-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SWo/20c37FfZGvs2iccTRCKGvkyxmaREVkNkOSo+K/6YnYRXernSYBnYPoN4+wfo iISbJa7Oyaal45WrBq+fHQ== 0000904280-03-000011.txt : 20030212 0000904280-03-000011.hdr.sgml : 20030212 20030211175420 ACCESSION NUMBER: 0000904280-03-000011 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030212 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COOPERATIVE BANKSHARES INC CENTRAL INDEX KEY: 0000923529 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTIONS, NOT FEDERALLY CHARTERED [6036] IRS NUMBER: 561886527 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-46560 FILM NUMBER: 03551129 BUSINESS ADDRESS: STREET 1: 201 MARKET ST CITY: WILMINGTON STATE: NC ZIP: 28401 BUSINESS PHONE: 9103430181 MAIL ADDRESS: STREET 1: PO BOX 600 CITY: WILMINGTON STATE: NC ZIP: 28402 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WILLETTS FREDERICK III CENTRAL INDEX KEY: 0000930305 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 201 MARKET ST STREET 2: PO BOX 600 CITY: WILMINGTON STATE: NC ZIP: 28402 BUSINESS PHONE: 9193430181 MAIL ADDRESS: STREET 1: 201 MARKET ST STREET 2: PO BOX 600 CITY: WILMINGTON STATE: NC ZIP: 28402 SC 13D/A 1 schedule13da5-willetts.txt SCHEDULE 13D - AMENDMENT #5 - COOPERATIVE SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________ SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 5) Cooperative Bankshares, Inc. ---------------------------- (Name of Issuer) Common Stock, par value $1.00 per share --------------------------------------- (Title of Class of Securities) 216844 10 0 -------------- (CUSIP Number) Frederick Willetts, III Cooperative Bank 201 Market Street P.O. Box 600 Wilmington, North Carolina 28402-0600 (910) 343-0181 ------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) N/A ------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ] - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: Frederick Willetts, III I.R.S. IDENTIFICATION NOS. OF REPORTING PERSON (ENTITIES ONLY) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS PF, OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- NUMBER OF SOLE VOTING POWER 327,378 SHARES ------------------------------------------------------- BENEFICIALLY SHARED VOTING POWER 165,669 OWNED BY ------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 141,468 REPORTING ------------------------------------------------------- PERSON SHARED DISPOSITIVE POWER 165,669 WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 493,047 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 2 - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: Cooperative Bank 401(k) Supplemental Retirement Plan I.R.S. IDENTIFICATION NOS. OF REPORTING PERSON (ENTITIES ONLY) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] - -------------------------------------------------------------------------------- (b) [ ] 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- NUMBER OF SOLE VOTING POWER 0 SHARES ---------------------------------------------------- BENEFICIALLY SHARED VOTING POWER 0 OWNED BY ---------------------------------------------------- EACH SOLE DISPOSITIVE POWER 202,910 REPORTING ---------------------------------------------------- PERSON SHARED DISPOSITIVE POWER 0 WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 202,910 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON EP - -------------------------------------------------------------------------------- 3 The undersigned hereby amends the Schedule 13D filing made on September 19, 1994 (the "Schedule 13D"), as amended by amendment #1 on February 20, 1996, by amendment #2 on September 15, 1998, by amendment #3 on January 31, 2000 and by amendment #4 on April 11, 2002, pursuant to Rule 13d-2(a) under the Securities Exchange Act of 1934, as amended, as set forth below. As disclosed in amendment #4, Mr. Willetts became a named fiduciary with respect to the Cooperative Bank for Savings, Inc., SSB 401(k) Supplemental Retirement Plan (the "401(k) Plan") with sole power to direct the voting of shares of Cooperative Bankshares, Inc. common stock held by the 401(k) Plan. The 401(k) Plan previously filed a Schedule 13G and various amendments thereto with respect to its ownership of shares of Cooperative Bankshares, Inc. common stock. The 401(k) Plan became a party to Mr. Willetts Schedule 13D in Amendment No. 4. Item 1. Security and Issuer - ------ ------------------- The class of equity securities to which this statement relates is the common stock, par value $1.00 per share (the "Common Stock"), of Cooperative Bankshares, Inc. (the "Issuer"). The executive office of the Issuer is located at 201 Market Street, P.O. Box 600, Wilmington, North Carolina 28402-0600. Item 2. Identity and Background - ------ ----------------------- (a) This Statement is filed by: Name: Frederick Willetts, III Name: Cooperative Bank Supplemental Retirement Plan Unless otherwise specified herein, Mr. Willetts and the 401(k) Plan are collectively referred to herein as the Reporting Persons. (b) Address: 201 Market Street, P.O. Box 600, Wilmington, North Carolina 28402-0600 (for both Reporting Persons) 4 (c) Present Principal Occupation: Mr. Willetts: Director, President, and Chief Executive Officer of the Issuer. The 401(k) Plan is an employee benefit plan maintained by the Issuer. (d) Criminal Proceeding Convictions: None (e) Securities Law Proceedings: None (f) Citizenship: United States Item 3. Source and Amount of Funds or Other Consideration - ------ ------------------------------------------------- All shares shown as to which Mr. Willetts has sole voting and sole dispositive power were purchased with Mr. Willett's personal funds except for 500 shares that he received as a gift and a total of 22,597 shares owned by trusts for which he serves as sole trustee. Shares for which Mr. Willetts has sole voting but not dispositive power are the 202,910 shares held by the 401(k) Plan. Mr. Willetts holds sole dispositive power (but no voting power) with respect to the 17,000 shares of common stock which may be purchased by him pursuant to the exercise of currently exercisable options. Beneficial ownership for the shares shown as to which Mr. Willetts has shared voting and shared dispositive power was acquired without payment as follows: (i) the reporting person became beneficial owner of 70,310 shares when he became co-trustee of the Eleanor J. H. Willetts Irrevocable Trust; (ii) Mr. Willetts also serves as co-trustee of the Frederick Willetts, III, Helen Margaret Willetts and Elizabeth Messick Willetts Trust which holds 21,385 shares; and (iii) he also may be deemed to be the beneficial owner of 1,478 shares owned by his spouse and the 435 shares for which his spouse serves as custodian for their children. Due to the fact that Mr. Willetts holds general powers of attorney for his mother and his two sisters, he may also be deemed to share voting and dispositive power with respect to: (i) 55,833 shares held by his mother and her IRA account; (ii) 12,590 shares held by his sister, Helen Margaret Willetts and 5 1,482 shares for which she serves as custodian and trustee; and (iii) 2,156 shares owned by his sister, Elizabeth M. Willetts. Copies of the powers of attorney are filed as Exhibits 99.1-99.3 hereto. These powers of attorney were not entered into in connection with the ownership of the Common Stock nor has Mr. Willetts exercised voting and dispositive power with respect to these shares. As such, he disclaims beneficial ownership of these shares. The 401(k) Plan holds dispositive power only with respect to the 202,910 shares it holds in the plan. The 401(k) Plan was originally structured as a combined employee stock ownership plan and 401(k) Plan. 84,374 shares were purchased by the ESOP through a loan which has been repaid in full. The remaining 118,536 shares held by the 401(k) Plan were purchased through the deferral of participants income pursuant to the terms of the 401(k) Plan and matching contributions by the Bank. Item 4. Purpose of Transaction - ------ ---------------------- The shares covered by this statement are being held for investment purposes. Depending upon a continuing assessment, and upon future developments, the reporting person may determine, from time to time or at any time, to purchase additional shares of the Issuer for investment or dispose of shares of the Issuer's Common Stock. As President and Chief Executive Officer of the Issuer, Mr. Willetts regularly explores potential actions and transactions which may be advantageous to the Issuer, including possible mergers, acquisitions, reorganizations or other material changes in the business, corporate structure, management policies, governing instruments, securities or regulatory or reporting obligations of the Issuer. As a member of the board of directors of the Issuer, Mr. Willetts regularly reviews the Issuer's capital management strategies. Mr. Willetts, as trustee of his sister's trust, his father's trust and 6 his childrens' trust, may dispose of shares in accordance with his role