As filed with the Securities and Exchange Commission on May 9, 2008
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
COOPERATIVE BANKSHARES, INC.
(exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1886527
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 MARKET STREET
WILMINGTON, NORTH CAROLINA 28401
(910) 343-0181
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
COOPERATIVE BANKSHARES, INC.
STOCK-BASED RETIREMENT PLAN FOR DIRECTORS
(Full Title of the Plan)
------------------------
COPIES TO:
ERIC S. KRACOV
FREDERICK WILLETTS, III EDWARD G. OLIFER
PRESIDENT AND CHIEF EXECUTIVE OFFICER KILPATRICK STOCKTON LLP
COOPERATIVE BANKSHARES, INC. SUITE 900
201 MARKET STREET 607 14TH STREET, NW
WILMINGTON, NORTH CAROLINA 28401 WASHINGTON, D.C. 20005
(910) 343-0181 (202) 508-5800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
===================================================================================================================
Title of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount Offering Price Per Aggregate Offering Registration Fee
Registered to be Registered Unit Price (2)
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$1.00
Common Stock 19,268(1) $9.93 $191,324 $8.00
===================================================================================================================
(1) The shares being registered are offered under the Cooperative Bankshares,
Inc. Stock-Based Retirement Plan for Directors (the "Plan") and are
unsecured obligations of Cooperative Bankshares, Inc. to pay deferred
compensation in the future in accordance with the terms and conditions of
the Plan.
(2) Calculated in accordance with Rule 457(h) of the Securities Act of 1933 as
amended, solely for the purpose of calculating the registration fee.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND 17 C.F.R. SECTION 230.462.
COOPERATIVE BANKSHARES, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 & 2. The document containing the information for the Cooperative
Bankshares, Inc. Stock-Based Retirement Plan for Directors (the "Plan")
specified by Part I of this Registration Statement will be sent or given to the
participants in the Plan as specified by Rule 428(b)(1). Said document need not
be filed with the Securities and Exchange Commission (the "SEC") either as a
part of this Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424 in reliance on Rule 428. Said document and the information
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus for the Registration
Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed by Cooperative Bankshares,
Inc. (the "Registrant" or the "Corporation") with the SEC are incorporated by
reference in this Registration Statement:
(a) The Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 2007, which includes the consolidated statement of financial
condition of the Registrant and its subsidiary as of December 31, 2007 and 2006
and the related consolidated statements of operations, comprehensive income,
stockholders' equity and cash flows for each of the years in the three-year
period ending December 31, 2007, filed with the SEC on March 14, 2008 (File No.
000-24626).
(b) The Corporation's Current Report on Form 8-K filed with the SEC on
April 29, 2008 (except those portions filed under Items 2.02, 7.01 and 9.01 of
form 8-K) (File No. 000-24626).
(c) The description of the Registrant's common stock contained in the
Registrant's Form 8-A 12G (File No. 000-24626), as filed with the SEC pursuant
to Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act"),
and rule 12b-15 promulgated thereunder.
(d) All documents filed by the Registrant, pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which deregisters all securities then remaining unsold
(in each case other than those portions furnished under Items 2.02. 7.01 and
9.01 of Form 8-K).
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A
DOCUMENT INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE
DEEMED TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT
TO THE EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY
FILED DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY
REFERENCE HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO
MODIFIED OR SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED,
TO CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Plan has been registered
pursuant to Section 12(b) of the Exchange Act. Accordingly, a description of the
Common Stock is not required herein.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock offered hereby has been passed upon
for the Registrant by the firm of Kilpatrick Stockton LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
GENERAL. Directors and officers of the Corporation may be entitled to
indemnification provisions contained in the North Carolina Business Corporation
Act (the "NCBCA") and the Corporation's Articles of Incorporation, as amended.
The general effect of these provisions is summarized below:
ARTICLES OF INCORPORATION. The Articles of Incorporation of the
Corporation provides that in addition to and apart from the indemnification
provided for in the North Carolina Business Corporation Act or a successor
statute, the Corporation shall provide indemnification to its directors as
follows:
(a) Indemnity. Any person who at any time serves or has served as a
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director of the Corporation shall have a right to be indemnified by the
Corporation to the full extent allowed by applicable law against liability and
litigation expense arising out of or connected with such status or activities in
such capacity. "Liability and litigation expense" shall include costs and
expenses of litigation (including reasonable attorneys fees), judgments, fines
and amounts paid in settlement which are actually and reasonably incurred in
connection with or as a consequence of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including appeals. In no circumstances, however, shall the
Corporation indemnify any such person against any liability or litigation
expense incurred on account of activities which were at the time taken known or
believed by such person to be clearly in conflict with the best interests of the
Corporation.
