UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2008
or
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 000-33021
GREER BANCSHARES INCORPORATED
(Exact name of registrant as specified in its charter)
| | |
| South Carolina | | 57-1126200 |
State or other jurisdiction of incorporation or organization | | (I.R.S. Employer Identification No.) |
| |
| 1111 W. Poinsett Street, Greer, South Carolina | | 29650 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code: (864) 877-2000
Securities registered pursuant to Section 12(b) of the Act:
| | |
| Title of each class | | Name of each exchange on which registered |
| None | | None |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, Par Value $5.00 per share
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ¨ Yes x No
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| | | | | | |
| Large accelerated filer | | ¨ | | Accelerated filer | | ¨ |
| | | |
| Non-accelerated filer | | ¨ (Do not check if a smaller reporting company) | | Smaller reporting company | | x |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). ¨ Yes x No
The aggregate market value of the voting and non-voting common stock held by non-affiliates of the registrant (1,999,053 shares) as of June 30, 2008 was approximately $23,488,873. For the purpose of this response, officers, directors and holders of 5% or more of the registrant’s common stock are considered affiliates of the registrant at that date.
(APPLICABLE ONLY TO CORPORATE REGISTRANTS)
Indicate the number of shares outstanding of each of the registrant’s classes of common equity, as of the latest practicable date.
| | |
Class | | Outstanding at March 20, 2008 |
| Common Stock, $5.00 par value per share | | 2,486,682 Shares |
DOCUMENTS INCORPORATED BY REFERENCE
The Company’s Annual Report to Shareholders (and an attachment comprising a portion thereof) for the year ended December 31, 2008 is incorporated by reference in this Form 10-K in Part II, Items 5 through 8. The Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009 is incorporated by reference in this Form 10-K in Part III, Items 10 through 14.
TABLE OF CONTENTS
PART I
Forward Looking Statements
This Report contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Such statements relate to, among other things, future economic performance, plans and objectives of management for future operations, and projections of revenues and other financial items that are based on the beliefs of management, as well as assumptions made by, and information currently available to, management. The words “may,” “will,” “anticipate,” “should,” “would,” “believe,” “contemplate,” “expect,” “estimate,” “continue,” “may,” and “intend,” as well as other similar words and expressions, are intended to identify forward-looking statements. Actual results may differ materially from the results discussed in the forward-looking statements. The Company’s operating performance is subject to various risks and uncertainties including, without limitation:
| | • | | significant increases in competitive pressure in the banking and financial services industries; |
| | • | | changes in the interest rate environment which could reduce anticipated or actual margins; |
| | • | | changes in political conditions or the legislative or regulatory environment; |
| | • | | the level of allowance for loan losses; |
| | • | | the rate of delinquencies and amounts of charge-offs; |
| | • | | the rates of loan growth; |
| | • | | adverse changes in asset quality and resulting credit risk-related losses and expenses; |
| | • | | general economic conditions, either nationally or regionally and especially in our primary service area, becoming less favorable than expected resulting in, among other things, a deterioration in credit quality; |
| | • | | changes occurring in business conditions and inflation; |
| | • | | changes in monetary and tax policies; |
| | • | | loss of consumer confidence and economic disruptions resulting from terrorist activities; |
| | • | | changes in the securities markets; and |
| | • | | other risks and uncertainties detailed from time to time in our filings with the Securities and Exchange Commission. |
General
Greer Bancshares Incorporated (the “Company”) was formed in July 2001 as a one-bank holding company for Greer State Bank (the “Bank”). All of the outstanding common shares of the Bank were exchanged for common stock of the new holding company at that time. The primary activity of the holding company is to hold its investment in its banking subsidiary. The common stock of Greer Bancshares Incorporated is traded in the over-the-counter market and quoted on the OTC Bulletin Board under the symbol GRBS. The Bank operates under a state charter and provides full banking services to its clients. The Bank is subject to regulation by the Federal Deposit Insurance Corporation and the South Carolina Board of Financial Institutions.
The Bank has been engaged in the commercial banking business since its inception in January 1989 and has three banking offices and one commercial and mortgage loan production office located in Greer, South Carolina and one banking office located in Taylors, South Carolina. The Company is headquartered at 1111 W. Poinsett Street, Greer, South Carolina 29650. The Bank’s first branch office, located at 601 North Main Street, Greer, South Carolina 29650, was opened in 1992 in an existing bank building that was purchased and renovated to be used as a branch office and operations center. The second branch office was built and opened in November 1998 and is located at 871 South Buncombe Road, Greer, South Carolina 29650. In August 2005, the Bank opened a third branch office at 3317 Wade Hampton Boulevard in Taylors, South Carolina 29687. In September 2007, the Bank opened a commercial and mortgage loan production office at 103 C-2 Regency Commons Drive in Greer, South Carolina 29650.
In 1997, the Bank began an “alternative investments” function with the formation of Greer Financial Services Corporation (“GFSC”), which allows customers to earn a higher rate of return on their money by investing in mutual funds, stock, annuities and similar securities. GFSC was formed as a subsidiary of the Bank, however as previously disclosed, GFSC was merged into Greer State Bank in October 2007. Greer Financial Services is now a division of the Bank and offers securities exclusively through Raymond James Financial Services, Inc., a registered broker-dealer.
Trust, international or correspondent banking services are not currently offered by the Company, nor are they contemplated at this time.
Location and Service Area
The Company’s banking subsidiary was organized for the primary purpose of serving local banking needs in Greer and in the surrounding communities and has been primarily engaged in the business of attracting deposits from the general public and using the deposits to make commercial, consumer and mortgage loans. In addition, deposits are also used to invest in acceptable investment securities as defined by Bank policy.
Greer is located approximately 13 miles east of Greenville, South Carolina and approximately 15 miles west of Spartanburg, South Carolina and has borders in both Greenville and Spartanburg counties of South Carolina. The population of Greer was 16,843 according to 2000 census data, which was an increase of 63.2% since the 1990 census.
Deposits
The Company offers a full range of banking services through its subsidiary, including checking, savings, brokered deposits and other time deposits of various types, loans for business, real estate, personal use, home improvements, automobiles and a variety of other types of loans and services. In addition, drive-up, safe deposit and night depository facilities are offered. The Bank solicits deposit accounts from individuals, businesses, associations and organizations and governmental authorities.
The Bank’s core deposits consist of retail checking accounts, NOW accounts, money market accounts, retail savings accounts and certificates of deposit. These deposits, along with short-term borrowings, long-term borrowings, and brokered deposits, are used to support our asset base. Retail deposits comprise approximately 83% of total deposits, with brokered certificates of deposits comprising approximately 17% of total deposits at December 31, 2008. Management continues to target the conversion of brokered certificates to retail deposits over time. However, in the current economic environment, management believes all deposits are valuable and that access to general liquidity will be important for all banks for at least the next two years. Given the fact that, historically, the Bank’s brokered certificates base has been less expensive than borrowing rates, it is likely that management will work to maintain the longstanding relationships the Bank has with its brokered certificate issuers to preserve the generally lower cost from these liabilities. Prospectively, management anticipates that attraction of retail deposits will reduce the reliance on brokered certificates of deposit. See additional discussion in Item 1A. “Risk Factors” and Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations-Liquidity.”
2
Lending Activities
General—The Bank makes and services both secured and unsecured loans to individuals and businesses in its market area. The Bank strives for a balanced mix of consumer lending, commercial lending to small and medium-sized businesses and mortgage lending, both consumer and commercial. The Bank’s portfolio consists of commercial, commercial real estate, real estate construction, residential mortgage, consumer installment loans and other consumer loans, as well as a small amount of lease financings and obligations of state and political subdivisions. The lease financings consist of loans made to finance the leasing of equipment. The obligations of state and political subdivisions consist of loans made to a municipality.
The Bank strives to diversify its loan portfolio and limit loan concentrations to any borrower or industry. Management has placed emphasis on the collateralization of loans with value-retaining assets. As of December 31, 2008, 96% of the Bank’s loan portfolio is secured and 77% of the total loan portfolio is secured by real estate.
Commercial Loans—The commercial portion of the portfolio is diversified and includes loans to various types of small to mid-sized businesses secured by non-real estate collateral. The emphasis is on businesses with financial stability and local, well-known management located in Greer and the surrounding communities. Collateral for commercial loans includes, but is not limited to, inventory, equipment, vehicles and accounts receivable. Commercial loans generally have more risk than other types of loans made by the Bank since there are more factors that can cause a default. The Bank manages this risk by dealing with locally-owned and managed businesses, establishing an appropriate loan-to-value advance rate and by often requiring personal guarantees and collateral from owners and/or officers. The Bank must evaluate the quality of a company’s management, capitalization and profitability, as well as the industry trends.
Commercial Real Estate Loans—The commercial real estate loan portfolio consists largely of mortgage loans secured by commercial properties located in the communities served by the Bank. A significant portion of these loans are made to fund the acquisition of real estate for residential development, and/or buildings for commercial, industrial, office and retail use. The real estate construction portion of the loan portfolio consists primarily of loans made to finance the on-site construction of 1-4 family residences, commercial properties and medical or business offices.
While the Bank does not make it a practice of establishing an interest reserve account as part of the loan funding amount, it is a common practice in the industry to allow an interest reserve account during the initial construction phase of a real estate project. The Bank’s loan portfolio contained eight construction and land developments loans totaling approximately $6,700,000 with interest reserve accounts at December 31, 2008. The nature of the interest reserve was analyzed along with the performance of the loan, underlying collateral value and the schedule of lot releases to determine if any of the loans should be placed on nonaccrual status. Management determined that all of these loans with interest reserves were performing adequately. As such, none were placed on nonaccrual as of December 31, 2008.
Residential Real Estate Loans—The 1-to-4 family residential real estate portfolio is predominantly comprised of loans extended for owner-occupied residential properties. These loans are typically secured by first mortgages on the properties financed, and generally do not exceed fifteen years. These loans generally have a maximum loan-to-value ratio of 85% with the majority having fixed rates of interest. The Bank is currently not adding fixed rate residential mortgages to the loan portfolio, but instead originates these loans for investor mortgage companies and receives an origination fee. The 1-to-4 family residential real estate category includes home equity lines of credit which have an interest rate indexed to the prime lending rate. Home equity lines generally have a maximum loan-to-value ratio of 80%. The loan-to-value ratios on mortgages minimize the risk on these loans.
Consumer Loans—The consumer loan portfolio consists of loans to individuals for household, family and other personal expenditures such as automobile financing, home improvements, recreational and educational purposes. Consumer loans are typically structured with fixed rates of interest and full amortization of principal and interest within three to five years. The maximum loan-to-value ratio applicable to consumer loans is generally 85%. This category of loans also includes revolving credit products such as checking overdraft protection. Consumer loans are either unsecured or are secured with various forms of collateral, other than real estate. The Bank minimizes risk by dealing with local customers who have an existing banking relationship. Bank policy prohibits unsecured debt consolidation loans.
3
Loan Risk Management—The Bank has procedures and controls in place designed to analyze potential risks and to support the growth of a profitable and high quality loan portfolio. The Bank’s loan policies and portfolio monitoring guidelines give specific direction on the underwriting of all loan types, portfolio concentrations and regulatory requirements. A loan rating system is used by the Bank to monitor the loan portfolio and to determine the adequacy of the allowance for loan losses. The Bank invests in loans in Greer and the surrounding communities which allows for easier monitoring of credit risks. The majority of the loan portfolio consists of loans to consumers and loans to small and mid-sized businesses. A bank consulting firm is employed to perform a periodic review of selected credits to identify heightened risks and monitor collateral positions. Some of the factors that could contribute to increased risk in the loan portfolio are changes in economic conditions in the Bank’s market area, changes in interest rates and reduced collateral values. There are no loans to foreign countries in the loan portfolio. As of December 31, 2008, the legal lending limit amount for the Bank to lend to any one borrower was approximately $4,895,000. See additional discussion of risk management related to lending activities at Item 7. “Management’s Discussion and Analysis of Financial Condition and Results of Operations – Loan Portfolio” and —“Risk Elements” in this report.
