST BANCORP (a North Carolina corporation) (the "Company") and JAMES
H. GARNER (the "Employee"). References to the "Company" herein shall be deemed
to refer to the Company and its subsidiaries taken as a whole, unless the
context requires or the Agreement provides otherwise.
The Company desires to employ the Employee, and Employee desires to be
employed by the Company, on the terms and subject to the conditions hereinafter
set forth. Accordingly, in consideration of employment, the compensation the
Company agrees to pay the Employee, the mutual covenants contained herein, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually agree as follows:
1. Employment and Term. The Company (or one of its subsidiaries) will
employ Employee, and Employee will be employed by the Company for a term of
three (3) years, initially as President and Chief Executive Officer, commencing
on the date hereof, unless sooner terminated as hereinafter provided. The term
of this Agreement shall automatically be extended for an additional period of
one (1) year on each anniversary of the date of this Agreement unless either
party gives the other written notice on or prior to such anniversary date that
such extension will not occur.
2. Duties. Employee shall at all times faithfully and diligently
perform Employee's obligations under this Agreement and act in the best
interests of the Company and its affiliated companies. Employee's duties
hereunder shall be to act in such office or capacity as the Company may direct
or change from time to time, and Employee shall perform all duties necessary or
advisable in order to carry out such functions in an efficient manner. Employee
shall, during the term of Employee's employment hereunder, devote Employee's
full time, best efforts and ability, skill, and attention exclusively to the
furtherance of the business objectives and interests of the Company and its
affiliated companies during such hours and in such a manner as is generally
customary for employees of Employee's position in businesses of the Company's
type.
3. Compensation.
(a) Salary. For services rendered by Employee hereunder, the
Company shall pay Employee an annual salary of not less than $170,000 payable in
accordance with the customary payroll practices of the Company. Employee's
salary shall be subject to increase upon annual reviews of the Employee's
performance. Employee will receive an annual increase that is at least as much
as any percentage increase in the U.S. Consumer Price Index during the twelve
months preceding the date of Employee's annual review. Any such increase will be
considered in determining the Employee's base salary for all purposes hereunder.
(b) Reimbursement of Expenses. The Company shall pay or
reimburse Employee for all reasonable and necessary travel and other expenses
incurred by Employee in performing Employee's obligations under this Agreement,
provided that Employee shall present to the Company from time to time an
itemized account of such expenses in any form required by the Company. The
Company further agrees to furnish Employee with such other assistance and
accommodations as shall be suitable to the character of Employee's position with
the Company and adequate for the performance of Employee's duties hereunder.
<PAGE>
(c) Employee shall be entitled to such insurance, pension,
profit-sharing and other benefit plans as are or may be available generally to
employees of the Company to the extent permitted by applicable laws or
government regulations. Employee will also be eligible for participation in the
Company's Supplemental Employee Retirement Plan, Split Dollar Insurance Plan and
Stock Option Plan.
(d) Employee shall be entitled to reasonable time off for
vacation, sick leave, bereavement leave, jury duty and military obligations as
are or may become available to employees of the Company in positions similar to
those of Employee, as provided by the Company's policies as they may be in
effect from time to time.
4. Termination. In addition to the termination of the terms specified
in Section 1 hereunder, employment may be terminated under any of the following
provisions:
(a) The employment of the Employee under this Agreement may be
terminated immediately by the Company if the Company finds that the Employee
shall have (i) demonstrated gross negligence or willful misconduct in the
execution of Employee's duties, (ii) committed an act of dishonesty or moral
turpitude, or (iii) been convicted of a felony or other serious crime. All
future compensation and benefits, not then accrued, will automatically terminate
if Employee is terminated under this subparagraph (a).
(b) The employment of the Employee under this Agreement shall
be automatically terminated on the date of the Employee's death.
(c) Employer may terminate Employee's employment hereunder for
any reason other than as provided in subparagraphs (a) and (b), but in such case
Employer shall be obligated to pay Employee's base salary to Employee for the
remainder of the term specified in Section 1 hereof (the "Remaining Term").
(d) Employment hereunder may be terminated voluntarily by
Employee on forty-five (45) days' written notice to the Company's Chief
Executive Officer or Chairman of the Company's Board of Directors, in which case
Employee will receive his compensation, vested rights and employee benefits
accrued through the date of termination of employment.
5. Other Obligations. All payments and benefits to Employee under this
Agreement shall be subject to Employee's compliance with the following
provisions:
(a) Assistance in Litigation. During the term of this
Agreement and for three full years after the expiration or termination hereof,
Employee shall, upon reasonable notice, furnish such information and proper
assistance to the Company as may reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. In connection with such assistance, if
substantial effort or expense is required of Employee after the termination of
Employee's employment hereunder, the Company will pay reasonable compensation to
Employee and will reimburse him for reasonable out-of-pocket expenses.
<PAGE>
(b) Long-Term Disability. If the Employee has become disabled
as determined under the Company's long-term disability plan or policy then in
effect and is terminated from active employment, any remaining benefits of this
contract shall be reduced by any benefits received by the Employee under the
Company's long-term disability plan or policy. Additionally, if such a
circumstance occurs, the Employee is under an affirmative duty to actively seek
and accept reasonable alternative employment following termination. Any
compensation received by Employee following termination or compensation earnable
with reasonable diligence will be deducted from any future compensation due the
Employee under this Agreement. In the event the Employee fails to seek
reasonable alternative employment, the Company's obligation to pay future
compensation shall cease.
(c) Confidential Information. Employee acknowledges that in
the course of Employee's employment he will acquire knowledge of trade and
business secrets and other confidential data of the Company, its subsidiaries
and any affiliated companies. Such trade and business secrets and other
confidential data may include, but are not limited to, confidential product
information, methods by which the Company proposes to compete with its business
competitors, strategic plans, confidential reports prepared by business
consultant(s) and similar information relating to the Company's, its
subsidiaries' or its affiliated companies' products, customers, and operations.
