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EXHIBIT 10(h)
AGREEMENT BY AND BETWEEN
FIDELITY NATIONAL BANK
NORCROSS, GEORGIA
AND
THE OFFICE OF THE COMPTROLLER OF THE CURRENCY
Fidelity National Bank, Norcross, Georgia (Bank), and the Comptroller
of the Currency of the United States of America (Comptroller) wish to protect
the interests of the depositors, other customers, and shareholders of the Bank,
and, toward that end, wish the Bank to operate safely and soundly and in
accordance with all applicable laws, rules and regulations.
The Comptroller, through his National Bank Examiner, has examined the
Bank, and his findings are contained in the Report of Examination, dated August
5, 1996.
In consideration of the above premises, it is agreed, between the
Bank, by and through its duly elected and acting Board of Directors (Board),
and the Comptroller, through his authorized representative, that the Bank shall
operate at all times in compliance with the articles of this Agreement.
ARTICLE I
(1) This Agreement shall be construed to be a "written agreement
entered into with the agency" within the meaning of 12 U.S.C. Section
1818(b)(1).
(2) This Agreement shall be construed to be a "written agreement
between such depository institution and such agency" within the meaning of 12
U.S.C. Section 1818(e)(1) and 12 U.S.C. Section 1818(i)(2).
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(3) All reports which the Bank agrees to file with the Director
shall be forwarded to the Field Office Director, Southeastern District, 000
Xxxxxxxxx Xxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, with a copy
to the National Bank Examiners, 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000,
Xxxxxxx, Xxxxxxx 00000-0000.
ARTICLE II
(1) Within fifteen (15) days, the Board shall appoint an Oversight
Committee of three of its members. A majority of the members of the Oversight
Committee shall be directors who are not employees of the Bank or any of its
affiliates (as the term "affiliate" is defined in 12 U.S.C. Section
371c(b)(1)), or a family member of any such person.
(2) The Oversight Committee shall be responsible for monitoring
and coordinating the Bank's compliance with this Agreement and shall meet at
least monthly.
(3) Within thirty (30) days of the appointment of the committee,
and every thirty (30) days thereafter the Oversight Committee shall
submit a written report to the Board detailing the actions being taken to
comply with the provisions of this Agreement. Copies of these reports shall be
forwarded to the Director on a quarterly basis.
ARTICLE III
(1) No later than April 30, 1997, the Bank shall achieve, and
maintain until November 30, 1997, the following capital levels:
(a) Total risk-based capital at least equal to ten
percent (10%) of risk-weighted assets;
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(b) Tier 1 capital at least equal to six percent (6%) of
risk-weighted assets;
(c) Tier 1 capital at least equal to five percent (5%)
of adjusted total assets.1
(2) No later than November 30, 1997, the Bank shall achieve, and
thereafter maintain, the following capital levels:
(a) Total risk-based capital at least equal to eleven
percent (11 %) of risk-weighted assets;
(b) Tier 1 capital at least equal to seven percent (7%)
of risk-weighted assets;
(c) Tier 1 capital at least equal to six percent (6%) of
adjusted total assets.
(3) Within forty-five (45) days, the Board shall develop a
three-year capital program. The program shall include:
(a) specific plans for the maintenance of adequate
capital which may in no event be less than the
requirements of the Article;
(b) projections for growth and capital requirements based
upon a detailed analysis of the Bank's assets,
liabilities, earnings, fixed assets, and off balance
sheet activities;
(c) projections of the sources and timing of additional
capital to meet the Bank's current and future needs;
(d) the primary source(s) from which the Bank will
strengthen its capital structure to meet the Bank's
needs;
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1 Adjusted total assets is defined in 12 C.F.R. Section 3.2(a) as the
average total asset figure used for Call Report purposes minus end-of-quarter
intangible assets.
