SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark one)
| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2004
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to .
Commission File Number 0-22759
BANK OF THE OZARKS, INC.
(Exact name of registrant as specified in its charter)
| ARKANSAS | 71-0556208 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
| 12615 CHENAL PARKWAY, P. O. BOX 8811, LITTLE ROCK, ARKANSAS | 72231-8811 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (501) 978-2265
Securities registered pursuant to Section 12(b) of the Act:
| Title of Each Class |
Name of Each Exchange on Which Registered | |
| None | N/A |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $0.01 per share
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
State the aggregate market value of the Registrant’s common stock held by non-affiliates: $266,694,352 (based upon the last trade price as reported on the Nasdaq National Market on June 30, 2004).
Indicate by check mark whether the registrant is an accelerated filer (as defined by Rule 12b-2 of the Act). Yes x No ¨
Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practical date.
| Class |
Outstanding at March 1, 2005 | |
| Common Stock, par value $0.01 per share | 16,623,190 |
Documents incorporated by reference: Parts I, II and III of this Form 10-K incorporate certain information by reference from the Registrant’s Annual Report to Stockholders for the year ended December 31, 2004 and the Proxy Statement for its 2005 annual meeting.
FORM 10-K
December 31, 2004
General
Bank of the Ozarks, Inc. (the “Company”) is an Arkansas business corporation registered under the Bank Holding Company Act of 1956. The Company owns an Arkansas state chartered subsidiary bank, Bank of the Ozarks, which conducts banking operations through 48 banking offices in 27 communities throughout northern, western and central Arkansas, three Texas banking offices in Frisco, Dallas and Texarkana and loan production offices located in Charlotte, North Carolina and Bentonville, Arkansas. The Company also owns Ozark Capital Statutory Trust II, Ozark Capital Statutory Trust III and Ozark Capital Statutory Trust IV, all business trusts. At December 31, 2004 the Company had total assets of $1.727 billion, total loans of $1.135 billion and total deposits of $1.380 billion.
The Company provides a wide range of retail and commercial banking services. Deposit services include checking, savings, money market, time deposit and individual retirement accounts. Loan services include various types of real estate, consumer, commercial, industrial and agricultural loans and various leasing services. The Company also provides mortgage lending, cash management, trust services, safety deposit boxes, real estate appraisals, credit related life and disability insurance, ATMs, telephone banking, Internet banking and debit cards, among other products and services.
In 1994 the Company commenced an expansion strategy, via de novo branching, into target markets. Since embarking on this strategy, the Company has opened forty-six new banking offices. The Company’s de novo branching strategy initially focused on opening branches in small communities in counties contiguous to its existing offices. As the Company opened additional offices it has generally expanded into larger communities throughout much of northern, western and central Arkansas. In 1998 and 1999 the Company expanded into Arkansas’ then three largest cities, Little Rock, Fort Smith and North Little Rock. In 2004 the Company expanded into the Dallas, Frisco and Texarkana, Texas markets. While the Company has continued to open some additional offices in smaller communities, since 1998 the Company has primarily focused on expansion in and around larger communities.
During 2004 the Company added ten new banking offices. These included seven new Arkansas offices in Cabot, Conway, Russellville, Van Buren, North Little Rock, Little Rock and Sherwood. On April 14, 2004, the Company acquired a Texas bank charter which was immediately merged into the Company’s existing Arkansas bank charter. This allowed the Company to convert loan production offices in Frisco and Dallas into banking offices and to open a banking office in Texarkana.
The Company plans to continue its growth and de novo branching strategy. During 2005 the Company expects to open between eight and eleven new banking offices, depending, among other factors, on the time required to obtain permits and approvals and to design, construct, equip and staff such offices. Opening new offices is subject to availability of suitable sites, hiring qualified personnel, obtaining regulatory and other approvals and many other conditions and contingencies that the Company cannot predict with certainty.
Lending and Leasing Activities
The Company’s primary source of income is interest earned from its loan and lease portfolio and, to a lesser extent, earnings on its investment securities portfolio. In underwriting loans and leases, primary emphasis is placed on the borrower’s or lessee’s financial condition, including its ability to generate cash flow to support its debt or lease obligations and other cash expenses. Additionally substantial consideration is given to collateral value and marketability as well as the borrower’s character, reputation and other relevant factors. The Company’s loan portfolio includes most types of real estate loans, consumer loans, commercial and industrial loans, agricultural loans and other types of loans. The vast majority of the properties collateralizing the Company’s mortgage loans are located within the trade areas of the Company’s offices. The Company’s lease portfolio consists primarily of equipment leases. The Company underwrites such leases using substantially the same standards as applied to its loans.
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Real Estate Loans. The Company’s portfolio of real estate loans includes loans secured by residential 1-4 family, non-farm non-residential, agricultural, construction and land development, and multifamily residential (five or more family) properties. Non-farm non-residential loans include those secured by real estate mortgages on owner occupied commercial buildings of various types, leased commercial buildings, medical and nursing facilities, undeveloped raw land for commercial purposes, and other business and industrial properties. Agricultural real estate loans include loans secured by farmland and related improvements, including loans guaranteed by the Farm Service Agency. Agricultural real estate loans also include loans to individuals which would normally be characterized as residential 1-4 family loans but for the fact that the individual borrowers are primarily engaged in the production of timber, poultry, livestock or crops. Real estate construction and land development loans include loans with original maturities of 60 months or less to finance land development or construction of industrial, commercial, residential or farm buildings or additions or alterations to existing structures. Included in the Company’s residential 1-4 family loans is its PrimeAccess home equity line of credit product.
The Company offers a variety of real estate loan products that are generally amortized over five to thirty years, payable in monthly or other periodic installments of principal and interest, and due and payable in full (unless renewed) at a balloon maturity generally within one to five years. Certain loans may be structured as term loans with adjustable interest rates (adjustable daily, every six months, annually, or at other regular adjustment intervals usually not to exceed every five years) and without balloon maturities.
Residential 1-4 family loans are underwritten primarily based on the borrower’s ability to repay, including prior credit history, and the value of the collateral. Other real estate loans are underwritten based on the ability of the property, in the case of income producing property, or the borrower’s business to generate sufficient cash flow to amortize the debt. Secondary emphasis is placed upon collateral value and other factors. Loans collateralized by real estate have generally been originated with loan to appraised value ratios of not more than 89% for residential 1-4 family, 85% for other residential and other improved property, 80% for construction loans secured by commercial, multifamily and other non-residential properties, 75% for land development loans and 65% for raw land loans.
The Company typically requires mortgage title insurance in the amount of the loan and hazard insurance on improvements. Documentation requirements vary depending on loan size, type, complexity and other factors.
Consumer Loans. The Company’s portfolio of consumer loans generally includes loans to individuals for household, family and other personal expenditures. Proceeds from such loans are used to, among other things, fund the purchase of automobiles, household appliances, furniture, trailers, boats, mobile homes and for other similar purposes. Consumer loans made by the Company are generally collateralized with terms typically ranging up to 72 months, depending upon the nature of the collateral and size of the loan.
Consumer loans are attractive to the Company because they generally have a short term with higher interest rates. Such loans, however, pose additional risks of collectibility and loss when compared to certain other types of loans. The borrower’s ability to repay is of primary importance in the underwriting of consumer loans.
Commercial and Industrial Loans and Leases. The Company’s commercial and industrial loan portfolio consists of loans for commercial, industrial and professional purposes including loans to fund working capital requirements (such as inventory, floor plan and receivables financing), purchases of machinery and equipment and other purposes. The Company offers a variety of commercial and industrial loan arrangements, including term loans, balloon loans and lines of credit with the purpose and collateral supporting a particular loan determining its structure. These loans are offered to businesses and professionals for short and medium terms on both a collateralized and uncollateralized basis. As a general practice, the Company obtains as collateral a lien on furniture, fixtures, equipment, inventory, receivables or other assets. The Company’s leases are primarily equipment leases for commercial, industrial and professional purposes.
