Registration No. 333-______
As filed with the Securities and Exchange Commission on November 25, 2002
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COOPERATIVE BANKSHARES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
NORTH CAROLINA
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(State or Other Jurisdiction of Incorporation or Organization)
56-1886527
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(I.R.S. Employer Identification Number)
201 MARKET STREET
WILMINGTON, NORTH CAROLINA 28401
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(Address of Principal Executive Offices)
COOPERATIVE BANK FOR SAVINGS, INC., SSB 401(K) SUPPLEMENTAL RETIREMENT PLAN
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(Full Title of the Plan)
FREDERICK WILLETTS, III, CHIEF EXECUTIVE OFFICER
COOPERATIVE BANKSHARES, INC.
201 MARKET STREET
WILMINGTON, NORTH CAROLINA 28401
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(Name and Address of Agent For Service)
(910) 343-0181
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(Telephone Number, Including Area Code, of Agent For Service)
COPIES TO:
JOAN S. GUILFOYLE, ESQUIRE
STRADLEY, RONON, STEVENS & YOUNG, LLP
1220 19TH STREET NW, SUITE 600
WASHINGTON, DC 20036
(202) 419-8410
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered (1) Share Price Fee
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Common Stock,
$1.00 par value 223,580 $15.00 (2) $3,353,700 (2) $308.54
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(1) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate number of interests offered or sold pursuant to the Cooperative
Bank for Savings, Inc., SSB 401(k) Supplemental Retirement Plan (the "Plan"). In
addition, pursuant to Rule 416(b), this Registration Statement covers such
number of additional shares which may become available for issuance pursuant to
the Plan as the result of a merger, consolidation, recapitalization or similar
event involving the Registrant or a stock split, stock dividend,
reclassification, recapitalization or similar adjustment(s) in the Registrant's
Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee and
calculated pursuant to Rule 457(c) based on the average of the high and low
selling price per share of the Common Stock of $15.00 per share on November 18,
2002.
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PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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Documents containing the information required by Part I of this
registration statement will be sent or given to participants in the Plan in
accordance with Rule 428(b)(1). In accordance with the Note to Part I of Form
S-8, such documents are not filed with the Securities and Exchange Commission
(the "Commission") either as part of this registration statement or as
prospectuses or prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
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Cooperative Bankshares, Inc. (the "Company") is subject to the reporting
and informational requirements of Section 13(a) of the Securities Exchange Act
of 1934, as amended and, accordingly, files periodic reports and other
information with the Commission.
The following documents filed by the Company are incorporated by reference
in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001 as filed with the Commission.
(b) The Plan's Annual Report on Form 11-K for the plan year ended December
31, 2001 as filed with the Commission.
(c) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2002, June 30, 2002 and September 30, 2002 as filed with the
Commission.
(d) The Company's Current Reports on Form 8-K dated January 22, 2002, April
16, 2002, April 24, 2002, July 17, 2002, October 23, 2002 and November 20, 2002.
(e) The description of the Company's Securities as contained in the
Company's Registration Statement on Form S-4 as filed with the Commission.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY AND THE PLAN PURSUANT TO
SECTIONS 13(A), 13(C), 14, AND 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, PRIOR TO THE FILING OF A POST-EFFECTIVE AMENDMENT WHICH INDICATES THAT
ALL SECURITIES OFFERED HAVE BEEN SOLD OR WHICH DEREGISTERS ALL SECURITIES THEN
REMAINING UNSOLD, SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THIS
REGISTRATION STATEMENT AND TO BE A PART HEREOF FROM THE DATE OF FILING OF SUCH
DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
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Not applicable, as the Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934, as amended.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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In addition to and apart from the indemnification provided for in the North
Carolina Business Corporation Act, as from time to time amended, the Company
shall provide indemnification to its directors as outlined in Article 8 of the
Company's Articles of Incorporation as stated below:
A. Indemnity. Any person who at any time serves or has served as a director
of the Corporation shall have a right to be indemnified by the Corporation to
the full extent allowed by applicable law against liability and litigation
expense arising out of or connected with such status or activities in such
capacity. "Liability and litigation expense" shall include costs and expenses of
litigation (including reasonable attorneys fees), judgments, fines and amounts
paid in settlement which are actually and reasonably incurred in connection with
or as a consequence of any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals. The Corporation shall not indemnify any such person against any
liability or litigation expense unless such person reasonably believed (i) in
the case of conduct in his or her official capacity with the Corporation, that
his or her conduct was in the best interests of the Corporation and (ii) in all
other cases, that his or her conduct was at least not opposed to the best
interests of the Corporation.
