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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
March 14, 2000
First South Bancorp, Inc.
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(Exact Name of Registrant as Specified in Charter)
Virginia 0-22219 56-1999749
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1311 Carolina Avenue, Washington, North Carolina 27889
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code:
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(252) 946-4178
NewSouth Bancorp, Inc.
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
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On March 14, 2000, NewSouth Bancorp, Inc. (the "Company ")
announced that it had amended its Articles of Incorporation to
change its name to First South Bancorp, Inc. Effective at the
opening of trading on the Nasdaq Stock Market on March 15, 2000,
the Company began trading under the name of First South Bancorp,
Inc. and under the Nasdaq trading symbol "FSBK."
Information regarding this matter is set forth in the
Company's press release dated March 14, 2000, attached hereto as
Exhibit 99 and incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
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The following exhibits is filed with this Current Report on
Form 8-K.
Exhibit No. Description
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3.1 Articles of Incorporation of First South Bancorp,
Inc.
99 Press Release, dated March 14, 2000
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
FIRST SOUTH BANCORP, INC.
Date: March 20, 2000 By: /s/ William L. Wall
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William L. Wall
Executive Vice President and
Chief Financial Officer
ARTICLES OF INCORPORATION
OF
FIRST SOUTH BANCORP, INC.
The undersigned, pursuant to Chapter 9 of Title 13.1 of
the Code of Virginia, states as follows:
ARTICLE I
NAME
The name of the corporation is First South Bancorp, Inc.
(herein the "Corporation").
ARTICLE II
POWERS
The purpose for which the Corporation is organized is to
act as a financial institution holding company and to transact
all other lawful business for which corporations may be
incorporated pursuant to the Virginia Stock Corporation Act.
The Corporation shall have all the powers of a corporation
organized under the Virginia Stock Corporation Act.
ARTICLE III
RESIDENT AGENT
The mailing address of the Corporation's initial
registered office in the Commonwealth of Virginia is 5511
Staples Mill Road, Richmond, Virginia 23228, County of Henrico,
and the name of the Corporation's initial registered agent at
that office is Edward R. Parker, Esquire. The initial
registered agent is a resident of the Commonwealth of Virginia
and a member of the Virginia State Bar and has a business office
identical with the registered office.
ARTICLE IV
INITIAL DIRECTORS
The number of directors constituting the initial board of
directors of the Corporation is seven, which number may be
increased or decreased pursuant to the bylaws of the Corporation
and Article X of these Articles, but shall never be less than
the minimum number permitted by the Virginia Stock Corporation
Act now or hereafter in force. The names and addresses of the
persons who are to serve as directors until the first annual
meeting and until their successors are elected and qualified,
are:
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Name Address
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Edmund T. Buckman, Jr. 1026 Summit Avenue
Washington, NC 27889
Frederick N. Holscher 46 Harbor Road
Washington, NC 27889
Frederick H. Howdy 67 Katherine Drive
Washington, NC 27889
Linley H. Gibbs, Jr. 222 Magnolia Drive
Washington, NC 27889
Thomas A. Vann 113 Palmer Place
Washington, NC 27889
Charles E. Parker, Jr. 1061 Lucerne Way
New Bern, NC 28560
Marshall T. Singleton 776 Mimosa Shores Road
Washington, NC 27889
ARTICLE V
CAPITAL STOCK
The aggregate number of shares of all classes of capital
stock which the Corporation has authority to issue is 9,000,000,
of which 8,000,000 are to be shares of common stock, $.01 par
value per share, and of which 1,000,000 are to be shares of
serial preferred stock, $.01 par value per share. The shares
may be issued by the Corporation from time to time as approved
by the board of directors of the Corporation without the
approval of the stockholders except as otherwise provided in
this Article V or to the extent that such approval is required
by governing law, rule or regulation. The consideration for the
issuance of the shares shall be paid to or received by the
Corporation in full before their issuance and shall not be less
than the par value per share. Shares may be issued for
consideration consisting of any tangible property or benefit to
the Corporation, including cash, promissory notes, services
performed, contracts for services to be performed, or other
securities of the Corporation. A good faith determination by
the board of directors that the consideration received or to be
received for the shares to be issued is adequate is conclusive
insofar as the adequacy of consideration relates to whether the
shares are validly issued, fully paid and nonassessable. When
the board of directors has made such a determination and the
Corporation has received the consideration, the shares issued
therefor are fully paid and nonassessable.