Commercial and industrial loans and leases typically are underwritten on the basis of the borrower’s or lessee’s ability to make repayment from the cash flow of its business and generally are collateralized by business assets. As a result, such loans and leases involve additional complexities, variables and risks and require more thorough underwriting and servicing than other types of loans and leases.
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Agricultural (Non-Real Estate) Loans. The Company’s portfolio of agricultural (non-real estate) loans includes loans for financing agricultural production, including loans to businesses or individuals engaged in the production of timber, poultry, livestock or crops. The Company’s agricultural (non-real estate) loans are generally secured by farm machinery, livestock, crops, vehicles or other agri-related collateral. A portion of the Company’s portfolio of agricultural (non-real estate) loans are loans to individuals which would normally be characterized as consumer loans but for the fact that the individual borrowers are primarily engaged in the production of timber, poultry, livestock or crops.
Deposits
The Company offers an array of deposit products consisting of non-interest bearing checking accounts, interest bearing transaction accounts (including the Company’s MaxYield® checking), savings accounts, money market accounts and time deposits. The Company acts as depository for a number of state and local governments and government agencies or instrumentalities. Such public funds deposits are often subject to competitive bid and in many cases must be secured by the Company’s pledge of government agency or other investment securities.
The Company’s deposits come primarily from within the Company’s trade area. As of December 31, 2004 the Company had $95.9 million “brokered deposits,” defined as deposits which, to the knowledge of management of the Company, have been placed with the bank subsidiary by a person who acts as a broker in placing these deposits on behalf of others, and the deposits are typically from outside the Company’s primary trade area. Brokered deposit levels may vary from time to time depending on competitive interest rate conditions and other factors.
Other Banking Services
Mortgage Lending. The Company offers a broad array of residential mortgage products including long-term fixed and variable rate loans to be sold on a servicing released basis in the secondary market. The Company originates residential mortgage loans to be resold on the secondary market primarily through its Bentonville, Bryant, Cabot, Conway, Fort Smith, Harrison, Little Rock, Mountain Home, North Little Rock, Russellville, Arkansas and Frisco, Texas offices. Most residential mortgage loans originated in the Company’s smaller markets are either fixed rate loans which balloon periodically, typically every one to five years, or variable rate loans and are retained by the Company in its loan portfolio. In recent years the Company has expanded its mortgage operations by adding originators in a number of new markets and increasing its number of originators in existing markets. Originations of mortgage loans for resale declined primarily as a result of a decline in mortgage financing and refinancing from $305 million in 2003 to $181 million in 2004, after having increased from $180 million in 2002. Although this business is cyclical, the Company believes it will continue to be an important component of non-interest income.
Trust Services. The Company offers a broad array of trust services from its headquarters in Little Rock, Arkansas, with additional staff in Conway. These trust services include personal trust, investment management accounts, and retirement accounts, corporate trust services including trustee, paying agent and registered transfer agent services and other incidental trust services. In recent years the Company has sought to increase the management depth and capabilities of its Trust Division. As of December 31, 2004 total trust assets were $477 million compared to $433 million as of December 31, 2003 and $178 million as of December 31, 2002.
Cash Management Services. The Company offers cash management products which are designed to provide a high level of specialized support to the treasury operations of business and public funds customers. Cash management has four basic functions: deposit handling, funds concentration, funds disbursement and information reporting. The Company’s cash management services include automated clearing house services (e.g., direct deposit, direct debit and electronic cash concentration and disbursement), zero balance accounts, current and prior day transaction reporting, lockbox services, automated credit line transfer, reconciliation services and account analysis. The Company expects to continue to increase the number of customers to which it provides such services.
Internet Banking. The Company offers an On-Line Banking service providing banking service over the Internet for both business customers and consumers. Through this service customers can access their account information, pay bills, transfer funds, reorder checks, buy U.S. Savings Bonds, change addresses, issue stop payment requests and handle other banking business electronically. Businesses are offered more advanced features that allow them to handle most cash management functions electronically and access their account information on a more timely basis. The Company also provides images of cancelled checks for customers on-line and provides businesses with the ability to obtain cancelled check images on compact discs for storage and retrieval.
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Competition
The banking industry in the Company’s market areas is highly competitive. In addition to competing with other commercial and savings banks and savings and loan associations, the Company competes with credit unions, finance companies, leasing companies, mortgage companies, brokerage and investment banking firms, asset-based non-bank lenders and many other financial service firms. Competition is based on interest rates offered on deposit accounts, interest rates charged on loans, fees and service charges, the quality and scope of the services rendered, the convenience of banking facilities and, in the case of loans to commercial borrowers, relative lending limits, as well as other factors.
A substantial number of the commercial banks operating in the Company’s market area are branches or subsidiaries of much larger organizations affiliated with statewide, regional or national banking companies, and as a result may have greater resources and lower costs of funds than the Company. Additionally the Company faces competition from de novo community banks, including those with senior management who were previously with other local banks or those controlled by investor groups with strong local business and community ties. Management believes the Company will continue to be competitive because of its strong commitment to quality customer service, convenient local branches, active community involvement and competitive products and pricing.
Employees
At December 31, 2004 the Company employed 561 full-time equivalent employees. None of the employees were represented by any union or similar group. The Company has not experienced any labor disputes or strikes arising from any organized labor groups. The Company believes its employee relations are good.
Executive Officers of Registrant
The following is a list of the executive officers of the Company:
George Gleason, age 51, Chairman and Chief Executive Officer. Mr. Gleason has served the Company or its bank subsidiary as Chairman, Chief Executive Officer and/or President since 1979. He holds a B.A. in Business and Economics from Hendrix College and a J.D. from the University of Arkansas.
Mark Ross, age 49, Vice Chairman, President and Chief Operating Officer. Mr. Ross joined the Company in 1980. Over the past 24 years, Mr. Ross has served in several key positions, becoming President in 1986, joining the board of directors in 1992, and adding the responsibilities of Vice Chairman and Chief Operating Officer to his duties as President in 2002. Mr. Ross holds a B.A. in Business Administration from Hendrix College.
Paul Moore, age 58, Chief Financial Officer/Chief Accounting Officer since 1995. Mr. Moore is a C.P.A. and received a B.S.B.A. in Banking, Finance and Accounting from the University of Arkansas.
Danny Criner, age 50, President of the bank subsidiary’s Northern Division since 1991. Mr. Criner received a B.S.B.A. in Banking and Finance from the University of Arkansas.
C. E. Dougan, age 58, President of the bank subsidiary’s Western Division since 2000. Prior to that Mr. Dougan served as a director of the Company from 1997 to 2000. Mr. Dougan was co-owner from 1996 to 2000 of Mooney-Dougan, Inc., specializing in residential real estate development, construction and investments. Prior to 1997 Mr. Dougan, who has over 34 years of banking experience, served 12 years as president and chief executive officer of a competitor.
Scott Hastings, age 47, President of the bank subsidiary’s Leasing Division since March 2003. From 2001 to 2002 he served as division president of the $800 million leasing division of a large diversified national financial services firm. From 1995 to 2001 he served in several key positions including President, Chief Operating Officer and Director of a large regional bank’s leasing subsidiary with over $500 million in assets. Mr. Hastings holds a B.A. degree from the University of Arkansas-Little Rock.
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Gene Holman, age 57, President of the bank subsidiary’s Mortgage Division since September 2004. Prior to 2004 Mr. Holman served as President and Chief Operating Officer of a competitor mortgage company and held various senior management positions with that company during his 21 year tenure. Mr. Holman has 30 years of real estate and mortgage banking business experience in Central Arkansas. Mr. Holman is a C.P.A. and holds an Arkansas real estate license. He holds a B.S.B.A. from the University of Mississippi.
