SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PEOPLES BANCORP OF NORTH CAROLINA, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-2132396
(State of incorporation (I.R.S. Employer
or organization) Indentification No.)
218 South Main Street
Post Office Box 467
Newton, North Carolina 28658-0467
(Address of principal executive offices) (Zip Code)
____________________
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [_]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is to become effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
General. The Registrant is authorized to issue 20,000,000 shares of common
stock and 5,000,000 shares of preferred stock. Neither the authorized common
stock nor the authorized preferred stock has any par value. There are 2,926,318
shares of the common stock issued and outstanding as of the date of this Form 8-
A.
The common stock will represent nonwithdrawable capital, will not be an account of an insurable type, and will not be insured by the FDIC or any other governmental entity. All of the common stock issued and outstanding is validly issued, fully paid, and nonassessable.
Dividends. The Registrant's Board of Directors has the authority to declare dividends on the common stock, subject to statutory and regulatory requirements. The Registrant's Board of Directors will periodically review its policy concerning dividends. Declarations of dividends, if any, by the Registrant's Board of Directors will depend upon a number of factors, including investment opportunities available to the Registrant, capital requirements, regulatory limitations, the Registrant's results of operations and financial condition, tax considerations and general economic conditions. Upon review of such considerations, the Registrant's Board of Directors may authorize dividends to be paid in the future if it deems such payment appropriate and in compliance with applicable law and regulation. No assurances are given that any dividends will in fact be paid on the common stock or that, if dividends are paid, they will not be reduced or discontinued in the future.
The principal sources of income to the Registrant initially will consist of income from dividends paid by Peoples Bank to the Registrant. North Carolina commercial banks, such as Peoples Bank, are subject to legal limitations on the amounts of dividends they are permitted to pay. Dividends may be paid by Peoples Bank from undivided profits, which are determined by deducting and charging certain items against actual profits, including any contributions to surplus required by North Carolina law. Also, an insured depository institution, such as Peoples Bank, is prohibited from making capital distributions, including the payment of dividends, if, after making such distributions, the institution would become "undercapitalized" (as such term is defined in the applicable law and regulations). Consequently, future declarations of cash dividends by the Registrant will depend upon dividend payments by Peoples Bank to the Registrant, which payments are subject to various restrictions.
Stock Repurchases. The shares of the common stock do not have any redemption provisions. Stock repurchases are subject to Federal Reserve Board regulations.
Voting Rights. The holders of shares of the common stock, as the only class of capital stock of the Registrant outstanding, possess exclusive voting rights with respect to the Registrant. Such holders have the right to elect the Registrant's Board of Directors and to act on such other matters as are required to be presented to shareholders under North Carolina law or as are otherwise presented to them. Each holder of the common stock will be entitled to one vote per share. The holders of the common stock have no right to vote their shares cumulatively in the election of directors.
Liquidation Rights. In the event of a liquidation, dissolution or winding up of the Registrant, the holders of the common stock would be entitled to ratably receive, after payment of or making of adequate provisions for all debts and liabilities of the Registrant, all remaining assets of the Registrant available for distribution.
Preemptive Rights. Holders of the common stock will not be entitled to preemptive rights with respect to any shares which may be issued by the Registrant.
Preferred Stock. None of the 5,000,000 shares of the Registrant's authorized preferred stock have been issued. Such stock may be issued in one or more series with such rights, preferences, and designations as the Registrant's Board of Directors may from time to time determine subject to applicable law and regulation. If and when such shares are issued, holders of such shares may have certain preferences, powers and rights (including voting rights) senior to the rights of the holders of the common stock. The Registrant's Board of Directors can (without shareholder approval) issue preferred stock with voting and conversion rights which could, among other things, adversely affect the voting power of the holders of the common stock and assist management in impeding an unfriendly takeover or attempted change in control of the Registrant that some shareholders may consider to be in their best interests but to which management is opposed. The Registrant has no current plans to issue preferred stock.