A description of the different classes and series (if any)
of the Corporation's capital stock, and a statement of the
relative, designations, preferences, limitations and relative
rights of the shares of each class and series (if any) of
capital stock, and the qualifications, limitations or
restrictions thereof, are as follows:
A. Common Stock. Except as provided in these Articles,
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the holders of the common stock shall exclusively possess all
voting power. Each holder of shares of common stock shall be
entitled to one vote for each share held by such holder, except
as otherwise expressly set forth in these Articles.
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Whenever there shall have been paid, or declared and set
aside for payment, to the holders of the outstanding shares of
any class of stock having preference over the common stock as to
the payment of dividends, the full amount of dividends and
sinking fund or retirement fund or other retirement payments, if
any, to which such holders are respectively entitled in
preference to the common stock, then dividends may be paid on
the common stock, and on any class or series of stock entitled
to participate therewith as to dividends, out of any assets
legally available for the payment of dividends, but only when
and as declared by the board of directors of the Corporation.
In the event of any liquidation, dissolution or winding up
of the Corporation, after there shall have been paid, or
declared and set aside for payment, to the holders of the
outstanding shares of any class having preference over the
common stock in any such event, the full preferential amounts to
which they are respectively entitled, the holders of the common
stock and of any class or series of stock entitled to
participate therewith, in whole or in part, as to distribution
of assets shall be entitled, after payment or provision for
payment of all debts and liabilities of the Corporation, to
receive the remaining assets of the Corporation available for
distribution, in cash or in kind.
Each share of common stock shall have the same relative
powers, preferences and rights as, and shall be identical in all
respects with, all the other shares of common stock of the
Corporation, except as otherwise expressly set forth in these
Articles.
B. Serial Preferred Stock. Except as provided in these
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Articles, the board of directors of the Corporation is
authorized, from time to time by adoption of an amendment to
these Articles, to provide for the issuance of one or more
classes of serial preferred stock in series and to fix and state
the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of
each such class or series, and the qualifications, limitations
or restrictions thereof, including, but not limited to
determination of any of the following:
1. the distinctive designation and the number of shares
constituting such class or series;
2. the dividend rates or the amount of dividends to be
paid on the shares of such class or series, whether
dividends shall be cumulative and, if so, from which
date or dates, the payment date or dates for
dividends, and the participating or other special
rights, if any, with respect to dividends;
3. the voting powers, full or limited, if any, of the
shares of such class or series;
4. whether the shares of such class or series shall be
redeemable and, if so, the price or prices at which,
and the terms and conditions upon which such shares
may be redeemed;
5. the amount or amounts payable upon the shares of
such class or series in the event of voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation;
6. whether the shares of such class or series shall be
entitled to the benefits of a sinking or retirement
fund to be applied to the purchase or redemption of
such shares, and, if so entitled, the amount of such
fund and the manner of its application, including
the price or prices at which such shares may be
redeemed or purchased through the application of
such funds;
7. whether the shares of such class or series shall be
convertible into, or exchangeable for, shares of any
other class or classes or any other series of the
same or any other class or classes of stock of the
Corporation and, if so convertible or exchangeable,
the conversion price or prices, or the rate or rates
of exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and
any other terms and conditions of such conversion or
exchange;
8. the subscription or purchase price and form of
consideration for which the shares of such class or
series shall be issued;
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9. whether the shares of such class or series which are
redeemed or converted shall have the status of
authorized but unissued shares of serial preferred
stock and whether such shares may be reissued as
shares of the same or any other class or series; and
10. any other preferences, limitations, relative rights,
restrictions, including restrictions on
transferability, and qualifications of shares of
such class or series, not inconsistent with law and
these Articles.
Each share of each series of serial preferred stock shall
have the same relative powers, preferences, limitations and
rights as, and shall be identical in all respects with, all the
other shares of preferred stock of the same series, except as
otherwise expressly set forth in these Articles.