Other Banking Services
Other banking services provided include travelers’ checks, safe deposit boxes, direct deposit of payroll and social security checks, as well as automatic drafts for various accounts. Automated Teller Machine (ATM) services are provided by the Fiserv EFT ATM Network, which allows access through ATMs nationwide. The Bank has three drive-up ATMs located at its offices at 1111 W. Poinsett Street, 3317 Wade Hampton Boulevard and 871 S. Buncombe Road. The Bank offers Mastercard and Visa credit cards to qualifying customers through a correspondent bank and has an automated telephone banking system (“TELEBANKER”). TELEBANKER allows the Bank’s customers to access information concerning their accounts, transfer funds and make payments by telephone.
The Bank also offers attractive, functional and user friendly internet online banking and cash management services accessed through its website,www.greerstatebank.com. Bank customers who have authorized access to the Bank’s website have the capability to make account inquiries, view account histories, transfer funds from one account to the other, make payments on outstanding loans and retrieve check images. The Bank also offers online bill payment services to its customers.
Competition
The Bank competes with several major banks which dominate the commercial banking industry in their service areas and in South Carolina. In addition, the Bank competes with other community banks, savings institutions and credit unions. In Greer, there are thirteen competitor banks (none of which are headquartered in Greer) with eighteen total offices, one savings institution branch (headquartered in Greer), and one credit union branch (headquartered in nearby Greenville, South Carolina). As of December 31, 2008 the Bank held approximately 27.17% of the Federal Deposit Insurance Corporation (“FDIC”) insured deposits in the Greer market.
Employees
As of December 31, 2008, the Bank had 100 employees, 90 of whom are full-time. The Company does not have any employees other than its two executive officers.
Available Information
The Company files and furnishes reports with the Securities and Exchange Commission (the “SEC”), including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. These reports are provided on our website atwww.greerstatebank.com as soon as reasonably practicable after they have been filed electronically with the SEC. These filing are also accessible on the SEC’s website atwww.sec.gov. In addition, we make available on our website filings reporting stock ownership by directors, officers, and beneficial owners of more than 10% of our common stock pursuant to Section 16 of the
4
Securities Exchange Act of 1934. The public may also read and copy any materials the Company files with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
SUPERVISION AND REGULATION
Both the Company and the Bank are subject to extensive state and federal banking laws and regulations, which impose specific requirements or restrictions on and provide for general regulatory oversight of virtually all aspects of operations. These laws and regulations are generally intended to protect depositors, not shareholders. The following summary is qualified by reference to the statutory and regulatory provisions discussed. Changes in applicable laws or regulations may have a material effect on the Company’s business, prospects and operations. Management cannot predict the effect that fiscal or monetary policies, economic control or new federal or state legislation may have on the Company’s business and earnings in the future.
The following discussion is not intended to be a complete list of all the activities regulated by the banking laws or of the impact of such laws and regulations on our operations. It is intended only to briefly summarize some material provisions.
Emergency Economic Stabilization Act of 2008. In response to recent unprecedented market turmoil, the Emergency Economic Stabilization Act of 2008 (the “EESA”) was enacted on October 3, 2008. The EESA authorized the United States Department of Treasury (the “Treasury”) to provide up to $700 billion in funding for the financial services industry. Pursuant to the EESA, the Treasury was initially authorized to use $350 billion for the Troubled Asset Relief Program (“TARP”). Of this amount, Treasury allocated $250 billion to the TARP Capital Purchase Program (see description below). On January 15, 2009, the second $350 billion of TARP monies was released to the Treasury. The Secretary of the Treasury’s authority under TARP expires on December 31, 2009 unless the Secretary of the Treasury certifies to Congress that extension is necessary provided that his authority may not be extended beyond October 3, 2010.
Pursuant to the authority granted under the EESA, the Treasury created the TARP Capital Purchase Program (“CPP”) pursuant to which the Treasury will invest up to $250 billion in senior preferred stock of U.S. banks and savings associations or their holding companies. Qualifying financial institutions may issue senior preferred stock with a value equal to not less than 1% of their risk-weighted assets and not more than the lesser of $25 billion or 3% of their risk-weighted assets.
The Company elected to participate in the CPP. Specifically, the Company issued and sold to the Treasury (i) 9,993 shares of the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-SP, having a liquidation preference of $1,000 per share (the “Series SP Preferred Stock”) and (ii) a Warrant to purchase 500.005 shares of the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-WP, having a liquidation preference of $1,000 per share (the “Series WP Preferred Stock”), at an initial price of $0.01 per share (the “Warrant”), all for an aggregate purchase price of $9,993,000 in cash. The Warrant was exercised by the Treasury immediately on January 30, 2009 pursuant to a cashless exercise, and 500 shares of Series WP Preferred Stock were issued to the Treasury and the Warrant was cancelled.
Both the Series SP Preferred Stock and the Series WP Preferred Stock will be accounted for as components of Tier 1 capital. As a result, the Company, which on December 31, 2008 was rated as “adequately capitalized” under regulatory capital guidelines, now qualifies as “well capitalized.”
The Series SP Preferred Stock pays cumulative dividends at a rate of 5% per annum for the first five years, and 9% per annum thereafter, but will be paid only if, as, and when declared by the Company’s Board of Directors. The Series SP Preferred Stock has no maturity date and ranks senior to the Company’s common stock with respect to the payment of dividends and distributions and amounts payable upon the liquidation and dissolution and the winding up of the Company. The Series SP Preferred Stock is generally non-voting.
Pursuant to the purchase agreement with the Treasury, the Company may redeem the Series SP Preferred Stock at par after February 15, 2012. Prior to this date, the Company may redeem the Series SP Preferred Stock at par only if (i) the Company has
5
raised aggregate gross proceeds in one or more “Qualified Equity Offerings” (as defined in the Articles of Amendment and set forth below) in excess of $2,498,250 and (ii) the aggregate redemption price does not exceed the aggregate net proceeds from such Qualified Equity Offerings. Any redemption of the Series SP Preferred Stock is subject to the consent of the Board of Governors of the Federal Reserve System.
However, under the American Recovery and Reinvestment Act of 2009, which was enacted subsequent to the Company’s CPP transaction, the repayment restrictions described above have been loosened. In particular, repayment of CPP funds may come from other than Qualified Equity Offerings. See “The American Recovery and Reinvestment Act” below.
The terms of the Series WP Preferred Stock are substantially identical to those of the Series SP Preferred Stock. Differences include the payment under the Series WP Preferred Stock of cumulative dividends at a rate of 9% per year, and such stock may not be redeemed while shares of the Series SP Preferred Stock are outstanding.
The Articles of Amendment define a “Qualified Equity Offering” to mean the sale and issuance for cash by the Company, to persons other than the Company or any Company subsidiary after the closing, of shares of perpetual preferred stock, common stock, or any combination of such stock, that, in each case, qualify as and may be included in Tier 1 capital of the Company at the time of issuance under the applicable risk-based guidelines of the Company’s federal banking agency (other than any such sales and issuances made pursuant to agreements or arrangements entered into, or pursuant to financing plans, which were publicly announced, on or prior to November 17, 2008).
Prior to January 30, 2012, unless the Company has redeemed the Series SP Preferred Stock and the Series WP Preferred Stock or the Treasury has transferred the Series SP Preferred Stock and Series WP Preferred Stock to a third party, the consent of the Treasury will be required for the Company to declare or pay any dividend (other than regular quarterly cash dividends of not more than the amount of the last quarterly cash dividend per share declared or, if lower, announced to its holders of common stock an intention to declare, on the Company’s common stock prior to November 17, 2008) or make any distribution on our Junior Stock (as defined below). Subsequent to January 30, 2012 and prior to January 30, 2019, the foregoing restrictions will likewise be effective, except that generally the Company would be limited to a common stock dividend not in excess of 103% of the per share dividends in effect for the immediately prior fiscal year. Prior to January 30, 2019, unless the Company has redeemed the Series SP Preferred Stock and the Series WP Preferred Stock or the Treasury has transferred all of such stock to a third party, the consent of the Treasury will be required for us to redeem, purchase or acquire any shares of our Junior Stock and Parity Stock (as defined below), other than in connection with benefit plans consistent with past practice and certain other circumstances specified in the purchase agreement with the Treasury.
Additionally, under the Articles of Amendment, the Company’s ability to declare or pay dividends or purchase its common stock or other equity or capital securities will be subject to restrictions in the event that it fails to declare or pay (or set aside for payment) all dividends payable on the Series SP Preferred Stock and the Series WP Preferred Stock.
“Junior Stock” means the common stock and any other class or series of stock of the Company, the terms of which expressly provide that it ranks junior to the Series SP Preferred Stock and Series WP Preferred Stock as to dividend rights and/or rights of liquidation, dissolution or winding up of the Company. “Parity Stock” means any class or series of stock of the Company, the terms of which do not expressly provide that such class or series will rank senior or junior to the Series SP Preferred Stock and the Series WP Preferred Stock as to dividend rights and/or rights of liquidation, dissolution or winding up of the Company (in each case without regard to whether dividends accrue cumulatively or non-cumulatively).
Under the terms of the purchase agreement, the Company became subject to the executive compensation and corporate governance requirements of Section 111(b) of the EESA as implemented by any guidance or regulation under Section 111(b) of the EESA that has been issued and is in effect as of the issuance of the Series SP Preferred Stock and the Warrant. Accordingly, until such time as the Treasury ceases to own any debt or equity securities of the Company acquired pursuant to the Purchase Agreement, the Company is required to take all necessary action to insure that its benefit plans with respect to its senior executive officers comply with Section 111(b) of the EESA, and agree not to adopt any benefit plans with respect to, or which cover, its senior executive officers
6
that do not comply with the EESA. Pursuant to these requirements, the Company’s senior executive officers – consisting of Kenneth M. Harper, President and Chief Executive Officer; J. Richard Medlock, Chief Financial Officer; and Victor K. Grout, Executive Vice President of Greer State Bank, the Company’s banking subsidiary – executed a Senior Executive Officer Waiver whereby such senior executive officers waived any claims against the United States or their employer for any changes to their compensation or benefits that are required to comply with applicable regulations issued by the Treasury with respect to the TARP Purchase Program. In addition, such executives entered into an Amendment to Compensation Agreements for Senior Officers of Greer Bancshares Incorporated whereby each executive voluntarily released the Company from any and all obligations to pay compensation prohibited by Section 111 of the EESA or any related regulations.
Temporary regulations promulgated by Treasury under the authority of Section 111 of EESA included certain limitations on compensation to certain named executive officers and other of our officers. On February 17, 2009, Section 111 of EESA was amended in its entirety by The American Recover and Reinvestment Act of 2009, as discussed below. As of the date of this report, Treasury had not issued any new regulations under Section 111.
The EESA also temporarily increased the amount of deposit coverage for deposits at banks, thrifts and credit unions for deposits that are subject to deposit insurance provided by the Federal Deposit Insurance Corporation (“FDIC”) from $100,000 to $250,000 per applicable depositor. This coverage is set to return to $100,000 per applicable depositor on December 31, 2009 unless extended by the Treasury Department.
