ex104.htm


    Exhibit
10.4

     

    UNITED
STATES OF AMERICA

    Before
the

    OFFICE
OF THRIFT SUPERVISION

     

    
    

     

    
      	 	 	 
	
               

              In the
      Matter of 

               

              ALASKA
      PACIFIC BANCSHARES, INC.

               

              Juneau, Alaska 

              OTS Docket No. H3440

               

            	
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              Order
      No.: WN-10-032

               

              Effective Date: September 28, 2010

               

               

            


    

     

    STIPULATION AND CONSENT TO
ISSUANCE OF ORDER TO CEASE AND DESIST

     

    WHEREAS, the Office of Thrift
Supervision (OTS), acting by and through its Regional Director for the Western
Region (Regional Director), and based upon information derived from the exercise
of its regulatory and supervisory responsibilities, has informed Alaska Pacific
Bancshares, Inc., Juneau, Alaska, OTS Docket No. H3440 (Holding Company), that
the OTS is of the opinion that grounds exist to initiate an administrative
proceeding against the Holding Company pursuant to 12 U.S.C. §
1818(b);

    WHEREAS, the Regional
Director, pursuant to delegated authority, is authorized to issue Orders to
Cease and Desist where a savings and loan holding company has consented to the
issuance of an order; and

    WHEREAS, the Holding Company
desires to cooperate with the OTS to avoid the time and expense of such
administrative cease and desist proceeding by entering into this Stipulation and
Consent to the Issuance of Order to Cease and Desist (Stipulation) and, without
admitting or


    
      
        
          Alaska Pacific Bancshares,
Inc.

          Stipulation and Consent to Issuance of
Order to Cease and Desist

          Page 1 of 6

        

         


      

      
         


        
          

        

      

      
         


      

    


    denying
that such grounds exist, but only admitting the statements and conclusions in
Paragraphs 1 through 3 below concerning Jurisdiction, hereby stipulates and
agrees to the following terms: 

    Jurisdiction.

    1.  The
Holding Company is a “savings and loan holding company” within the meaning of 12
U.S.C. § 1813(w)(3) and 12 U.S.C. § 1467a. Accordingly, the Holding Company is a
“depository institution holding company” as that term is defined in 12 U.S.C. §
1813(w)(1).

    2.  Pursuant
to 12 U.S.C. § 1818(b)(9), the “appropriate Federal banking agency” may initiate
cease and desist proceedings against a savings and loan holding company in the
same manner and to the same extent as a savings association for regulatory
violations and unsafe or unsound acts or practices.

    3.  Pursuant
to 12 U.S.C. § 1813(q), the Director of the OTS is the “appropriate Federal
banking agency” with jurisdiction to maintain an administrative enforcement
proceeding against a savings and loan holding company. Therefore, the Holding
Company is subject to the authority of the OTS to initiate and maintain an
administrative cease and desist proceeding against it pursuant to 12 U.S.C. §
1818(b).

    OTS Findings of
Fact.

    4.  Based on
its March 15, 2010 examination of the Holding Company, the OTS finds that the
Holding Company has engaged in unsafe or unsound banking practices by failing to
ensure that its wholly owned savings association subsidiary, Alaska Pacific
Bank, Juneau, Alaska, OTS Docket No. 04202 (Association), is complying with
applicable laws, rules, regulations, and agency guidelines, resulting
in deteriorating asset quality, ineffective risk management practices,
inadequate internal controls, and inadequate oversight and supervision at the
Association.


    
      
        
          Alaska Pacific Bancshares,
Inc.

          Stipulation and Consent to Issuance of
Order to Cease and Desist

          Page 2 of 6

        

         


      

      
         


        
          

        

      

      
         


      

    

    Consent.

    5.   The
Holding Company consents to the issuance by the OTS of the accompanying Order to
Cease and Desist (Order). The Holding Company further agrees to comply with the
terms of the Order upon the Effective Date of the Order and stipulates that the
Order complies with all requirements of law.

    Finality.

    6.  The Order
is issued by the OTS under 12 U.S.C. § 1818(b). Upon the Effective Date, the
Order shall be a final order, effective, and fully enforceable by the OTS under
the provisions of 12 U.S.C. § 1818(i).

    Waivers.

    7.  The
Holding Company waives the following:

    (a)  the right
to be served with a written notice of the OTS’s charges against it as provided
by 12 U.S.C. § 1818(b) and 12 C.F.R. Part 509;

    (b)  the right
to an administrative hearing of the OTS’s charges as provided by 12 U.S.C. §
1818(b) and 12 C.F.R. Part 509;

    (c)  the right
to seek judicial review of the Order, including, without limitation, any such
right provided by 12 U.S.C. § 1818(h), or otherwise to challenge the validity of
the Order; and

    (d)  any and
all claims against the OTS, including its employees and agents, and any other
governmental entity for the award of fees, costs, or expenses related to this
OTS enforcement matter and/or the Order, whether arising under common law,
federal statutes, or otherwise.