ARTICLE VI
PREEMPTIVE RIGHTS
No holder of any of the shares of any class or series of
stock or of options, warrants or other rights to purchase shares
of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or
subscribe for any unissued stock of any class or series, or any
unissued bonds, certificates of indebtedness, debentures or
other securities convertible into or exchangeable for stock of
any class or series or carrying any right to purchase stock of
any class or series; but any such unissued stock, bonds,
certificates or indebtedness, debentures or other securities
convertible into or exchangeable for stock or carrying any right
to purchase stock may be issued pursuant to resolution of the
board of directors of the Corporation to such persons, firms,
corporations or associations, whether or not holders thereof,
and upon such terms as may be deemed advisable by the board of
directors in the exercise of its sole discretion.
ARTICLE VII
REPURCHASE OF SHARES
The Corporation may from time to time, pursuant to
authorization by the board of directors of the Corporation and
without action by the stockholders, purchase or otherwise
acquire shares of any class, bonds, debentures, notes, scrip,
warrants, obligations, evidences of indebtedness, or other
securities of the Corporation in such manner, upon such terms,
and in such amounts as the board of directors shall determine;
subject, however, to such limitations or restrictions, if any,
as are contained in the express terms of any class of shares of
the Corporation outstanding at the time of the purchase or
acquisition in question or as are imposed by law.
ARTICLE VIII
MEETINGS OF STOCKHOLDERS; CUMULATIVE VOTING
A. Any action required to be taken or which may be taken
at any meeting of stockholders of the Corporation may be taken
without a meeting if a consent in writing setting forth the
action so taken shall be signed by all of the stockholders
entitled to vote with respect to the subject matter thereof.
B. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any
time by the board of directors of the Corporation or by a
committee of the board of directors which has been duly
designated by the board of directors and whose powers and
authorities, as provided in a resolution of the board of
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directors or in the bylaws of the Corporation, include the power
and authority to call such meetings, but special meetings may
not be called by any other person or persons.
C. There shall be no cumulative voting by stockholders
of any class or series in the election of directors of the
Corporation
D. Meetings of stockholders may be held at any place
within the United States as the bylaws may provide.
E. One-third 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 one-third 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.
ARTICLE IX
NOTICE FOR NOMINATIONS AND PROPOSALS
A. Nominations for the election of directors and
proposals for any new business to be taken up at any annual or
special meeting of stockholders may be made by the board of
directors of the Corporation or by any stockholder of the
Corporation entitled to vote generally in the election of
directors. In order for a stockholder of the Corporation to
make any such nominations and/or proposals, he or she shall give
notice thereof in writing, delivered or mailed by first class
United States mail, postage prepaid, to the secretary of the
Corporation not less than 30 days nor more than 60 days prior to
any such meeting; provided, however, that if less than 40 days'
notice of the meeting is given to stockholders, such written
notice shall be delivered or mailed, as prescribed, to the
secretary of the Corporation not later than the close of
business on the tenth day following the day on which notice of
the meeting was mailed to stockholders. Each such notice given
by a stockholder with respect to nominations for the election of
directors shall set forth (i) the name, age, business address
and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each
such nominee, and (iii) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee.
In addition, the stockholder making such nomination shall
promptly provide any other information reasonably requested by
the Corporation.
B. Each such notice given by a stockholder to the
secretary with respect to business proposals to bring 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.
Notwithstanding anything in these Articles to the contrary, no
business shall be conducted at the meeting except in accordance
with the procedures set forth in this Article IX.
C. The chairman of the annual or special meeting of
stockholders may, if the facts warrant, determine and declare to
such meeting that a nomination or proposal was not made in
accordance with the foregoing procedure, and, if he should so
determine, he shall so declare to the meeting and the defective
nomination or proposal shall be disregarded and laid over for
action at the next succeeding adjourned, special or annual
meeting of the stockholders taking place thirty days or more
thereafter. This provision shall not require the holding of any
adjourned or special meeting of stockholders for the purpose of
considering such defective nomination or proposal.
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ARTICLE X
DIRECTORS
A. Number; Vacancies. The number of directors of the
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Corporation shall be such number, not less than five nor more
than fifteen (exclusive of directors, if any, to be elected by
holders of preferred stock of the Corporation, voting separately
as a class), as shall be set forth from time to time in the
bylaws, provided that no action shall be taken to decrease or
increase the number of directors unless at least two-thirds of
the directors then in office shall concur in said action, and
further provided that no increase or decrease in the number of
directors shall affect the tenure of office of any director.