Temporary Liquidity Guaranty Program.On October 14, 2008, the FDIC announced the Temporary Liquidity Guarantee Program (the “TLGP”). The final rule was adopted on November 21, 2008. The FDIC stated that its purpose is to strengthen confidence and encourage liquidity in the banking system by guaranteeing newly issued senior unsecured debt issued by a participating entity on or after October 14, 2008 through and including June 30, 2009, that is 31 days or greater, and by providing full coverage of all transaction accounts, regardless of dollar amount. Inclusion in the program is voluntary. Participating institutions are assessed fees based on a sliding scale, depending on the length of maturity. Shorter-term debt has a lower fee structure and longer-term debt has a higher fee. The range is from 50 basis points on debt of 180 days or less, and a maximum of 100 basis points for debt with maturities of one year or longer, on an annualized basis. A 10-basis point surcharge is added to a participating institution’s current insurance assessment in order to fully cover all transaction accounts.
Greer State Bank elected to participate in the transaction account coverage for the additional 10-basis point surcharge. The Bank chose not to participate in the senior unsecured debt portion of the program.
The American Recovery and Reinvestment Act of 2009. On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (the “Recovery Act”), which amends and EESA under which TARP was created. The Treasury has not yet published implementing regulations under the Recovery Act, but these are expected soon. Under Section 111 of the Recovery Act, existing compensation requirements have been amended, and TARP recipients will be subject to new corporate governance obligations such as mandating “say on pay” shareholder voting rights, the creation of compensation committees, limiting “luxury” expenditures, and the imposition of a new compensation “clawback” right on the 25 most highly paid executives. All companies receiving government assistance must ensure compliance with these executive compensation provisions.
New EESA Section 111(e) requires that any TARP recipient seek non-binding shareholder approval of executive compensation, which must be disclosed pursuant to U.S. Securities and Exchange Commission (“SEC”) rules. The shareholder vote is not binding on the board and compensation committee. The proxy statement must include a vote specifically on the compensation of executives as disclosed under the SEC executive compensation disclosure rules. This requirement applies to proxies filed with the SEC after February 17, 2009. The Company has included such a proposal in its proxy statement for its May 14, 2009 Annual Meeting.
New EESA Section 111(b)(4) requires that the CEO and CFO of each TARP recipient provide a written certification of compliance with the new executive compensation provisions to the SEC in the TARP recipient’s annual filings. The implementation of this provision awaits new Treasury regulations.
7
Each TARP Recipient must establish a compensation committee, solely composed of independent directors that will meet at least twice a year to review the TARP recipient’s employee compensation plans and assess any risks posed to the TARP recipient as a result of such plans. A company whose shares are not registered under the Exchange Act that receives less than $25 million in TARP funds may fulfill this requirement with its full board of directors. The Company has a Compensation/Human Resources Committee, which has concluded its initial risk evaluation of the Company’s executive compensation plans.
Under the Recovery Act, the term “golden parachute payment” has been broadened to mean any payment to a senior executive officer for departure from a company for any reason, except for payments for services performed or benefits accrued. During the TARP Period, the TARP recipient may not pay any Senior Executive Officer or any of the next five highest-paid employees a golden parachute payment. Senior Executive Officer means “an individual who is one of the top 5 highly paid executives of a public company, whose compensation is required to be disclosed pursuant to the Securities Exchange Act of 1934, and any regulations issued thereunder, and non-public company counterparts.”
The existing regulations require that the Senior Executive Officers agree to return any incentive compensation, including the proceeds of any securities-based compensation, which was paid based on materially inaccurate financial statements or performance metric criteria. If the payment is made or accrues to the individual during the period Treasury holds the investment, the recovery can occur at any point in the future, including after the securities held by Treasury have been redeemed. This group of individuals from whom recovery may be sought is now extended beyond the Senior Executive Officers, to include the next 20 most highly compensated employees. As drafted, there is no requirement that this group of individuals be executive officers.
Provisions were included in the Recovery Act to limit bonuses, retention awards and incentive compensation by fund recipient’s highly compensated employees. Subject to certain exceptions, a TARP Recipient may not pay or accrue any “bonus, retention award, or incentive compensation” to certain employees. The Treasury is allowed to impose additional restrictions if it feels it is in the public’s best interest. The limit on bonuses is directly tied to the amount of TARP funds received:
| | • | | If less than $25 million, the restriction only applies to the most highly compensated employee; |
| | • | | If at least $25 million, but less than $250 million, the restriction applies to the five most highly compensated employees (this number can be increased if the Treasury determines it is in the public interest); |
| | • | | If at least $250 million, but less than $500 million, the restriction applies to the Senior Executive Officers and at least the next ten most highly compensated employees (this number can be increased if the Treasury determines it is in the public interest); |
| | • | | If more than $500 million, the restriction applies to the Senior Executive Officers and at least the next ten most highly compensated employees (this number can be increased if the Treasury determines it is in the public interest); |
Payment in long-term restricted stock is exempt from the above prohibitions if it (i) does not “fully vest” during the TARP Period, (ii) has a value less than or equal to 1/3 of the restricted stock recipient’s total annual compensation, and (iii) is subject to any other terms and conditions that the Treasury Secretary deems to be in the public interest. Ironically, it is anticipated that many companies will be forced to cease performance based compensation arrangements and increase base salaries.
A TARP recipient’s board of directors is required to approve a firm-wide policy regarding excessive or luxury expenditures. The Treasury has not defined “excessive or luxury expenditures,” but the Recovery Act has listed the following examples: entertainment or events; office and facility renovations; aviation or other transportation services; and other activities or events that are not reasonable expenditures for staff development, reasonable performance incentives or other similar measures conducted in the normal course of business operations. The Recovery Act does not mandate specific limits or prohibitions on spending, and Treasury regulations are not yet available.
On February 4, 2009 President Obama announced a salary cap of $500,000 for top executives at companies that receive the largest amounts of money under the Recovery Act. This was reflected in Section 302(a) of the Recovery Act. The $500,000 salary cap will be stricter for those companies getting “exceptional assistance” from the Treasury Department. Banks falling under the “exceptional assistance” standard have bank-specific negotiated agreements with Treasury. “Exceptional assistance” companies wanting to pay
8
executives more than $500,000 will have to do so by using stock that cannot be sold or liquidated until the government money is paid back. Under the February 4, 2009 proposed restrictions, the compensation cap would not apply retroactively to participants in the CPP, such as the Company. The Recovery Act did not add such a provision.
Under the Sec. 111(g) of the Recovery Act, the Treasury Secretary must accept repayment of TARP funds without regard to whether the TARP recipient replaced the funds with other capital, as was previously required. However, the Recovery Act requires the TARP recipient to consult with its federal banking agency prior to such repayment. Also, once the TARP funds are repaid, the Secretary must liquidate all warrants associated with the TARP recipient at the current market price.
The Company intends to comply with all the EESA, Recovery Act and related statutes and regulations. The Company’s actions in regard to EESA-related executive compensation requirements are discussed more fully in Item 11 “Executive Compensation.”
Greer Bancshares Incorporated
Because it owns the outstanding capital stock of the Bank, the Company is a bank holding company under the federal Bank Holding Company Act of 1956 and the South Carolina Banking and Branching Efficiency Act. The Company is also under the jurisdiction of the SEC and is subject to the disclosure and regulatory requirements of the Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as amended, and the regulations promulgated thereunder.
The Bank Holding Company Act. Under the Bank Holding Company Act, the Company is subject to periodic examination by the Federal Reserve and is required to file periodic reports of its operations and any additional information that the Federal Reserve may require. Activities at the bank holding company level are limited to:
| | • | | Banking and managing or controlling banks; |
| | • | | Furnishing services to or performing services for its subsidiaries; and |
| | • | | Engaging in other activities that the Federal Reserve determines to be so closely related to banking and managing or controlling banks as to be a proper incident thereto. |
Investments, Control, and Activities. With certain limited exceptions, the Bank Holding Company Act requires every bank holding company to obtain the prior approval of the Federal Reserve before:
| | • | | Acquiring substantially all the assets of any bank; |
| | • | | Acquiring direct or indirect ownership or control of any voting shares of any bank if after the acquisition it would own or control more than 5% of the voting shares of such bank (unless it already owns or controls the majority of such shares); or |
| | • | | Merging or consolidating with another bank holding company. |
Under the Bank Holding Company Act, a bank holding company is generally prohibited from engaging in, or acquiring direct or indirect control of more than 5% of the voting shares of any company engaged in, nonbanking activities unless the Federal Reserve Board, by order or regulation, has found those activities to be so closely related to banking or managing or controlling banks as to be a proper incident thereto. Some of the activities that the Federal Reserve Board has determined by regulation to be proper incidents to the business of a bank holding company include:
| | • | | Making or servicing loans and certain types of leases; |
| | • | | Engaging in certain insurance and discount brokerage activities; |
| | • | | Performing certain data processing services; |
| | • | | Acting in certain circumstances as a fiduciary or investment or financial adviser; |
9
| | • | | Owning savings associations; and |
| | • | | Making investments in certain corporations or projects designed primarily to promote community welfare. |
The Federal Reserve Board imposes certain capital requirements on the Company under the Bank Holding Company Act, including a minimum leverage ratio and a minimum ratio of “qualifying” capital to risk-weighted assets. These requirements are described below under “Greer State Bank—Capital Regulations.” Subject to its capital requirements and certain other restrictions, the Company is able to borrow money to make a capital contribution to the Bank. These loans may be repaid from dividends paid from the Bank to the Company. The Bank’s ability to pay dividends is subject to regulatory restrictions as described below in “Greer State Bank—Dividends.” The Company is also able to raise capital for contribution to the Bank by issuing securities without having to receive regulatory approval, subject to compliance with federal and state securities laws.
Source of Strength. In accordance with Federal Reserve Board policy, the Company is expected to act as a source of financial strength to the Bank and to commit resources to support the Bank in circumstances in which the Company might not otherwise do so. Under the Bank Holding Company Act, the Federal Reserve Board may require a bank holding company to terminate any activity or relinquish control of a nonbank subsidiary, other than a nonbank subsidiary of a bank, upon the Federal Reserve Board’s determination that such activity or control constitutes a serious risk to the financial soundness or stability of any subsidiary depository institution of the bank holding company. Further, federal bank regulatory authorities have additional discretion to require a bank holding company to divest itself of any bank or nonbank subsidiary if the agency determines that divestiture may aid the depository institution’s financial condition.
Under the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”), a bank holding company is required to guarantee the compliance of any insured depository institution subsidiary that becomes “undercapitalized” within the terms of any capital restoration plan filed by such subsidiary with its appropriate federal banking agency up to the lesser of (i) an amount equal to 5% of the institution’s total assets at the time the institution became undercapitalized, or (ii) the amount that is necessary (or would have been necessary) to bring the institution into compliance with all applicable standards as of the time the institution fails to comply with such restoration plan.
The Gramm-Leach-Bliley Act. The Gramm-Leach-Bliley Act (“GLB”), previously known as the Financial Services Modernization Act of 1999, was signed into law on November 12, 1999. Among other things, GLB repeals the restrictions on banks affiliating with securities firms contained in sections 20 and 32 of the Glass-Steagall Act. GLB also permits bank holding companies that become “financial holding companies” to engage in a statutorily provided list of financial activities, including insurance and securities underwriting and agency activities, merchant banking and insurance company portfolio investment activities. The Company has not elected to become a financial holding company. GLB also authorizes activities that are “complementary” to financial activities.
