BYLAWS
OF
FIRST SOUTH BANCORP, INC.
ARTICLE I
PRINCIPAL EXECUTIVE OFFICE
The principal executive office of First South Bancorp, Inc. (herein the
"Corporation") shall be at 1311 Carolina Avenue, Washington, North Carolina
27889. The Corporation may also have offices at such other places within or
without the State of North Carolina as the board of directors shall from time to
time determine.
ARTICLE II
STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All annual and special meetings of
stockholders shall be held at the principal executive office of the Corporation
or at such other place within the United States as the board of directors may
determine and as designated in the notice of such meeting.
SECTION 2. ANNUAL MEETING. A meeting of the stockholders of the Corporation
for the election of directors and for the transaction of any other business of
the Corporation shall be held annually at such date and time as the board of
directors may determine.
SECTION 3. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose or purposes may be called at any time by the chairman, by the president,
by a majority of the board of directors or by a committee of the board of
directors in accordance with the provisions of the Corporation's Articles of
Incorporation.
SECTION 4. CONDUCT OF MEETINGS. Annual and special meetings shall be
conducted in accordance with these bylaws or as otherwise prescribed by the
board of directors. The chairman or chief executive officer of the Corporation
shall preside at such meetings.
SECTION 5. NOTICE OF MEETING. Written notice stating the place, day and
hour of the meeting and the purpose or purposes for which the meeting is called
shall be mailed by the secretary or the officer performing his duties, not less
than ten days nor more than sixty days before the meeting to each stockholder of
record entitled to vote at such meeting. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail, addressed to the
stockholder at his address as it appears on the stock transfer books or records
of the Corporation as of the record date prescribed in Section 6 of this Article
II, with postage thereon prepaid. If a stockholder is present in person or by
proxy at a meeting, unless the stockholder at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting, or in
writing waives notice thereof before or after the meeting, notice of the meeting
to such stockholder shall be unnecessary. When any stockholders' meeting, either
annual or special, is adjourned to a different date, time or place, it shall not
be necessary to give any notice of the date, time or place of any meeting or of
the business to be transacted at such adjourned meeting, other than an
announcement at the meeting at which such adjournment is taken. If a new record
date for the adjourned meeting is or shall be fixed under Section 6 of Article
II of these Bylaws, however, notice of the adjourned meeting shall be given
under this Section 5 to persons who are stockholders as of the new record date.
SECTION 6. FIXING OF RECORD DATE. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders, or
any adjournment thereof, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the board of
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directors shall fix in advance a date as the record date for any such
determination of stockholders. Such date in any case shall be not more than
seventy days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. A determination of stockholders
entitled to notice of or to vote at a stockholders' meeting is effective for any
adjournment of the meeting unless the board of directors fixes a new record
date, which it shall do if the meeting is adjourned to a date more than 120 days
after the date fixed for the original meeting.
SECTION 7. VOTING LISTS. The officer or agent having charge of the stock
transfer books for shares of the Corporation shall make, at lest ten days before
each meeting of stockholders, a complete record of the stockholders entitled to
vote at such meeting or any adjournment thereof, with the address of and the
number of shares held by each. The record, for a period of ten days before such
meeting, shall be kept on file at the registered office or the principal office
of the Corporation or at the office of the Corporation's transfer agent, whether
within or outside the State of North Carolina, and shall be subject to
inspection by any stockholder for any purpose germane to the meeting at any time
during usual business hours. Such record shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
stockholder for any purpose germane to the meeting during the whole time of the
meeting. The original stock transfer books shall be prima facie evidence as to
who are the stockholders entitled to examine such record or transfer books or to
vote at any meeting of stockholders.
SECTION 8. PROXIES. At all meetings of stockholders, a stockholder may vote
by proxy executed in writing by the stockholder or by his duly authorized
attorney in fact. Proxies solicited on behalf of the management shall be voted
as directed by the stockholder or, in the absence of such direction, as
determined by a majority of the board of directors. No proxy shall be valid
after eleven months from the date of its execution unless otherwise provided in
the proxy.