Subject to the rights of the holders of any class of preferred
stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office
or other cause shall be filled by a majority vote of the
stockholders or by a two-thirds vote of the directors then in
office, whether or not a quorum. A director so chosen by the
stockholders shall hold office for the balance of the term then
remaining. A director so chosen by the remaining directors
shall hold office until the next annual meeting of stockholders
at which directors are elected and until his successor is
elected and qualifies, at which time the stockholders shall
elect a director to hold office for the balance of the term then
remaining.
B. Classified Board. At the first meeting of
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stockholders of the Corporation at which directors are elected,
the board of directors of the Corporation shall be divided into
three classes as nearly equal in number as the then total number
of directors constituting the entire board of directors shall
permit, which classes shall be designated Class I, Class II and
Class III. At such annual meeting of stockholders, directors
assigned to Class I shall be elected to hold office for a term
expiring at the first succeeding annual meeting of stockholders
thereafter, directors assigned to Class II shall be elected to
hold office for a term expiring at the second succeeding annual
meeting thereafter, and directors assigned to Class III shall be
elected to hold office for a term expiring at the third
succeeding annual meeting thereafter. Thereafter, at each
succeeding annual meeting, directors of each class shall be
elected for three year terms. Notwithstanding the foregoing, a
director whose term shall expire at any annual meeting shall
continue to serve until such time as his successor shall have
been duly elected and shall have qualified unless his position
on the board of directors shall have been abolished by action
taken to reduce the size of the board of directors prior
to said meeting.
Should the number of directors of the Corporation be
reduced, the directorship(s) eliminated shall be allocated among
classes as appropriate so that the number of directors in each
class is as specified in the immediately preceding paragraph.
The board of directors shall designate, by the name of the
incumbent(s), the position(s) to be abolished. Notwithstanding
the foregoing, no decrease in the number of directors shall have
the effect of shortening the term of any incumbent director.
Should the number of directors of the Corporation be increased,
the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as
specified in the immediately preceding paragraph.
Whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the
Corporation, the board of directors shall consist of said
directors so elected in addition to the number of directors
fixed as provided above in this Article X. Notwithstanding the
foregoing, and except as otherwise may be required by law or by
the terms and provisions of the preferred stock of the
Corporation, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting
separately as a class, to elect one or more directors of the
Corporation, the terms of the director or directors elected by
such holders shall expire at the next succeeding annual meeting
of stockholders.
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ARTICLE XI
REMOVAL OF DIRECTORS
Notwithstanding any other provision of these Articles or
the bylaws of the Corporation, any director or the entire board
of directors of the Corporation may be removed at any time, but
only for cause and only by the affirmative vote of the holders
of at least 80% 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.
Notwithstanding the foregoing, whenever the holders of any one
or more series of preferred stock of the Corporation shall have
the right, voting separately as a class, to elect one or more
directors of the Corporation, the preceding provisions of this
Article XI shall not apply with respect to the director or
directors elected by such holders of preferred stock.
ARTICLE XII
ACQUISITION OF CAPITAL STOCK
A. Three-Year Prohibition. For a period of three years
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from the effective date of the completion of the conversion of
Home Savings Bank, SSB, Washington, North Carolina, from mutual
to stock form (which entity or its successor shall become a
wholly owned subsidiary of the Corporation upon such
conversion), no person shall directly or indirectly offer to
acquire or acquire the beneficial ownership of more than 10% of
any class of equity security of the Corporation, unless such
offer or acquisition shall have been approved in advance by a
two-thirds vote of the Continuing Directors, as defined in
Article XIII. In addition, for a period of three years from the
completion of the conversion of Home Savings Bank, SSB from
mutual to stock form (which entity or its successor shall become
a wholly owned subsidiary of the Corporation upon such
conversion), and notwithstanding any provision to the contrary
in these Articles or in the bylaws of the Corporation, where any
person directly or indirectly acquires beneficial ownership of
more than 10% of any class of equity security of the Corporation
in violation of this Article XII, the securities beneficially
owned in excess of 10% shall not be counted as shares entitled
to vote, shall not be voted by any person or counted as voting
shares in connection with any matter submitted to the
stockholders for a vote, and shall not be counted as outstanding
for purposes of determining a quorum or the affirmative vote
necessary to approve any matter submitted to the stockholders
for a vote.