(b) Determination of Right to Indemnity. Promptly after the final
-----------------------------------
disposition or termination of any matter which involves liability or litigation
expense as described in Section A above or at such earlier time as it sees fit,
the Corporation shall determine whether any person described in Section A of
this Article is entitled to indemnification thereunder. Such determination shall
be limited to the following issues: (i) whether the persons to be indemnified
are persons described in Section A above, (ii) whether the liability or
litigation expense incurred arose out of the status or activities of such
persons as described in Section A , (iii) whether the liability was actually
incurred and litigation expense was actually and reasonably incurred, and (iv)
whether the liability and litigation expense were incurred on account of
activities which were at the time taken known or believed by such person to be
clearly in conflict with the best interests of the Corporation. Such
determination shall be made by a majority vote of directors who were not parties
to the action, suit or proceeding (or, in connection with "threatened" actions,
suits or proceedings, who were not "threatened parties"). If at least two such
disinterested directors are not obtainable, or, even if obtainable, if at least
half of the number of disinterested directors so direct, such determination
shall be made by independent legal counsel in written opinion.
(c) Advance Expenses. (i) Litigation expense incurred by a person
----------------
described in Section A of this Article in connection with a matter described in
Section A shall be paid by the Corporation in advance of the final disposition
of the matter, if the Corporation receives an undertaking, dated, in writing and
signed by the person to be indemnified, to repay all such sums unless such
person is ultimately determined as provided in Section B above to be entitled to
be indemnified by the Corporation. Requests for payments in advance of final
disposition or termination shall be submitted in writing to the Corporation
unless this requirement is waived by the Corporation. Before the first such
payment is made, the Corporation shall have received the written undertaking
referred to herein and notice of the request for advance payment shall have been
given to the members of the board of directors.
2
(ii) Notwithstanding the foregoing subsection (i), no advance
payment shall be made as to any payment or portion of a payment for which the
determination is made that the person requesting payment will not be entitled to
indemnification. Such determination may be made only by a majority vote of
disinterested directors or by independent legal counsel as next provided. If
there are not at least two disinterested directors, then notice of all requests
for advance payment shall be delivered for review to independent legal counsel
for the Corporation. Such counsel shall have the authority to disapprove any
advance payment or portion of a payment for which it plainly and unavoidably
appears that the person requesting payment will not be entitled to
indemnification.
(d) Settlements. The Corporation shall not be obligated to indemnify
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persons described in Section A of this Article 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 shall waive the requirement of this Section for its
written consent as fairness and equity may require.
(e) Application for Indemnity or Advances. (i) A person described in
-------------------------------------
Section A above may apply to the Corporation in writing for indemnification or
to advance expenses. Such application shall be addressed to the secretary, or,
in the absence of the secretary, to any officer of the Corporation. The
Corporation shall respond in writing to such applications as follows: to a
request for indemnity under Section B, within ninety days after receipt of the
application; to a request for advance expenses under Section C, within fifteen
days after receipt of the application.
(ii) The right to indemnification or advance expenses provided
herein shall be enforceable in any court of competent jurisdiction. A legal
action may be commenced if a claim for indemnity or advance expenses is denied
in whole or in part, or upon the expiration of the time periods provided in the
preceding subsection (i). In any such action, the claimant shall be entitled to
prevail upon establishing that he or she is entitled to indemnification or
advance expenses but the Corporation shall have the burden of establishing, as a
defense, that the liability or expense was incurred on account of activities
which were, at the time taken, known or believed by the claimant to be clearly
in conflict with the best interests of the Corporation. In any such action, if
the claimant establishes the right to indemnification, he or she shall also have
the right to be indemnified against the litigation expense (including a
reasonable attorney's fee) of such action.
(f) Incidents of Right of Indemnification. The right of
-------------------------------------
indemnification provided herein shall not be deemed exclusive of any other
rights to which any persons seeking indemnity may be entitled apart from the
provisions of this Article, except there shall be no right to indemnification as
to any liability or litigation expense for which such person is entitled to
receive payment under any insurance policy other than a directors' and officers'
liability insurance policy maintained by the Corporation. Such right shall inure
to the benefit of the heirs and legal representatives of any persons entitled to
such right. Any person who at any time after the adoption of this Article serves
or has served in any status or capacity described in Section A of this Article,
shall be deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein. Any repeal or
modification of this Article shall not affect any rights or obligations then
existing. The right provided herein shall not apply as to persons serving
corporations that are hereafter merged into or combined with the Corporation,
except after the effective date of such merger or combination and only as to
status and activities after such date.