Employee recognizes that the possible restrictions on Employee's activities are
required for the reasonable protection of the Company. Employee covenants not to
knowingly disclose or reveal to any unauthorized person such confidential
business secrets or other confidential data both during the term of this
Agreement and for a period of two (2) years following termination of this
Agreement. Upon expiration or termination of Employee's employment by the
Company, Employee agrees to return to the Company all documents (both originals
and copies), including without limitation, customer lists, books and records,
form agreements, manuals, and other information (in whatever form such
information may exist, whether written, recorded, in magnetic media, or other
form) that comes into Employee's possession during, by virtue of and in the
course of Employee's employment and which are in any way connected with or
related to the Company's business.
It is further understood and agreed that the Company's right to require
Employee to keep confidential information secret shall not be in lieu of the
Company's right to monetary damages in the event Employee is in breach of any
obligation contained in this Agreement, and that in the event of any breach or
threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(d) Noncompetition Covenants and Other Covenants For
Protection of the Company. During the term of Employee's employment hereunder
and during the period following the termination of such employment specified
below as the "Restricted Period," Employee separately covenants for the benefit
of the Company as follows:
(i) Employee shall not, directly or indirectly,
promote, be employed by, participate or engage in any activity or business which
is in competition with the business of the Company, or any of its subsidiaries
and affiliated companies, including acting, either singly or jointly or as agent
for, or as an employee of, any person or persons, firm or corporation whether
directly or indirectly (as a director, shareholder or investor, partner, lessor,
lessee, proprietor, principal agent, independent contractor, representative,
consultant or otherwise), in the "Restricted Territory" (as defined below).
Ownership by Employee of 5% or less of the outstanding capital stock of any
corporation which is actively publicly traded will not be a violation of this
covenant;
<PAGE>
(ii) Employee covenants that Employee will not employ
or assist others by active solicitation to recruit and employ employees of the
Company or any of the Company's subsidiaries or affiliate companies; and
(iii) Employee agrees that Employee will not,
directly or indirectly, on behalf of himself or any third party, make any sales
contacts with, or actively solicit business from any customer of the Company or
its subsidiaries or affiliate companies, for any products or services
competitive with those offered by the Company or its subsidiaries or affiliated
companies within the "Restricted Territory" (as defined below).
The "Restricted Period" following termination of employment during
which Employee will observe the covenants contained in this Section 5(d) shall
be (A) one year following termination of employment under Section 4(a) hereof or
if Employee voluntarily terminates his employment hereunder and (B) for the
Remaining Term (as defined in Section 4(c) hereof) if employment is terminated
pursuant to Section 4(c) hereof.
"Restricted Territory" is defined as the area within a fifty mile
radius of Troy, North Carolina. Notwithstanding the foregoing, the aforesaid
limitations on Employee contained in this Section 5(d) shall be null and void if
Employee's employment hereunder is terminated within one year following a Change
in Control (as defined in Section 8 hereof).
(e) It is further understood and agreed that the Company's
right to require Employee to keep confidential information secret or not to
compete against the Company for the agreed upon period shall not be in lieu of
the Company's right to monetary damages in the event Employee is in breach of
any obligation contained in this Agreement, and that in the event of any breach
or threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(f) The parties hereby agree that all of the above obligations
in this Section 5 are reasonable in nature and are designed to reasonably
protect the Company's interests.
6. Source of Payment. Subject to the terms of any employee benefit plan
established by the Company and except as otherwise provided by law, all payments
provided under this Agreement shall be paid in cash from the general funds of
the Company, and no special or separate fund shall be established, and no other
segregation of assets shall be made to assure payment. Employee shall have no
right, title or interest whatsoever in or to any investments which the Company
may make to aid the Company in meeting its obligations hereunder. Nothing
contained in this Agreement, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind for the benefit of
the Employee. To the extent that any person acquires a right to receive payments
from the Company hereunder, such right shall be no greater than the right of an
unsecured creditor of the Company.
7. Payments by Company. If the Company shall find that any person to
whom any amount is or was payable hereunder is unable to care for Employee's
affairs because of illness or accident, or is a minor, or has died, then the
Company, if it so elects, may direct that any payment due him or Employee's
estate (unless a prior claim therefor has been made by a duly appointed legal
representative) or any part thereof be paid or applied for the benefit of such
person or to or for the benefit of such person's spouse, children or other
dependents, an institution maintaining or having custody of such person, any
other person deemed by the Company to be a proper recipient on behalf of such
person otherwise entitled to payment, or any of them in such manner and
proportion as the Company may deem proper. Any such payment shall be in complete
discharge of the liability of the Company therefor.
<PAGE>
8. Change in Control.
(a) If a "Change in Control" occurs while Employee is employed
by the Company, and Employee's employment is terminated by the Company or
Employee, for any reason or no reason, other than a termination pursuant to
Section 4(a) by the Company herein, within twelve months after the Change in
Control, the Company shall pay the Severance Payment provided in Section 8(b) to
Employee within ten days of Employee's date of termination of employment,
provide benefits pursuant to Section 8(c) and cause the acceleration of vesting
of benefits described in Section 8(d) to occur. Notwithstanding the foregoing,
Employee's termination of employment shall not be deemed due to a Change in
Control if such termination is due to Employee's death pursuant to Section 4(b),
Employee's disability pursuant to Section 5(b), Employee's retirement in
accordance with the Company's retirement policy, or pursuant to Section 4(a).
In the event of successive Changes of Control, the provisions of this
Agreement shall apply with respect to each Change of Control.
(b) Employee's Severance Payment shall be an amount equal to
the lesser of (i) 2.9 times the amount of Employee's base salary in effect on
the date of the Change in Control and (ii) the product of 2.99 and the "base
amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986,
as amended, and applicable rules and regulations thereunder.