Restrictions on Acquisition. Acquisitions of the Registrant and acquisitions of the capital stock of the Registrant are restricted by provisions in the Articles of Incorporation and Bylaws of the Registrant and by various federal and state laws and regulations. The Articles of Incorporation and Bylaws of the Registrant contain certain provisions that are intended to encourage a potential acquiror to negotiate any proposed acquisition of the Registrant directly with the Registrant's Board of Directors.
An unsolicited non-negotiated takeover proposal can seriously disrupt the business and management of a corporation and cause it great expense. Accordingly, the Registrant's Board of Directors believes it is in the best interests of the Registrant and its shareholders to encourage potential acquirors to negotiate directly with management. The Registrant's Board of Directors believes that these provisions will encourage such negotiations and discourage hostile takeover attempts. It is also the view of the Registrant's Board of Directors that these provisions should not discourage persons from proposing a merger or transaction at prices reflective of the true value of the Registrant and that otherwise is in the best interests of all shareholders. However, these provisions may have the effect of discouraging offers to purchase the Registrant or its securities which are not approved by the Registrant's Board of Directors but which certain of the Registrant's shareholders may deem to be in their best interests or pursuant to which shareholders would receive a substantial premium for their shares over the current market prices. As a result, shareholders who might desire to participate in such a transaction may not have an opportunity to do so. Such provisions will also render the removal of the Registrant's Board of Directors and management more difficult. The Registrant's Board of Directors believes these provisions are in the best interests of the shareholders because they will assist the Registrant's Board of Directors in managing the affairs of the Registrant in the manner they believe to be in the best interests of shareholders generally and because a company's board of directors is often best able in terms of knowledge regarding the company's business and prospects, as well as resources, to negotiate the best transaction for its shareholders as a whole.
The following description of certain of the provisions of the Articles of Incorporation and Bylaws of the Registrant is necessarily general and reference should be made in each instance to such Articles of Incorporation and Bylaws.
Board of Directors. The Articles of Incorporation and Bylaws of the Registrant provide that the number of directors shall not be less than five nor more than fifteen. The number of directors currently is ten, but such number may be changed by resolution of the Registrant's Board of Directors. These provisions have the effect of enabling the Registrant's Board of Directors to elect directors friendly to management in the event of a non-negotiated takeover attempt and may make it more difficult for a person seeking to acquire control of the Registrant to gain majority representation on the Registrant's Board of Directors in a relatively short period of time. The Registrant believes these provisions to be important to continuity in the composition and policies of the Registrant's Board of Directors.
The Articles of Incorporation and Bylaws of the Registrant provides for staggered elections of directors when the number of directors on the Registrant's Board of Directors is nine or more. As a result, the existing ten directors on the Registrant's Board of Directors have been divided into three classes having terms of one, two, or three years, and all directors have been elected to terms of three years each. The existence of staggered terms has the effect of making it more difficult for a person seeking to acquire control of the Registrant to gain majority representation on the Registrant's Board of Directors.
Cumulative Voting. The Registrant's Articles of Incorporation do not provide for cumulative voting for any purpose. Cumulative voting in election of directors entitles a shareholder to cast a total number of votes equal to the number of directors to be elected multiplied by the number of his or her shares and to distribute that number of votes among such number of nominees as the shareholder chooses. The absence of cumulative voting for directors limits the ability of a minority shareholder to elect directors. Because the holder of less than a majority of the Registrant's shares cannot be assured representation on the Registrant's Board of Directors, the absence of cumulative voting may discourage accumulations of the Registrant's shares or proxy contests that would result in changes in the Registrant's management. The Registrant's Board of Directors believes that: (i) the absence of cumulative voting helps to assure continuity and stability of management and policies; (ii) directors should be elected by a majority of the shareholders to represent the interests of the shareholders as a whole rather than be the special representatives of particular minority interests; and (iii) efforts to elect directors representing specific minority interests are potentially divisive and could impair the operations of the Registrant.