South Carolina State Regulation. As a bank holding company registered under the South Carolina Banking and Branching Efficiency Act, the Company is subject to limitations on sale or merger and to regulation by the South Carolina Board of Financial Institutions. Periodic reports must be filed with the State Board with respect to Company’s financial condition and operations, management and intercompany relationships between the Company and its subsidiaries. Additionally, the holding company, with limited exceptions, must obtain approval from the State Board prior to engaging in acquisitions of banking or non-banking institutions or assets.
Sarbanes-Oxley. The Sarbanes-Oxley Act of 2002 addresses, among other issues, corporate governance, auditing and accounting, internal controls, executive compensation, and enhanced and timely disclosure of corporate information. In accordance with Section 302(a) of the Sarbanes-Oxley Act, written certifications by the Company’s Chief Executive Officer and Chief Financial Officer are obtained. These certifications attest that the Company’s quarterly and annual reports filed with the SEC do not contain any untrue statement of a material fact or material facts necessary to make such reports not misleading. The Company has also implemented a program designed to comply with Section 404(a) of the Sarbanes-Oxley Act, which includes the identification of key controls over significant processes in accounts, evaluation of the control design effectiveness, and testing of the operating effectiveness of key controls. See Item 9A(T) “Controls and Procedures” for the Company’s evaluation of its disclosure controls and procedures and internal control over financial reporting.
10
Greer State Bank
The Bank operates as a South Carolina state chartered bank and is subject to examination by the South Carolina Board of Financial Institutions. Deposits in the bank are insured by the FDIC up to a maximum amount, which is temporarily $250,000 per depositor through December 31, 2009, subject to aggregation rules. (See discussion above under “Supervision and Regulation – Emergency Economic Stabilization Act of 2008).
The South Carolina Board of Financial Institutions and the FDIC regulate or monitor virtually all areas of the bank’s operations, including:
| | • | | Security devices and procedures; |
| | • | | Adequacy of capitalization and loss reserves; |
| | • | | Issuances of securities; |
| | • | | Interest rates payable on deposits; |
| | • | | Interest rates or fees chargeable on loans; |
| | • | | Establishment of branches; |
| | • | | Corporate reorganizations; |
| | • | | Maintenance of books and records; and |
| | • | | Adequacy of staff training to carry on safe lending and deposit gathering practices. |
The South Carolina Board of Financial Institutions requires the Bank to maintain specified capital ratios and imposes limitations on the Bank’s aggregate investment in real estate, bank premises and furniture and fixtures. The FDIC requires the Bank to prepare quarterly reports on the Bank’s financial condition and to conduct an annual audit of its financial affairs in compliance with its minimum standards and procedures.
Under FDICIA, all insured institutions must undergo regular on-site examinations by their appropriate banking agency. The cost of examinations of insured depository institutions and any affiliates may be assessed by the appropriate agency against each institution or affiliate as it deems necessary or appropriate. Insured institutions are required to submit annual reports to the FDIC, their federal regulatory agency, and their state supervisor when applicable. FDICIA directs the FDIC to develop a method for insured depository institutions to provide supplemental disclosure of the estimated fair market value of assets and liabilities, to the extent feasible and practicable, in any balance sheet, financial statement, report of condition or any other report of any insured depository institution. FDICIA also requires the federal banking regulatory agencies to prescribe, by regulation, standards for all insured depository institutions and depository institution holding companies relating, among other things, to the following:
| | • | | Information systems and audit systems; |
| | • | | Interest rate risk exposure; and |
Deposit Insurance. The Bank is subject to insurance assessments imposed by the FDIC. Through 2005, the FDIC maintained two separate insurance funds: the Bank Insurance Fund (“BIF”) and the Savings Association Insurance Fund (“SAIF”). The FDIC maintained the BIF and the SAIF by assessing depository institutions an insurance premium on a semi-annual basis. In addition, the FDIC imposed assessments to help pay off the $780 million in annual interest payments on the $8 billion Financing Corporation (“FICO”) bonds issued in the late 1980s as part of the government rescue of the thrift industry.
11
In early 2006 Congress passed the Federal Deposit Insurance Reform Act of 2005, which made certain changes to this federal deposit insurance program. Among other things, the act merged, effective March 31, 2006, the BIF and the SAIF into a new Deposit Insurance Fund (“DIF”). The act also increased retirement account coverage per depositor from a maximum of $100,000 to $250,000, provided for future inflationary adjustments, gave the FDIC authority to set the insurance fund’s reserve ratio within a specified range and required dividends to banks if the reserve ratio exceeds certain levels. The act also granted banks an assessment credit based on their share of the assessment base on December 31, 1996. The amount of the credit can be used to reduce assessments in any year, subject to certain limitations. The Bank’s assessment credit was fully exhausted by March 31, 2008.
The FDIC maintains the DIF by assessing depository institutions an insurance premium. The amount each institution is assessed is based upon statutory factors which include the balance of insured deposits as well as the degree of risk the institution poses to the insurance fund. The FDIC uses a risk-based premium system that assesses higher rates on those institutions that pose greater risk to the DIF. Under the rules adopted by the FDIC in November 2006, beginning in 2007, the FDIC placed each institution in one of four risk categories using a two-step process based first on capital ratios (the capital group assignment) and then on other relevant information (the supervisory group assignment). Beginning in 2007, rates ranged between $.05 and $.43 per $100 in assessable deposits.
In an effort to restore capitalization levels and to ensure the Deposit Insurance Fund will adequately cover projected losses from future bank failures, the FDIC, in October 2008, proposed a rule to alter the way in which it differentiates for risk in the risk-based assessment system and to revise deposit insurance assessment rates, including base assessment rates. For the first quarter of 2009 only, the FDIC increased all FDIC deposit assessment rates by seven basis points. These new rates range from 12 to 14 basis points for Risk Category I institutions to 50 basis points for Risk Category IV institutions. Under the FDIC’s restoration plan, the FDIC proposes to establish new initial base assessment rates that will be subject to adjustment as described below. Beginning April 1, 2009, the base assessment rates would range from 10 to 14 basis points for Risk Category I institutions to 45 basis points for Category IV institutions. Changes into the risk-based assessment system would include increasing premiums for institutions that rely on excessive amounts of brokered deposits, including CDARS, increasing premiums for excessive use of secured liabilities, including Federal Home Loan Bank advances, and lowering premiums for smaller institutions with very high capital levels.
On February 27, 2009, the Board of Directors of the FDIC voted to amend the restoration plan for the DIF. The Board took action by imposing a special assessment on insured institutions of 20 basis points, implementing changes to the risk-based assessment system and increased regular premium rates for 2009, which banks must pay on top of the special assessment. The 20 basis point special assessment on the industry will be as of June 30, 2009 payable on September 30, 2009. As a result of the special assessment and increased regular assessments, the Company projects it will experience an increase in FDIC assessment expense by approximately $785,000 from 2008 to 2009. The 20 basis points special assessment represents $585,000 of this increase.
On March 5, 2009, the FDIC Chairman announced that the FDIC intends to lower the special assessment from 20 basis points to 10 basis points. The approval of the cutback is contingent on whether the Congress clears legislation that would expand the FDIC’s line of credit with the Treasury to $100 billion. Legislation to increase the FDIC’s borrowing authority on a permanent basis is also expected to advance to Congress, which should aid in reducing the burden on the industry.
The assessment rates, including the special assessment, are subject to change at the discretion of the Board of Directors of the FDIC.
The FDIC may terminate insurance of deposits for an insured institution if it finds the institution has engaged in unsafe and unsound practices, is in an unsafe or unsound condition or has violated any applicable law, regulation, rule, order or condition imposed by the FDIC. At December 31, 2008, management was not aware of any practice, condition or violation that might lead to termination of deposit insurance.
12
Transactions with Affiliates and Insiders.The Bank is subject to certain restrictions on extensions of credit to executive officers, directors, principal shareholders, or any related interests of such persons. Extensions of credit (i) must be made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with unaffiliated persons; and (ii) must not involve more than the normal risk of repayment or present other unfavorable features. Aggregate limitations on extension of credit also may apply. Under the Federal Reserve Act, the aggregate of all covered transactions is limited in amount, as to any one affiliate, to 10% of the Bank’s capital and surplus and, as to all affiliates combined, to 20% of the Bank’s capital and surplus. The Bank is also subject to certain lending limits, collateral requirements, and restrictions on overdrafts to such persons. Compliance is also required with certain provisions designed to avoid the taking of low quality assets.
Dividends. The Bank is subject to regulatory restrictions on the payment of dividends, including a prohibition of payment of dividends from its capital. All dividends must be paid out of the undivided profits then on hand, after deducting expenses, including reserves for losses and bad debts. The Bank is authorized to pay cash dividends up to 100% of net income in any calendar year without obtaining the prior approval of the South Carolina Board of Financial Institutions provided that the Bank received a composite rating of one or two at the last federal or state regulatory examination. The Bank must obtain approval from the South Carolina Board of Financial Institutions prior to the payment of any other cash dividends. In addition, under the FDIC Improvement Act, the Bank may not pay a dividend if, after paying the dividend, the Bank would be undercapitalized. See “Capital Regulations” below.
Branching. Under current South Carolina law, the Company may open bank branch offices or acquire existing banking operations throughout South Carolina with the prior approval of the South Carolina Board of Financial Institutions. Furthermore, federal legislation permits interstate branching. This law permits out-of-state acquisitions by bank holding companies, interstate branching by banks if allowed by state law, and interstate merging by banks.
Community Reinvestment Act. The Community Reinvestment Act requires that, in connection with examinations of financial institutions within their respective jurisdictions, a financial institution’s primary federal regulator (FDIC for the Bank) shall evaluate the record of each financial institution in meeting the credit needs of its local community, including low and moderate income neighborhoods. These factors are also considered in evaluating mergers, acquisitions, and applications to open a branch or facility. Failure to adequately meet these criteria could impose additional requirements and limitations on the Bank.
The Gramm-Leach-Bliley Act.GLB contains provisions regarding consumer privacy. These provisions require financial institutions to disclose their policy for collecting and protecting confidential information. Customers generally may prevent financial institutions from sharing personal financial information with nonaffiliated third parties except for third parties that market an institution’s own products and services. Additionally, financial institutions generally may not disclose consumer account numbers to any nonaffiliated third party for use in telemarketing, direct mail marketing, or other marketing to the consumer.
Anti-Money Laundering Legislation. The Bank is subject to the Bank Secrecy Act and other anti-money laundering laws and regulations, including the USA Patriot Act of 2001. Among other things, these laws and regulations require the Bank to take steps to prevent the use of the Bank for facilitating the flow of illegal or illicit money, to report large currency transactions, and to file suspicious activity reports. The Bank is also required to carry out a comprehensive anti-money laundering compliance program. Violations can result in substantial civil and criminal sanctions. In addition, provisions of the USA Patriot Act require the federal financial institution regulatory agencies to consider the effectiveness of a financial institution’s anti-money laundering activities when reviewing bank mergers and bank holding company acquisitions.