(c) The Company shall provide to Employee and Employee's
spouse or other qualified dependents, at a cost to Employee no greater than the
cost of such benefits to Employee at the time of the Change in Control, such
hospitalization, health, medical and dental insurance benefits as were available
to Employee (and Employee's spouse or qualified dependents) immediately prior to
the Change in Control until the earlier to occur of (i) two years following the
date of the Change in Control or (ii) Employee accepting employment pursuant to
which he is eligible for comparable health insurance benefits.
(d) Any non-vested option to purchase securities of the
Company will vest and become immediately exercisable upon a Change in Control.
(e) "Control" means the power, directly or indirectly, to
direct the management or policies of the Company or to vote forty percent (40%)
or more of any class of voting securities of the Company. "Change in Control"
shall mean a change in Control of the Company, except that any merger,
consolidation or corporate reorganization in which the owners of the capital
stock entitled to vote ("Voting Stock") in the election of directors of the
Company prior to said combination own sixty-one percent (61%) or more of the
resulting entity's Voting Stock shall not be considered a change in control for
the purpose of this Agreement; provided, that, without limitation, a Change in
Control shall be deemed to have occurred if (i) any "person" (as that term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, is or becomes the beneficial owner (as that term is
used in Section 13(d) of the Securities Exchange Act of 1934), directly or
indirectly, of thirty-three percent (33%) or more of the Voting Stock of the
Company or its successors; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company or its successors (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof; provided, that any person who
becomes a director of the Company after the beginning of such period whose
election was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board shall be considered a member of the Incumbent
Board; or (iii) there occurs the sale of all or substantially all of the assets
<PAGE>
of the Company. Notwithstanding the foregoing, no Change in Control shall be
deemed to occur by virtue of any transaction which results in Employee, or a
group of persons including Employee, acquiring, directly or indirectly,
thirty-three percent (33%) or more of the combined voting power of the Company's
outstanding securities. For purposes of this subparagraph (e), references to the
"Company" shall be deemed to refer to First Bancorp only, and not to its
subsidiaries.
9. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto.
(b) Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term and condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
10. Severability. If, for any reason, any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
11. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or
interest hereunder shall be assignable by Employee, Employee's beneficiaries, or
legal representatives without the Company's prior written consent; provided,
that nothing in this paragraph shall preclude the executors, administrators, or
other legal representative of Employee or Employee's estate from assigning any
rights hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge of
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect.
(c) Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, Employee and the Company and their respective
successors and assigns.
(d) Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
(e) Notice. For purposes of this Agreement, written notice
shall be effective if personally delivered or if sent by certified mail, return
receipt requested, to the following addresses or to such other addresses as
either may designate in writing to the other party:
<PAGE>
Employee: James H. Garner
_______________
_______________
Company: 341 North Main Street
Post Office Box 508
Troy, North Carolina 27371
Attention: Chief Executive Officer
For purpose of computing time, all time requirements under this Agreement will
start on the date mailed or if personally delivered, when delivered.
12. Governing Law. This Agreement has been executed and delivered in
the State of North Carolina, and its validity, interpretation, performance and
enforcement shall be governed by the laws of such State.
13. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties with reference to the employment of the
Employee, and supersedes any prior employment agreement, understanding or
arrangement between the Employee and the Company, its subsidiaries or
affiliates.
[signatures contained on next page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above stated.
FIRST BANCORP
[CORPORATE SEAL] By: /s/ Jack D. Briggs
--------------------
Jack D. Briggs
Title: Chairman of the Board of Directors
Attest: /s/ Anna G. Hollers
-------------------
Anna G. Hollers
Secretary
EMPLOYEE
/s/ James H. Garner (SEAL)
<PAGE>
Exhibit 10.m
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated and effective this 17th day of August, 1998,
between FIRST BANCORP (a North Carolina corporation) (the "Company") and ANNA G.
HOLLERS (the "Employee"). References to the "Company" herein shall be deemed to
refer to the Company and its subsidiaries taken as a whole, unless the context
requires or the Agreement provides otherwise.
The Company desires to employ the Employee, and Employee desires to be
employed by the Company, on the terms and subject to the conditions hereinafter
set forth. Accordingly, in consideration of employment, the compensation the
Company agrees to pay the Employee, the mutual covenants contained herein, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually agree as follows:
14. Employment and Term. The Company (or one of its subsidiaries) will
employ Employee, and Employee will be employed by the Company for a term of
three (3) years, initially as Executive Vice President Administration,
commencing on the date hereof, unless sooner terminated as hereinafter provided.
The term of this Agreement shall automatically be extended for an additional
period of one (1) year on each anniversary of the date of this Agreement unless
either party gives the other written notice on or prior to such anniversary date
that such extension will not occur.
15. Duties. Employee shall at all times faithfully and diligently
perform Employee's obligations under this Agreement and act in the best
interests of the Company and its affiliated companies. Employee's duties
hereunder shall be to act in such office or capacity as the Company may direct
or change from time to time, and Employee shall perform all duties necessary or
advisable in order to carry out such functions in an efficient manner. Employee
shall, during the term of Employee's employment hereunder, devote Employee's
full time, best efforts and ability, skill, and attention exclusively to the
furtherance of the business objectives and interests of the Company and its
affiliated companies during such hours and in such a manner as is generally
customary for employees of Employee's position in businesses of the Company's
type.
16. Compensation.
(f) Salary. For services rendered by Employee hereunder, the
Company shall pay Employee an annual salary of not less than $120,000 payable in
accordance with the customary payroll practices of the Company. Employee's
salary shall be subject to increase upon annual reviews of the Employee's
performance. Employee will receive an annual increase that is at least as much
as any percentage increase in the U.S. Consumer Price Index during the twelve
months preceding the date of Employee's annual review. Any such increase will be
considered in determining the Employee's base salary for all purposes hereunder.