Special Meetings. The Bylaws of the Registrant provide that special meetings of shareholders of the Registrant may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the Registrant's Board of Directors. If a special meeting is not called by such persons or entities, shareholder proposals cannot be presented to the shareholders for action until the next annual meeting.
Preemptive Rights. The Registrant's Articles of Incorporation do not provide for preemptive rights with respect to any shares which may be issued by the Registrant.
Capital Stock. The Registrant's Articles of Incorporation authorizes the issuance of 20,000,000 shares of common stock and 5,000,000 shares of preferred stock. This provides the Registrant's Board of Directors with flexibility to issue additional shares, without further shareholder approval, for proper corporate purposes, including financings, acquisitions, stock dividends, stock splits, employee stock options and other appropriate purposes. However, issuance of additional authorized shares may also have the effect of impeding or deterring future attempts to gain control of the Registrant. The Registrant's Board of Directors also has sole authority to determine the terms of any one or more series of preferred stock, including voting rights, conversion rates, dividend rights, and liquidation preferences, which could adversely affect the voting power of the holders of the common stock and discourage an attempt to acquire control of the Registrant. The Registrant's Board of Directors has no plans to issue any preferred stock, except on terms which it deems to be in the best interests of the Registrant and its shareholders. However, the Registrant's Board of Directors has the power, to the extent consistent with its fiduciary duties, to issue preferred stock to persons friendly to management or otherwise in order to impede attempts by third parties to acquire voting control of the Registrant and to impede other transactions not favored by management.
Director Nominations. The Bylaws of the Registrant require a shareholder who intends to nominate a candidate for election to the Registrant's Board of Directors at a shareholders' meeting to give written notice to the Secretary of the Registrant at least 30 days (but not more than 50 days) in advance of the date of the meeting at which such nomination will be made. The nomination notice is also required to include specified information concerning the nominee and the proposing shareholder. The Registrant's Board of Directors believes that it is in the best interests of the Registrant and its shareholders to provide sufficient time for the Registrant's Board of Directors to study all nominations and to determine whether to recommend to the shareholders that such nominees be considered.
Supermajority Voting Provisions. The Registrant's Articles of Incorporation requires the affirmative vote of 75% of the outstanding shares entitled to vote to approve a merger, consolidation, or other business combination, unless the transaction is approved, prior to consummation, by the vote of at least 75% of the members of the Continuing Directors (as defined in the Articles of Incorporation) of the Registrant's Board of Directors. "Continuing Directors" generally includes all members of the Registrant's Board of Directors who are not affiliated with any individual, partnership, trust or other person or entity (or the affiliates and associates of such person or entity) which becomes a beneficial owner of 10% or more of the voting shares of the Registrant after the Registrant's date of incorporation. This provision could tend to make the acquisition of the Registrant more difficult to accomplish without the cooperation or favorable recommendation of the Registrant's Board of Directors. When evaluating such business combinations, the Registrant's Board of Directors will consider (i) the social and economic effects of acceptance of such an offer on its depositors, borrowers, other customers, employees, and creditors of the Registrant and its subsidiaries, and on the communities in which the Registrant and its subsidiaries operate or are located; (ii) the ability of the Registrant and its subsidiaries to fulfill the objectives of a bank and/or bank holding company, as applicable, and of commercial banking entities, as applicable, under applicable federal and state statutes and regulations; (iii) the business and financial condition and prospects and earnings prospects of the person or group proposing the combination, including, but not limited to, debt service and other existing financial obligations, financial obligations to be incurred in connection with the combination, and other likely financial obligations of such person or group, and the possible effect of such conditions and prospects upon the Registrant and its subsidiaries and the communities in which the Registrant and its subsidiaries are located; (iv) the competence, experience, and integrity of the person or group proposing the combination and its or their management; and (v) the prospects for successful conclusion of the proposed combination.
Currently, more than 21% of the common stock is owned by five percent or more shareholders and directors and executive officers of the Bank.