13
Other Regulations. Interest and other charges collected or contracted for by the Bank are subject to state usury laws and federal laws concerning interest rates. The Bank’s loan operations are also subject to federal laws applicable to credit transactions, such as:
| | • | | The federal Truth-In-Lending Act, governing disclosures of credit terms to consumer borrowers; |
| | • | | The Home Mortgage Disclosure Act of 1975, requiring financial institutions to provide information to enable the public and public officials to determine whether a financial institution is fulfilling its obligation to help meet the housing needs of the community it serves; |
| | • | | The Equal Credit Opportunity Act, prohibiting discrimination on the basis of race, creed or other prohibited factors in extending credit; |
| | • | | the Fair Credit Reporting Act of 1978, governing the use and provision of information to credit reporting agencies; |
| | • | | The Fair Debt Collection Act, governing the manner in which consumer debts may be collected by collection agencies; and |
| | • | | The rules and regulations of the various federal agencies charged with the responsibility of implementing such federal laws. |
The deposit operations of the Bank also are subject to:
| | • | | The Right to Financial Privacy Act, which imposes a duty to maintain confidentiality of consumer financial records and prescribes procedures for complying with administrative subpoenas of financial records; and |
| | • | | The Electronic Funds Transfer Act and Regulation E issued by the Federal Reserve Board to implement that act, which govern automatic deposits to and withdrawals from deposit accounts and customers’ rights and liabilities arising from the use of automated teller machines and other electronic banking services. |
Capital Regulations. The federal bank regulatory authorities have adopted risk-based capital guidelines for banks and bank holding companies that are designed to make regulatory capital requirements more sensitive to differences in risk profiles among banks and bank holding companies and account for off-balance sheet items. The guidelines are minimums. The federal regulators have noted that banks and bank holding companies contemplating significant expansion programs should not allow expansion to diminish their capital ratios and should maintain ratios in excess of the minimums. No notice has been received indicating that either the Company or the Bank is subject to higher capital requirements. The current guidelines require all bank holding companies and federally-regulated banks to maintain a minimum risk-based total capital ratio equal to 8% and to Tier 1 capital of at least 4%. At least half of total capital must be Tier 1 capital. Tier 1 capital includes common shareholders’ equity, qualifying perpetual preferred stock, subordinated debt (up to 25% of total equity including subordinated debt) and minority interests in equity accounts of consolidated subsidiaries, but excludes goodwill and most other intangibles and excludes the allowance for loan and lease losses. Tier 2 capital includes the excess of any preferred stock not included in Tier 1 capital, mandatory convertible securities, hybrid capital instruments, excess subordinated debt and intermediate term-preferred stock and a limited portion of general reserves for loan and lease losses.
Under these guidelines, banks’ and bank holding companies’ assets are given risk-weights of 0%, 20%, 50%, or 100%. In addition, certain off-balance sheet items are given credit conversion factors to convert them to asset equivalent amounts to which an appropriate risk-weight applies. These computations result in the total risk-weighted assets. Most loans are assigned to the 100% risk
14
category, except for first mortgage loans fully secured by residential property and, under certain circumstances, residential construction loans, both of which carry a 50% rating. Most investment securities are assigned to the 20% category, except for municipal or state revenue bonds, which have a 50% rating, and direct obligations of or obligations guaranteed by the United States Treasury or United States Government agencies, which have a 0% rating.
The federal bank regulatory authorities have also implemented a leverage ratio, which is equal to Tier 1 capital as a percentage of average total assets less intangibles, to be used as a supplement to the risk-based guidelines. The principal objective of the leverage ratio is to place a constraint on the maximum degree to which a bank holding company may leverage its equity capital base. The minimum required leverage ratio for top-rated institutions is 3%, but most institutions are required to maintain an additional cushion of at least 100 to 200 basis points.
FDICIA established a capital-based regulatory scheme designed to promote early intervention for troubled banks, which requires the FDIC to choose the least expensive resolution of bank failures. The new capital-based regulatory framework contains five categories of compliance with regulatory capital requirements, including “well capitalized,” “adequately capitalized,” “undercapitalized,” “significantly undercapitalized” and “critically undercapitalized.” To qualify as a “well capitalized” institution, a bank must have a leverage ratio of no less than 5%, a Tier 1 risk-based ratio of no less than 6%, and a total risk-based capital ratio of no less than 10%. Also the bank must not be under any order or directive from the appropriate regulatory agency to meet and maintain a specific capital level. At December 31, 2008, based on management’s calculations, the Bank qualified as “adequately capitalized.” However, as discussed above under Emergency Economic Stabilization Act of 2008 (“EESA”), on January 30, 2009, the Company boosted its Tier 1 capital by issuing preferred stock to the Treasury under the CPP. As a result, the Bank now qualifies as “well capitalized.”
Under FDICIA regulations, the applicable agency can treat an institution as if it were in the next lower category if the agency determines (after notice and an opportunity for hearing) that the institution is in an unsafe or unsound condition or is engaging in an unsafe or unsound practice. The degree of regulatory scrutiny of a financial institution increases, and the permissible activities of the institution decreases, as it moves downward through the capital categories. Institutions that fall into one of the three undercapitalized categories may be required to do some or all of the following:
| | • | | Submit a capital restoration plan; |
| | • | | Raise additional capital; |
| | • | | Restrict their growth, deposit interest rates, and other activities; |
| | • | | Improve their management; |
| | • | | Eliminate management fees; or |
| | • | | Divest themselves of all or a part of their operations. |
Bank holding companies controlling financial institutions can be called upon to boost the institutions’ capital and to partially guarantee the institutions’ performance under their capital restoration plans.
Current federal law also regulates the acceptance of brokered deposits by insured depository institutions to permit only a “well-capitalized” depository institution to accept brokered deposits without prior regulatory approval. Under FDIC regulations, “well-capitalized” insured depository institutions may accept brokered deposits without restriction, “adequately capitalized” insured depository institutions may accept brokered deposits with a waiver from the FDIC (subject to certain restrictions on payments of interest rates) while “under-capitalized” insured depository institutions may not accept brokered deposits. The Bank was notified by the FDIC that as of September 30, 2008, the Bank was considered “adequately capitalized” and must receive a waiver to accept, renew or roll over brokered deposits until restored to “well capitalized” status. The Bank received that waiver on October 29, 2008 to continue brokered deposit activity limited to no more than $50,229,000 outstanding. The waiver expires March 31, 2009. The TARP investment received January 30, 2009 (discussed in Note 20 of the Company’s Annual Report to Shareholders for the year ended December 31, 2008) restores the Bank’s risk based capital ratio to 11.20%, or “well capitalized.” Management has requested the FDIC to remove the restriction on brokered deposit acquisition based on the Bank’s being restored to the “well capitalized” level.
15
These capital guidelines can affect the Bank in several ways. If the Bank grows at a rapid pace, capital may be depleted too quickly, necessitating a capital infusion from the holding company thereby impacting the ability to pay dividends. The Bank’s capital levels currently are adequate; however, rapid growth, poor loan portfolio performance, poor earnings performance, or a combination of these factors could change the capital position in a relatively short period of time.
Failure to meet these capital requirements would mean that a bank would be required to develop and file a plan with its primary federal banking regulator describing the means and a schedule for achieving the minimum capital requirements. In addition, such a bank would generally not receive regulatory approval of any application that requires the consideration of capital adequacy, such as a branch or merger application, unless the bank could demonstrate a reasonable plan to meet the capital requirement within a reasonable period of time.
Effect of Governmental Monetary Policies. The Bank’s earnings are affected by domestic economic conditions and the monetary and fiscal policies of the United States government and its agencies. The Federal Reserve Bank’s monetary policies have had, and are likely to continue to have, an important impact on the operating results of commercial banks through its power to implement national monetary policy in order, among other things, to curb inflation or combat a recession. The monetary policies of the Federal Reserve Board have major effects upon the levels of bank loans, investments and deposits through its open market operations in United States government securities, through its regulation of the discount rate on borrowings of member banks and the reserve requirements against member bank deposits. It is not possible to predict the nature or impact of future changes in monetary and fiscal policies.
Future Legislation and Regulatory Action. Changes to the laws and regulations (including changes in interpretation or enforcement) can affect the operating environment of bank holding companies and their subsidiaries in substantial and unpredictable ways. From time to time, various legislative and regulatory proposals are introduced. These proposals, if codified, may change banking statutes and regulations and the Bank’s operating environment in substantial and unpredictable ways. If codified, these proposals could increase or decrease the cost of doing business, limit or expand permissible activities or affect the competitive balance among banks, savings associations, credit unions and other financial institutions. Management cannot accurately predict whether these changes in laws and regulations will occur, and, if those changes occur, the ultimate effect they would have upon the Company’s financial condition and results of operations. It is likely, however, that the current high level of enforcement and compliance-related activities of federal and state authorities will continue and potentially increase.
Changes in prevailing interest rate may reduce our profitability.
Changes in the interest rate environment may reduce our profits. It is expected that we will continue to realize income from the differential or “spread” between the interest earned on loans, securities and other interest-earning assets, and interest paid on deposits, borrowings and other interest-bearing liabilities. Net interest spreads are affected by the difference between the maturities and repricing characteristics of interest-earning assets and interest-bearing liabilities. In addition, loan volume and yields are affected by market interest rates on loans; rising interest rates generally are associated with a lower volume of loan originations. We cannot assure you that we can minimize our interest rate risk. While an increase in the general level of interest rates may increase our net interest margin and loan yield, it may adversely affect the ability of certain borrowers with variable rate loans to pay the interest on and principal of their obligations. Accordingly, changes in levels of market interest rates could materially and adversely affect our net interest spread, asset quality, loan origination volume and overall profitability.
We are exposed to credit risk in our lending activities.
There are inherent risks associated with our lending and trading activities. Repayment of loans to individuals and business entities, our largest asset group, depend on the willingness and ability of borrowers to perform as contracted. A material adverse change in the ability of a significant portion of our borrowers to meet their obligations, due to changes in economic conditions, interest rates, natural disasters, acts of war or other causes over which we have no control, could adversely impact the ability of borrowers to repay
16
outstanding loans or the value of the collateral securing these loans, resulting in a material adverse impact on our earnings and financial condition. We are subject to various laws and regulations that affect our lending activities. Failure to comply with applicable laws and regulations could subject us to regulatory enforcement action that could result in the assessment against us of civil money or other penalties.
Our allowance for loan losses may not be adequate to cover actual losses.
In accordance with accounting principles generally accepted in the United States, we maintain an allowance for loan losses to provide for loan defaults and non-performance. Our allowance for loan losses may not be adequate to cover actual credit losses. Future provisions for credit losses could materially and adversely affect our operating results. Our allowance for loan losses is based on prior experience, as well as an evaluation of the risks in the current portfolio. The amount of future losses is susceptible to changes in economic, operating and other conditions, including changes in interest rates that may be beyond our control. These losses may exceed current estimates. Federal regulatory agencies, as an integral part of their examination process, review our loans and allowance for loan losses. While we believe that our allowance for loan losses is adequate to cover current losses, we cannot assure you that we will not further increase the allowance for loan losses. Either of these occurrences could materially adversely affect our earnings.
Changes in the cost and availability of funding due to changes in the deposit market and credit market, or the way in which we are perceived in such markets, may adversely affect financial results.
In general, the amount, type and cost of our funding (whether from other financial institutions, the capital markets or deposits), directly impacts our cost of operating our business and growing our assets which can positively or negatively affect our financial results. A number of factors could make funding more difficult, more expensive or unavailable on any terms, including, but not limited to, financial results and losses, changes within our organization, specific events that adversely impact our reputation, disruptions in the capital markets, specific events that adversely impact the financial services industry, counter party availability, changes affecting our assets, the corporate and regulatory structure, interest rate fluctuations, general economic conditions, and the legal, regulatory, accounting and tax environments governing our funding transactions. Also, we compete for funding with other banks and similar companies, many of which are substantially larger and have more capital and other resources than we do. In addition, as some of the competitors consolidate with other financial institutions, these advantages may increase. Competition from these institutions may increase the cost of funds.
If we need additional capital in the future, we may not be able to obtain it on terms that are favorable, which may limit our growth.