Rex Kyle, age 48, President of the bank subsidiary’s Trust Department since March 2004. Prior to 2004 Mr. Kyle was Senior Vice President and Chief Administrative Officer in the trust division of a competitor bank. Mr. Kyle has 26 years experience as a banking trust professional providing a wide array of asset management and trust services for individuals, businesses and government entities. He holds a B.S. and M.S. in Agricultural Economics and a J.D. from Texas A&M University.
Dan Rolett, age 42, Executive Vice President of the bank subsidiary since 2002. He joined the Company’s bank subsidiary as Vice President in 1996 and was named Senior Vice President in 1999 to manage the bank’s investment portfolio among other duties. He holds a B.A. in marketing and finance from the University of Arkansas-Little Rock.
Darrel Russell, age 51, President of the bank subsidiary’s Central Division since 2001. He served as Executive Vice President of the bank subsidiary from 1997 to 2001. From 1992 to 1997 Mr. Russell served as Senior Vice President of the bank subsidiary. He received a B.S.B.A. in Banking and Finance from the University of Arkansas.
Messrs. Gleason, Ross, Moore and Rolett serve in the same position with both the Company and its bank subsidiary.
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SUPERVISION AND REGULATION
In addition to the generally applicable state and federal laws governing businesses and employers, bank holding companies and banks are extensively regulated under both federal and state law. With few exceptions, state and federal banking laws have as their principal objective either the maintenance of the safety and soundness of the Bank Insurance Fund (“BIF”) and Savings Association Insurance Fund (“SAIF”) of the FDIC or the protection of consumers or classes of consumers, rather than the specific protection of the stockholders of the Company. To the extent that the following information describes statutory and regulatory provisions, it is qualified in its entirety by reference to those particular statutory and regulatory provisions. Any change in applicable law or regulation may have an adverse effect on the results of operation and financial condition of the Company and its bank subsidiary.
Federal Regulations
The primary federal banking regulatory authority for the Company is the Board of Governors of the Federal Reserve System (the “FRB”), acting pursuant to its authority to regulate bank holding companies. Because the Company’s bank subsidiary is an insured depository institution which is not a member bank of the Federal Reserve System, it is subject to regulation and supervision by the FDIC and is not subject to direct supervision by the FRB.
Bank Holding Company Act. The Company is subject to supervision by the FRB under the provisions of the Bank Holding Company Act of 1956, as amended (the “BHCA”). The BHCA restricts the types of activities in which bank holding companies may engage and imposes a range of supervisory requirements on their activities, including regulatory enforcement actions for violations of laws and policies. The BHCA limits the activities of the Company and any companies controlled by it to the activities of banking, managing and controlling banks, furnishing or performing services for its subsidiaries, and any other activity that the FRB determines to be incidental to or closely related to banking. These restrictions also apply to any company in which the Company owns 5% or more of the voting securities.
Before a bank holding company engages in any non-bank-related activities, either by acquisition or commencement of de novo operations, it must comply with the FRB’s notification and approval procedures. In reviewing these notifications, the FRB considers a number of factors, including the expected benefits to the public versus the risks of possible adverse effects. In general, the potential benefits include greater convenience to the public, increased competition and gains in efficiency, while the potential risks include undue concentration of resources, decreased or unfair competition, conflicts of interest and unsound banking practices.
Under the BHCA, a bank holding company must obtain FRB approval before engaging in acquisitions of banks or bank holding companies. In particular, the FRB must generally approve the following actions by a bank holding company:
| • | the acquisition of ownership or control of more than 5% of the voting securities of any bank or bank holding company; |
| • | the acquisition of all or substantially all of the assets of a bank; and |
| • | the merger or consolidation with another bank holding company. |
In considering any application for approval of an acquisition or merger, the FRB is required to consider various competitive factors, the financial and managerial resources of the companies and banks concerned, the convenience and needs of the communities to be served, the effectiveness of the applicant in combating money laundering activities, and the applicant’s record of compliance with the Community Reinvestment Act (the “CRA”). The CRA generally requires financial institutions to take affirmative action to ascertain and meet the credit needs of its entire community, including low and moderate income neighborhoods. The Attorney General of the United States may, within 30 days after approval of an acquisition by the FRB, bring an action challenging such acquisition under the federal antitrust laws, in which case the effectiveness of such approval is stayed pending a final ruling by the courts.
Recent Banking Legislation. On November 12, 1999, the Gramm-Leach-Bliley Act (the “GLBA”) was signed into law and it became effective March 11, 2000. Under the GLBA, a bank holding company that elects to become a “financial
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holding company” will be permitted to engage in any activity that the FRB, in consultation with the Secretary of the Treasury, determines by regulation or order is (i) financial in nature or incidental to such financial activity or (ii) complementary to a financial activity and does not pose a substantial risk to the safety and soundness of depository institutions or the financial system generally. In addition to traditional lending activities, the GLBA specifies the following activities as financial in nature:
| • | acting as principal, underwriter, agent or broker for insurance; |
| • | underwriting, dealing in or making a market in securities; |
| • | merchant banking activities; and |
| • | providing financial and investment advice. |
A bank holding company may become a financial holding company only if all depository institution subsidiaries of the holding company are well-capitalized, well-managed and have at least a satisfactory rating under the CRA. A financial holding company that falls out of compliance with such requirement may be required to cease engaging in certain activities.
National banks are also authorized by the GLBA to engage, through “financial subsidiaries,” in any activity that is permissible for a financial holding company, except (i) insurance underwriting, (ii) real estate development or real estate investment activities (unless otherwise permitted by law), (iii) insurance company portfolio investments and (iv) merchant banking. The authority of a national bank to invest in a financial subsidiary is subject to a number of conditions, including, among other things, requirements that the bank must be well-managed and well-capitalized (after deducting from capital the bank’s outstanding investments in financial subsidiaries). The GLBA provides that state banks, such as the Company’s bank subsidiary, may invest in financial subsidiaries that engage as principal in activities that would only be permissible for a national bank to conduct in a financial subsidiary. This authority is generally subject to the same conditions that apply to national bank investments in financial subsidiaries.
The GLBA also adopts a number of consumer protections, including provisions intended to protect privacy of bank customers’ financial information and provisions requiring disclosure of ATM fees imposed by banks on customers of other banks. The consumer privacy regulation mandated by the GLBA was approved on May 10, 2000. The rule became effective on November 13, 2000, and compliance remained optional until July 1, 2001. Under the rule, when establishing a customer relationship, a financial institution must give the consumer information such as when it will disclose nonpublic, personal information to unaffiliated third parties, what type of information it may share and what types of affiliates may receive the information. The institution must also provide customers with annual privacy notices, a reasonable means for preventing the disclosure of information to third parties, and the opportunity to opt out of the disclosure at any time.
The Company has no current plans to elect to become a financial holding company. As long as the Company has not elected to become a financial holding company, it will remain subject to the current restrictions of the BHCA.
Title III of the USA Patriot Act, adopted in October 2001 (the “Patriot Act”), increased the obligation of financial institutions, including banks, to identify their customers, watch for and report suspicious transactions, respond to requests for information by federal banking regulatory authorities and law enforcement agencies, and share information with other financial institutions. The Patriot Act also amended the BHCA and the Bank Merger Act to require federal banking regulatory authorities to consider the effectiveness of a financial institution’s anti-money laundering activities when reviewing an application to expand operations. On April 30, 2003, the FRB and other agencies issued final rules implementing Section 326 of the Patriot Act, requiring financial institutions, including banks, to establish procedures for collecting standard information from customers opening new accounts and verifying the identity of these new accountholders within a reasonable period of time. Financial institutions were required to comply with these rules by October 1, 2003.
