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AMENDED AND RESTATED
COOPERATIVE BANKSHARES, INC.
BYLAWS
ARTICLE I
PRINCIPAL OFFICE
The principal office of the Corporation shall be at 201 Market Street,
Wilmington, North Carolina.
ARTICLE II
STOCKHOLDERS
Section 1. Place of Meetings. All annual and special meetings of
stockholders shall be held at the principal office of the Corporation or at such
other place within or without the State of North Carolina as the board of
directors may determine.
SECTION 2. ANNUAL MEETING. A meeting of the stockholders of the
Corporation for the election of directors and for the transaction of any other
business of the Corporation shall be held annually, on such date and at such
time as the board of directors may determine.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose or purposes may be called at any time by the chairman of the board, the
president, or a majority of the board of directors, but such special meetings
may not be called by any other person or persons except as otherwise provided by
applicable law.
SECTION 4. CONDUCT OF MEETINGS. Annual and special meetings shall be
conducted in accordance with rules and procedures adopted by the board of
directors. The board of directors shall designate, when present, either the
chairman of the board or president to preside at such meetings.
SECTION 5. NOTICE OF MEETINGS. Written notice signed by the Corporation's
secretary stating the place, day, and hour of the meeting and the purpose or
purposes for which the meeting is called shall be delivered not less than ten
nor more than sixty days before the date of the meeting by or at the direction
of the chairman of the board, the president, or the secretary, or the directors
calling the meeting, to each stockholder of record entitled to vote at such
meeting. Such notice shall be delivered to a stockholder by mail, by presenting
it to the stockholder personally, or by an electronic transmission to any
address or number of the stockholder at which the stockholder receives
electronic transmissions. If mailed, such notice shall be deemed to be delivered
when deposited in the U.S. mail, addressed to the stockholder at his address as
it appears on the stock transfer books or records of the Corporation as of the
record date prescribed in Section 6 of this Article II with postage prepaid.
When any stockholders' meeting, either annual or special, is adjourned for
thirty days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. It shall not be necessary to give any notice of the
time and place of any meeting adjourned for less than thirty days or of the
business to be transacted at the meeting, other than an announcement at the
meeting at which such adjournment is taken.
SECTION 6. FIXING OF RECORD DATE. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment, or stockholders entitled to receive payment of any dividend, or
in order to make a determination of stockholders for any other purpose, the
board of directors shall fix in advance a date as the record date for any such
determination of stockholders. Such date in any case shall be not more than
sixty days and, in case of a meeting of stockholders, not less than ten days
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prior to the date on which the particular action requiring such determination of
stockholders, is to be taken. When a determination of stockholders entitled to
vote at any meeting of stockholders has been made as provided in this Section,
such determination shall apply to any adjournment thereof, unless the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting.
SECTION 7. LISTS OF STOCKHOLDERS. Except as otherwise required by law, the
officer or agent having charge of the stock transfer books for shares of stock
of the Corporation shall prepare a complete list of the stockholders entitled to
notice of a meeting of stockholders, arranged in alphabetical order, with the
address of and the number of shares held by each, which list shall be kept on
file at the principal office of the Corporation and shall be subject to
inspection of any stockholder, personally or by or with his personal
representative, during usual business hours beginning two days after notice of
the meeting is given for which the list was prepared. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection by any stockholder during the whole time of the meeting. The
original stock transfer book shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at any
meeting of stockholders.
SECTION 8. QUORUM. A majority of the outstanding shares of the Corporation
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of stockholders. If less than a majority of the outstanding shares
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. The stockholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 9. PROXIES. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing. Execution may be accomplished by the
stockholder or by such stockholder's authorized officer, director, employee or
agent signing such writing or causing such person's signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature. A stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth, or be submitted with information from which it can be determined, that
the telegram, cablegram or other electronic transmission was authorized by the
stockholder. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
Proxies solicited on behalf of the management shall be voted as directed by the
stockholder or, in the absence of such direction, as determined by a majority of
the board of directors. No proxy may designate as a holder any corporation or
partnership, or any person acting on behalf of a corporation or partnership, or
any person other than a natural living person, except for the holder of a
specified office or a committee composed of natural persons. An appointment of a
proxy shall be valid for eleven months from the date of its execution unless a
different period is expressly provided in the appointment form.