It is possible that we may need to raise additional capital to support any future growth. Our ability to raise capital through borrowings or the sale of securities will depend primarily upon our financial condition and the conditions of the financial markets at the time. We cannot give any assurance that additional capital will be available on terms satisfactory to us or at all. The failure to raise additional capital on terms that are favorable to us, or to raise capital at all, may force us to limit our growth strategy.
We face strong competition from financial services companies and other companies that offer banking services which could negatively affect our business.
We conduct our banking operations primarily in the counties of Greenville and Spartanburg located in upstate South Carolina. Increased competition in the market may result in reduced loans and deposits. Ultimately, we may not be able to compete successfully against current and future competitors. Many competitors offer the same banking services that we offer in our service area. These competitors include national banks, regional banks and other community banks. We also face competition from many other types of financial institutions, including without limitation, savings and loan institutions, finance companies, brokerage firms, insurance companies, credit unions, mortgage banks and other financial intermediaries. In particular, our competitors include several major financial companies whose greater resources may afford them a marketplace advantage by enabling them to maintain numerous banking locations and ATMs and conduct extensive promotional and advertising campaigns.
17
Additionally, banks and other financial institutions with larger capitalization and financial intermediaries not subject to bank regulatory restrictions have larger lending limits and are thereby able to serve the credit needs of larger customers. Areas of competition include interest rates for loans and deposits, efforts to obtain deposits, and range and quality of products and services provided, including new technology-driven products and services. Technological innovation continues to contribute to greater competition in domestic and international financial services markets as technological advances enable more companies to provide financial services. We also face competition from out-of-state financial intermediaries that have opened low-end production offices or that solicit deposits in our market areas. If we are unable to attract and retain banking customers, we may be unable to continue to grow our loan and deposit portfolios and our results of operations and financial condition may otherwise be adversely affected.
Changes in economic conditions, in particular an economic slowdown in our market area, could materially and negatively affect our business.
Our business is directly impacted by factors such as economic, political and market conditions, broad trends in industry and finance, legislative and regulatory changes, changes in government monetary and fiscal policies and inflation, all of which are beyond our control. A deterioration in economic conditions, whether caused by national or local concerns, in particular a further economic slowdown in our market area, could result in the following consequences, any of which could hurt our business materially: loan delinquencies may increase; problem assets and foreclosures may increase; demand for our products and services may decrease; low cost or noninterest bearing deposits may decrease; and collateral for loans made by us, especially real estate, may decline in value, in turn reducing customers’ borrowing power, and reducing the value of assets and collateral associated with our existing loans.
A downturn in the real estate market could negatively affect our business.
Real estate lending (including commercial, construction, land development and residential) remains a large portion of the Bank’s loan portfolio. These categories constitute $239,271,000, or approximately 77% of the Bank’s total loan portfolio as of December 31, 2008. Real estate values are generally affected by changes in economic conditions, fluctuation in interest rates and the availability of loans to potential purchasers, changes in tax and other laws and acts of nature. A continuation of the downturn in the real estate market could have a material adverse effect on our business, financial condition and results of operations.
The Bank’s real estate loans also include approximately $86,312,000 in construction and land loans. These loans have a greater risk of non-payment and loss than other mortgage loans in that repayment of the loans often depends on the successful completion and sale or operation of the property, the income stream of the borrowers, the accuracy of the estimate of the property’s value at completion of construction and the estimated cost of the construction. Such loans also typically involve larger loan balances to single borrowers or groups of related borrowers compared to residential loans. At December 31, 2008, there are eight nonperforming and two foreclosed construction and land development loans totaling approximately $4,377,000 and $1,138,000, respectively. If one or more of our large borrowers were to default on their construction and development loans, we could incur significant losses.
Substantially all of our real property collateral is located in our market area. If there is a significant decline in real estate values, especially in our market area, the collateral for our loans would provide less security. Real estate values could be affected by, among other things, an economic slowdown and an increase in interest rates.
We are dependent on key personnel and the loss of one or more of those key personnel may materially and adversely affect our prospects.
We currently depend heavily on the services of our chief executive officer, Kenneth M. Harper, and a number of other key management personnel. The loss of key personnel could materially and adversely affect our results of operations and financial condition. Our success also depends in part on our ability to attract and retain additional qualified management personnel. Competition for such personnel is strong in the banking industry and in our particular market. We may not be successful in attracting or retaining the personnel we require.
18
We are subject to extensive regulation which could adversely affect our business.
Our operations are subject to extensive regulation by federal, state and local governmental authorities and are subject to various laws and judicial and administrative decisions imposing requirements and restrictions on part or all of our operations. Regulation relating to financial institutions is designed primarily to protect depositors, Federal Deposit Insurance funds and the banking system as a whole, not shareholders. Among other things, we are also subject to securities regulation, including the Sarbanes-Oxley Act of 2002, and related rules and regulations promulgated by the Securities and Exchange Commission. In particular, these have increased in scope, complexity and the cost of complying with corporate governance reporting and disclosure requirements.
Because our business is highly regulated, the laws, rules and regulations applicable to us are subject to regular change. There are currently proposed laws, rules and regulations that, if adopted, would impact our operations. There can be no assurance that these proposed laws, rules and regulations, or any other laws, rules or regulations, will not be adopted in the future, which could (i) make compliance much more difficult and expensive, (ii) restrict our ability to originate, broker or sell loans or accept certain deposits, (iii) further limit or restrict the amount of commissions, interest or other charges earned on loans originated or sold by us, or (iv) otherwise adversely affect our business or prospects for business.
Changes in accounting policies and practices, as may be adopted by regulatory agencies, the Financial Accounting Standards Board, or other authoritative bodies, could materially impact our financial statements.
Our accounting policies and methods are fundamental to how we record and report our financial condition and results of operations. From time to time, the regulatory agencies, the Financial Accounting Standards Board, and other authoritative bodies change the financial accounting and reporting standards that govern the preparation of our financial statements. These changes can be hard to predict and can materially impact how we record and report our financial condition and results of operations.
Our controls and procedures may fail or be circumvented, which could negatively affect our business.
Controls and procedures are particularly important for financial institutions. Management regularly reviews and updates our internal controls, disclosure controls procedures, and corporate governance policies and procedures. Any system of controls, however well designed and operated, is based in part on certain assumptions and can provide only reasonable, not absolute, assurances that the objectives of the system are met. Any failure or circumvention of our controls and procedures or failure to comply with regulations related to controls and procedures could have a material adverse affect on our business, results of operations and financial condition.
Our directors and executive officers own a significant portion of our common stock.
Our directors and executive officers, as a group, beneficially owned approximately 21.2% of our outstanding common stock as of March 4, 2009. As a result of their ownership, the directors and executive officers have the ability, by voting their shares in concert, to influence the outcome of matters submitted to our shareholders for approval, including the election of directors.
Our ability to pay cash dividends is limited, and we may be unable to pay future dividends even if we desire to do so.
Our ability to pay cash dividends may be limited by regulatory restrictions, by our bank’s ability to pay cash dividends to our holding company and by our need to maintain sufficient capital to support our operations. The ability of the Bank to pay cash dividends to our holding company is limited by its obligation to maintain sufficient capital and by other restrictions on its cash dividends that are applicable to South Carolina state banks and banks that are regulated by the FDIC. If the Bank is not permitted to pay cash dividends to our holding company, it is unlikely that we would be able to pay cash dividends on our common stock. See “Supervision and Regulation – Greer State Bank—Dividends”
19
As long as shares of our Series SP Preferred Stock and Series WP Preferred Stock are outstanding, no dividends may be paid on our common stock unless all dividends of the preferred have been paid in full. Additionally, prior to January 30, 2012, so long as the U.S. Treasury owns shares of our preferred stock, we are not permitted to increase cash dividends on our common stock without the U.S. Treasury’s consent. The dividends declared on shares of our preferred stock will reduce the net income available to common shareholders and our earnings per common share. The shares of our preferred stock will also receive preferential treatment in the event of our liquidation, dissolution, or winding up. These restrictions on dividends contained in our preferred stock could have a negative effect on the value of our common stock. Also, holders of our common stock are entitled to receive dividends only when, and if, declared by our board of directors. Although we have historically paid cash dividends on our common stock, we are not required to do so, and the payment of such dividends is in the discretion of our board of directors. Exercising such discretion, our board of directors, in an effort to conserve capital, eliminated the dividend for the fourth quarter of 2008. We do not anticipate resuming the payment of cash dividends in the near term.
There can be no assurance that recently enacted legislation will help stabilize the U.S. financial system.
EESA was signed into law on October 3, 2008 in response to the financial crisis affecting the banking system and financial markets and going concern threats to investment banks and other financial institutions. Pursuant to EESA, the U.S. Treasury has the authority to, among other things, purchase up to $700 billion of mortgages, mortgage-backed securities, and certain other financial instruments from financial institutions for the purpose of stabilizing and providing financial liquidity to the U.S. financial markets. The U.S. Treasury announced the CPP under EESA pursuant to which it has purchased and may continue to purchase senior preferred stock in participating financial institutions. On January 30, 2009, we entered into a securities purchase agreement with the U.S. Treasury providing for our issuance of preferred stock and a warrant to the U.S. Treasury. In addition, the FDIC created the TLGP as part of a larger government effort to strengthen confidence and encourage liquidity in the nation’s banking system. The TLGP has two components: first, the FDIC will provide a complete guarantee of certain unsecured debt of participating organizations issued before June 30, 2009. Second, the FDIC will provide full insurance coverage for non-interest bearing transaction accounts, regardless of dollar amount, until December 31, 2009. We did not opt out of the TLGP, so our non-interest bearing transaction accounts are covered and we do not expect to issue unsecured debt before the termination of that component of the TLGP.
On February 17, 2009, the Recovery Act was signed into law in an effort to create jobs and stimulate growth in the U.S. economy. The Recovery Act specifies appropriations of approximately $787 billion for a wide array of federal programs.
There can be no assurance that these government actions will achieve their purposes. The failure of the financial markets to stabilize, or a continuation or worsening of the current financial market conditions, could have a material adverse effect on our business, our financial condition, the financial condition of our customers, our common stock trading price, as well as our ability to access credit. It could also result in declines in our investment portfolio, which could be “other-than temporary impairments.”
The FDIC assessments that we are required to pay may materially increase in the future, which could have an adverse effect on our earnings.
As a member institution of the FDIC, we are required to pay semi-annual deposit insurance premium assessments to the FDIC. During the year ended December 31, 2008, we paid $235,599 in deposit insurance assessments. Due to the recent failure of several unaffiliated FDIC insurance depository institutions and in the FDIC’s new liquidity guarantee program, the deposit insurance premium assessments paid by all banks will likely increase. In addition, new FDIC requirements shift a greater share of any increase in such assessments onto institutions with higher risk profiles, including banks with heavy reliance on brokered deposits, such as the Bank.
20
Because of our participation in the U.S. Treasury Department’s CPP, we are subject to several restrictions, including restrictions on compensation paid to our executives and other employees.
Pursuant to the terms of the securities purchase agreement between us and the U.S. Treasury, we adopted certain standards for executive compensation and corporate governance for the period during which the U.S. treasury holds the equity issued pursuant to the securities purchase agreement. The standards include (1) ensuring that incentive compensation for senior executives does not encourage unnecessary and excessive risks that threaten the value of the financial institution; (2) required clawback of any bonus or incentive compensation paid to a senior executive based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; (3) prohibition on making golden parachute payments to senior executives; and (4) agreement not to deduct for tax purposes executive compensation in excess of $500,000 for each senior executive.