as trustee. In accordance with the rules and regulations of the Federal Reserve Board under the Change in Bank Control Act, Mr. Willetts, together with shares held by family members and the 401(k) Plan is deemed to own in excess of 10% of the outstanding shares of Issuer Common Stock and was required to obtain the prior approval of the Federal Reserve Board before becoming the named fiduciary with respect to the 401(k) Plan. Such approval was obtained from the Federal Reserve Board on April 1, 2002. Except as noted above with respect to Mr. Willetts' activities on behalf of the Issuer, Mr. Willetts has no plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer, except as described above; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors; (e) any material change in the present capitalization or dividend policy of the Issuer; (f) any other material change in the Issuer's business or corporate structure; (g) changes in the Issuer's Charter or Bylaws or other actions which may impede the acquisition of control of the Issuer by any person; 7 (h) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act; or (j) any action similar to any of those enumerated above. The reporting person reserves the right to change his investment purpose with respect to any and all shares of the Common Stock beneficially owned and to take any and all lawful action with respect to such shares. 8 Item 5. Interest in Securities of the Issuer - ------ ------------------------------------ (a) The aggregate number of shares beneficially owned by the Reporting Persons are 493,047, constituting 17.3% of the outstanding shares of Common Stock. Included in this amount are 17,000 shares which Mr. Willetts has the right to acquire under the stock option plan of the Issuer. (b) Mr. Willetts has sole voting and dispositive power over the 101,871 shares he holds directly, the 3,897 shares held in his childrens' trust, over which he serves as sole trustee, and the 18,700 shares held in the Elizabeth Messick Willetts Medical Trust, over which he serves as sole trustee. Mr. Willetts has sole dispositve power with respect to the 17,000 shares which he may acquire pursuant to the exercise of options. Mr. Willetts has sole voting power with respect to the 202,910 shares held by the 401(k) Plan. He shares voting and dispositive power over the 91,695 shares held in two trusts for which he serves as co-trustee and may be deemed to share voting and dispositive power with respect to: (i) the 1,478 shares held by his spouse; (ii) the 435 shares for which his spouse serves as custodian for the benefit of their children; (iii) the 55,833 shares held by his mother and her IRA account; (iv) the 12,590 shares held by Helen Margaret Willetts; (v) the 1,482 shares for which Helen Margaret Willetts serves as custodian and trustee; and (vi) the 2,156 shares owned by Elizabeth M. Willetts. The 401(k) Plan has sole dispositive power with respect to the 202,910 shares it holds. 9 (c) The Reporting Persons' beneficial ownership increased during the past 60 days as a result of the following transactions: NAME DATE # OF SHARES PRICE METHOD - ---- ---- ----------- ----- ------ Spouse 1/17/03 4.4091 $16.7062 Div. Reinv. Spouse as cust. for children 1/17/03 1.3002 $16.7062 Div. Reinv. Children's Trust 1/17/03 11.6274 $16.7062 Div. Reinv. 401(k) Plan 11/26/02 756.00 $16.05 Open Market 401(k) Plan 12/18/02 625.00 $17.00 Open Market 401(k) Plan 1/10/03 807.00 $16.50 Open Market 401(k) Plan 1/28/03 588.00 $17.25 Open Market (d) Not applicable. (e) Not applicable. 10 Item 6. Contracts, Arrangements, Understanding or Relationships - ------ With Respect to Securities of the Issuer ------------------------------------------------------- Not applicable. Item 7. Materials to be Filed as Exhibits - ------ -------------------------------- Exhibit 99.1 Power of Attorney of Helen Margaret Willetts Exhibit 99.2 Power of Attorney of Elizabeth Messick Willetts Exhibit 99.3 Power of Attorney of Helen Margaret Willetts 11 SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: February 7, 2003 /s/ Frederick Willetts, III -------------------------------------------- Frederick Willetts, III Date: February 7, 2003 Cooperative Bank 401(k) Supplemental Retirement Plan By:/s/ Frederick Willetts, III ----------------------------------------- 12 EX-99 3 ex991sched13d5-willetts.txt EXHIBIT 99.1 TO SCHEDULE 13D #5 DURABLE POWER OF ATTORNEY OF HELEN M. WILLETTS STATE OF NORTH CAROLINA COUNTY OF NEW HANOVER DURABLE POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, HELEN