SECTION 10. VOTING OF SHARES IN THE NAME OF TWO OR MORE PERSONS. When
ownership stands in the name of two or more persons, in the absence of written
directions to the Corporation to the contrary, at any meeting of the
stockholders of the Corporation, any one or more of such stockholders may cast,
in person or by proxy, all votes to which such ownership is entitled. In the
event an attempt is made to cast conflicting votes, in person or by proxy, by
the several persons in whose names shares of stock stand, the vote or votes to
which those persons are entitled shall be cast as directed by a majority of
those holding such stock and present in person or by proxy at such meeting, and
then each person in whose names shares of stock stand shall be entitled to vote
the shares in question proportionally.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by any officer, agent, or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine. Shares held by an
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administrator, executor, guardian, or conservator may be voted by him, either in
person or by proxy, without a transfer of such shares into his name upon
satisfactory proof to the Corporation of his appointment. Shares standing in the
name of a trustee may be voted by him, either in person or by proxy, but no
trustee shall be entitled to vote shares held by him without a transfer of such
shares into his name. Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
to do so is contained in an appropriate order of the court or other public
authority by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor
shares held by another corporation, if a majority of the shares entitled to vote
for the election of directors of such other corporation are held by the
Corporation, shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time for purposes of any meeting.
SECTION 12. VOTING. Each stockholder shall be entitled to cast one vote
for each share of stock held as of the record date. A majority of the shares
voted at a meeting of shareholders shall be sufficient to take or authorize
action upon any matter which may properly come before the meeting, unless
otherwise provided by applicable law or regulation, the Corporation's Articles
of Incorporation or these by-laws.
SECTION 13. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the board of directors may appoint any persons other than nominees
for office as inspectors of election to act at such meeting or any adjournment
thereof. The number of inspectors shall be either one or three. If the board of
directors so appoints either one or three such inspectors that appointment shall
not be altered at the meeting. If inspectors of election are not so appointed,
the chairman of the board or the president may, and on the request of any
shareholder or proxy holder shall, make such appointment at the meeting. In case
any persons appointed as inspector fails to appear or fails or refuses to act,
the vacancy may be filled by appointment by the board of directors in advance of
the meeting or at the meeting by the chairman of the board or the president.
Unless otherwise prescribed by applicable regulations, the duties of such
inspectors shall include: determining the number of shares of stock and the
voting power of each share, the shares of stock represented at the meeting, the
existence of a quorum, and the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining the result; and such acts as may
be proper to conduct the election or vote with fairness to all stockholders.
SECTION 14. NOMINATIONS FOR DIRECTOR. Either a majority of the independent
directors of the Corporation or a nominating committee composed of a minimum of
three directors, each of whom are independent, shall select the management
nominees for election as directors, and for purposes of this sentence
"independent" shall be as defined in Rule 4200(a)(15) of the National
Association of Securities Dealers' Manual. Except in the case of a nominee
substituted as a result of the death or other incapacity of a management
nominee, the nominating committee shall deliver written nominations to the
secretary at least twenty days prior to the date of the annual meeting. Provided
such committee makes such nominations, no nominations for directors except those
made by the nominating committee shall be voted upon at the annual meeting
unless other nominations by stockholders are made in writing and delivered to
the secretary of the Corporation at least twenty days prior to the date of the
annual meeting. Each such notice given by a stockholder with respect to
nominations for the election of directors shall set forth (1) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice; (2) the principal occupation or employment of each such nominee;
(3) the number of shares of stock of the Corporation which are beneficially
owned by each such nominee; (4) such other information as would be required to
be included in a proxy statement soliciting proxies for the election of the
proposed nominee pursuant to Regulation 14A of the Securities Exchange Act of
1934, as amended, including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a director,
if elected; and (5) as to the stockholder giving such notice, (a) his name and
address as they appear on the Corporation's books and (b) the class and number
of shares of the Corporation which are beneficially owned by such stockholders.
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In addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation.
Ballots bearing the names of all the persons nominated by the nominating
committee and by stockholders shall be provided for use at the annual meeting.
If the nominating committee shall fail or refuse to act at least twenty days
prior to the annual meeting, nominations for directors may be made at the annual
meeting by any stockholder entitled to vote and shall be voted upon.
SECTION 15. NEW BUSINESS. Any new business proposed to be taken up at the
annual meeting by any shareholder shall be stated in writing and filed with the
secretary of the Corporation at least twenty days before the date of the annual
meeting, and all business so stated, proposed, and filed shall be considered at
the annual meeting, but no other proposal shall be acted upon at the annual
meeting. Each such notice given by a stockholder to the secretary with respect
to business proposals to be brought before a meeting shall set forth in writing
as to each matter: (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting;
(ii) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business; (iii) the class and number of shares of the
Corporation which are beneficially owned by the stockholder; and (iv) any
material interest of the stockholder in such business. Any stockholder may make
any other proposal at the annual meeting and the same may be discussed and
considered, but unless stated in writing and filed with the secretary at least
twenty days before the meeting, such proposal shall be laid over for action at
an adjourned, special, or annual meeting of the stockholders taking place thirty
days or more thereafter. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors,
and committees, but in connection with such reports, no new business shall be
acted upon at such annual meeting unless stated and filed as herein provided.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be under the direction of its board of directors. The board of directors
shall annually elect a chairman of the board and a president from among its
members and shall designate, when present, either the chairman of the board or
the president to preside at its meetings.