The Recovery Act has imposed additional and broader compensation restrictions on CPP participants, which restrictions will be implemented by additional regulations. It will require significant time, effort, and resources on our part to ensure compliance, and the evolving regulations regarding compensation may restrict our ability to compete successfully for executive and management talent.
Legislation or regulatory changes could cause us to seek to repurchase the preferred stock that we sold to the U.S. Treasury pursuant to the CPP.
Legislation that has been adopted after we closed on our sale of preferred stock and a warrant to the U.S. Treasury on January 30, 2009, including the Recovery Act, and legislation or regulations that may be implemented in the future, may have a material, retroactive impact on the terms of our CPP transaction with the U.S. Treasury. These new legal requirements may have unforeseen, unintended or other adverse effects on the financial services industry as a whole and in particular on CPP participants such as the Company. If we determine that any such legislation or any regulations, in whole or in part, alter the terms of our CPP transaction with the U.S. Treasury in ways that we believe are adverse to our ability to effectively manage our business, then it is possible that we may seek to unwind, in whole or in part, the CPP transaction by repurchasing some or all of the preferred stock that we sold to the U.S. Treasury pursuant to the CPP. If we were to repurchase all or a portion of such preferred stock, then our capital levels could be materially reduced and we may incur substantial expense in connection with any such repurchases.
A limited trading market exists for our common stock which could lead to price volatility.
Our common stock trades in the over the counter market and is reported on the OTC Bulletin Board. The limited trading market for our common stock may cause fluctuations in the market value of our common stock to be exaggerated, leading to price volatility in excess of that which would occur in a more active trading market of our common stock. In addition, even if a more active market in our common stock develops, we cannot assure you that such a market will continue or that shareholders will be able to sell their shares.
Our information systems may experience an interruption or breach in security, which could materially negatively impact our operations and the confidence and good will of our customers.
We rely heavily on communications and information systems to conduct our business. Any failure, interruption or breach in security of those systems could result in failures or disruptions in our customer relationship management, general ledger, deposit, loan and other systems. The occurrence of any failures, interruptions or security breaches or of our information systems could damage our reputation, result in a loss of customer business, subject us to additional regulatory scrutiny, or expose us to civil litigation and possible financial liability, any of which could have a material adverse affect on our financial condition and results of operations.
21
Maintaining or increasing market share depends on the timely development and acceptance of new products and services and perceived overall value of these products and services by users.
Our success depends, in part, on our ability to adapt our products and services to evolving industry standards. There is increasing pressure to provide products and services at lower prices. This can reduce our net interest margin revenues from our fee-based products and services. In addition, our success depends, in part, on our ability to generate significant levels of new business in our existing markets and in identifying and penetrating new markets. Further, the widespread adoption of new technologies, including internet services, could require us to make substantial expenditures to modify or adapt our existing products and services. We may not be successful in introducing new products and services, achieving market acceptance of products and services and developing and maintaining loyal customers and/or breaking into targeted markets.
We must respond to rapid technological changes and these changes may be more difficult or expensive to effectuate than anticipated.
If competitors introduce new products and services embodying new technologies, or if new industry standards and practices emerge, our existing product and service offerings, technology and systems may become obsolete. Further, if we fail to adopt or develop new technologies or to adapt our products and services to emerging industry standards, we may lose current and future customers, which could have a material adverse effect on our business, financial condition and results of operations. The financial services industry is changing rapidly and in order to remain competitive, we must continue to enhance and improve the functionality and features of our products, services and technologies. These changes may be more difficult or expensive to implement than we anticipate.
We may not be able to maintain and manage our growth, which may adversely affect results of operations and our financial condition.
During recent years, we have experienced significant growth. Our ability to continue to grow depends, in part, upon our ability to open new branch offices, attract deposits to those locations and identify loan and investment opportunities. Our ability to manage growth successfully also will depend on whether we can maintain capital levels adequate to support our growth and maintain cost controls and asset quality. If we are unable to sustain our growth, our earnings could be adversely affected. If we grow too quickly, however, and are not able to control costs and maintain asset quality, rapid growth also could adversely affect our financial performance.
As of December 31, 2008 the Bank had five banking facilities. The corporate headquarters and main office is located on a two-acre tract of land at the corner of West Poinsett Street and Pennsylvania Avenue, in the city limits of Greer. The address is 1111 West Poinsett Street, Greer, South Carolina 29650. The building contains approximately 15,500 square feet. On the first floor in the present facility, there are four teller stations, two customer service offices, twelve additional private offices, and three drive-in teller windows. The vault contains 555 safe deposit boxes. The second floor consists of twelve private offices, the Board of Directors’ room, a storage vault, a training facility and a large work area which houses eight modular work stations. A large basement, previously used as storage for supplies and other items, was renovated in 2005 and now contains four private offices, ten modular work stations and a fire resistant storage area. There are 101 parking spaces on the premises.
The operations functions (including data processing) are located at 601 North Main Street, Greer, South Carolina 29650, where a branch banking office is also located. The property was obtained from another financial institution in 1992. The banking office consists of two private offices, two customer service stations, four teller stations and two drive-in teller windows. The cash vault contains 232 safe deposit boxes. The basement of the North Main Street building is used as the operations area of the Bank. It consists of 10 modular workstations, two private offices and a large storage vault.
On November 2, 1998, the Bank opened a full-service branch banking facility located on 2.27 acres at 871 South Buncombe Road, Greer, South Carolina 29650. The banking facility consists of three private offices, one customer service desk, three teller stations, two drive-in teller windows, four drive-through lanes, and a drive-up ATM. The cash vault contains 138 safe deposit boxes.
22
On August 20, 2005 the Bank opened a full-service branch office located on 1.12 acres at 3317 Wade Hampton Boulevard, Taylors, South Carolina 29687. This facility contains five private offices, one customer service desk, four teller stations, two drive-in teller stations, four drive-through lanes, and a drive-up ATM. The cash vault contains 162 safe deposit boxes.
On September 1, 2007, the Bank entered into an eighteen month lease of 1,456 square feet located at 103 C-2 Regency Commons Drive, Greer, SC 29650 to open a commercial and mortgage loan production office. The lease contains two six month renewal options. The facility consists of five private offices and one meeting room.
In February 2006, the Company purchased 4.1 acres of land on Pennsylvania Avenue in Greer, South Carolina near the Company’s headquarters on which to build an operations center. Management has decided to postpone the construction of an operations center at this time due to current economic and capital conditions.
All buildings and properties, except the land at the Taylors location and the new operations facility land, are owned by the Bank without encumbrances. The land at the Taylors location and the operations facility land are both owned by Greer Bancshares Incorporated. The Taylors location land is leased by the Bank.
Neither the Company nor the Bank is a party to, nor is any of their property the subject of, any material pending legal proceedings incidental to the business of the Company or the Bank.
| Item 4. | Submission of Matters to a Vote of Security Holders |
No matter was submitted to a vote of security holders during the fourth quarter of the fiscal year covered by this report.
PART II
| Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
In response to this Item, the information contained under “Stock Information and Dividend History” in the attachment to the Company’s Annual Report to Shareholders for the year ended December 31, 2008 is incorporated herein by reference.
The Equity Plan Compensation information required by Item 201(d) of Regulation S-K is incorporated by reference to Item 12 of this Annual Report on Form 10-K.
| Item 6. | Selected Financial Data |
In response to this Item, the information contained under “Selected Financial Data” in the attachment to the Company’s Annual Report to Shareholders for the year ended December 31, 2008 is incorporated herein by reference.
| Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
In response to this Item, the information contained under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the attachment to the Company’s Annual Report to Shareholders for the year ended December 31, 2008 is incorporated herein by reference.
23
| Item 8. | Financial Statements and Supplementary Data |
In response to this Item, the information contained in the Company’s Annual Report to Shareholders for the year ended December 31, 2008, beginning at “Report of Independent Registered Public Accounting Firm” and continuing through the end of such report, is incorporated herein by reference.
| Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
None.
| Item 9A(T). | Controls and Procedures |
Evaluation of Disclosure Controls and Procedures
Management maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports that are filed or submitted under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods required by the SEC, including, without limitation, those controls and procedures designed to ensure that such information is accumulated and communicated to management to allow timely decisions regarding required disclosures.
As of the end of the period covered by this report, an evaluation of the effectiveness of disclosure controls and procedures as defined in Exchange Act Rule 13a-15(e) was carried out under the supervision and with the participation of management, including the Chief Executive Officer and Chief Financial Officer. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer have concluded that the current disclosure controls and procedures are effective as of December 31, 2008.
Management’s Report on Internal Control Over Financial Reporting
Management’s Latest Assessment of Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of published financial statements in accordance with generally accepted accounting principles.
However, because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or the degree of compliance with policies may deteriorate.
Management conducted its evaluation of the effectiveness of our internal control over financial reporting based on the framework in “Internal Control – Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commissions (“COSO”) as of December 31, 2008.
Based on our assessment, we believe that as of December 31, 2008, our internal control over financial reporting was effective based on criteria set forth by COSO in “Internal Control-Integrated Framework.”
No Attestation of Registered Public Accounting Firm
This Annual Report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this Annual Report.
24
Changes in Internal Control Over Financial Reporting
As discussed above, management also maintains a system of internal accounting controls that is designed to provide assurance that assets are safeguarded, transactions are executed in accordance with management’s authorization and are properly recorded. This system is continually reviewed and is augmented by written policies and procedures, the careful selection and training of qualified personnel and an internal audit program designed to monitor its effectiveness. There were no changes in the internal control over financial reporting identified in connection with the evaluation of it that occurred during the last fiscal quarter that materially affected, or are reasonably likely to materially affect, internal control over financial reporting.
| Item 9B. | Other Information |
Not applicable.
PART III
| Item 10. | Directors, Executive Officers and Corporate Governance |
In response to this Item, the information contained in the Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009, under “Election of Directors,” “Governance of the Company,” “Executive Officers,” and “Section 16(a) Beneficial Ownership Reporting Compliance,” is incorporated herein by reference.
A Code of Ethics has been adopted that applies to the Company’s Directors and Senior Officers (including the principal executive officer and the principal financial officer) in accordance with the Sarbanes-Oxley Corporate Responsibility Act of 2002. The Code of Ethics is available without charge to anyone upon written request. Shareholders should contact the Company’s Chief Financial Officer at the Company offices to obtain a copy. Our Code of Ethics is also filed as Exhibit 14 to this report.
| Item 11. | Executive Compensation |
In response to this Item, the information contained in the Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009, under “Compensation of Directors” and “Executive Compensation,” is incorporated herein by reference.
| Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
In response to this Item, the information contained in the Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009, under “Security Ownership of Certain Beneficial Owners and Management,” is incorporated herein by reference.
25
Equity Compensation Plan Information
The following table sets forth equity compensation plan information at December 31, 2008.
| | | | | | | |
Plan Category | | Number of securities
to be issued
upon exercise of
outstanding options,
warrants and rights(a) | | Weighted-average
exercise price of
outstanding options,
warrants and rights (b) | | Number of securities
remaining available for
future issuance under
equity compensation plans
(excluding securities
reflected in column (a))1 |
Equity Compensation Plans approved by security holders | | 370,122 | | $ | 17.87 | | 2,800 |
| | | |
Equity Compensation Plans not approved by security holders | | — | | | — | | — |
| | | |
Total | | 370,122 | | $ | 17.87 | | 2,800 |
1 | Represents shares available under our 2005 Equity Incentive Plan, which was approved by our Board of Directors on September 23, 2004 and by our shareholders at our April 2005 Annual Meeting. The plan has an “evergreen share reserve increase” feature, whereby the number of shares issuable under the Plan is automatically increased every year for 9 years upon each Annual Meeting of stockholders. The increase is equal to the least of (1) two percent of the Diluted Shares Outstanding, (2) 20,000 shares, or (3) such lesser numbers of shares as determined by the Company’s board of directors. “Diluted Shares Outstanding” means (1) the number of shares of common stock outstanding on such calculation date, plus (2) the number of shares of common stock issuable assuming the conversion of all outstanding preferred stock and convertible notes, plus (3) the additional number of dilutive common stock equivalent shares outstanding as a result of any options or warrants outstanding during the fiscal year, calculated using the Treasury stock method. |
| Item 13. | Certain Relationships and Related Transactions, and Director Independence |
In response to this Item, the information contained under “Governance of the Company” and “Certain Relationships and Related Transactions,” in the Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009, is incorporated herein by reference.
| Item 14. | Principal Accounting Fees and Services |
In response to this Item, the information contained under “Audit Information,” in the Company’s Proxy Statement for the Annual Meeting of Shareholders to be held on May 14, 2009, is incorporated herein by reference (except for the information set forth under “Report of the Audit Committee of the Board of Directors”).