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(e) contingency plans which identify alternative methods
should the primary source(s) under (d) above not be
available; and
(f) a dividend policy which permits:
(i) the declaration of a Common Stock dividend
only when the Bank is in compliance with its
approved capital program, and with prior
written approval of the Director; and
(ii) the declaration of a Preferred Stock dividend
only when thereafter the Bank shall be
"adequately capitalized" as defined in 12
C.F.R. Section 6.4 (b)(2).
(4) Upon completion, the Bank's capital program shall be submitted
to the Director for approval. Upon approval by the Director, the Bank shall
implement and adhere to the capital program. The Board shall review and update
the Bank's capital program on an annual basis, or more frequently if necessary.
Copies of the reviews and updates shall be submitted to the Director.
ARTICLE IV
(1) Within ninety (90) days, the Board shall revise and amend its
three-year strategic plan for the Bank in light of the requirements of Article
m and its growth plans. The strategic plan shall establish objectives for the
Bank's earnings performance, growth, balance sheet mix, off-balance sheet
activities, liability structure, capital adequacy, product line development,
and market segments which the Bank intends to promote or develop, together with
strategies to achieve those objectives and, at a minimum, include:
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(a) a revised mission statement which forms the framework
for the establishment of strategic goals and
objectives;
(b) an assessment of the Bank's present and future
operating environment;
(c) an evaluation of the Bank's internal operations,
staffing requirements, board and management
information systems and policies and procedures;
(d) the development of strategic goals and objectives to
be accomplished over the short and long term;
(e) a management employment and succession program to
assure the retention and continuity of capable
management in relation to risks involved in current
and planned activities;
(f) a risk analysis of new product lines and market
segments the Bank intends to promote or develop;
(g) the development of a program for the maintenance of
an adequate Allowance for Loan and Lease Losses,
which shall be designed in light of the comments on
maintaining a proper Allowance for Loan and Lease
Losses found in the "Allowance for Loan & Lease
Losses" booklet of the Comptroller's Handbook, dated
June 1996;
(h) a revised action plan to improve bank earnings and
accomplish identified strategic goals and objectives
to include individual responsibilities,
accountability, and specific time frames; and
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(i) a revised financial forecast to include
projections for major balance sheet and
income statement accounts and desired
financial ratios over the period covered by
the strategic plan.
(2) Upon adoption, a copy of the plan shall be forwarded to the
Director for review.
ARTICLE V
(1) Although the Board has agreed to submit certain programs and
reports to the Director for review or approval, the Board has the ultimate
responsibility for proper and sound management of the Bank.
(2) It is expressly and clearly understood that if, at any time,
the Comptroller deems it appropriate in fulfilling the responsibilities placed
upon him by the several laws of the United States of America to undertake any
action affecting the Bank, nothing in this Agreement shall in any way inhibit,
estop, bar, or otherwise prevent the Comptroller from so doing.
(3) Any time limitations imposed by this Agreement shall begin to
run from the effective date of this Agreement. Such time requirements may be
extended by the Director for good cause upon written application by the Board.
(4) The provisions el this Agreement shall continue in full ve and
effect unless or until such provisions are amended by mutual consent of the
parties to the Agreement or excepted, waived, or terminated by the Comptroller.
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IN TESTIMONY WHEREOF, the undersigned, authorized by the Comptroller,
has hereunto set his hand on behalf of the Comptroller.
/s/ Xxxxxx X. Xxxxxxxxx 11/14/96
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Xxxxxx X. Xxxxxxxxx Date
Field Office Director
Southeastern District
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IN TESTIMONY WHEREOF, the undersigned, as the duly elected and acting
Board of Directors of the Bank, have hereunto set their hands on behalf of the
Bank.
/s/ Xxxxx X. Xxxxxxxx, Xx. 11/14/96
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W. Xxxxx Xxxxxxxx, Xx. Date
/s/ R. Xxxxxxx Xxxxxxx, III 1/14/96
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R. Xxxxxxx Xxxxxxx, III Date
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