SECTION 2. NUMBER AND TERM. The board of directors shall consist of six
members and shall be divided into three classes in accordance with the
provisions of the Corporation's Article of Incorporation. The members of each
class shall be elected for a term of three years and until their successors are
elected and qualified. The number of directors may be increased or decreased
from time to time by resolution of the board of directors, except that no
decrease shall result in any director being forced to resign or otherwise be
removed, and if the stockholders are denied the right to cumulate their votes in
the election of directors, the board of directors may not increase or decrease
the number of directors by more than thirty percent (30%) during any
twelve-month period.
SECTION 3. QUALIFICATION AND ELECTION OF DIRECTORS. No person who is 72
years of age or older and who is not an employee of the Corporation shall be
eligible for election, reelection, appointment, or reappointment to the board of
directors. A non-employee director shall not serve as such beyond the annual
meeting of the Corporation immediately following the non-employee director
becoming 72. No person who is 60 years of age or older and who is not an
employee of the Corporation shall be eligible for initial election or
appointment as a director. Notwithstanding the foregoing, however, the board of
directors may, by a written resolution approved by a majority of its
disinterested members, exclude an incumbent director from the age limitation
restrictions set forth herein. Except as provided in Section 13 of this Article
III, directors shall be elected at the annual meeting of stockholders. Those
persons who receive the highest number of votes shall be deemed to have been
elected.
SECTION 4. DIRECTORS EMERITUS. Any person who has served on the board of
directors for two years or more but is no longer eligible to be a director by
virtue of having attained 72 years of age, may be elected by the board as a
director emeritus, to serve without vote or compensation.
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SECTION 5. REGULAR MEETINGS. The board of directors may provide, by
resolution, the time and place for the holding of regular meetings of the Board
without other notice than such resolution.
SECTION 6. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the chairman of the board, the president
or at least two of the directors. The persons authorized to call special
meetings of the board of directors may fix any place as the place for holding
any special meeting of the board of directors called by such persons.
Members of the board of directors may participate in meetings by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other.
SECTION 7. NOTICE OF MEETINGS. Regular meetings of the board of directors
may be held without notice. The person or persons calling a special meeting of
the board of directors shall, at least five days before the meeting, give notice
thereof by any usual means of communication. Such notice need not specify the
purpose for which the meeting is called.
SECTION 8. WAIVER OF NOTICE. Any director may waive notice of any meeting.
Attendance by a director at a meeting shall constitute a waiver of notice of
such meeting, unless the director at the beginning of the meeting (or promptly
upon his arrival) objects to holding the meeting or transacting business at the
meeting and does not thereafter vote for or assent to action taken at the
meeting.
SECTION 9. QUORUM. A majority of the number of directors fixed by Section
2 of this Article III shall constitute a quorum for the transaction of business
at any meeting of the board of directors, but if less than such majority is
present at a meeting, a majority of the directors present may adjourn the
meeting from time to time. Notice of any adjourned meeting shall be given in the
same manner as prescribed by Section 7 of this Article III.
SECTION 10. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors, unless a greater number is prescribed by these by-laws, the
Corporation's Articles of Incorporation or applicable law.
SECTION 11. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the board of directors at a meeting may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the directors.
SECTION 12. RESIGNATION. Any director may resign at any time by sending a
written communication of such resignation to the principal office of the
Corporation addressed to the board of directors, its chairman or the
Corporation. A resignation is effective when it is communicated unless it
specifies in writing a later effective date or subsequent event upon which it
will become effective.
SECTION 13. VACANCIES. Vacancies occurring on the board of directors,
including newly created directorships, shall be filled by the affirmative vote
of a majority of the remaining directors although less than a quorum of the
board of directors. A director elected to fill a vacancy shall be elected for a
term of office continuing only until the next election of directors by the
stockholders.
SECTION 14. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the board of directors at which action on any
Corporation matter is taken shall be presumed to have assented to the action
taken unless his dissent or abstention shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the secretary of the
Corporation within five days after the date he receives a copy of the minutes of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
SECTION 15. REMOVAL OF DIRECTORS. Any director or the entire board of
directors may be removed only in accordance with the Corporation's Articles of
Incorporation.
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SECTION 16. COMPENSATION. The Corporation may compensate directors for
their services as such and may provide for the payment of any or all expenses
incurred by directors in attending regular and special meetings of the board.