On December 4, 2003, the Fair and Accurate Credit Transactions Act of 2003 (the “FACT Act”) was signed into law. The FACT Act permanently extends the national credit reporting standards of the Fair Credit Reporting Act, which would otherwise have expired on January 1, 2004, and permits consumers, including customers of the Company’s bank subsidiary, to opt out of information sharing among affiliated companies for marketing purposes. The FACT Act also requires financial institutions, including banks, to notify a customer if the institution provides negative information about the customer to a national credit reporting agency or if the credit that is granted to the customer is on less favorable terms than those generally available. Banks must also comply with guidelines to be established by their federal banking regulators to help detect identity theft. In mid-December 2003, the FRB and the Federal Trade Commission (the “FTC”) implemented rules for those sections
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of the FACT Act having a specified implementation date of December 31, 2003. Such sections primarily dealt with the relationship of state laws to the Fair Credit Reporting Act. For those sections of the FACT Act not having a specified implementation date, the FRB and the FTC jointly issued rules making many of such provisions effective as of December 1, 2004. Additionally, on December 21, 2004, joint agency rules were adopted pursuant to the FACT Act which amended previously issued interagency guidelines. These amendments require the Company’s subsidiary bank to properly dispose of consumer information derived from a consumer report in a manner consistent with the previous guidelines. The amendments to the guidelines will become effective July 1, 2005.
Interstate Banking. On September 29, 1994, President Clinton signed into law the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994 (the “Interstate Act”) which amended the BHCA to permit bank holding companies to acquire existing banks in any state effective September 29, 1995. The Interstate Act preempted barriers that restricted entry into states and created opportunities for expansion into markets that were previously closed. Interstate banking and branching authority (discussed below) is subject to certain conditions and restrictions, such as capital adequacy, management and CRA compliance.
The Interstate Act also contained interstate branching provisions that allow multistate banking operations to merge into a single bank with interstate branches. The interstate branching provisions became effective on June 1, 1997, although states were allowed to pass laws to opt in early or to opt out completely as long as they acted prior to that date. Effective May 31, 1997, the Arkansas Interstate Banking and Branching Act of 1997 (the “Arkansas Interstate Act”) authorized banks to engage in interstate branching activities within the borders of the state of Arkansas.
Banks acquired pursuant to this new branching authority may be converted to branches. Interstate branching allows banks to merge across state lines to form a single institution. Interstate merger transactions can be used to consolidate existing multistate operations or to acquire new branches. A bank can also establish a new branch as its initial entry into a state if the state has authorized de novo branching. The Arkansas Interstate Act prohibits entry into the state through de novo branching.
Deposit Insurance. The FDIC insures the deposits of the Company’s bank subsidiary to the extent provided by law. BIF is the primary insurance fund for the bank’s deposits, but SAIF insures a portion due to certain acquisitions by the Company of deposits from SAIF-insured institutions. Under the FDIC’s risk-based insurance system, depository institutions are currently assessed premiums based upon the institution’s capital position and other supervisory factors. BIF and SAIF members currently have the same risk-based assessment schedule, which is 0 to 27 cents per $100 of eligible deposits.
Insured depository institutions are further assessed premiums for Financing Corporation Bond debt service (“FICO”). Beginning January 1, 1997, FICO premiums for BIF and SAIF became 1.296 and 6.48 basis points, respectively, per $100 of eligible deposits. As of January 1, 2000, BIF- and SAIF-insured deposits became subject to assessments at the same rate by FICO. The FICO assessment rate for BIF and SAIF was 1.48 basis points for the third quarter of 2004 and 1.46 basis points for the fourth quarter of 2004. For the period July 1, 2004 through December 31, 2004, the Company’s bank subsidiary was assessed an average annualized premium of $0.147 per $100 of BIF-eligible deposits and $0.0147 per $100 of SAIF-eligible deposits.
Capital Adequacy Requirements. The FRB monitors the capital adequacy of bank holding companies such as the Company, and the FDIC monitors the capital adequacy of the Company’s bank subsidiary. The federal bank regulators use a combination of risk-based guidelines and leverage ratios to evaluate capital adequacy.
Under the risk-based capital guidelines, bank regulators assign a risk weight to each category of assets based generally on the perceived credit risk of the asset class. The risk weights are then multiplied by the corresponding asset balances to determine a “risk-weighted” asset base. The minimum ratio of total risk-based capital to risk-weighted assets is 8.0%. At least half of the risk-based capital must consist of Tier 1 capital, which is comprised of common equity, retained earnings, certain types of preferred stock, a limited amount of trust preferred securities and minority interests in the equity capital accounts of consolidated subsidiaries, and excludes goodwill and various intangible assets. The remainder, or Tier 2 capital, may consist of amounts of trust preferred securities excluded from Tier 1 capital, certain hybrid capital instruments and other debt securities, preferred stock, net unrealized holding gains and losses on equity securities and an allowance for loan losses not to exceed 1.25% of risk-weighted assets. The sum of Tier 1 capital and Tier 2 capital is “total risk-based capital.”
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The leverage ratio is a company’s Tier 1 capital divided by its adjusted average assets. The minimum required leverage ratio is 3.0% of Tier 1 capital to adjusted average assets for institutions with the highest regulatory rating of 1. All other institutions must maintain a leverage ratio of 4.0% to 5.0%. For a tabular summary of the Company’s and the bank subsidiary’s risk-weighted capital and leverage ratios, see “Management’s Discussion and Analysis of Financial Condition and Results of Operation—Capital Compliance.”
Bank regulators may from time to time consider raising the capital requirements of banking organizations beyond current levels. However, the Company is unable to predict whether higher capital requirements will be imposed and, if so, the amount or timing of such increases. Therefore, the Company cannot predict what effect such higher requirements may have on it or its bank subsidiary.
Enforcement Authority. The FRB has enforcement authority over bank holding companies and non-banking subsidiaries to forestall activities that represent unsafe or unsound practices or constitute violations of law. It may exercise these powers by issuing cease-and-desist orders or through other actions. The FRB may also assess civil penalties in amounts up to $1 million for each day’s violation against companies or individuals who violate the BHCA or related regulations. The FRB can also require a bank holding company to divest ownership or control of a non-banking subsidiary or require such subsidiary to terminate its non-banking activities. Certain violations may also result in criminal penalties.
The FDIC possesses comparable authority under the Federal Deposit Insurance Act (the “FDI Act”), the Federal Deposit Insurance Corporation Improvement Act (“FDICIA”) and other statutes with respect to the bank subsidiary. In addition, the FDIC can terminate insurance of accounts, after notice and hearing, upon a finding that the insured institution is or has engaged in any unsafe or unsound practice that has not been corrected, is in an unsafe and unsound condition to continue operations, or has violated any applicable law, regulation, rule, or order of, or condition imposed by the appropriate supervisors.
The FDICIA required federal banking agencies to broaden the scope of regulatory corrective action taken with respect to depository institutions that do not meet minimum capital and related requirements and to take such actions promptly in order to minimize losses to the FDIC. In connection with FDICIA, federal banking agencies established capital measures (including both a leverage measure and a risk-based capital measure) and specified for each capital measure the levels at which depository institutions will be considered well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized or critically undercapitalized. If an institution becomes classified as undercapitalized, the appropriate federal banking agency will require the institution to submit an acceptable capital restoration plan and can suspend or greatly limit the institution’s ability to effect numerous actions including capital distributions, acquisitions of assets, the establishment of new branches and the entry into new lines of business. On December 13, 2004 the FDIC advised the Company that the bank subsidiary had been classified as “well-capitalized” under these guidelines.