(g) Reimbursement of Expenses. The Company shall pay or
reimburse Employee for all reasonable and necessary travel and other expenses
incurred by Employee in performing Employee's obligations under this Agreement,
provided that Employee shall present to the Company from time to time an
itemized account of such expenses in any form required by the Company. The
Company further agrees to furnish Employee with such other assistance and
accommodations as shall be suitable to the character of Employee's position with
the Company and adequate for the performance of Employee's duties hereunder.
<PAGE>
(h) Employee shall be entitled to such insurance, pension,
profit-sharing and other benefit plans as are or may be available generally to
employees of the Company to the extent permitted by applicable laws or
government regulations. Employee will also be eligible for participation in the
Company's Supplemental Employee Retirement Plan, Split Dollar Insurance Plan and
Stock Option Plan.
(i) Employee shall be entitled to reasonable time off for
vacation, sick leave, bereavement leave, jury duty and military obligations as
are or may become available to employees of the Company in positions similar to
those of Employee, as provided by the Company's policies as they may be in
effect from time to time.
17. Termination. In addition to the termination of the terms specified
in Section 1 hereunder, employment may be terminated under any of the following
provisions:
(a) The employment of the Employee under this Agreement may be
terminated immediately by the Company if the Company finds that the Employee
shall have (i) demonstrated gross negligence or willful misconduct in the
execution of Employee's duties, (ii) committed an act of dishonesty or moral
turpitude, or (iii) been convicted of a felony or other serious crime. All
future compensation and benefits, not then accrued, will automatically terminate
if Employee is terminated under this subparagraph (a).
(b) The employment of the Employee under this Agreement shall
be automatically terminated on the date of the Employee's death.
(c) Employer may terminate Employee's employment hereunder for
any reason other than as provided in subparagraphs (a) and (b), but in such case
Employer shall be obligated to pay Employee's base salary to Employee for the
remainder of the term specified in Section 1 hereof (the "Remaining Term").
(d) Employment hereunder may be terminated voluntarily by
Employee on forty-five (45) days' written notice to the Company's Chief
Executive Officer or Chairman of the Company's Board of Directors, in which case
Employee will receive his compensation, vested rights and employee benefits
accrued through the date of termination of employment.
18. Other Obligations. All payments and benefits to Employee under this
Agreement shall be subject to Employee's compliance with the following
provisions:
(a) Assistance in Litigation. During the term of this
Agreement and for three full years after the expiration or termination hereof,
Employee shall, upon reasonable notice, furnish such information and proper
assistance to the Company as may reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. In connection with such assistance, if
substantial effort or expense is required of Employee after the termination of
Employee's employment hereunder, the Company will pay reasonable compensation to
Employee and will reimburse him for reasonable out-of-pocket expenses.
<PAGE>
(b) Long-Term Disability. If the Employee has become disabled
as determined under the Company's long-term disability plan or policy then in
effect and is terminated from active employment, any remaining benefits of this
contract shall be reduced by any benefits received by the Employee under the
Company's long-term disability plan or policy. Additionally, if such a
circumstance occurs, the Employee is under an affirmative duty to actively seek
and accept reasonable alternative employment following termination. Any
compensation received by Employee following termination or compensation earnable
with reasonable diligence will be deducted from any future compensation due the
Employee under this Agreement. In the event the Employee fails to seek
reasonable alternative employment, the Company's obligation to pay future
compensation shall cease.
(c) Confidential Information. Employee acknowledges that in
the course of Employee's employment he will acquire knowledge of trade and
business secrets and other confidential data of the Company, its subsidiaries
and any affiliated companies. Such trade and business secrets and other
confidential data may include, but are not limited to, confidential product
information, methods by which the Company proposes to compete with its business
competitors, strategic plans, confidential reports prepared by business
consultant(s) and similar information relating to the Company's, its
subsidiaries' or its affiliated companies' products, customers, and operations.
Employee recognizes that the possible restrictions on Employee's activities are
required for the reasonable protection of the Company. Employee covenants not to
knowingly disclose or reveal to any unauthorized person such confidential
business secrets or other confidential data both during the term of this
Agreement and for a period of two (2) years following termination of this
Agreement. Upon expiration or termination of Employee's employment by the
Company, Employee agrees to return to the Company all documents (both originals
and copies), including without limitation, customer lists, books and records,
form agreements, manuals, and other information (in whatever form such
information may exist, whether written, recorded, in magnetic media, or other
form) that comes into Employee's possession during, by virtue of and in the
course of Employee's employment and which are in any way connected with or
related to the Company's business.
It is further understood and agreed that the Company's right to require
Employee to keep confidential information secret shall not be in lieu of the
Company's right to monetary damages in the event Employee is in breach of any
obligation contained in this Agreement, and that in the event of any breach or
threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(d) Noncompetition Covenants and Other Covenants For
Protection of the Company. During the term of Employee's employment hereunder
and during the period following the termination of such employment specified
below as the "Restricted Period," Employee separately covenants for the benefit
of the Company as follows:
(iv) Employee shall not, directly or indirectly,
promote, be employed by, participate or engage in any activity or business which
is in competition with the business of the Company, or any of its subsidiaries
and affiliated companies, including acting, either singly or jointly or as agent
for, or as an employee of, any person or persons, firm or corporation whether
directly or indirectly (as a director, shareholder or investor, partner, lessor,
lessee, proprietor, principal agent, independent contractor, representative,
consultant or otherwise), in the "Restricted Territory" (as defined below).
Ownership by Employee of 5% or less of the outstanding capital stock of any
corporation which is actively publicly traded will not be a violation of this
covenant;
<PAGE>
(v) Employee covenants that Employee will not employ
or assist others by active solicitation to recruit and employ employees of the
Company or any of the Company's subsidiaries or affiliate companies; and
(vi) Employee agrees that Employee will not, directly
or indirectly, on behalf of himself or any third party, make any sales contacts
with, or actively solicit business from any customer of the Company or its
subsidiaries or affiliate companies, for any products or services competitive
with those offered by the Company or its subsidiaries or affiliated companies
within the "Restricted Territory" (as defined below).