B. Determination of Right to Indemnity. Promptly after the final
disposition or termination of any matter which involves liability or litigation
expense as described in Section A of this Article or at such earlier time as it
sees fit, the Corporation shall determine whether any person described in
Section A of this Article is entitled to indemnification thereunder. Such
determination shall be limited to the following issues: (i) whether the persons
to be indemnified are persons described in Section A of this Article, (ii)
whether the liability or litigation expense incurred arose out of the status or
activities of such persons as described in Section A of this Article, (iii)
whether the liability was actually incurred and litigation expense was actually
and reasonably incurred, and (iv) whether the liability and litigation expense
were incurred on account of activities which were at the time taken reasonably
believed by such person (a) in the case of conduct in his or her official
capacity with the Corporation, to be in the best interests of the Corporation or
(b) in all other cases, that his or her conduct was at least not opposed to the
best interests of the Corporation. Such determination shall be made by a
majority vote of directors who were not parties to the action, suit or
proceeding (or, in connection with "threatened" actions, suits or proceedings,
who were not "threatened parties"). If at least two such disinterested directors
are not obtainable, or, even if obtainable, if at least half of the number of
disinterested directors so direct, such determination shall be made by
independent legal counsel in written opinion.
C. Advance Expenses.
(i) Subject to subsection (ii) below, litigation expense incurred by a
person described in Section A of this Article in connection with a matter
described in Section A of this Article shall be paid by the Corporation in
advance of the final disposition of the matter, if the Corporation receives
an undertaking, dated, in writing and signed by the person to be
indemnified, to repay all such sums if it is ultimately determined as
provided in Section B of this Article that such person is not entitled to
be indemnified by the Corporation. Requests for payments in advance of
final disposition or termination shall be submitted in writing to the
Corporation unless this requirement is waived by the Corporation. Before
the first such payment is made, the Corporation shall have received the
written undertaking referred to herein and notice of the request for
advance payment shall have been given to the members of the board of
directors.
(ii) Notwithstanding the foregoing subsection (i), no advance payment
shall be made as to any payment or portion of a payment for which the
determination is made that the person requesting payment will not be
entitled to indemnification. Such determination may be made only by a
majority vote of disinterested directors or by independent legal counsel as
next provided. If there are not at least two disinterested directors, then
notice of all requests for advance payment shall be delivered for review to
independent legal counsel for the Corporation. Such counsel shall have the
authority to disapprove any advance payment or portion of a payment for
which it plainly and unavoidably appears that the person requesting payment
will not be entitled to indemnification.
D. Settlements. The Corporation shall not be obligated to indemnify persons
described in Section A of this Article for any amounts paid in settlement unless
the
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Corporation consents in writing to the settlement. The Corporation shall not
unreasonably withhold its consent to proposed settlements. The Corporation's
consent to a proposed settlement shall not constitute an agreement by the
Corporation that any person is entitled to indemnification hereunder; the
Corporation shall waive the requirement of this Section for its written consent
as fairness and equity may require.
E. Application for Indemnity or Advances.
(i) A person described in Section A of this Article may apply to the
Corporation in writing for indemnification or to advance expenses. Such
application shall be addressed to the secretary, or, in the absence of the
secretary, to any officer of the Corporation. The Corporation shall respond
in writing to such applications as follows: to a request for indemnity
under Section B of this Article, within ninety days after receipt of the
application; to a request for advance expenses under Section C of this
Article, within fifteen days after receipt of the application.
(ii) The right to indemnification or advance expenses provided herein
shall be enforceable in any court of competent jurisdiction. A legal action
may be commenced if a claim for indemnity or advance expenses is denied in
whole or in part, or upon the expiration of the time periods provided in
the preceding subsection (i). In any such action, the claimant shall be
entitled to prevail upon establishing that he or she is entitled to
indemnification or advance expenses but the Corporation shall have the
burden of establishing, as a defense, that the liability or expense was
incurred on account of activities which were, at the time taken, known or
believed by the claimant to be clearly in conflict with the best interests
of the Corporation. In any such action, if the claimant establishes the
right to indemnification, he or she shall also have the right to be
indemnified against the litigation expense (including a reasonable
attorney's fee) of such action.