State and Federal Law Restrictions on Acquisitions. The Registrant's Articles of Incorporation provide that the North Carolina Shareholder Protection Act and the North Carolina Control Share Acquisition Act will not apply to the Registrant.
The Change in Bank Control Act, together with North Carolina regulations, require that the consent of the North Carolina Commissioner of Banks and Federal Reserve Board be obtained prior to any person or company acquiring "control" of a North Carolina-chartered bank or a North Carolina-chartered bank holding company. Upon acquiring control, such acquiror will be deemed to be a bank holding company. Control is conclusively presumed to exist if, among other things, an individual or company acquires the power, directly or indirectly, to direct the management or policies of the Registrant or to vote 25% or more of any class of voting stock. Control is rebuttably presumed to exist under the Change in Bank Control Act if, among other things, a person acquires more than 10% of any class of voting stock, and the issuer's securities are registered under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the person would be the single largest shareholder. Restrictions applicable to the operations of bank holding companies and conditions imposed by the Federal Reserve in connection with its approval of such acquisitions may deter potential acquirors from seeking to obtain control of the Registrant.
Resales of the Common Stock. The common stock has not been registered under the Securities Act of 1933, as amended (the "Securities Act"), and instead will be issued in reliance on the exemption contained in Section 3(a)(12) thereof for securities issued in connection with certain acquisitions by a bank holding company. Under Section 3(a)(12) and the related provisions of the Securities Act, (i) shares of the common stock will be freely transferable under the Securities Act by those shareholders of the Registrant not deemed to be "affiliates" of the Registrant and (ii) pursuant to Rule 145 under the Securities Act, shares of the common stock acquired by persons who are "affiliates" of the Registrant will be subject to the resale restrictions contained in paragraphs (c), (e), (f), and (g) of Rule 144 under the Securities Act. Affiliates are generally defined as persons who control, are controlled by, or are under common control with the Registrant (generally executive officers and directors).
Under paragraph (e) of Rule 144, each affiliate of the Registrant, together
with any other person whose sales are required to be aggregated with those of
the affiliate under Rule 144, would be able to sell in the public market,
without registration, a number of shares not to exceed, in any three-month
period, the greater of (i) 1% of the outstanding shares of the common stock or
(ii) the average weekly trading volume in such shares during the preceding four
calendar weeks. Pursuant to paragraph (f) of Rule 144, the shares are required
to be sold in "brokers' transactions," as defined in paragraph (g) of Rule 144,
or in transactions directly with a "market maker," as defined in Section
3(a)(38) of the Exchange Act, as well as comply with certain other manner of
sale requirements set forth in paragraph (f). Pursuant to paragraph (c) of Rule
144, the ability of affiliates to resell shares of the common stock under Rule
144 will be subject to the Registrant having satisfied its Exchange Act
reporting requirements for specified periods prior to the time of sale.
Affiliates also would be permitted to resell the common stock pursuant to an
effective registration statement under the Securities Act or an available
exemption from the Securities Act registration requirements.
ITEM 2. EXHIBITS
Exhibit Number Description
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(3)(I) Articles of Incorporation of Peoples Bancorp of North
Carolina, Inc.
(3)(II) Bylaws of Peoples Bancorp of North Carolina, Inc.
(4) Copy of the form certificate for each security to be
registered hereunder.
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Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this Registration Statement on Form 8-A to be signed on its behalf by the undersigned, thereto duly authorized.
PEOPLES BANCORP OF NORTH CAROLINA, INC.
ARTICLES OF INCORPORATION
OF
PEOPLES BANCORP OF NORTH CAROLINA, INC.
ARTICLE I
The name of the corporation is Peoples Bancorp of North Carolina, Inc. (the "Corporation").
ARTICLE II
Class Number of Shares ----- ---------------- Common Stock 20,000,000 Preferred Stock 5,000,000 |
full or limited, or no voting powers, and such designations, preferences, limitations and relative rights (or qualifications, conditions or restrictions thereon) as the Board of Directors may and hereby is authorized to determine.