The "Restricted Period" following termination of employment during
which Employee will observe the covenants contained in this Section 5(d) shall
be (A) one year following termination of employment under Section 4(a) hereof or
if Employee voluntarily terminates his employment hereunder and (B) for the
Remaining Term (as defined in Section 4(c) hereof) if employment is terminated
pursuant to Section 4(c) hereof.
"Restricted Territory" is defined as the area within a fifty mile
radius of Troy, North Carolina.
Notwithstanding the foregoing, the aforesaid limitations on Employee
contained in this Section 5(d) shall be null and void if Employee's employment
hereunder is terminated within one year following a Change in Control (as
defined in Section 8 hereof).
(e) It is further understood and agreed that the Company's
right to require Employee to keep confidential information secret or not to
compete against the Company for the agreed upon period shall not be in lieu of
the Company's right to monetary damages in the event Employee is in breach of
any obligation contained in this Agreement, and that in the event of any breach
or threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(f) The parties hereby agree that all of the above obligations
in this Section 5 are reasonable in nature and are designed to reasonably
protect the Company's interests.
19. Source of Payment. Subject to the terms of any employee benefit
plan established by the Company and except as otherwise provided by law, all
payments provided under this Agreement shall be paid in cash from the general
funds of the Company, and no special or separate fund shall be established, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title or interest whatsoever in or to any investments which the
Company may make to aid the Company in meeting its obligations hereunder.
Nothing contained in this Agreement, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind for the
benefit of the Employee. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right shall be no greater than
the right of an unsecured creditor of the Company.
20. Payments by Company. If the Company shall find that any person to
whom any amount is or was payable hereunder is unable to care for Employee's
affairs because of illness or accident, or is a minor, or has died, then the
Company, if it so elects, may direct that any payment due him or Employee's
estate (unless a prior claim therefor has been made by a duly appointed legal
representative) or any part thereof be paid or applied for the benefit of such
<PAGE>
person or to or for the benefit of such person's spouse, children or other
dependents, an institution maintaining or having custody of such person, any
other person deemed by the Company to be a proper recipient on behalf of such
person otherwise entitled to payment, or any of them in such manner and
proportion as the Company may deem proper. Any such payment shall be in complete
discharge of the liability of the Company therefor.
21. Change in Control.
(a) If a "Change in Control" occurs while Employee is employed
by the Company, and Employee's employment is terminated by the Company or
Employee, for any reason or no reason, other than a termination pursuant to
Section 4(a) by the Company herein, within twelve months after the Change in
Control, the Company shall pay the Severance Payment provided in Section 8(b) to
Employee within ten days of Employee's date of termination of employment,
provide benefits pursuant to Section 8(c) and cause the acceleration of vesting
of benefits described in Section 8(d) to occur. Notwithstanding the foregoing,
Employee's termination of employment shall not be deemed due to a Change in
Control if such termination is due to Employee's death pursuant to Section 4(b),
Employee's disability pursuant to Section 5(b), Employee's retirement in
accordance with the Company's retirement policy, or pursuant to Section 4(a).
In the event of successive Changes of Control, the provisions of this
Agreement shall apply with respect to each Change of Control.
(b) Employee's Severance Payment shall be an amount equal to
the lesser of (i) 2.9 times the amount of Employee's base salary in effect on
the date of the Change in Control and (ii) the product of 2.99 and the "base
amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986,
as amended, and applicable rules and regulations thereunder.
(c) The Company shall provide to Employee and Employee's
spouse or other qualified dependents, at a cost to Employee no greater than the
cost of such benefits to Employee at the time of the Change in Control, such
hospitalization, health, medical and dental insurance benefits as were available
to Employee (and Employee's spouse or qualified dependents) immediately prior to
the Change in Control until the earlier to occur of (i) two years following the
date of the Change in Control or (ii) Employee accepting employment pursuant to
which he is eligible for comparable health insurance benefits.
(d) Any non-vested option to purchase securities of the
Company will vest and become immediately exercisable upon a Change in Control.
(e) "Control" means the power, directly or indirectly, to
direct the management or policies of the Company or to vote forty percent (40%)
or more of any class of voting securities of the Company. "Change in Control"
shall mean a change in Control of the Company, except that any merger,
consolidation or corporate reorganization in which the owners of the capital
stock entitled to vote ("Voting Stock") in the election of directors of the
Company prior to said combination own sixty-one percent (61%) or more of the
resulting entity's Voting Stock shall not be considered a change in control for
the purpose of this Agreement; provided, that, without limitation, a Change in
Control shall be deemed to have occurred if (i) any "person" (as that term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, is or becomes the beneficial owner (as that term is
<PAGE>
used in Section 13(d) of the Securities Exchange Act of 1934), directly or
indirectly, of thirty-three percent (33%) or more of the Voting Stock of the
Company or its successors; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company or its successors (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof; provided, that any person who
becomes a director of the Company after the beginning of such period whose
election was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board shall be considered a member of the Incumbent
Board; or (iii) there occurs the sale of all or substantially all of the assets
of the Company. Notwithstanding the foregoing, no Change in Control shall be
deemed to occur by virtue of any transaction which results in Employee, or a
group of persons including Employee, acquiring, directly or indirectly,
thirty-three percent (33%) or more of the combined voting power of the Company's
outstanding securities. For purposes of this subparagraph (e), references to the
"Company" shall be deemed to refer to First Bancorp only, and not to its
subsidiaries.
22. Modification and Waive.
(a) Amendment of Agreement. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto.