Examination. The FRB may examine the Company and any or all of its subsidiaries. The FDIC examines and evaluates insured banks approximately every 12 months, and it may assess the institution for its costs of conducting the examinations. The FDIC has a reciprocal agreement with the Arkansas State Bank Department whereby each will accept the other’s examination reports in certain cases. The bank subsidiary generally undergoes FDIC and state examinations on a joint basis.
Reporting Obligations. As a bank holding company, the Company must file with the FRB an annual report and such additional information as the FRB may require pursuant to the BHCA. The bank subsidiary must submit to federal and state regulators annual audit reports prepared by independent auditors. The Company’s annual report, which includes the report of the Company’s independent auditors, can be used to satisfy this requirement. The Company’s bank subsidiary must submit quarterly to the FDIC Reports of Condition and Income (referred to in the banking industry as a Call Report).
Other Regulation. The Company’s status as a registered bank holding company under the BHCA does not exempt it from certain federal and state laws and regulations applicable to corporations generally, including, without limitation, certain provisions of the federal securities laws. The Company is under the jurisdiction of the Securities and Exchange Commission and of state securities commissions for matters relating to the offer and sale of its securities.
The bank subsidiary’s loan operations are subject to certain 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
9
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, the Fair Housing Act prohibiting discriminatory practices relative to real estate-related transactions, including the financing of housing, 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 subsidiary 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, the Electronic Fund Transfer Act, which governs 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, the Truth in Savings Act requiring depository institutions to disclose the terms of deposit accounts to consumers, the Expedited Funds Availability Act requiring financial institutions to make deposited funds available according to specified time schedules and to disclose funds availability policies to consumers, and the Check Clearing for the 21st Century Act (“Check 21”), designed to foster innovation in the payments system and to enhance its efficiency by reducing some of the legal impediments to check truncation. Check 21, which became effective on October 28, 2004, created a new negotiable instrument called a substitute check and permits but does not require banks to truncate original checks, process check information electronically, and deliver substitute checks to banks that wish to continue receiving paper checks.
State Regulations
The Company and its bank subsidiary are subject to examination and regulation by the Arkansas State Bank Department. Examinations of the bank subsidiary are typically conducted annually but may be extended to 24 months if an interim examination is performed by the FDIC. The Arkansas State Bank Department may also make at any time an examination of the Company as may be necessary to disclose fully the relations between the holding company and its bank subsidiary and the effect of those relations. Additionally, because the Company owns an Arkansas state-chartered bank, the Company is also required to submit certain reports filed with the FRB to the Arkansas State Bank Department.
The Arkansas Constitution provides, in summary, that “consumer loans and credit sales” have a maximum percentage limitation of 17% per annum and that all “general loans” have a maximum interest rate limitation of 5% over the Federal Reserve Discount Rate in effect at the time the loan was made. The Arkansas Supreme Court has determined that “consumer loans and credit sales” are also “general loans” and are thus subject to an interest rate limitation equal to the lesser of 5% over the Federal Reserve Discount Rate or 17% per annum. The Arkansas Constitution also provides penalties for usurious “general loans” and “consumer loans and credit sales,” including forfeiture of all principal and interest on consumer loans and credit sales made at a greater rate of interest than 17% per annum. Additionally, “general loans” made at a usurious rate may result in forfeiture of uncollected interest and a refund to the borrower of twice the interest collected.
Arkansas usury laws have historically been preempted by federal law with respect to first lien residential real estate loans and certain loans guaranteed by the Small Business Administration. Furthermore, the GLBA preempted the application of the Arkansas Constitution’s usury limits to the Company’s bank subsidiary effective November 12, 1999. In a non-adversarial test case involving undisputed facts, the Eighth Circuit Court of Appeals affirmed the District Court’s ruling that the preemptive provisions of the GLBA are constitutional. Although the constitutionality of the preemption provision could be raised again in the future, the Company’s bank subsidiary currently may charge interest at rates over and above the limitations set forth in the Arkansas Constitution.
The Company is also subject to the Arkansas Bank Holding Company Act of 1983 (“ABHCA”) which places certain restrictions on the acquisition of banks by bank holding companies. Any acquisition by the Company of more than 10% of any class of the outstanding capital stock of any bank located in Arkansas would require the Arkansas Bank Commissioner’s approval. Further, no bank holding company may acquire any bank if after such acquisition the holding company would control, directly or indirectly, banks having 25% of the total bank deposits (excluding deposits from other banks and public funds) in the State of Arkansas. Under the ABHCA a bank holding company cannot own more than one bank subsidiary if any of its bank subsidiaries has been chartered for less than 5 years.
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Effective January 1, 1999 Arkansas law allows the Company to engage in branching activities for its bank subsidiary on a statewide basis. Immediately prior to that date, the state’s branching laws prevented state and national banks from opening branches in any county of the state other than their home county and the counties contiguous to their home county. Because the state branching laws did not limit the branching activities of federal savings banks, the Company was able to branch outside of the traditional areas of its state bank subsidiaries through the federal thrift that it acquired in February 1998. In response to the change in state branching laws, the Company merged its thrift charter into its lead state bank subsidiary in early 1999.
Bank Subsidiary
The lending and investment authority of the state bank subsidiary is derived from Arkansas law. The lending power is generally subject to certain restrictions, including the amount which may be lent to a single borrower.
Regulations of the FDIC and the Arkansas State Bank Department limit the ability of the bank subsidiary to pay dividends to the Company without the prior approval of such agencies. FDIC regulations prevent insured state banks from paying any dividends from capital and allows the payment of dividends only from net profits then on hand after deduction for losses and bad debts. The Arkansas State Bank Department currently limits the amount of dividends that the bank subsidiary can pay the Company to 75% of the bank’s net profits after taxes for the current year plus 75% of its retained net profits after taxes for the immediately preceding year.
Federal law substantially restricts transactions between financial institutions and their affiliates, particularly their non-financial institution affiliates. As a result, the bank subsidiary is sharply limited in making extensions of credit to the Company or any non-bank subsidiary, in investing in the stock or other securities of the Company or any non-bank subsidiary, in buying the assets of, or selling assets to, the Company, and/or in taking such stock or securities as collateral for loans to any borrower. Moreover, transactions between the bank subsidiary and the Company (or any nonbank subsidiary) must generally be on terms and under circumstances at least as favorable to the bank subsidiary as those prevailing in comparable transactions with independent third parties or, in the absence of comparable transactions, on terms and under circumstances that in good faith would be available to nonaffiliated companies.
The federal banking laws require all insured banks, including the bank subsidiary, to maintain reserves against their checking and transaction accounts (primarily checking accounts, NOW and Super NOW checking accounts). Because reserves must generally be maintained in cash or in non-interest bearing accounts, the effect of the reserve requirements is to increase the bank subsidiary’s cost of funds. Arkansas law requires state chartered banks to maintain such reserves as are required by the applicable federal regulatory agency.
The bank subsidiary is subject to Section 23A of the Federal Reserve Act, which places limits on the amount of loans or extensions of credit to, or investments in, or certain other transactions with, affiliates, including the Company. In addition, limits are placed on the amount of advances to third parties collateralized by the securities or obligations of affiliates. Most of these loans and certain other transactions must be secured in prescribed amounts. The bank subsidiary is also subject to Section 23B of the Federal Reserve Act, which prohibits an institution from engaging in transactions with certain affiliates unless the transactions are on terms substantially the same, or at least as favorable to such institution or its subsidiaries, as those prevailing at the time for comparable transactions with non-affiliated companies. The bank subsidiary is subject to restrictions on extensions of credit to executive officers, directors, certain principal stockholders, and their related interests. These extensions of credit (1) must be made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with third parties and (2) must not involve more than the normal risk of repayment or present other unfavorable features.