B. Prohibition After Three Years. If at any time after
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three years from the effective date of the completion of the
conversion of Home Savings Bank, SSB from mutual to stock form
(which entity or its successor shall become a wholly owned
subsidiary of the Corporation upon such conversion), any person
shall acquire the beneficial ownership of more than 10% of any
class of equity security of the Corporation without the prior
approval by a two-thirds vote of the Continuing Directors, as
defined in Article XIII hereof, then the record holders of
voting stock of the Corporation beneficially owned by such
acquiring person shall have only the voting rights set forth in
this paragraph B on any matter requiring their vote or consent.
With respect to each vote in excess of 10% of the voting power
of the outstanding shares of voting stock of the Corporation
which such record holders would otherwise be entitled to cast
without giving effect to this paragraph B, such record holders
in the aggregate shall be entitled to cast only one-hundredth
(1/100) of a vote, and the aggregate voting power of such record
holders, so limited for all shares of voting stock of the
Corporation beneficially owned by such acquiring person, shall
be allocated proportionately among such record holders. For
each such record holder, this allocation shall be accomplished
by multiplying the aggregate voting power, prior to imposing the
limitations of this paragraph B, of the outstanding shares of
voting stock of the Corporation beneficially owned by such
record holder by a fraction whose numerator is the number of
votes equal to 10% of the shares of voting stock of the
Corporation and whose denominator is the total number of votes
represented by the shares of voting stock of the Corporation
that are beneficially owned by such acquiring person; any share
held by such record holder in excess of the allocated amount as
determined in accordance with the previous clause shall be
entitled to cast one-hundredth of a vote. A person who is a
record owner of shares of voting stock of the Corporation that
are
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beneficially owned simultaneously by more than one person
shall have, with respect to such shares, the right to cast the
least number of votes that such person would be entitled to cast
under this paragraph B by virtue of such shares being so
beneficially owned by any of such acquiring persons.
C. Definitions. The term "person" means an individual,
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a group acting in concert, a corporation, a partnership, an
association, a joint stock company, a trust, an unincorporated
organization or similar company, a syndicate or any other group
acting in concert formed for the purpose of acquiring, holding,
voting or disposing of securities of the Corporation. The term
"acquire" includes every type of acquisition, whether effected
by purchase, exchange, operation of law or otherwise. The term
group "acting in concert" includes (a) knowing participation in
a joint activity or conscious parallel action towards a common
goal whether or not pursuant to an express agreement, and (b) a
combination or pooling of voting or other interest in the
Corporation's outstanding shares for a common purpose, pursuant
to any contract, understanding, relationship, agreement or other
arrangement, whether written or otherwise. The term "beneficial
ownership" shall have the meaning defined in Rule 13d-3 of the
General Rules and Regulations under the Securities and Exchange
Act of 1934, as in effect on the date of filing of these
Articles.
D. Exclusion for Employee Benefit Plans, Directors,
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Officers, Employees and Certain Proxies. The restrictions
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contained in this Article XII shall not apply to (i) any
underwriter or member of an underwriting or selling group
involving a public sale or resale of securities of the
Corporation or a subsidiary thereof; provided, however, that
upon completion of the sale or resale of such securities, no
such underwriter or member of such selling group is a beneficial
owner of more than 10% of any class of equity security of the
Corporation, (ii) any proxy granted to one or more Continuing
Directors, as defined in Article XIII, by a stockholder of the
Corporation or (iii) any employee benefit plans of the
Corporation. In addition, the Continuing Directors, as defined
in Article XIII, the officers and employees of the Corporation
and its subsidiaries, the directors of subsidiaries of the
Corporation, the employee benefit plans of the Corporation and
its subsidiaries, entities organized or established by the
Corporation or any subsidiary thereof pursuant to the terms of
such plans and trustees and fiduciaries with respect to such
plans acting in such capacity shall not be deemed to be a group
with respect to their beneficial ownership of voting stock of
the Corporation solely by virtue of their being directors,
officers or employees of the Corporation or a subsidiary thereof
or by virtue of the Continuing Directors, as defined in Article
XIII, the officers and employees of the Corporation and its
subsidiaries and the directors of subsidiaries of the
Corporation being fiduciaries or beneficiaries of an employee
benefit plan of the Corporation or a subsidiary of the
Corporation. Notwithstanding the foregoing, no director,
officer or employee of the Corporation or any of its
subsidiaries or group of any of them shall be exempt from the
provisions of this Article XII should any such person or group
become a beneficial owner of more than 10% of any class of
equity security of the Corporation.