ARTICLE III
The street address and county of the initial registered office of the Corporation is 218 South Main Avenue, Newton, Catawba County, North Carolina 28658. The mailing address of the initial registered office of the Corporation is Post Office Box 467, Newton, North Carolina 28658-0467. The name of the initial registered agent is Tony W. Wolfe.
ARTICLE IV
The name and address of the incorporator is as follows:
Tony W. Wolfe
218 South Main Avenue
Newton, North Carolina 28658
ARTICLE V
To the fullest extent permitted by the NCBCA as it exists or may hereafter be amended, no person who is serving or has served as a director of the Corporation shall be personally liable to the Corporation or any of its shareholders or otherwise for monetary damages for breach of any duty as a director. No amendment or repeal of this Article, nor the adoption of any provision to these Articles of Incorporation inconsistent with this Article, shall eliminate or reduce the protection granted herein with respect to any matter that occurred prior to such amendment, repeal, or adoption.
ARTICLE VI
The provisions of Article 9 and Article 9A of the NCBCA entitled "The North Carolina Shareholder Protection Act" and "The North Carolina Control Share Acquisition Act," respectively, shall not be applicable to the Corporation.
ARTICLE VII
(a) The terms "Business Combination" shall mean any transaction in connection with (i) a combination or merger of the Corporation, (ii) the acquisition of more than ten percent (10%) of the Corporation's outstanding Voting Shares, or (iii) a purchase or sale of a substantial portion of the assets of the Corporation or a Subsidiary thereof (a purchase or sale of 20% or more of the total assets of the Corporation or a Subsidiary as of the end of the most recent quarterly period being deemed as "substantial") in each case, as applicable, which requires the approval of, or notice to and absence of objection by (i) any federal or state regulatory authority of banks, savings banks, savings and loan associations or their holding companies, (ii) the Federal Trade Commission or the Anti-Trust Division of the United States Department of Justice, or (iii) the shareholders of the Corporation, but excluding any reorganization, acquisition, merger, purchase or sale of assets, or combination initiated by the Corporation upon the vote of at least fifty-one percent (51%) of the Continuing Directors.
(b) The term "Continuing Director" shall mean any member of the Board of Directors of the Corporation who is unaffiliated with the Related Person and was a member of the Board of Directors prior to the time that the Related Person became a Related Person, and any successor of a Continuing Director who is unaffiliated with the Related Person and is recommended to succeed a Continuing Director by a majority of the Continuing Directors.
(c) The term "Person" shall mean an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, or an unincorporated organization or similar company, and also includes a syndicate or any group of any of the foregoing
formed or acting together in concert for the purpose of acquiring, holding or disposing of the equity securities or assets of the Corporation or any Subsidiary.
(d) The term "Related Person" shall mean any individual, partnership, corporation, trust or other person or entity (together with its "affiliates" and "associates," as defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "1934 Act")) which as of the date of its offer with respect to a Business Combination is a "beneficial owner" (as defined in Rule 13d-3 under the 1934 Act) in the aggregate of ten percent (10%) or more of the outstanding Voting Shares of the Corporation. A Related Person shall be deemed to have acquired a share of the Voting Stock of the Corporation at the time when such Related Person became the beneficial owner thereof.
(e) The term "Subsidiary" shall mean any corporation or other entity of which the Person in question owns not less than fifty percent (50%) of any class of equity securities, directly or indirectly.
(f) The term "Voting Shares" shall mean any shares of the authorized stock of the Corporation entitled to vote generally in the election of directors.
(g) The term "Whole Board of Directors" shall mean the total number of directors which the Corporation would have if there were no vacancies on the Board.
of the Corporation by the affirmative vote of (a) at least seventy-five percent (75%) of the Whole Board of Directors, and (b) if such Business Combination is proposed by a Related Person, at least seventy-five percent (75%) of the Continuing Directors, in either case at a duly called or convened regular or special meeting of the Board of Directors.