(g) Savings Clause. If this Article or any portion hereof shall be
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invalidated on any ground by any court or agency of competent jurisdiction, then
the Corporation shall nevertheless indemnify each person described in Section A
of this Article to the full extent permitted by the portion of this Article that
is not invalidated and also to the full extent (not exceeding the benefits
described herein) permitted or required by other applicable law.
3
NORTH CAROLINA BUSINESS CORPORATION ACT. Sections 55-8-50 through
55-8-58 of the NCBCA contain provisions prescribing the extent to which
directors and officers shall or may be indemnified. Section 55-8-51 of the NCBCA
permits a corporation, with certain exceptions, to indemnify a present or former
director against liability if (i) the director conducted himself in good faith,
(ii) the director reasonably believed (x) that the director's conduct in the
director's official capacity with the corporation was in its best interests and
(y) in all other cases the director's conduct was at least not opposed to the
corporation's best interests, and (iii) in the case of any criminal proceeding,
the director had no reasonable cause to believe the director's conduct was
unlawful. A corporation may not indemnify a director in connection with a
proceeding by or in the right of the corporation in which the director was
adjudged liable to the corporation or in connection with a proceeding charging
improper personal benefit to the director. The above standard of conduct is
determined by the board of directors, or a committee or special legal counsel or
the shareholders as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the NCBCA require a corporation to
indemnify a director or officer in the defense of any proceeding to which the
director or officer was a party against reasonable expenses when the director or
officer is wholly successful in the director's or officer's defense, unless the
articles of incorporation provide otherwise. Upon application, the court may
order indemnification of the director or officer if the director or officer is
adjudged fairly and reasonably so entitled under Section 55-8-54.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
The foregoing is only a general summary of certain aspects of North
Carolina law dealing with indemnification of directors and officers and does not
purport to be complete. It is qualified in its entirety by reference to the
relevant statutes, which contain detailed specific provisions regarding the
circumstances under which and the person for whose benefit indemnifications
shall or may be made.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
None.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
List of Exhibits (filed herewith unless otherwise noted):
5 Opinion of Kilpatrick Stockton LLP as to the legality of
the common stock to be issued.
10.1 Cooperative Bankshares, Inc. Stock-Based Retirement Plan for
Directors(1)
23.1 Consent of Kilpatrick Stockton LLP
(contained in the Opinion included as Exhibit 5)
23.2 Consent of Dixon Hughes PLLC
24 Power of Attorney (contained on the signature pages).
-----------------------------
(1) Incorporated herein by reference to Appendix A of the Corporation's
Definitive Proxy Statement filed with the SEC on March 24, 2008 (File No.
000-24626)
4
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement unless the information
or prospectus required by (i) and (ii) is contained in periodic reports filed by
the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference into this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering; and
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in
the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in such Act and will be governed by the final
adjudication of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cooperative
Bankshares, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Wilmington, State of North Carolina on May 9,
2008.
COOPERATIVE BANKSHARES, INC.
By: /s/ Frederick Willetts, III
--------------------------------------
Frederick Willetts, III
President and Chief Executive Officer
(principal executive officer)
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Frederick Willetts, III, as the true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities to sign any or all amendments to the Form S-8 registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the United States Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and things requisite and necessary to be done as
fully, and to all intents and purposes, as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Name Title Date
---- ----- ----
/s/ Frederick Willetts, III President, Chief Executive May 9, 2008
-------------------------------- Officer and Chairman
Frederick Willetts, III (principal executive officer)
/s/ Todd L. Sammons Senior Vice President and May 9, 2008
-------------------------------- Chief Financial Officer
Todd L. Sammons (principal financial and
accounting officer)
/s/ F. Peter Fensel, Jr. Director May 9, 2008
--------------------------------
F. Peter Fensel, Jr.
/s/ James D. Hundley Director May 9, 2008
--------------------------------
James D. Hundley
6
/s/ H. Thompson King, III Director May 9, 2008
--------------------------------
H. Thompson King, III
/s/ R. Allen Rippy Director May 9, 2008
--------------------------------
R. Allen Rippy
/s/ O. Richard Wright, Jr. Director May 9, 2008
--------------------------------
O. Richard Wright, Jr.
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EXHIBIT INDEX
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Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
------------------- --------------------------------------------- -------------------------------- ----------------
5 Opinion of Kilpatrick Stockton LLP Filed herewith.
10.1 Cooperative Bankshares, Inc. Incorporated herein by
Stock-Based Retirement Plan for Directors reference.
23.1 Consent of Kilpatrick Stockton LLP Contained in the Opinion
included as Exhibit 5.0.
23.2 Consent of Dixon Hughes PLLC Filed herewith.
24 Power of Attorney Located on the signature page.
8