SECTION 9. VOTING. Except as otherwise specified in the Articles of
Incorporation, at each election for directors every stockholder entitled to vote
at such election shall be entitled to one vote for each share of stock held by
him. Unless otherwise provided in the Articles of Incorporation, by statute, or
by these Bylaws, a majority of those votes cast by stockholders at a lawful
meeting shall be sufficient to pass on a transaction or matter which properly
comes before the meeting, except that a plurality of all the votes cast at a
meeting at which a quorum is present is sufficient to elect a director
SECTION 10. VOTING OF SHARES IN THE NAME OF TWO OR MORE PERSONS. When
ownership of stock stands in the name of two or more persons, in the absence of
written directions to the Corporation to the contrary, at any meeting of the
stockholders of the Corporation any one or more of such stockholders may cast,
in person or by proxy, all votes to which such ownership is entitled. In the
event an attempt is made to cast conflicting votes, in person or by proxy, by
the several persons in whose name shares of stock stand, the vote or votes to
which these persons are entitled shall be cast proportionally in proportion to
the number of persons voting.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by any officer, agent or proxy as the
bylaws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine. Shares held by an
administrator, executor, guardian, conservator, committee or curator
representing the stockholder may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing in the name of
a trustee may be voted by him, either in person or by proxy, but no trustee
shall be entitled to vote shares held by him without a transfer of such shares
into his name. Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority to do so
is contained in an appropriate order of the court or other public authority by
which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares held by another corporation, if a majority of the shares entitled to
vote for the election of directors of such other corporation are held by the
Corporation, shall not be voted at any meeting or counted in determining the
total number of outstanding shares at any given time for purposes of any
meeting.
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SECTION 12. INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the board of directors may appoint one or more persons, other than
nominees for office, as inspectors of election to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the person
presiding at the meeting shall make such appointment at the meeting. In case any
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment by the board of directors in advance of the
meeting or at the meeting by the person presiding at the meeting.
Unless otherwise prescribed by applicable law, the duties of such
inspectors shall include: determining the number of shares of stock and the
voting power of each share, the shares of stock represented at the meeting, the
existence of a quorum, the authenticity, validity and effect of proxies;
receiving votes, ballots or consents; hearing and determining all challenges and
questions in any way arising in connection with the right to vote; counting and
tabulating all votes or consents; determining the result; and such acts as may
be proper to conduct the election or vote with fairness to all stockholders.
SECTION 13. NOMINATING COMMITTEE. The board of directors or a committee
appointed by the board of directors shall act as a nominating committee for
selecting the nominees for election as directors. Except in the case of a
nominee substituted as a result of the death or other incapacity of a management
nominee, the nominating committee shall deliver written nominations to the
secretary at least twenty days prior to the date of the annual meeting. Provided
such committee makes such nominations, no nominations for directors except those
made by the nominating committee shall be voted upon at the annual meeting
unless other nominations by stockholders are made in writing and delivered to
the secretary of the Corporation in accordance with the provisions of the
Corporation's Articles of Incorporation.
SECTION 14. NEW BUSINESS. Any new business to be taken up at the annual
meeting shall be stated in writing and filed with the secretary of the
Corporation in accordance with the provisions of the Corporation's Articles of
Incorporation. This provision shall not prevent the consideration and approval
or disapproval at the annual meeting of reports of officers, directors and
committees, but in connection with such reports no new business shall be acted
upon at such annual meeting unless stated and filed as provided in the
Corporation's Articles of Incorporation.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be under the direction of its board of directors. The chairman shall
preside at all meetings of the board of directors.
SECTION 2. NUMBER, TERM AND ELECTION. The board of directors shall
initially consist of seven members and thereafter shall consist of such number
of members as determined by the board of directors from time to time in
accordance with the provisions of the Corporation's Articles of Incorporation.
The board of directors shall be divided into three classes as nearly equal in
number as possible. The members of each class shall be elected for a term of
three years and until their successors are elected or qualified. The board of
directors shall be classified in accordance with the provisions of the
Corporation's Articles of Incorporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors
shall be held at such time and place as shall be determined by resolution of the
board of directors without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors may
be called by or at the request of the chairman, the chief executive officer, or
one-third of the directors. The person calling the special meeting of the board
of directors may fix any place as the place for holding any special meeting of
the board of directors called by such person.
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Members of the board of directors may participate in regular or special
meetings by means of conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each other. Such
participation shall constitute presence in person.