Business Combination. The provisions of this Article VII shall be deemed solely to grant discretionary authority to the Board of Directors and shall not be deemed to provide any constituency the right to be considered or to compel the consideration of its interests.
ARTICLE VIII
In the first election of directors, and in all elections thereafter, that the total number of directors as fixed pursuant to the Corporation's Bylaws is nine (9) or more, the directors shall be divided into three (3) classes, as nearly equal as possible in number as may be, to serve in the first
instance for terms of one, two and three years, respectively, from the date such class of directors takes office or until their earlier death, resignation, retirement, removal or disqualification or until their successors shall be elected and shall qualify, and thereafter the successors in each class of directors shall be elected for terms of three (3) years or until their earlier death, resignation, retirement, removal, or disqualification or until their successors shall be elected and shall qualify. In the event of any increase or decrease in the number of directors at a time that the directors are so classified, the additional or eliminated directorships shall be classified or chosen so that all classes of directors shall remain or become as nearly equal as possible in number. At all times that the number of directors, as fixed pursuant to the Corporation's Bylaws, is less than nine (9), each director shall be elected to a term ending as of the next succeeding annual meeting of shareholders or until his or her earlier death, resignation, retirement, removal or disqualification or until his or her successor shall be elected and shall qualify.
John H. Elmore, Jr.
Charles F. Murray
Fred L. Sherrill, Jr.
Robert C. Abernethy
James S. Abernethy
Larry E. Robinson
Bruce R. Eckard
B.E. Matthews
Dan Ray Timmerman, Sr
Benjamin I. Zachary
This the 7th day of April, 1999.
By: /s/ Tony W. Wolfe
----------------------------------------
Tony W. Wolfe
Incorporator
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BYLAWS
OF
PEOPLES BANCORP OF NORTH CAROLINA, INC.
ARTICLE I
ARTICLE II
In the case of a special meeting, the notice of meeting shall include a description of the purpose or purposes for which the meeting is called; but, in the case of an annual or substitute annual meeting, the notice of meeting need not include a description of the purpose or purposes for which the meeting is called unless such a description is required by the provisions of the North Carolina Business Corporation Act.
When a meeting is adjourned to a different date, time or place, notice need not be given of the new date, time or place if the new date, time or place is announced at the meeting before adjournment and if a new record date is not fixed for the adjourned meeting. If a new record date is fixed for the adjourned meeting (which must be done if the new date is more than 120 days after the date of the original meeting), notice of the adjourned meeting must be given as provided in this Section 5 to persons who are shareholders as of the new record date.
where the meeting will be held, for the period beginning two (2) business days after notice of the meeting is given and continuing through the meeting, and shall be available for inspection by any shareholder, his agent or attorney, at any time during regular business hours. The list shall also be available at the meeting and shall be subject to inspection by any shareholder, his agent or attorney, at any time during the meeting or any adjournment thereof.
If no record date is fixed by the Board of Directors for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, the close of business on the day before the first notice of the meeting is delivered to shareholders shall be the record date for such determination of shareholders.
Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting.
In the absence of a quorum at the opening of any meeting of shareholders, such meeting may be adjourned from time to time by the vote of a majority of the votes cast on the motion to adjourn; and, subject to the provisions of Section 5 of this Article II, at any adjourned meeting any business may be transacted that might have been transacted at the original meeting if a quorum exists with respect to the matter proposed.
Except in the election of directors as governed by the provisions of
Section 4 of Article III, if a quorum exists, action on a matter by a voting
group is approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless a greater vote is required by
law or the Articles of Incorporation or these Bylaws.
Absent special circumstances, shares of the corporation are not entitled to vote if they are owned, directly or indirectly, by a second corporation in which the corporation owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation; provided that this provision does not limit the power of the corporation or such second corporation to vote shares held by it in a fiduciary capacity.