(b) Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term and condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
23. Severability. If, for any reason, any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
24. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or
interest hereunder shall be assignable by Employee, Employee's beneficiaries, or
legal representatives without the Company's prior written consent; provided,
that nothing in this paragraph shall preclude the executors, administrators, or
other legal representative of Employee or Employee's estate from assigning any
rights hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge of
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect.
<PAGE>
(c) Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, Employee and the Company and their respective
successors and assigns.
(d) Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
(e) Notice. For purposes of this Agreement, written notice
shall be effective if personally delivered or if sent by certified mail, return
receipt requested, to the following addresses or to such other addresses as
either may designate in writing to the other party:
Employee: Anna G. Hollers
P.O. Box 206
Candor, NC 27229
Company: 341 North Main Street
Post Office Box 508
Troy, North Carolina 27371
Attention: Chief Executive Officer
For purpose of computing time, all time requirements under this Agreement will
start on the date mailed or if personally delivered, when delivered.
25. Governing Law. This Agreement has been executed and delivered in
the State of North Carolina, and its validity, interpretation, performance and
enforcement shall be governed by the laws of such State.
26. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties with reference to the employment of the
Employee, and supersedes any prior employment agreement, understanding or
arrangement between the Employee and the Company, its subsidiaries or
affiliates.
[signatures contained on next page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above stated.
FIRST BANCORP
[CORPORATE SEAL] By: /s/ James H. Garner
--------------------
James H. Garner
Title: President and CEO
Attest: /s/ Delores George
Asst. Secretary
EMPLOYEE
/s/ Anna G. Hollers (SEAL)
<PAGE>
Exhibit 10.n
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated and effective this 17th day of August, 1998,
between FIRST BANCORP (a North Carolina corporation) (the "Company") and TERESA
C. NIXON (the "Employee"). References to the "Company" herein shall be deemed to
refer to the Company and its subsidiaries taken as a whole, unless the context
requires or the Agreement provides otherwise.
The Company desires to employ the Employee, and Employee desires to be
employed by the Company, on the terms and subject to the conditions hereinafter
set forth. Accordingly, in consideration of employment, the compensation the
Company agrees to pay the Employee, the mutual covenants contained herein, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties mutually agree as follows:
27. Employment and Term. The Company (or one of its subsidiaries) will
employ Employee, and Employee will be employed by the Company for a term of
three (3) years, initially as Executive Vice President Lending, commencing on
the date hereof, unless sooner terminated as hereinafter provided. The term of
this Agreement shall automatically be extended for an additional period of one
(1) year on each anniversary of the date of this Agreement unless either party
gives the other written notice on or prior to such anniversary date that such
extension will not occur.
28. Duties. Employee shall at all times faithfully and diligently
perform Employee's obligations under this Agreement and act in the best
interests of the Company and its affiliated companies. Employee's duties
hereunder shall be to act in such office or capacity as the Company may direct
or change from time to time, and Employee shall perform all duties necessary or
advisable in order to carry out such functions in an efficient manner. Employee
shall, during the term of Employee's employment hereunder, devote Employee's
full time, best efforts and ability, skill, and attention exclusively to the
furtherance of the business objectives and interests of the Company and its
affiliated companies during such hours and in such a manner as is generally
customary for employees of Employee's position in businesses of the Company's
type.
29. Compensation.
(f) Salary. For services rendered by Employee hereunder, the
Company shall pay Employee an annual salary of not less than $116,000 payable in
accordance with the customary payroll practices of the Company. Employee's
salary shall be subject to increase upon annual reviews of the Employee's
performance. Employee will receive an annual increase that is at least as much
as any percentage increase in the U.S. Consumer Price Index during the twelve
months preceding the date of Employee's annual review. Any such increase will be
considered in determining the Employee's base salary for all purposes hereunder.
(g) Reimbursement of Expenses. The Company shall pay or
reimburse Employee for all reasonable and necessary travel and other expenses
incurred by Employee in performing Employee's obligations under this Agreement,
provided that Employee shall present to the Company from time to time an
itemized account of such expenses in any form required by the Company. The
Company further agrees to furnish Employee with such other assistance and
accommodations as shall be suitable to the character of Employee's position with
the Company and adequate for the performance of Employee's duties hereunder.
<PAGE>
(h) Employee shall be entitled to such insurance, pension,
profit-sharing and other benefit plans as are or may be available generally to
employees of the Company to the extent permitted by applicable laws or
government regulations. Employee will also be eligible for participation in the
Company's Supplemental Employee Retirement Plan, Split Dollar Insurance Plan and
Stock Option Plan.
(i) Employee shall be entitled to reasonable time off for
vacation, sick leave, bereavement leave, jury duty and military obligations as
are or may become available to employees of the Company in positions similar to
those of Employee, as provided by the Company's policies as they may be in
effect from time to time.
30. Termination. In addition to the termination of the terms specified
in Section 1 hereunder, employment may be terminated under any of the following
provisions:
(a) The employment of the Employee under this Agreement may be
terminated immediately by the Company if the Company finds that the Employee
shall have (i) demonstrated gross negligence or willful misconduct in the
execution of Employee's duties, (ii) committed an act of dishonesty or moral
turpitude, or (iii) been convicted of a felony or other serious crime. All
future compensation and benefits, not then accrued, will automatically terminate
if Employee is terminated under this subparagraph (a).
(b) The employment of the Employee under this Agreement shall
be automatically terminated on the date of the Employee's death.
(c) Employer may terminate Employee's employment hereunder for
any reason other than as provided in subparagraphs (a) and (b), but in such case
Employer shall be obligated to pay Employee's base salary to Employee for the
remainder of the term specified in Section 1 hereof (the "Remaining Term").
(d) Employment hereunder may be terminated voluntarily by
Employee on forty-five (45) days' written notice to the Company's Chief
Executive Officer or Chairman of the Company's Board of Directors, in which case
Employee will receive his compensation, vested rights and employee benefits
accrued through the date of termination of employment.