SECTION 17. COMMITTEES OF THE BOARD. The board of directors, by resolution
adopted by a majority of the number of directors fixed by these bylaws, may
designate three or more directors to constitute an executive committee and other
committees, each of which, to the extent authorized by applicable law and
provided in such resolution, shall have and may exercise all of the authority of
the board of directors in the management of the Corporation. The designation of
any committee and the delegation thereto of authority shall not operate to
relieve the board of directors, or any member thereof, of any responsibility or
liability imposed upon it or him by law.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS OF THE CORPORATION. The officers of the Corporation
shall consist of a president, secretary, treasurer, and such vice-presidents,
assistant secretaries, assistant treasurers, and other officers as the board of
directors may deem necessary. The board of directors may also designate the
chairman of the board as an officer. Any two or more offices may be held by the
same person, but in no event may any officer act in more than one capacity where
action of two or more officers is required.
SECTION 2. SELECTION AND TERM. The officers of the Corporation shall be
selected by the board of directors. Each officer shall hold office until his
death, resignation, retirement, removal, disqualification or his successor is
selected and qualified.
SECTION 3. COMPENSATION OF OFFICERS. The compensation of all officers of
the Corporation shall be fixed by the board of directors and no officer shall
serve the Corporation in any other capacity and receive compensation therefor,
unless such additional compensation is authorized by the board of directors.
SECTION 4. REMOVAL. Any officer or agent of the Corporation may be removed
by the board of directors whenever in its judgment the best interests of the
Corporation will be served thereby; but such removal, other than for cause,
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 5. BONDS. Subject to applicable law and regulation, the board of
directors shall require each officer, agent, or employee of the Corporation to
give bond to the Corporation, with sufficient sureties, conditioned on the
faithful performance of the duties of his respective office or position, and to
comply with such other conditions as may be required by the board of directors.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contracts or execute and deliver
any instrument on behalf of the Corporation, and such authority may be general
or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS AND DRAFTS. All checks, drafts or other orders for
payment of money issued in the name of the Corporation shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as
shall be determined by resolution of the board of directors.
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SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited to the credit of the Corporation in such depositories as the
board of directors shall direct.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of
capital stock of the Corporation shall be in such form as shall be determined by
the board of directors and in accordance with the laws of North Carolina. Such
certificates shall be signed by the chief executive officer or by any other
officer of the Corporation authorized by the board of directors, attested by the
secretary or an assistant secretary, and may bear the corporate seal or a
facsimile thereof. The signatures of such officers upon a certificate may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar, other than the Corporation itself or one of its employees. Each
certificate for shares of capital stock shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the certificate
is issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in the case of a lost or destroyed
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the board of directors may prescribe.
Notwithstanding the foregoing, the board of directors may provide by
resolution that some or all of any or all classes or series of the Corporation's
common stock shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until such certificate is surrendered to
the Corporation.
SECTION 2. TRANSFER OF SHARES. Unless otherwise provided by a resolution
of the board of directors, the transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books. Authority for such
transfer shall be given only by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of such authority, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Corporation. Such transfer shall be made only on surrender for cancellation
of the certificate for such shares. The person in whose name shares of capital
stock stand on the books of the Corporation shall be deemed by the Corporation
to be the owner thereof for all purposes.
ARTICLE VII
FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall be fixed by resolution of the
board of directors. The Corporation shall be subject to an annual audit as of
the end of its fiscal year by a registered public accounting firm appointed by
and responsible to the audit committee of the board of directors, which shall be
composed of directors who each meet the definition of independence set forth in
applicable laws and regulations of the Securities and Exchange Act of 1934, as
amended, and the definition of independence set forth in Rule 4200(a)(15) of the
Manual of the National Association of Securities Dealers.
ARTICLE VIII
DIVIDENDS
Subject to the terms of the Corporation's Articles of Incorporation and
applicable law and regulations, the board of directors may, from time to time,
declare, and the Corporation may pay, dividends on its outstanding shares of
capital stock.
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ARTICLE IX
CORPORATE SEAL
The board of directors shall provide a corporate seal which shall be two
concentric circles between which shall be the name of the Corporation. The year
of incorporation or an emblem may appear in the center.
ARTICLE X
AMENDMENTS
These by-laws may be amended, altered, or rescinded at any time by a
majority vote of the full board of directors, or by the stockholders of the
Corporation by a vote of not less than 75% of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the stockholders
called for that purpose (provided that notice of such proposed repeal,
alteration, amendment or rescission is included in the notice of such meeting),
unless otherwise provided by law or regulation.
CERTIFICATE
The undersigned, who is the duly appointed Secretary of Cooperative
Bankshares, Inc., Wilmington, North Carolina, does hereby certify that the
By-laws of the Corporation, in the form attached hereto, have been duly adopted
by more than a majority vote of the Corporation's board of directors.
/s/ Linda Hopkins
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Linda Hopkins
Secretary
Date: April 25, 2008
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