ARTICLE III
At all times that the number of directors is less than nine (9), each director shall be elected to a term ending as of the next succeeding annual meeting of shareholders or until his or her earlier death, resignation, retirement, removal or disqualification or until his or her successor shall be elected and shall qualify.
In the first election of directors that the total number of directors is nine (9) or more, the directors shall be divided into three (3) classes, as nearly equal as possible in number as may be, to serve in the first instance for terms of one (1), two (2) and three (3) years, respectively, from the date such class of directors takes office or until their earlier death, resignation, retirement, removal or disqualification or until their successors shall be elected and shall qualify, and thereafter the successors in each class of directors shall be elected for terms of three (3) years or until their earlier death, resignation, retirement, removal, or disqualification or until their successors shall be elected and shall qualify. In the event of any increase or decrease in the number of directors at a time that the directors are so classified, the additional or eliminated directorships shall be classified or chosen so that all classes of directors shall remain or become as nearly equal as possible in number.
Notwithstanding the provisions of this Section 5, a decrease in the number of directors does not shorten an incumbent director's term. Despite the expiration of a director's term, such director shall continue to serve until a successor shall be elected and qualified or until there is a decrease in the number of directors.
elected by voting group, only the remaining director or directors elected by that voting group or the holders of shares of that voting group are entitled to fill the vacancy.
In the absence of the Chairman, the President shall preside at meetings of directors or shareholders.
ARTICLE IV
meeting or to transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
directors, one (1) of whom shall be the Chairman of the Board of Directors and one (1) of whom shall be the President of the corporation, if such officer is also a director. Except as limited by Section 9 of this Article IV or otherwise limited by law, the Executive Committee is empowered to act for and on behalf of the Board of Directors in any and all matters in the interim between meetings of the Board of Directors. Within the powers conferred upon it, action by the Executive Committee shall be as binding upon the corporation as if performed by the full Board of Directors. Such actions shall be reported to the Board of Directors for review at its next meeting following such action. The committee shall meet as often as it considers necessary or advisable.
ARTICLE V
accepted by the corporation, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date. An officer's resignation does not affect the corporation's contract rights, if any, with the officer except to the extent, if any, specified in any such contract.
shareholders as required by law; (vii) attest the signature or certify the incumbency or signature of any officer of the corporation; and (viii) in general perform all duties incident to the office of secretary and such other duties as from time to time may be prescribed by the President or by the Board of Directors.
ARTICLE VI
ARTICLE VII
Directors authorizes the distribution or share dividend.
The purposes for which the corporation shall recognize the beneficial owner
as the shareholder may include the following: (i) receiving notice of, voting
at, and otherwise participating in shareholders' meetings; (ii) executing
consents with respect to the shares; (iii) exercising dissenters' rights under
the North Carolina Business Corporation Act; (iv) receiving distributions and
share dividends with respect to the shares; (v) exercising inspection rights;
(vi) receiving reports, financial statements, proxy statements, and other
communications from the corporation; (vii) making any demand upon the
corporation required or permitted by law; and (viii) exercising any other rights
or receiving any other benefits of a shareholder with respect to the shares.
The certificate shall be effective ten (10) business days after its receipt by the corporation and until it is changed by the nominee, unless the certificate specifies a later effective time or an earlier termination date.
If the certificate affects less than all of the shares registered in the name of the nominee, the corporation may require the shares affected by the certificate to be registered separately on the books of the corporation and be represented by a share certificate that bears a conspicuous legend stating that there is a nominee certificate in effect with respect to the shares represented by that share certificate.
ARTICLE VIII
No Bylaw adopted, amended, or repealed by the shareholders shall be readopted, amended, or repealed by the Board of Directors, unless the Articles of Incorporation or a Bylaw adopted by the shareholders authorizes the Board of Directors to adopt, amend, or repeal that particular Bylaw or the Bylaws generally.
ARTICLE IX
In addition to any indemnification required or permitted by law, and except as otherwise provided in these Bylaws, any person who at any time serves or has served as a director, officer, employee or agent of the Corporation and any such person who serves or has served at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a trustee or administrator under an employee benefit plan, 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 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.