PART IV
| Item 15. | Exhibits, Financial Statement Schedules |
| (a) | (1) Financial Statements filed as part of this report: |
The following report of independent auditors and consolidated financial statements of the Company and its subsidiaries are included in Item 8 hereof:
Report of Independent Registered Public Accounting Firm – Dixon Hughes PLLC
Consolidated Balance Sheets – December 31, 2008 and 2007
Consolidated Statements of Income (Loss) – Years ended December 31, 2008, 2007 and 2006
Consolidated Statements of Changes in Stockholders’ Equity – Years ended December 31, 2008, 2007 and 2006
Consolidated Statements of Cash Flows – Years ended 2008, 2007 and 2006
Notes to Consolidated Financial Statements
26
(2) Financial Statement Schedules
All schedules to the consolidated financial statements required by Article 9 of Regulation S-X and all other schedules to the financial statements of the Company required by Article 5 of Regulation S-X are not required under the related instructions or are inapplicable and, therefore, have been omitted, or the required information is contained in the Consolidated Financial Statements or the notes thereto, which are included in Item 8 hereof.
(3) List of Exhibits
The exhibits filed as part of this report are listed in the Exhibit Index, which is incorporated into this item by reference.
| (b) | The Exhibits filed as part of this report are listed in Item 15(a)(3) above. |
27
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| | | | |
| | GREER BANCSHARES INCORPORATED |
| | |
| Date:March 31, 2009 | | By: | | /s/ Kenneth M. Harper |
| | | | Kenneth M. Harper |
| | | | Chief Executive Officer |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kenneth M. Harper, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| | | | |
| | | | Date: March , 2009 |
| Walter M. Burch, Chairman | | | | |
| | |
| | | | Date: March , 2009 |
| Mark S. Ashmore, Director | | | | |
| | |
/s/ Steven M. Bateman | | | | Date: March 31, 2009 |
| Steven M. Bateman, Director | | | | |
| | |
/s/ David M. Rogers | | | | Date: March 31, 2009 |
| David M. Rogers, Director | | | | |
| | |
| | | | Date: March , 2009 |
| Raj K. S. Dhillon, Director | | | | |
| | |
| | | | Date: March , 2009 |
| Gary M. Griffin, Director | | | | |
| | |
/s/ Kenneth M. Harper | | | | Date: March 31, 2009 |
| Kenneth M. Harper, Director, Chief Executive Officer | | | | |
| | |
/s/ R. Dennis Hennett | | | | Date: March 31, 2009 |
| R. Dennis Hennett, Director | | | | |
| | |
/s/ Harold K. James | | | | Date: March 31, 2009 |
| Harold K. James, Director | | | | |
| | |
/s/ Paul D. Lister | | | | Date: March 31, 2009 |
| Paul D. Lister, Director | | | | |
| | |
| | | | Date: March , 2009 |
| Theron C. Smith III, Director | | | | |
| | |
/s/ C. Don Wall | | | | Date: March 31, 2009 |
| C. Don Wall, Director | | | | |
| | |
/s/ J. Richard Medlock, Jr. | | | | Date: March 31, 2009 |
| J. Richard Medlock, Jr., Chief Financial Officer | | | | |
| (Principal Financial and Accounting Officer) | | | | |
28
EXHIBIT INDEX
| 3.1 | Articles of Incorporation of the Company, incorporated by reference to Exhibit 3.3 of the Registration Statement on Form 10-12G filed April 30, 2002 (File No. 000-33021). |
| 3.2 | Articles of Amendment of Greer Bancshares Incorporated, filed with the South Carolina Secretary of State on January 29, 2009, containing Certificates of Designations creating: (i) the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-SP, and (ii) the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-WP, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed February 3, 2009 (File No. 000-33021). |
| 3.3 | Amended and Restated Bylaws of the Company, incorporated by reference to Exhibit 3(ii) of the Company’s Current Report on Form 8-K filed on September 4, 2008 (File No. 000-33021). |
| 4.1 | Form of Certificate of Common Stock, incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form 10-12G filed April 30, 2002 (File No.000-33021). |
| 4.2 | Articles of Incorporation of the Company and Articles of Amendment of the Company (included as Exhibits 3.1 and 3.2, respectively). |
| 4.3 | Bylaws (included as Exhibit 3.3). |
| 4.4 | Warrant to Purchase Preferred Stock of the Company dated January 30, 2009, incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed February 3, 2009 (File No. 000-33021). |
| 4.5 | Form of certificate for the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-SP, incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed February 3, 2009 (File No. 000-33021). |
| 4.6 | Form of Certificate for the Company’s Fixed Rate Cumulative Perpetual Preferred Stock, Series 2009-WP, incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed February 3, 2009 (File No. 000-33021). |
| 10.1* | Form of Greer State Bank Director Stock Incentive Plan, incorporated by reference to Exhibit 10.1 to the Company’s Annual Report on Form 10-K for December 31, 2002 filed on March 28, 2003. |
| 10.2* | Form of Greer State Bank Employee Stock Incentive Plan, incorporated by reference to Exhibit 10.2 to the Company’s Annual Report on Form 10-K for December 31, 2002 filed on March 28, 2003. |
| 10.3* | Second Amendment and Complete Restatement of Deferred Compensation Plan for Directors dated December 21, 2006, incorporated by reference to Exhibit 10.4 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.4* | Third Amendment to Deferred Compensation Plan for Directors dated December 21, 2006, incorporated by reference to Exhibit 10.5 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.5* | Employment Agreement between Greer State Bank and R. Dennis Hennett dated January 2, 1989, incorporated by reference to Exhibit 10.6 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.6* | First Amendment to Employment Agreement between R. Dennis Hennett and Greer State Bank dated July 31, 2007, incorporated by reference as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 1, 2007. |
29
| 10.7* | Amended and Restated Salary Continuation Agreement between R. Dennis Hennett and Greer State Bank dated July 31, 2007, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on August 1, 2007. |
| 10.8* | Consulting Agreement between Greer State Bank and R. Dennis Hennett dated January 29, 2008, incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K filed January 30, 2008. |
| 10.9* | Greer State Bank Amended and Restated Stock Appreciation Rights Agreement with R. Dennis Hennett dated February 22, 2007, incorporated by reference to Exhibit 10.8 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.10* | Employment Agreement between Greer State Bank and Kenneth M. Harper dated September 8, 2004, incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed September 13, 2004. |
| 10.11* | Consulting Agreement between Greer State Bank and R. Dennis Hennett dated January 29, 2008, , incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K filed on January 30, 2008. |
| 10.12* | First Amendment to Employment Agreement between Greer State Bank and Kenneth M. Harper dated February 22, 2007, incorporated by reference to Exhibit 10.10 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.13* | Second Amendment to Employment Agreement between Kenneth M. Harper and Greer State Bank dated December 30, 2008, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on January 5, 2009. |
| 10.14* | Amended and Restated Salary Continuation Agreement between Kenneth M. Harper and Greer State Bank dated July 31, 2007, incorporated by reference to Exhibit 10.3 to the Company’s Current report on Form 8-K filed on August 1, 2007. |
| 10.15* | First Amendment to Greer State Bank Amended and Restated Salary Continuation Agreement with Kenneth M. Harper dated December 30, 2008, incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on January 5, 2009. |
| 10.16* | Amended and Restated Salary Continuation Agreement between J. Richard Medlock and Greer State Bank dated July 31, 2007, incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on August 1, 2007. |
| 10.17* | Greer State Bank 2005 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed September 29, 2004. |
| 10.18* | First Amendment to Greer State Bank 2005 Equity Incentive Plan dated February 22, 2007, incorporated by reference to Exhibit 10.14 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.19* | Supplemental Life Insurance Agreement between Greer State Bank and Victor K. Grout dated February 27, 2007, incorporated by reference to Exhibit 10.18 to the Company’s Annual Report on Form 10-K for December 31, 2006 filed on April 2, 2007. |
| 10.20 | Amended and Restated Trust Agreement among Greer Bancshares Incorporated, as Depositor, Wilmington Trust Company as Property Trustee and Delaware Trustee, and the Administrative Trustees named therein, dated December 28, 2006, incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed January 4, 2007. |
| 10.21 | Guarantee Agreement between Greer Bancshares Incorporated and Wilmington Trust Company, as Guarantee Trustee, for the benefit of Holders of the Preferred Securities of Greer Capital Trust II, dated December 28, 2006, incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed January 4, 2007. |
30
| 10.22 | Junior Subordinated Indenture between Greer Bancshares Incorporated and Wilmington Trust Company, as Trustee, dated December 28, 2006, incorporated by reference to Exhibit 10.3 of the Company’s Current Report on Form 8-K filed January 4, 2007. |
| 10.23 | Placement Agreement among Greer Bancshares Incorporated, Greer Capital Trust II and Credit Suisse Securities (USA) LLC, dated December 28, 2006, incorporated by reference to Exhibit 10.4 of the Company’s Current Report on Form 8-K filed January 4, 2007. |
| 10.24* | Form of Senior Executive Officer Waiver to the United States Department of the Treasury from Kenneth M. Harper, J. Richard Medlock and Victor K. Grout, respectively, incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed February 3, 2009. |
| 10.25* | Form of Amendment to Compensation Agreements for Senior Executive Officers of Greer Bancshares Incorporated between the Company and Kenneth M. Harper, J. Richard Medlock and Victor K. Grout, respectively, incorporated by reference to Exhibit 4.3 of the Company’s Current Report on Form 8-K filed February 3, 2009. |
| 10.26 | Letter agreement, including securities purchase agreement, dated January 30, 2009, between the Company and the United States Department of the Treasury, incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K/A filed February 19, 2009. |
13(1) | Annual Report to Shareholders for the year ended December 31, 2008. |
| 14 | Director and Executive Officer Code of Ethics, as amended May 24, 2007, incorporated by reference to Exhibit 14 of the Company’s Annual Report on Form 10-K filed March 28, 2008. |
21(1) | Subsidiaries of the Company. |
23(1) | Consent of Dixon Hughes PLLC |
24(1) | Power of Attorney (contained on the signature page hereof). |
31.1(1) | Certification of the Chief Executive Officer pursuant to Rule 13a-14 of the Securities Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
31.2(1) | Certification of the Chief Financial Officer pursuant to Rule 13a-14 of the Securities Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
32(1) | Certifications of Chief Executive Officer and Chief Financial Officer pursuant to 18 USC §1350, as adopted pursuant to the Sarbanes-Oxley Act of 2002. |
| * | Denotes management contract or compensatory plan or arrangement. |
31