31. Other Obligations. All payments and benefits to Employee under this
Agreement shall be subject to Employee's compliance with the following
provisions:
(a) Assistance in Litigation. During the term of this
Agreement and for three full years after the expiration or termination hereof,
Employee shall, upon reasonable notice, furnish such information and proper
assistance to the Company as may reasonably be required by the Company in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. In connection with such assistance, if
substantial effort or expense is required of Employee after the termination of
Employee's employment hereunder, the Company will pay reasonable compensation to
Employee and will reimburse him for reasonable out-of-pocket expenses.
(b) Long-Term Disability. If the Employee has become disabled
as determined under the Company's long-term disability plan or policy then in
effect and is terminated from active employment, any remaining benefits of this
contract shall be reduced by any benefits received by the Employee under the
Company's long-term disability plan or policy. Additionally, if such a
<PAGE>
circumstance occurs, the Employee is under an affirmative duty to actively seek
and accept reasonable alternative employment following termination. Any
compensation received by Employee following termination or compensation earnable
with reasonable diligence will be deducted from any future compensation due the
Employee under this Agreement. In the event the Employee fails to seek
reasonable alternative employment, the Company's obligation to pay future
compensation shall cease.
(c) Confidential Information. Employee acknowledges that in
the course of Employee's employment he will acquire knowledge of trade and
business secrets and other confidential data of the Company, its subsidiaries
and any affiliated companies. Such trade and business secrets and other
confidential data may include, but are not limited to, confidential product
information, methods by which the Company proposes to compete with its business
competitors, strategic plans, confidential reports prepared by business
consultant(s) and similar information relating to the Company's, its
subsidiaries' or its affiliated companies' products, customers, and operations.
Employee recognizes that the possible restrictions on Employee's activities are
required for the reasonable protection of the Company. Employee covenants not to
knowingly disclose or reveal to any unauthorized person such confidential
business secrets or other confidential data both during the term of this
Agreement and for a period of two (2) years following termination of this
Agreement. Upon expiration or termination of Employee's employment by the
Company, Employee agrees to return to the Company all documents (both originals
and copies), including without limitation, customer lists, books and records,
form agreements, manuals, and other information (in whatever form such
information may exist, whether written, recorded, in magnetic media, or other
form) that comes into Employee's possession during, by virtue of and in the
course of Employee's employment and which are in any way connected with or
related to the Company's business.
It is further understood and agreed that the Company's right to require
Employee to keep confidential information secret shall not be in lieu of the
Company's right to monetary damages in the event Employee is in breach of any
obligation contained in this Agreement, and that in the event of any breach or
threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(d) Noncompetition Covenants and Other Covenants For
Protection of the Company. During the term of Employee's employment hereunder
and during the period following the termination of such employment specified
below as the "Restricted Period," Employee separately covenants for the benefit
of the Company as follows:
(vii) Employee shall not, directly or indirectly,
promote, be employed by, participate or engage in any activity or business which
is in competition with the business of the Company, or any of its subsidiaries
and affiliated companies, including acting, either singly or jointly or as agent
for, or as an employee of, any person or persons, firm or corporation whether
directly or indirectly (as a director, shareholder or investor, partner, lessor,
lessee, proprietor, principal agent, independent contractor, representative,
consultant or otherwise), in the "Restricted Territory" (as defined below).
Ownership by Employee of 5% or less of the outstanding capital stock of any
corporation which is actively publicly traded will not be a violation of this
covenant;
<PAGE>
(viii) Employee covenants that Employee will not
employ or assist others by active solicitation to recruit and employ employees
of the Company or any of the Company's subsidiaries or affiliate companies; and
(ix) Employee agrees that Employee will not, directly
or indirectly, on behalf of himself or any third party, make any sales contacts
with, or actively solicit business from any customer of the Company or its
subsidiaries or affiliate companies, for any products or services competitive
with those offered by the Company or its subsidiaries or affiliated companies
within the "Restricted Territory" (as defined below).
The "Restricted Period" following termination of employment during
which Employee will observe the covenants contained in this Section 5(d) shall
be (A) one year following termination of employment under Section 4(a) hereof or
if Employee voluntarily terminates his employment hereunder and (B) for the
Remaining Term (as defined in Section 4(c) hereof) if employment is terminated
pursuant to Section 4(c) hereof.
"Restricted Territory" is defined as a combination of the area within a
fifty mile radius of Troy, North Carolina and Lee County, North Carolina.
Notwithstanding the foregoing, the aforesaid limitations on Employee
contained in this Section 5(d) shall be null and void if Employee's employment
hereunder is terminated within one year following a Change in Control (as
defined in Section 8 hereof).
(e) It is further understood and agreed that the Company's
right to require Employee to keep confidential information secret or not to
compete against the Company for the agreed upon period shall not be in lieu of
the Company's right to monetary damages in the event Employee is in breach of
any obligation contained in this Agreement, and that in the event of any breach
or threatened breach of any of these covenants, the Company may either, with or
without pursuing any action for damages, obtain and enforce an injunction
prohibiting Employee from violating said covenants.
(f) The parties hereby agree that all of the above obligations
in this Section 5 are reasonable in nature and are designed to reasonably
protect the Company's interests.
32. Source of Payment. Subject to the terms of any employee benefit
plan established by the Company and except as otherwise provided by law, all
payments provided under this Agreement shall be paid in cash from the general
funds of the Company, and no special or separate fund shall be established, and
no other segregation of assets shall be made to assure payment. Employee shall
have no right, title or interest whatsoever in or to any investments which the
Company may make to aid the Company in meeting its obligations hereunder.
Nothing contained in this Agreement, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind for the
benefit of the Employee. To the extent that any person acquires a right to
receive payments from the Company hereunder, such right shall be no greater than
the right of an unsecured creditor of the Company.