Promptly after the final disposition or termination of any matter which involves liability or litigation expense as described above or at such earlier time as it sees fit, the Corporation shall determine whether any person described in this Article IX 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 this Article IX, (ii) whether the liability or litigation expense incurred arose out of the status or activities of such persons as described in this Article IX, (iii) whether liability was actually incurred and/or litigation expense was actually and reasonably incurred, and (iv) whether the indemnification requested is permitted by applicable law. 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.
Litigation expense incurred by a person described in this Article IX in connection with a matter described in this Article IX may be paid by the Corporation in advance of the final disposition or termination of such matter, if the Corporation receives an undertaking, dated, in writing and signed by the person to be indemnified, to repay all such sums unless such person is ultimately determined to be entitled to be indemnified by the Corporation as provided in this Article IX. Requests for payments in advance of final disposition or termination shall be submitted in writing unless this requirement is waived by the Corporation.
Notwithstanding the foregoing, 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, the 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 appears that the person requesting payment will not be entitled to indemnification.
The Corporation shall not be obligated to indemnify persons described in this Article IX for any amounts paid in settlement unless the 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 may waive the requirement of this section for its written consent as fairness and equity may require.
A person described in this Article IX may apply to the Corporation in writing for indemnification or advance expenses. Such applications 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 this Article IX, within ninety days after receipt of the application; to a request for advance expenses under this Article IX, within fifteen days after receipt of the application.
If any action is necessary or appropriate to authorize the Corporation to pay the indemnification required by these Bylaws, the Board of Directors shall take such action, including (i) making a good faith evaluation of the indemnification request, (ii) giving notice to, and obtaining approval by, the shareholders of the Corporation, and (iii) taking any other action.
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 above. 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, without limitation, reasonable attorneys' fees) of such action.
As provided by N.C. Gen. Stat. (S)55-8-57, the Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or as a trustee or administrator under an employee benefit plan, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation has the power to indemnify him against such liability.
The right to 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 bylaw, 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 inures 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 bylaw serves or has served in any status or capacity described in this Article IX, 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 hereof shall not affect any rights or obligations then existing. The right provided herein shall not apply as to persons serving institutions which 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.
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 this Article IX 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.
Peoples Bancorp of North Carolina, Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF NORTH CAROLINA
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 710577 10 7
THIS IS TO CERIFY THAT
Is the owner of
Fully paid and non-assessable shares of the common stock, no par value, of Peoples Bancorp of North Carolina, Inc.
Transferable only on the books of the Corporation in person or by duly authorized Attorney upon surrender of this Certificate properly endorsed
This Certificate is not valid until countersigned and registered by the Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
Dated:
/s/ Joseph F. Beaman, Jr.
EXECUTIVE VICE PRESIDENT, CORPORATE SECRETARY AND TREASURER
/s/ TONY W. WOLFE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
REGISTRAR AND TRANSFER COMPANY
(CRANFORD, NEW JERSEY)
|
TRANSFER AGENT AND REGISTRAR
BY:
AUTHORIZED SIGNATURE
[Seal of Peoples Bancorp of North Carolina, Inc.]
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST,
STOLEN, MUTILATED OR DESTROYED, THE CORPORATION
WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
PEOPLES BANCORP
Of North Carolina, Inc.
The following abbreviations in the inscription on the face of this certificate, shall be construed as though they were written in full according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants in common
GMA/UTMA--__ (Cus) _____ Custodian _______ (Minor) _____ under Uniform
Gifts/Transfers to Minors ___ (State) ______.
Additional abbreviations may also be used though not in the above list.
For Value Received, ________ hereby sell, assign and transfer unto
PLEASE INSERTSOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEEE_________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNER)
Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ________________________________ Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.
Dated ____________________
Notice: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED:_______________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM). PURSUANT TO
S.E.C. Rule 17Ad-15.