Proposed Legislation For Bank Holding Companies And Banks
Certain proposals affecting the banking industry have been discussed from time to time. Such proposals include: regulation of all insured depository institutions by a single regulator; limitations on the number of accounts protected by the federal deposit insurance funds; and modification of the $100,000 coverage limit on deposits. It is uncertain which, if any, of these proposals may become law and what effect they would have on the Company and its bank subsidiary.
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Available Information
The Company makes available, free of charge, through the Investor Relations section of the Company’s Internet website at www.bankozarks.com, its annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after the Company electronically files such reports, or furnishes them to, the Securities and Exchange Commission. Also the Company’s corporate governance principles, Audit Committee charter, Personnel and Compensation Committee charter and Nominating and Governance Committee charter are available under the section “Investor Relations” on the Company’s website.
Forward-Looking Information
This Management’s Discussion and Analysis of Financial Condition and Results of Operations incorporated by reference herein, other filings made by the Company with the Securities and Exchange Commission and other oral and written statements or reports by the Company and its management, include certain forward-looking statements including, without limitation, statements with respect to net interest margin, net interest income, anticipated future operating and financial performance, asset quality, nonperforming loans and leases and assets, growth opportunities, growth rates, new office openings, and other similar forecasts and statements of expectation. Words such as “anticipate,” “believe,” “estimate,” “expect,” “intend” and similar expressions, as they relate to the Company or its management, identify forward-looking statements. Forward-looking statements made by the Company and its management are based on estimates, projections, beliefs and assumptions of management at the time of such statements and are not guarantees of future performance. The Company disclaims any obligation to update or revise any forward-looking statement based on the occurrence of future events, the receipt of new information or otherwise.
Actual future performance, outcomes and results may differ materially from those expressed in forward-looking statements made by the Company and its management due to certain risks, uncertainties and assumptions. Certain factors that may affect operating results of the Company include, but are not limited to, the following: (1) potential delays or other problems in implementing the Company’s growth and expansion strategy including delays in identifying satisfactory sites, hiring qualified personnel and opening new offices; (2) the ability to attract new deposits and loans; (3) interest rate fluctuations; (4) competitive factors and pricing pressures; (5) general economic conditions, including their effect on the credit worthiness of borrowers and collateral values; and (6) changes in legal and regulatory requirements as well as other factors described in this and other Company reports and statements. Should one or more of the foregoing risks materialize, or should underlying assumptions prove incorrect, actual results or outcomes may vary materially from those described in the forward-looking statements.
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The Company serves its customers by offering a broad range of banking services throughout northern, western and central Arkansas and in selected Texas markets from the following banking locations:
| Banking Facility (1) |
Year Opened |
Square Footage | ||
| Sherwood (2) |
2004 | 2,400 | ||
| LR Rodney Parham & West Markham (3) |
2004 | 4,576 | ||
| Dallas – Sterling Plaza (4) |
2004 | 1,931 | ||
| NLR East McCain |
2004 | 2,784 | ||
| Texarkana, Texas (5) |
2004 | 2,364 | ||
| LR – Hwy. 10 Supercenter (6) |
2004 | 693 | ||
| Conway – East |
2004 | 2,400 | ||
| Russellville – East |
2004 | 2,800 | ||
| Van Buren – Main |
2004 | 2,260 | ||
| Cabot – South |
2004 | 2,800 | ||
| Conway – Downtown (7) |
2004 | 2,400 | ||
| Frisco, Texas (8) |
2004 | 2,000 | ||
| Mountain Home (9) |
2003 | 2,000 | ||
| Benton (Military Road) |
2003 | 2,784 | ||
| Fort Smith (Phoenix) |
2003 | 2,250 | ||
| Russellville (Main) (10) |
2003 | 7,644 | ||
| Little Rock (Taylor Loop/Cantrell) |
2003 | 2,400 | ||
| Bryant (Hwy. 5) |
2003 | 2,784 | ||
| Cabot (Main) |
2003 | 4,400 | ||
| Conway (Prince & Salem) |
2003 | 2,464 | ||
| Hot Springs Village (Cranford’s) (11) |
2002 | 449 | ||
| Conway (North) |
2002 | 4,350 | ||
| Maumelle |
2002 | 3,576 | ||
| Bryant (Wal-Mart Supercenter) (12) |
2001 | 675 | ||
| Lonoke (13) |
2001 | 5,731 | ||
| Little Rock (Otter Creek) |
2001 | 2,400 | ||
| Fort Smith (Zero) |
2001 | 2,784 | ||
| Yellville |
2000 | 2,716 | ||
| Clinton |
1999 | 2,784 | ||
| North Little Rock (North Hills) (14) |
1999 | 4,350 | ||
| Harrison (Downtown) |
1999 | 14,000 | ||
| North Little Rock (Indian Hills) (15) |
1999 | 1,500 | ||
| Fort Smith (Rogers) |
1998 | 22,500 | ||
| Little Rock (Cantrell) |
1998 | 2,700 | ||
| Little Rock (Chenal) |
1998 | 40,000 | ||
| Little Rock (Rodney Parham) |
1998 | 2,500 | ||
| Little Rock (Chester) (16) |
1998 | 1,716 | ||
| Bellefonte |
1997 | 1,444 | ||
| Alma |
1997 | 4,200 | ||
| Paris |
1997 | 3,100 | ||
| Mulberry |
1997 | 1,875 | ||
| Harrison (North) (17) |
1996 | 3,300 | ||
| Clarksville (Rogers) |
1995 | 3,300 | ||
| Van Buren (Pointer Trail) |
1995 | 2,520 | ||
| Marshall (18) |
1995 | 2,520 | ||
| Clarksville (Main) |
1994 | 2,520 | ||
| Ozark (Westside) |
1993 | 2,520 | ||
| Western Grove |
1976 (expanded 1991) | 2,610 |
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| Banking Facility (1) |
Year Opened |
Square Footage | ||
| Altus |
1972 (rebuilt 1998) | 1,500 | ||
| Ozark (Main) |
1971 (expanded 1985) | 30,877 | ||
| Jasper |
1967 (expanded 1984) | 4,408 |
| (1) | Unless otherwise indicated, the Company owns such banking locations. |
| (2) | The Company owns the building and leases the land at this location. The initial lease term is twenty years expiring January 10, 2024 with four renewal options of five years each. |
| (3) | The Company owns the building and leases the land at this location. The initial lease term is twenty years expiring November 1, 2023 with six renewal options of five years each. |
| (4) | The Company converted this former loan production office into a limited service bank on September 30, 2004. |
| (5) | The Company leases this facility for a limited service bank with an initial term of one year expiring August 31, 2005 with twelve one month renewal options. This facility expected to be replaced with a permanent facility in the fourth quarter of 2005. |
| (6) | The Company leases this facility with an initial term expiring August 31, 2009. |
| (7) | The Company leased a temporary facility beginning February 2002 under a short-term lease. This lease expired and rental of this office was then on a month-to-month basis. A site for a permanent office for this location was purchased in late 2002. Construction of the facility commenced in 2003 and was completed along with relocation from the temporary office in February 2004. |
| (8) | The Company converted this former loan production office into a limited service bank on April 19, 2004. |
| (9) | Lease beginning May 15, 2003 for a one year term. This lease expired and rental of this office was then on a month-to-month basis. A site for a permanent office for this location was purchased and construction commenced in 2004. Construction of the new permanent office was completed along with the relocation of the temporary office in January 2005. |
| (10) | This facility was remodeled as a banking facility in 1997 and acquired by the Company in 2003 as a result of the acquisition of another bank. |
| (11) | This facility was leased beginning in 2002 for a term of five years, subject to five renewal options of three years each. |
| (12) | The Company leases this facility with an initial term expiring May 9, 2006 subject to two renewal options of five years each. |
| (13) | This facility was acquired by the Company in 2001. The facility was constructed in 1997. |
| (14) | The Company owns the building and leases the land at this location. The initial lease term expires twenty years from November 1999 with the right to extend for four additional five-year periods. |
| (15) | The Company leases the building and land at this location with an initial term which expired in December 2001. The Company is currently in the second two year renewal option period which expires in 2005. This property is subject to options to renew for three additional terms of two years each. |
| (16) | This location was acquired by the Company in February 1998. The facility was constructed in 1994. |
| (17) | The Company owns the building and leases the land at this location. The initial lease term expired in 2001 and was renewed through 2007, at which time the Company has a purchase option on the site. |
| (18) | The Company owns the building and leases the land at this location. The initial lease term expires in 2024. The Company has renewal options through 2054 for the site. |
In addition to the above banking locations, the Company had two loan production offices at December 31, 2004. These offices are located in Charlotte, North Carolina and Bentonville, Arkansas. These loan production offices are maintained in leased quarters with original lease terms of 36 months or less.