33. Payments by Company. If the Company shall find that any person to
whom any amount is or was payable hereunder is unable to care for Employee's
affairs because of illness or accident, or is a minor, or has died, then the
Company, if it so elects, may direct that any payment due him or Employee's
<PAGE>
estate (unless a prior claim therefor has been made by a duly appointed legal
representative) or any part thereof be paid or applied for the benefit of such
person or to or for the benefit of such person's spouse, children or other
dependents, an institution maintaining or having custody of such person, any
other person deemed by the Company to be a proper recipient on behalf of such
person otherwise entitled to payment, or any of them in such manner and
proportion as the Company may deem proper. Any such payment shall be in complete
discharge of the liability of the Company therefor.
34. Change in Control.
(a) If a "Change in Control" occurs while Employee is employed
by the Company, and Employee's employment is terminated by the Company or
Employee, for any reason or no reason, other than a termination pursuant to
Section 4(a) by the Company herein, within twelve months after the Change in
Control, the Company shall pay the Severance Payment provided in Section 8(b) to
Employee within ten days of Employee's date of termination of employment,
provide benefits pursuant to Section 8(c) and cause the acceleration of vesting
of benefits described in Section 8(d) to occur. Notwithstanding the foregoing,
Employee's termination of employment shall not be deemed due to a Change in
Control if such termination is due to Employee's death pursuant to Section 4(b),
Employee's disability pursuant to Section 5(b), Employee's retirement in
accordance with the Company's retirement policy, or pursuant to Section 4(a).
In the event of successive Changes of Control, the provisions of this
Agreement shall apply with respect to each Change of Control.
(b) Employee's Severance Payment shall be an amount equal to
the lesser of (i) 2.9 times the amount of Employee's base salary in effect on
the date of the Change in Control and (ii) the product of 2.99 and the "base
amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986,
as amended, and applicable rules and regulations thereunder.
(c) The Company shall provide to Employee and Employee's
spouse or other qualified dependents, at a cost to Employee no greater than the
cost of such benefits to Employee at the time of the Change in Control, such
hospitalization, health, medical and dental insurance benefits as were available
to Employee (and Employee's spouse or qualified dependents) immediately prior to
the Change in Control until the earlier to occur of (i) two years following the
date of the Change in Control or (ii) Employee accepting employment pursuant to
which he is eligible for comparable health insurance benefits.
(d) Any non-vested option to purchase securities of the
Company will vest and become immediately exercisable upon a Change in Control.
(e) "Control" means the power, directly or indirectly, to
direct the management or policies of the Company or to vote forty percent (40%)
or more of any class of voting securities of the Company. "Change in Control"
shall mean a change in Control of the Company, except that any merger,
consolidation or corporate reorganization in which the owners of the capital
stock entitled to vote ("Voting Stock") in the election of directors of the
Company prior to said combination own sixty-one percent (61%) or more of the
resulting entity's Voting Stock shall not be considered a change in control for
the purpose of this Agreement; provided, that, without limitation, a Change in
Control shall be deemed to have occurred if (i) any "person" (as that term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934),
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company, is or becomes the beneficial owner (as that term is
<PAGE>
used in Section 13(d) of the Securities Exchange Act of 1934), directly or
indirectly, of thirty-three percent (33%) or more of the Voting Stock of the
Company or its successors; (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company or its successors (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof; provided, that any person who
becomes a director of the Company after the beginning of such period whose
election was approved by a vote of at least three-quarters of the directors
comprising the Incumbent Board shall be considered a member of the Incumbent
Board; or (iii) there occurs the sale of all or substantially all of the assets
of the Company. Notwithstanding the foregoing, no Change in Control shall be
deemed to occur by virtue of any transaction which results in Employee, or a
group of persons including Employee, acquiring, directly or indirectly,
thirty-three percent (33%) or more of the combined voting power of the Company's
outstanding securities. For purposes of this subparagraph (e), references to the
"Company" shall be deemed to refer to First Bancorp only, and not to its
subsidiaries.
35. Modification and Waiver.
(a) Amendment of Agreement. This Agreement may not be modified
or amended except by an instrument in writing signed by the parties hereto.
(b) Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term and condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
36. Severability. If, for any reason, any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect.
37. General Provisions.
(a) Nonassignability. Neither this Agreement nor any right or
interest hereunder shall be assignable by Employee, Employee's beneficiaries, or
legal representatives without the Company's prior written consent; provided,
that nothing in this paragraph shall preclude the executors, administrators, or
other legal representative of Employee or Employee's estate from assigning any
rights hereunder to the person or persons entitled thereto.
(b) No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge of
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void and of no effect.
<PAGE>
(c) Binding Effect. This Agreement shall be binding upon, and
inure to the benefit of, Employee and the Company and their respective
successors and assigns.
(d) Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
(e) Notice. For purposes of this Agreement, written notice
shall be effective if personally delivered or if sent by certified mail, return
receipt requested, to the following addresses or to such other addresses as
either may designate in writing to the other party:
Employee: Tersea C. Nixon
P.O. Box 573
Sanford, NC 27331
Company: 341 North Main Street
Post Office Box 508
Troy, North Carolina 27371
Attention: Chief Executive Officer
For purpose of computing time, all time requirements under this Agreement will
start on the date mailed or if personally delivered, when delivered.
38. Governing Law. This Agreement has been executed and delivered in
the State of North Carolina, and its validity, interpretation, performance and
enforcement shall be governed by the laws of such State.
39. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties with reference to the employment of the
Employee, and supersedes any prior employment agreement, understanding or
arrangement between the Employee and the Company, its subsidiaries or
affiliates.
[signatures contained on next page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the day and year first above stated.
FIRST BANCORP
[CORPORATE SEAL] By: /s/ James H. Garner
--------------------
James H. Garner
Title: President and CEO
Attest: /s/ Anna G. Hollers
Secretary
EMPLOYEE
/s/ Teresa C. Nixon (SEAL)
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