E. Determinations. A majority of the Continuing
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Directors, as defined in Article XIII, shall have the power to
construe and apply the provisions of this Article XII and to
make all determinations necessary or desirable to implement such
provisions, including but not limited to matters with respect to
(a) the number of shares beneficially owned by any person, (b)
whether a person has an agreement, arrangement or understanding
with another as to the matters referred to in the definition of
beneficial ownership, (c) the application of any other
definition or operative provision of this Article XII to the
given facts or (d) any other matter relating to the
applicability or effect of this Article XII. Any constructions,
applications, or determinations made by the Continuing Directors
pursuant to this Article XII in good faith and on the basis of
such information and assistance as was then reasonably available
for such purpose shall be conclusive and binding upon the
Corporation and its stockholders.
ARTICLE XIII
APPROVAL OF CERTAIN BUSINESS COMBINATIONS
In addition to any voting requirements under the Virginia
Stock Corporation Act, the stockholder vote required to approve
Business Combinations (as hereinafter defined) shall be as set
forth in this section.
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A. (1) Except as otherwise expressly provided in this
Article XIII, the affirmative vote of the holders of (i) at
least 80% of the outstanding shares entitled to vote thereon
(and, if any class or series of shares is entitled to vote
thereon separately, the affirmative vote of the holders of at
least 80% of the outstanding shares of each such class or
series), and (ii) at least a majority of the outstanding shares
entitled to vote thereon, not including shares deemed
beneficially owned by a Related Person (as hereinafter defined),
shall be required in order to authorize any of the following:
(a) any merger or consolidation of the
Corporation with or into a Related Person (as
hereinafter defined);
(b) any sale, lease, exchange, transfer or
other disposition, including without limitation, a
mortgage, or any other capital device, of all or any
Substantial Part (as hereinafter defined) of the
assets of the Corporation (including without
limitation any voting securities of a subsidiary) or
of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related
Person with or into the Corporation or a subsidiary
of the Corporation;
(d) any sale, lease, exchange, transfer or
other disposition of all or any Substantial Part of
the assets of a Related Person to the Corporation or
a subsidiary of the Corporation;
(e) the issuance of any securities of the
Corporation or a subsidiary of the Corporation to a
Related Person;
(f) the acquisition by the Corporation or a
subsidiary of the Corporation of any securities of a
Related Person;
(g) any reclassification of the common stock
of the Corporation, or any recapitalization
involving the common stock of the Corporation; and
(h) any agreement, contract or other
arrangement providing for any of the transactions
described in this Article.
(2) Such affirmative vote shall be required
notwithstanding any other provision of these Articles, any
provision of law, or any agreement with any regulatory
agency or national securities exchange which might
otherwise permit a lesser vote or no vote.
(3) The term "Business Combination" as used in
this Article XIII shall mean any transaction which is
referred to in any one or more of subparagraphs A(1)(a)
through (h) above.
B. The provisions of paragraph A shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as
is required by any other provision of these Articles, any
provision of law, or any agreement with any regulatory agency or
national securities exchange, if the Business Combination shall
have been approved by a two-thirds vote of the Continuing
Directors (as hereinafter defined); provided, however, that such
approval shall only be effective if obtained at a meeting at
which a Continuing Director Quorum (as hereinafter defined) is
present.