While management believes its existing banking locations are adequate for its present operations, the Company intends to establish additional branch offices in accordance with its growth strategy.
The Company is party to various litigation matters arising in the ordinary course of business. Although the ultimate resolution of these matters cannot be determined at this time, management of the Company does not believe that such matters, individually or in the aggregate, will have a material adverse effect on the future results of operations or financial condition of the Company.
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Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
Item 5. MARKET FOR REGISTRANT’S COMMON STOCK, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
The Company’s Common Stock is listed on the Nasdaq National Market under the symbol “OZRK” and as of March 4, 2005 the Company had 247 holders of record representing approximately 6,418 beneficial owners. The other information required by Item 201 of Regulation S-K is contained in the Management’s Discussion and Analysis section of the Company’s 2004 Annual Report under the heading “Summary of Quarterly Results of Operations, Common Stock Market Prices and Dividends” on page 33, which information is incorporated herein by reference. There were no sales of the Company’s unregistered securities during the period covered by this report that have not been previously disclosed in the Company’s quarterly reports on Form 10-Q.
Item 6 SELECTED FINANCIAL DATA
The information required by Item 301 of Regulation S-K is contained in the Company’s 2004 Annual Report under the heading “Selected Consolidated Financial Data” on page 13, which information is incorporated herein by reference.
Item 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The information required by Item 303 of Regulation S-K is contained in the Company’s 2004 Annual Report under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations” on pages 14 through 32, which information is incorporated herein by reference.
Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The information required by Item 305 of Regulation S-K is contained in the Management’s Discussion and Analysis section of the Company’s 2004 Annual Report under the heading “Interest Rate Sensitivity” on pages 27 through 29, which information is incorporated herein by reference.
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by this Item and by Item 302 of Regulation S-K is contained in the Company’s 2004 Annual Report on pages 37 through 55 and in the Management’s Discussion and Analysis section of the 2004 Annual Report under the heading “Summary of Quarterly Results of Operations, Common Stock Market Prices and Dividends” on page 33 which information is incorporated herein by reference.
Item 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None
Item 9A. CONTROLS AND PROCEDURES
| (a) | Evaluation of Disclosure Controls and Procedures |
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An evaluation as of the end of the period covered by this annual report was carried out under the supervision and with the participation of the Company’s management, including the Company’s Chairman and Chief Executive Officer and its Chief Financial Officer/Chief Accounting Officer, of the effectiveness of the design and operation of the Company’s “disclosure controls and procedures,” which are defined under SEC rules as controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files under the Exchange Act is recorded, processed, summarized and reported within required time periods. Based upon that evaluation, the Company’s Chairman and Chief Executive Officer and its Chief Financial Officer/Chief Accounting Officer concluded that the Company’s disclosure controls and procedures were effective.
(b) Internal Control over Financial Reporting
The information required by Item 308(a) and 308(b) of Regulation S-K regarding management’s annual report on internal control over financial reporting and the attestation report of the registered public accounting firm are contained in the Company’s 2004 Annual Report on pages 34 and 35, which information is incorporated herein by reference.
The Company’s management, including the Company’s Chairman and Chief Executive Officer and its Chief Financial Officer/Chief Accounting Officer, have evaluated any changes in the Company’s internal control over financial reporting that occurred during the Company’s fourth quarter of its 2004 fiscal year and have concluded that there was no change during the Company’s fourth quarter of its 2004 fiscal year that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by Item 401 of Regulation S-K regarding directors is contained in the Company’s Proxy Statement for the 2005 annual meeting under the heading “Nominees for Election as Directors” on pages 3 through 5, which information is incorporated herein by reference. The information required by Item 401 of Regulation S-K regarding the audit committee and the audit committee financial expert is contained in the Company’s Proxy Statement for the 2005 annual meeting under the heading “Committees” on pages 7 through 9, which information is incorporated herein by reference. In accordance with Item 401(b) of Regulation S-K, Instruction 3, information concerning the Company’s executive officers is furnished in a separate item captioned “Executive Officers of Registrant” in Part I above.
Item 405 of Regulation S-K requires the Company to disclose any failure of its executive officers and directors to file on a timely basis reports of ownership and subsequent changes of ownership with the Securities and Exchange Commission. The Company disclosed in its Proxy Statement for the 2005 annual meeting under the heading “Section 16(a) Beneficial Ownership Reporting Compliance” on page 22 its belief that during the preceding year all filing requirements applicable to directors and executive officers had been complied with except for the exceptions noted therein.
Item 406 of Regulation S-K requires the Company to disclose whether it has adopted a code of ethics that applies to certain Company executives. The Company has adopted such a code of ethics, which is posted at www.bankozarks.com under “Investor Relations.”
Item 11. EXECUTIVE COMPENSATION
The information required by Item 402 of Regulation S-K is contained in the Company’s Proxy Statement for the 2005 annual meeting under the heading “Executive Compensation and Other Information” on pages 13 through 15, which information is incorporated herein by reference.
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by Item 403 of Regulation S-K is contained in the Company’s Proxy Statement for the 2005 annual meeting under the headings “Principal Stockholders” and “Security Ownership of Management” on pages 11 through 12 which information is incorporated herein by reference.
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Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 404 of Regulation S-K is contained in the Company’s Proxy Statement for the 2005 annual meeting under the heading “Certain Transactions” on page 21, which information is incorporated herein by reference.
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by Item 9(e) of Schedule 14A regarding accounting fees, audit committee pre-approval policies, and related information is contained in the Company’s Proxy Statement for the 2005 annual meeting under the heading “Audit Fees; Auditor to be Present” on page 23, which information is incorporated herein by reference.
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
| (a) | The following documents are filed as part of this report: |
(1) The following consolidated financial statements of the Registrant, and the notes thereto, included on pages 37 to 55 in the Company’s Annual Report for the fiscal year ended December 31, 2004, and the Report of Independent Auditors on page 36 of such Annual Report are incorporated herein by reference.
Consolidated Balance Sheets as of December 31, 2004 and 2003.
Consolidated Statements of Income for the Years Ended December 31, 2004, 2003 and 2002.
Consolidated Statements of Stockholders’ Equity for the Years Ended December 31, 2004, 2003 and 2002.
Consolidated Statements of Cash Flows for the Years Ended December 31, 2004, 2003 and 2002.
Notes to Consolidated Financial Statements.
(2) Financial Statement Schedules:
All schedules are omitted for the reasons that they are not required or are not applicable, or the required information is shown in the consolidated financial statements or the notes thereto.
| (b) | Exhibits: |
The exhibits to this report are listed in the Exhibit Index at the end of this Item 15.
| (c) | Financial Statement Schedules: |
Not applicable.