SECTION 5. NOTICE. Written notice of any special meeting shall be given to
each director at least two days previous thereto delivered personally or by
telegram or at least seven days previous thereto delivered by mail at the
address at which the director is most likely to be reached. Such notice shall be
deemed to be delivered when deposited in the United States mail so addressed,
with postage thereon prepaid if mailed or when delivered to the telegraph
company if sent by telegram. Any director may waive notice of any meeting by a
writing filed with the secretary. The attendance or participation of a director
at a meeting shall constitute a waiver of notice of such meeting, except where a
director at the beginning of a meeting or promptly upon his or her arrival
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any meeting of the board of
directors need be specified in the notice or waiver of notice of such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by Section 2
of this Article III shall constitute a quorum for the transaction of business at
any meeting of the board of directors, but if less than such majority is present
at a meeting, a majority of the directors present may adjourn the meeting from
time to time. Notice of any adjourned meeting shall be given in the same manner
as prescribed by Section 5 of this Article III.
SECTION 7. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors, unless a greater number is prescribed by these Bylaws, the
Corporation's Articles of Incorporation, or the Virginia Stock Corporation Act.
SECTION 8. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the board of directors at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors and filed with the minutes or proceedings of the board of
directors.
SECTION 9. RESIGNATION. Any director may resign at any time by sending a
written notice of such resignation to the principal executive office of the
Corporation addressed to the board of directors, the chairman, the president or
the secretary. Unless otherwise specified in such written notice, such
resignation shall take effect upon delivery of the notice in accordance with the
terms of the preceding sentence.
SECTION 10. VACANCIES. Any vacancy occurring in the board of directors
shall be filled in accordance with the provisions of the Corporation's Articles
of Incorporation. The term of any director elected or appointed to fill a
vacancy shall be in accordance with the provisions of the Corporation's Articles
of Incorporation.
SECTION 11. REMOVAL OF DIRECTORS. Any director or the entire board of
directors may be removed only in accordance with the provisions of the
Corporation's Articles of Incorporation.
SECTION 12. COMPENSATION. Directors, as such and advisory or emeritus
directors, may receive compensation for service on the board of directors.
Members of either standing or special committees may be allowed such
compensation as the board of directors may determine.
SECTION 13. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
(i) he objects at the beginning of the meeting, or promptly upon his arrival, to
holding it or transacting specified business at the meeting, or (ii) he votes
against, or abstains from, the action taken.
SECTION 14. ADVISORY AND EMERITUS DIRECTORS. The board of directors may by
resolution appoint as advisory directors individuals whom the board believes
possess knowledge, experience and other qualifications which may prove valuable
to the Corporation, and may appoint as emeritus directors individuals who have
retired from the board after extended and faithful service. Advisory and
emeritus directors may sit with the board of directors at regular and special
meetings and discuss any question under consideration; provided, however, that
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advisory and emeritus directors shall cast no vote. The board of directors shall
have the power to remove any advisory or emeritus director with or without cause
at any time.
SECTION 15. AGE LIMITATION. No person shall be eligible for election,
reelection, appointment, or reappointment to the board of directors if such
person is then more than 80 years of age. No director shall serve beyond the
annual meeting of the Corporation immediately following his attainment of 80
years of age. Persons may serve as advisory directors or emeritus directors
without regard to age.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, as they may determine to be necessary
or appropriate for the conduct of the business of the Corporation, and may
prescribe the duties, constitution and procedures thereof. Each committee shall
consist of one or more directors of the Corporation appointed by a majority of
the whole board. The board of directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee.
The board of directors shall have power at any time to change the members
of, to fill vacancies in, and to discharge any committee of the board. Any
member of any such committee may resign at any time by giving notice to the
Corporation; provided, however, that notice to the board of directors, the
chairman, the chief executive officer, the chairman of such committee, or the
secretary shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective. Any member of any such
committee may be removed at any time, either with or without cause, by the
affirmative vote of a majority of the authorized number of directors at any
meeting of the board of directors called for that purpose.
ARTICLE V
OFFICERS
SECTION 1. POSITIONS. The officers of the Corporation shall be a chairman,
a vice chairman, a president, one or more vice presidents, a secretary and a
treasurer, each of whom shall be elected by the board of directors. The board of
directors may designate one or more vice presidents as executive vice president
or senior vice president. The board of directors may also elect or authorize the
appointment of such other officers as the business of the Corporation may
require. The officers shall have such authority and perform such duties as the
board of directors may from time to time authorize or determine. In the absence
of action by the board of directors, the officers shall have such powers and
duties as generally pertain to their respective offices.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of the stockholders. If the
election of officers is not held at such meeting, such election shall be held as
soon thereafter as possible. Each officer shall hold office until his successor
shall have been duly elected and qualified or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Election
or appointment of an officer, employee or agent shall not of itself create
contract rights. The board of directors may authorize the Corporation to enter
into an employment contract with any officer in accordance with state law; but
no such contract shall impair the right of the board of directors to remove any
officer at any time in accordance with Section 3 of this Article V.