C. For the purposes of this Article XIII the following
definitions apply:
(1) The term "Related Person" shall mean and
include (a) any individual, corporation, partnership or
other person or entity which together with its
"affiliates" (as that term is defined in Rule 12b-2
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of the General Rules and Regulations under the Securities
Exchange Act of 1934), "beneficially owns" (as that term
is defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934) in
the aggregate 10% or more of the outstanding shares of the
common stock of the Corporation; and (b) any "affiliate"
(as that term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934) of any such individual,
corporation, partnership or other person or entity.
Without limitation, any shares of the common stock of the
Corporation which any Related Person has the right to
acquire pursuant to any agreement, or upon exercise or
conversion rights, warrants or options, or otherwise,
shall be deemed "beneficially owned" by such Related
Person.
(2) The term "Substantial Part" shall mean more
than 25 percent of the total assets of the Corporation, as
of the end of its most recent fiscal year ending prior to
the time the determination is made.
(3) 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 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 Continuing Directors then on the board.
(4) The term "Continuing Director Quorum" shall
mean two-thirds of the Continuing Directors capable of
exercising the powers conferred on them.
ARTICLE XIV
EVALUATION OF BUSINESS COMBINATIONS
In connection with the exercise of its judgment in
determining what is in the best interests of the Corporation and
of the stockholders, when evaluating a Business Combination (as
defined in Article XIII hereof) or a tender or exchange offer,
the board of directors of the Corporation may, in addition to
considering the adequacy of the amount to be paid in connection
with any such transaction, consider all of the following factors
and any other factors which it deems relevant; (i) the social
and economic effects of the transaction on the Corporation and
its subsidiaries, employees, depositors, loan and other
customers, creditors and other elements of the communities in
which the Corporation and its subsidiaries operate or are
located; (ii) the business and financial condition and earnings
prospects of the acquiring person or entity, including, but not
limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection
with the acquisition, and other likely financial obligations of
the acquiring person or entity, and the possible effect of such
conditions upon the Corporation and its subsidiaries and the
other elements of the communities in which the Corporation and
its subsidiaries operate or are located; and (iii) the
competence, experience, and integrity of the acquiring person or
entity and its or their management.
ARTICLE XV
LIMITATION OF OFFICERS' AND DIRECTORS' LIABILITY
An officer or director of the Corporation, as such, shall
not be liable to the Corporation or its stockholders for money
damages in any proceeding brought by or in the right of the
Corporation or brought by or on behalf of stockholders of the
Corporation, except to the extent otherwise required by Virginia
law. If Virginia law is amended or enacted after the date of
filing of these articles to further eliminate or limit the
personal liability of officers and directors, then the liability
of officers and directors of the Corporation shall be eliminated
or limited to the fullest extent permitted by Virginia law, as
so amended. Any repeal or modification of the foregoing
paragraph by the stockholders
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of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time
of such repeal or modification.
ARTICLE XVI
Indemnification
A. The Corporation shall indemnify, to the fullest
extent permissible under the Virginia Stock Corporation Act, any
individual who is or was a director, officer, employee or agent
of the Corporation, and any individual who serves or served at
the Corporation's request as a director, officer, partner,
trustee, employee or agent of another corporation, partnership,
joint venture, trust, other enterprise or employee benefit plan,
in any proceeding in which the individual is made a party as a
result of his service in such capacity.
B. (1) Reasonable expenses incurred by any person
identified in paragraph A of this Article XVI who is a party to
a proceeding will be paid or reimbursed by the Corporation in
advance of the final disposition of the proceeding upon receipt
by the Corporation of: (i) a written statement by such person
of his good faith belief that the standard of conduct necessary
for indemnification by the Corporation as authorized in this
Article XVI has been met; and (ii) a written undertaking by or
on behalf of such person to repay the amount if it shall
ultimately be determined that the standard of conduct has not
been met.
(2) The undertaking required by subparagraph (ii)
of paragraph (1) of this paragraph B shall be an unlimited
general obligation of such person but need not be secured and
may be accepted without reference to financial ability to make
the repayment.
C. Nonexclusive. The indemnification and advance
------------
payment of expenses provided by paragraphs A and B shall not be
exclusive of any other rights to which a person may be entitled
by law, bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise.
D. Continuation. The indemnification and advancement
------------
of expenses provided by this Article XVI shall be deemed to be a
contract between the Corporation and the persons entitled to
indemnification thereunder, and any repeal or modification of
this Article XVI shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore
existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state
of facts. The indemnification and advance payment provided by
paragraphs A and B shall continue as to a person who has ceased
to hold a position named in paragraph A and shall inure to his
or her heirs, executors and administrators.