M. WILLETTS (also known as HELEN MARGARET WILLETTS), of New Hanover County and State of North Carolina, do make, constitute and appoint my son, FREDERICK WILLETTS, III, my true and lawful Attorney-in-Fact (hereinafter referred to as "Attorney-in-Fact") with full power of substitution for me and in my name, place and stead for the purposes hereinafter set out. ARTICLE I GENERAL GRANT OF POWERS Immediately upon executing this Durable Power of Attorney, I hereby give and grant to my Attorney-in-Fact full power and authority to do and perform in a fiduciary capacity, as my Attorney-in-Fact may deem advisable, anything of any character which I might do or perform for myself if personally present and acting, including, but not limited to, the specific powers set forth herein and generally to manage and attend to all of my affairs, interest and property of every kind and description, real, personal or mixed, and wherever located, but excluding those matters which my Attorney-in-Fact is not permitted to do as expressly provided herein or as provided by law. ARTICLE II SPECIFIC POWERS RELATING TO PROPERTY My Attorney-in-Fact may exercise the following powers relating to property or interests in property which I may own at the time of executing this Power of Attorney or may hereafter acquire: A. COLLECTION OF PROPERTY. The power to demand, sue for or use other lawful ---------------------- means to obtain, collect, and take possession and control of any sums of money, debts, checks, accounts, interest, dividends, annuities, rents, goods, chattels, inheritances, insurance benefits, social security benefits, unemployment benefits, veteran's benefits and any other claims and rights whatsoever which are now or may hereafter become due, owing, payable or belonging to me, and to compromise, settle, arbitrate, abandon or otherwise deal with any such claims. B. ACQUISITION AND RETENTION OF INVESTMENTS. The power to acquire, -------------------------------------------- purchase, and retain for any period of time as investments, without diversification as to kind or amount, any real or personal property or interest in such property (including an undivided, temporary or remainder interest), income or non-income producing, or located within or outside the United States, and including, but not limited to, notes, U.S. Treasury Bonds redeemable at par value in payment of federal estate tax, any other bonds, debentures, mortgages and other obligations, secured or unsecured, common and preferred stocks, mutual funds, legal and discretionary trust funds, general and limited partnership interests, leases and securities of any corporate Attorney-in-Fact or any corporation owning stock of the corporate Attorney-in-Fact or of any subsidiary or affiliate of or successor to such corporation. C. BROKERAGE ACCOUNTS. My Attorney-in-Fact shall have the power to exercise ------------------ with full and unlimited power and authority to act for me in my behalf in all matters in connection with my account or accounts with any brokerage firm, however designated, and whether presently open or hereafter opened with the same force and effect as I myself might or could, and, without limitation of the foregoing general authority, specifically (i) to effect purchases and sales (including short sales), to subscribe for and to trade in stocks, bonds, options or other securities, or limited partnership interests or investments and trust units, whether or not in negotiable form, issued or unissued, foreign exchange, commodities, and contracts relating to same (including commodity futures), on margin or otherwise, for my account(s) and risk; (ii) to deliver to such brokerage firm securities for my account, and to instruct such brokerage firm to deliver securities from my account(s) to him or to others, and in such name and form, including his own, as he may direct; (iii) to instruct such brokerage firm to make payment of moneys from my account(s) with such brokerage firm, and to receive and direct payments therefrom payable to him or to others; (iv) to sell, assign, indorse and transfer any stocks, bonds, options or other securities of any nature, at any time standing in my name and to execute any documents necessary to effectuate the foregoing; (v) to receive statements of transactions made for my account(s); to approve and confirm the same, to receive any and all notices, call for margin, or other demands with reference to my account(s); and to make any and all agreements with such