SECTION 3. REMOVAL. Any officer may be removed by vote of two-thirds of the
board of directors whenever, in its judgment, the best interests of the
Corporation will be served thereby, but such removal, other than for cause,
shall be without prejudice to the contract rights, if any, of the person so
removed.
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SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. REMUNERATION. The remuneration of the officers shall be fixed
from time to time by the board of directors, and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director of
the Corporation.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. To the extent permitted by applicable law, and except
as otherwise prescribed by the Corporation's Articles of Incorporation or these
Bylaws with respect to certificates for shares, the board of directors or the
executive committee may authorize any officer, employee, or agent of the
Corporation to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation. Such authority may be general or
confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the Corporation
and no evidence of indebtedness shall be issued in its name unless authorized by
the board of directors. Such authority may be general or confined to specific
instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by one or more officers, employees or agents of
the Corporation in such manner, including in facsimile form, as shall from time
to time be determined by resolution of the board of directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in any of
its duly authorized depositories as the board of directors may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. The shares of the Corporation shall be
represented by certificates signed by the chairman of directors or by the
president or a vice president and by the treasurer or an assistant treasurer or
by the secretary or an assistant secretary of the Corporation, and may be sealed
with the seal of the Corporation or a facsimile thereof. Any or all of the
signatures upon a certificate may be facsimiles if the certificate is
countersigned by a transfer agent, or registered by a registrar, other than the
Corporation itself or an employee of the Corporation. If any officer who has
signed or whose facsimile signature has been placed upon such certificate shall
have ceased to be such officer before the certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer at the
date of its issue.
SECTION 2. FORM OF SHARE CERTIFICATES. All certificates representing shares
issued by the Corporation shall set forth upon the face or back that the
Corporation will furnish to any stockholder upon written request and without
charge a full statement of the designations, relative rights, preferences, and
limitations applicable to each class and the variations in rights, preferences,
and limitations determined for each series (and the authority of the board of
directors to determine variations for future series).
Each certificate representing shares shall state upon the face thereof: the
name of the Corporation; that the Corporation is organized under the laws of the
Commonwealth of Virginia; the name of the person to whom issued; the number and
class of shares; the date of issue; the designation of the series, if any, which
such certificate represents; the par value of each share represented by such
certificate, or a statement that the shares are without par value. Other matters
in regard to the form of the certificates shall be determined by the board of
directors.
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SECTION 3. PAYMENT FOR SHARES. The consideration for the issuance of shares
shall be paid in accordance with the provisions of the Corporation's Articles of
Incorporation.
SECTION 4. TRANSFER OF SHARES. Transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books. Authority for such
transfer shall be given only by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of such authority, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Corporation. Such transfer shall be made only on surrender for cancellation
of the certificate for such shares. The person in whose name shares of capital
stock stand on the books of the Corporation shall be deemed by the Corporation
to be the owner thereof for all purposes.
SECTION 5. LOST CERTIFICATES. The board of directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. When authorizing such issue of a new certificate,
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen, or destroyed
certificate, or his legal representative, to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed.
ARTICLE VIII
FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall end on the last day of September
of each year. The Corporation shall be subject to an annual audit as of the end
of its fiscal year by independent public accountants appointed by and
responsible to the board of directors.
ARTICLE IX
DIVIDENDS
Subject to the provisions of the Corporation's Articles of Incorporation
and applicable law, the board of directors may, at any regular or special
meeting, declare dividends on the Corporation's outstanding capital stock.
Dividends may be paid in cash, in property or in the Corporation's own stock.
ARTICLE X
CORPORATE SEAL
The corporate seal of the Corporation shall be in such form as the board of
directors shall prescribe.
ARTICLE XI
AMENDMENTS
In accordance with the Corporation's Articles of Incorporation, these
Bylaws may be repealed, altered, amended or rescinded by the stockholders of the
Corporation only by vote 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
repeal, alteration, amendment or rescission is included in the notice of such
meeting). In addition, the board of directors may repeal, alter, amend or
rescind these Bylaws by vote of two-thirds of the board of directors at a legal
meeting held in accordance with the provisions of these Bylaws.
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