E. Insurance. The Corporation shall purchase and
---------
maintain insurance on behalf of any person who holds or who has
held any position as a director or officer of the Corporation
against any liability incurred by him or her in any such
position, or arising out of his status as such, whether or not
the Corporation would have power to indemnify him or her against
such liability under paragraphs A and B.
F. Intention and Savings Clause. It is the intention
----------------------------
of this Article XVI to provide for indemnification to the
fullest extent permitted by the Virginia Stock Corporation Act,
and this Article XVI shall be interpreted accordingly. If this
Article XVI or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer,
employee, and agent of the Corporation as to costs, charges, and
expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement with respect to any action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable
portion of this Article XVI that shall not have been invalidated
and to the full extent permitted by applicable law. If the
Virginia Stock Corporation Act is amended, or other Virginia law
is enacted, to permit further or additional indemnification of
the
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persons defined in this Article XVI.A, then the indemnification
of such persons shall be to the fullest extent permitted by the
Virginia Stock Corporation Act, as so amended, or such other
Virginia law.
Any repeal or modification of the foregoing paragraph by
the stockholders of the Corporation shall not adversely affect
any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
ARTICLE XVII
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers
conferred by statute, the board of directors of the Corporation
is expressly authorized to adopt, repeal, alter, amend and
rescind the bylaws of the Corporation by a vote of two-thirds of
the board of directors. Notwithstanding any other provision of
these Articles or the bylaws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law), the bylaws shall not be adopted, repealed,
altered, amended or rescinded by the stockholders of the
Corporation except by the vote of the holders of not less than
80% 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 adoption, repeal, alteration,
amendment or rescission is included in the notice of such
meeting), or, as set forth above, by the board of directors.
ARTICLE XVIII
AMENDMENT OF ARTICLES OF INCORPORATION
The Corporation reserves the right to repeal, alter, amend
or rescind any provision contained in these Articles in the
manner now or hereafter prescribed by law, and all rights
conferred on stockholders herein are granted subject to this
reservation. Notwithstanding the foregoing, the provisions set
forth in Articles VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII
and this Article XVIII of these Articles may not be repealed,
altered, amended or rescinded in any respect unless the same is
approved by the affirmative vote of the holders of not less than
80% of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as a single 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); except that such repeal, alteration, amendment or
rescission may be made by the affirmative vote of the holders of
a majority of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors (considered for this purpose as a single class) if the
same is first approved by a majority of the Continuing
Directors, as defined in Article XIII of these Articles.
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EXHIBIT 99
PRESS RELEASE
MARCH 14, 2000
NEWSOUTH BANCORP, INC. FOR IMMEDIATE RELEASE
---------------------
For More Information Contact:
Bill Wall or Tom Vann
(252) 946-4178
NEWSOUTH BANCORP, INC.
CHANGES NAME TO FIRST SOUTH BANCORP, INC.
Washington, North Carolina - NewSouth Bancorp, Inc.
(Nasdaq:NSBC)
NewSouth Bancorp, Inc., the parent holding company of First
South Bank, announced that it has changed its name to First
South Bancorp, Inc.
Beginning with the opening of trading on the Nasdaq Stock Market
on Wednesday, March 15, 2000, the Company will begin trading
under the name of First South Bancorp, Inc. and under the Nasdaq
trading symbol FSBK.
The new CUSIP number for First South Bancorp, Inc. will be
33646W 10 0.
The Company will not reissue new stock certificates, as it will
continue to honor all outstanding stock certificates under the
previous name, NewSouth Bancorp, Inc. All stock certificates
issued to new stockholders, beginning March 15, 2000, will be
issued under the name of First South Bancorp, Inc.
First South Bank now serves eastern North Carolina from its main
office located in Washington, North Carolina with seventeen full
service branch offices located in Chocowinity, Greenville,
Elizabeth City, Fayetteville, Kinston, Lumberton, New Bern,
Rocky Mount, Tarboro and Washington, North Carolina.
(Nasdaq:NSBC)