     

     

    
      
        
          Alaska Pacific Bancshares,
Inc.

          Stipulation and Consent to Issuance of
Order to Cease and Desist

          Page 3 of 6

        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    OTS Authority Not
Affected.

    8.  Nothing
in this Stipulation or accompanying Order shall inhibit, estop, bar, or
otherwise prevent the OTS from taking any other action affecting the Holding
Company if, at any time, the OTS deems it appropriate to do so to fulfill the
responsibilities placed upon the OTS by law. 

    Other
Governmental Actions Not Affected.

    9.  The
Holding Company acknowledges and agrees that its consent to the issuance of the
Order is solely for the purpose of resolving the matters addressed herein,
consistent with Paragraph 8 above, and does not otherwise release, discharge,
compromise, settle, dismiss, resolve, or in any way affect any actions, charges
against, or liability of the Holding Company that arise pursuant to this action
or otherwise, and that may be or have been brought by any governmental entity
other than the OTS.

    Miscellaneous.

    10.    
The laws
of the United States of America shall govern the construction and validity of
this Stipulation and of the Order.

    11.  If any
provision of this Stipulation and/or the Order is ruled to be invalid, illegal,
or unenforceable by the decision of any Court of competent jurisdiction, the
validity, legality, and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby, unless the Regional Director in
his or her sole discretion determines otherwise.

    12.  All
references to the OTS in this Stipulation and the Order shall also mean any of
the OTS’s predecessors, successors, and assigns.

    13.  The
section and paragraph headings in this Stipulation and the Order are for
convenience only and shall not affect the interpretation of this Stipulation or
the Order.


    
      
        
          Alaska Pacific Bancshares,
Inc.

          Stipulation and Consent to Issuance of
Order to Cease and Desist

          Page 4 of 6

        

         


      

      
         


        
          

        

      

      
         


      

    

    14.  The terms
of this Stipulation and of the Order represent the final agreement of the
parties with respect to the subject matters thereof, and constitute the sole
agreement of the parties with respect to such subject matters.

    15.  The
Stipulation and Order shall remain in effect until terminated, modified, or
suspended in writing by the OTS, acting through its Regional Director or other
authorized representative.

     Signature
of Directors/Board Resolution.

    16.  Each
Director signing this Stipulation attests that he or she voted in favor of a
Board Resolution authorizing the consent of the Holding Company to the issuance
of the Order and the execution of the Stipulation. This Stipulation may be
executed in counterparts by the directors after approval of the execution of the
Stipulation at a duly called board meeting. A copy of the Board Resolution
authorizing the execution of this Stipulation shall be delivered to the OTS,
along with the executed original(s) of this Stipulation.

     

    [Remainder
of Page Intentionally Left Blank]


    
      
        
          Alaska Pacific Bancshares,
Inc.

          Stipulation and Consent to Issuance of
Order to Cease and Desist

          Page 5 of 6

        

         


      

      
         


        
          

        

      

      
         


      

    


    WHEREFORE, the Holding
Company, by its directors, executes this Stipulation.

     

    
      	 	Accepted
      by: 
	 	 
	ALASKA PACIFIC BANCSHARES,
      INC.	OFFICE OF THRIFT
      SUPERVISION
	Juneau, Alaska	 
	 	 
	By: /s/William A.
      Corbus                         
      	By: /s/Philip A.
      Gerbick                                      
        
	    
       William A. Corbus	     
       Philip A. Gerbick
	    
       Chairman	     
       Regional Director, Western Region
	 	 
	 	Date: See Effective
      Date on page 1 
	 	 
	/s/Doug
      Andrew                                      
      	 
	Doug Andrew,
      Director 	 
	 	 
	/s/BethAnn
      Chapman                            
      	 
	BethAnn Chapman,
      Director 	 
	 	 
	/s/Craig E.
      Dahl                                       
        	 
	
              Craig
      E. Dahl, Director

            	 
	 	 
	/s/Hugh N.
      Grant                                    
        	 
	Hugh N. Grant,
      Director 	 
	 	 
	/s/Scott C.
      Milner                                   
        	 
	Scott C. Milner,
      Director 	 
	 	 
	/s/Maxwell S.
      Rule                                  
        	 
	Maxwell S. Rule,
      Director 	 
	 	 
	/s/William J.
      Schmitz                              
        	 
	William J. Schmitz,
      Director 	 
	 	 
	/s/Linda
      Thomas                                    
        	 
	Linda Thomas,
      Director	 


    

     

     

     

     

     

    Alaska
Pacific Bancshares, Inc.

    Stipulation
and Consent to Issuance of Order to Cease and Desist 

    Page 6 of
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