F. Incidents of Right of Indemnification. The right of indemnification
provided herein shall not be deemed exclusive of any other rights to which any
persons seeking indemnity may be entitled apart from the provisions of this
Article, except there shall be no right to indemnification as to any liability
or litigation expense for which such person is entitled to receive payment under
any insurance policy other than a directors' and officers' liability insurance
policy maintained by the Corporation. Such right shall inure to the benefit of
the heirs and legal representatives of any persons entitled to such right. Any
person who at any time after the adoption of this Article serves or has served
in any status or capacity described in Section A of this Article, shall be
deemed to be doing or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein. Any repeal or modification of
this Article shall not affect any rights or obligations then existing. The right
provided herein shall not apply as to persons serving corporations that are
hereafter merged into or combined with the Corporation, except after the
effective date of such merger or combination and only as to status and
activities after such date.
G. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court or agency of competent jurisdiction, then
the Corporation shall nevertheless indemnify each person described in Section A
of this Article to the full extent permitted by the portion of this Article that
is not invalidated and also to the full extent (not exceeding the benefits
described herein) permitted or required by other applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
ITEM 8. EXHIBITS
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The exhibits scheduled to be filed or included as part of this Registration
Statement are as follows:
EXHIBIT DESCRIPTION
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23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
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99 Cooperative Bank for Savings, Inc. SSB 401(k) Supplemental
Retirement Plan, as amended.
In accordance with Item 8 of Form S-8, this Registration Statement does not
include Exhibit 5 - Opinion regarding legality, as:
1. The Registrant undertakes that the Plan and any amendments thereto have
been or will be submitted to the Internal Revenue Service (the "IRS") in a
timely manner and all changes required by the IRS in order to qualify the Plan
under Section 401 of the Internal Revenue Code have been or will be made.
2. Shares issued under the Plan are purchased on the open market.
ITEM 9. UNDERTAKINGS
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be present by Article
3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Wilmington, State of North Carolina, on November 20,
2002.
COOPERATIVE BANKSHARES, INC.
By: /s/ Frederick Willetts, III
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Frederick Willetts, III
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned Directors of Cooperative Bankshares, Inc., hereby
severally constitute and appoint Frederick Willetts, III, who may act, with full
power of substitution, our true and lawful attorney and agent, to do any and all
things in our names in the capacities indicated below which said Frederick
Willetts, III, who may act, may deem necessary or advisable to enable
Cooperative Bankshares, Inc. to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the registration of Cooperative
Bankshares, Inc. common stock, including specifically, but not limited to, power
and authority to sign for us in our names in the capacities indicated below, the
registration statement and any and all amendments (including post-effective
amendments) thereto; and we hereby ratify and confirm all that said Frederick
Willetts, III shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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By: /s/ Frederick Willetts, III Chairman, President November 20, 2002
----------------------------- and Chief Executive
Frederick Willetts, III Officer
Principal Executive Officer
By: /s/ Todd Sammons Senior Vice President November 20, 2002
----------------------------- and Chief Financial
Todd Sammons Officer
Principal Financial and
Accounting Officer
By: /s/ James D. Hundley, M.D. Director November 20, 2002
-----------------------------
James D. Hundley, M.D.
By: /s/ O. Richard Wright, Jr. Director November 20, 2002
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O. Richard Wright, Jr.
SIGNATURE TITLE DATE
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By: /s/ Paul G. Bunton Director November 20, 2002
-----------------------------
Paul G. Burton
By: /s/ H. Thompson King, III Director November 20, 2002
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H. Thompson King, III
By: /s/ F. Peter Fensel, Jr. Director November 20, 2002
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F. Peter Fensel, Jr.
By: /s/ R. Allen Rippy Director November 20, 2002
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R. Allen Rippy
By: /s/ Russell M. Carter Director November 20, 2002
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Russell M. Carter
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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23.1 Consent of KPMG LLP
23.2 Consent of PricewaterhouseCoopers LLP
99 Cooperative Bank for Savings, Inc. SSB 401(k) Supplemental
Retirement Plan, as amended.