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EXHIBIT INDEX
The following exhibits are filed with this report or are incorporated by reference to previously filed material.
| Exhibit No. |
||
| 3.1 | Amended and Restated Articles of Incorporation of the Registrant, dated May 22, 1997 (previously filed as Exhibit No. 3.1 to the Company’s Registration Statement on Form S-1 filed with the Commission on May 22, 1997, as amended, Commission File No. 333-27641, and incorporated herein by this reference). | |
| 3.2 | Articles of Amendment to the Amended and Restated Articles of Incorporation of the Registrant dated December 9, 2003 (previously filed as exhibit 3.2 to the Company’s Annual Report on Form 10-K filed with the Commission for the year ended December 31, 2003, and incorporated herein by this reference). | |
| 3.3 | Amended and Restated By-Laws of the Registrant, dated March 13, 1997 (previously filed as Exhibit No. 3.2 to the Company’s Registration Statement on Form S-1 filed with the Commission on May 22, 1997, as amended, Commission File No. 333-27641, and incorporated herein by this reference). | |
| 4.1 | Amended and Restated Declaration of Trust, by and among U.S. Bank National Association, as Institutional Trustee, Bank of the Ozarks, Inc. as Sponsor, and George G. Gleason, Mark D. Ross and Paul E. Moore, as Administrators, dated as of September 29, 2003 (previously filed as exhibit 4.1 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.2 | Form of Capital Security Certificate (previously filed as exhibit 4.2 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.3 | Form of Common Security Certificate (previously filed as exhibit 4.3 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.4 | Indenture, by and between Bank of the Ozarks, Inc. and U.S. Bank National Association, as debenture trustee, dated as of September 29, 2003 (previously filed as exhibit 4.4 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.5 | Guarantee Agreement, by and among Bank of the Ozarks, Inc. and U.S. Bank National Association, dated as of September 29, 2003 (previously filed as exhibit 4.5 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.6 | Amended and Restated Declaration of Trust, by and among Wilmington Trust Company, as Delaware Trustee and as Institutional Trustee, Bank of the Ozarks, Inc., as Sponsor, George G. Gleason, as Administrator, Mark D. Ross, as Administrator, and Paul E. Moore, as Administrator, dated as of September 25, 2003 (previously filed as exhibit 4.6 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.7 | Form of Capital Security Certificate (previously filed as exhibit 4.7 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.8 | Form of Common Security Certificate (previously filed as exhibit 4.8 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.9 | Indenture, by and between Bank of the Ozarks, Inc. and Wilmington Trust Company, as trustee, dated as of September 25, 2003 (previously filed as exhibit 4.9 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
| 4.10 | Guarantee Agreement, by and between Bank of the Ozarks, Inc. and Wilmington Trust Company, as trustee, dated as of September 25, 2003 (previously filed as exhibit 4.10 to the Company’s quarterly report on Form 10-Q filed with the Commission for the period ended September 30, 2003, and incorporated herein by this reference). | |
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| 4.11 | Second Amended and Restated Bank of the Ozarks, Inc. Non-Employee Director Stock Option Plan (As Amended and Restated as of April 20, 2004) (previously filed as Exhibit 4.1 to the Company’s June 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.12 | Amended and Restated Declaration of Trust, by and among Wilmington Trust Company, as Institutional Trustee, Bank of the Ozarks, Inc. as Sponsor, and George G. Gleason, Mark D. Ross and Paul E. Moore, as Administrators, dated as of September 28, 2004 (previously filed as Exhibit 4.2 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.13 | Form of Capital Security Certificate (previously filed as Exhibit 4.3 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.14 | Form of Common Security Certificate (previously filed as Exhibit 4.4 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.15 | Indenture by and between Bank of the Ozarks, Inc. and Wilmington Trust Company, as debenture trustee, dated as of September 28, 2004 (previously filed as Exhibit 4.5 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.16 | Form of Debt Security Certificate (previously filed as Exhibit 4.6 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 4.17 | Guarantee Agreement, by and between Bank of the Ozarks, Inc. and Wilmington Trust Company, dated as of September 28, 2004 (previously filed as Exhibit 4.7 to the Company’s September 30, 2004 Form 10-Q and incorporated herein by reference). | |
| 10.1 | Bank of the Ozarks, Inc. Stock Option Plan, dated May 22, 1997 (previously filed as Exhibit No. 10.1 to the Company’s Registration Statement on Form S-1 filed with the Commission on May 22, 1997, as amended, Commission File No. 333-27641, and incorporated herein by this reference). | |
| 10.2 | Bank of the Ozarks, Inc. Non-Employee Director Stock Option Plan, dated May 22, 1997 (previously filed as Exhibit No. 10.2 to the Company’s Registration Statement on Form S-1 filed with the Commission on May 22, 1997, as amended, Commission File No. 333-27641, and incorporated herein by this reference). | |
| 10.3 | Form of Indemnification Agreement between the Registrant and its directors and certain of its executive officers (previously filed as Exhibit No. 10.10 to the Company’s Registration Statement on Form S-1 filed with the Commission on May 22, 1997, as amended, Commission File No. 333-27641, and incorporated herein by this reference). | |
| 10.4 | Employment agreement effective January 1, 2005 between the Registrant and George Gleason (previously filed as Exhibit 10 (iii) (A) to the Company’s Form 8-K filed with the Commission on January 5, 2005, and incorporated herein by this reference). | |
| 10.5 | Bank of the Ozarks, Inc. Deferred Compensation Plan, dated January 1, 2005 (previously filed as Exhibit 10 (iii) (A) to the Company’s Form 8-K filed with the Commission on December 14, 2004, and incorporated herein by this reference. | |
| 13 | Portions of the Registrant’s Annual Report to Stockholders for the year ended December 31, 2004 which are incorporated herein by reference: pages 13 to 55 of such Annual Report (attached). | |
| 21 | List of Subsidiaries of the Registrant (attached). | |
| 23.1 | Consent of Ernst & Young LLP (attached). | |
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| 31.1 | Certification of Chairman and Chief Executive Officer | |
| 31.2 | Certification of Chief Financial Officer/Chief Accounting Officer | |
| 32.1 | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
| 32.2 | Certification of Chief Financial Officer/Chief Accounting Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BANK OF THE OZARKS, INC. | ||
| By: |
/s/ George Gleason | |
| Chairman and Chief Executive Officer | ||
Date: March 11, 2005
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
| SIGNATURE |
TITLE |
DATE | ||
| /s/ George Gleason |
Chairman of the Board, Chief Executive Officer and Director |
March 11, 2005 | ||
| George Gleason |
||||
| /s/ Mark Ross |
Vice Chairman, President, Chief Operating Officer and Director |
March 11, 2005 | ||
| Mark Ross |
||||
| /s/ Paul Moore |
Chief Financial Officer/Chief Accounting Officer | March 11, 2005 | ||
| Paul Moore |
||||
| /s/ Jean Arehart |
Director | March 11, 2005 | ||
| Jean Arehart |
||||
| /s/ Steven Arnold Steven Arnold |
Director | March 11, 2005 | ||
| /s/ Richard Cisne |
Director | March 11, 2005 | ||
| Richard Cisne |
||||
| /s/ Robert East |
Director | March 11, 2005 | ||
| Robert East |
||||
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| /s/ Linda Gleason |
Director | March 11, 2005 | ||
| Linda Gleason |
||||
| /s/ Porter Hillard |
Director | March 11, 2005 | ||
| Porter Hillard |
||||
| /s/ Henry Mariani |
Director | March 11, 2005 | ||
| Henry Mariani |
||||
| /s/ James Matthews |
Director | March 11, 2005 | ||
| James Matthews |
||||
| /s/ Dr. R. L. Qualls |
Director | March 11, 2005 | ||
| Dr. R. L. Qualls |
||||
| /s/ Kennith Smith |
Director | March 11, 2005 | ||
| Kennith Smith |
||||
| /s/ Robert Trevino |
Director | March 11, 2005 | ||
| Robert Trevino |
||||
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