brokerage firm with reference thereto for me and in my behalf. To induce any transfer agent or other third party to act hereunder, I hereby agree that any transfer agent or other third party receiving a duly executed copy or facsimile of this instrument may act hereunder, and that revocation or termination hereof shall be ineffective as to such transfer agent or other third party unless and until actual notice or knowledge of such revocation or termination shall have been received by such transfer agent or other third party, and I for myself and for my heirs, executors, legal representatives and assigns, hereby agree to indemnify and hold harmless any such transfer agent or third party from and against any and all claims that may arise against such transfer agent or other third party by reason of such third party having relied on this instrument. Such brokerage firm is accordingly authorized and empowered to follow the instructions of my said agent and attorney-in-fact in every respect concerning my account(s) with such brokerage firm, and I hereby ratify and confirm any and all transactions, trades or dealings effected in and for my account(s) by my agent and attorney-in-fact, and agree to indemnify and hold such brokerage firm free and harmless of any loss, liability, or damage by reason of any such transactions, or by reason of any other matter or thing done by such brokerage firm in and for my account(s) pursuant to instructions received from him. This power of attorney, authorization and indemnity is in addition to (and in no way limits or restricts) any and all rights which such brokerage firm may have under any other agreement or agreements between such brokerage firm and me, and shall inure and continue in favor of such brokerage firm's present firm, its successors, by merger, consolidation or otherwise, and assigns. D. SALE OR OTHER DISPOSITION OF PROPERTY. The power to sell, exchange, ---------------------------------------- quitclaim, convert, partition or abandon or otherwise dispose of, or grant options with respect to, any real or personal property or my interest in such property wherever located, including, but not limited to, automobiles, securities of all kinds, stocks, bonds, and real estate owned by me individually, as a tenant in common, tenant by the entirety or otherwise, upon any terms and conditions. E. MANAGEMENT OF PROPERTY. The power to take possession, custody and ------------------------ control and otherwise manage any real or personal property, or my interest in such property, including, but not limited to, the power to (i) protect, develop, subdivide and consolidate such property; (ii) lease such property upon any terms and conditions, including options to renew or purchase, for any period or periods of time, and to modify, renew or extend any existing leases; (iii) erect, repair, or make improvements to any building or other property and to remove existing structures; (iv) establish and maintain reserves for the maintenance, protection and improvement of such property and for other purposes; (v) initiate or continue farming, mining, mining or timber operations on such property; (vi) purchase and carry casualty and liability insurance; (vii) grant or release easements with respect to such property; (viii) dedicate or withdraw from dedication such property from public use; and (ix) join with co-owners in exercising any such powers. -2- F. BUSINESS INTERESTS. The power to continue to own, or to form initially, ------------------ and operate any business interest, whether in the form of a proprietorship, corporation, general or limited partnership, joint venture or other organization, including, but not limited to, the power to (i) effect incorporation, dissolution or other change in the form of the organization of such business interest; (ii) dispose of any part of such business interest or acquire the interest of others; (iii) continue, enter into, modify or terminate any agreements relating to any such business interest; and (iv) invest capital or additional capital in or lend money to such business interest. G. BORROWING MONEY. The power to (i) borrow money for my benefit from my ---------------- Attorney-in-Fact, individually, or from others, upon any terms and conditions; (ii) secure the payment of any amount so borrowed by mortgaging, pledging or otherwise encumbering any real or personal property; and (iii) modify, renew or extend the time for payment of any obligation, secured or unsecured, payable by me, for any period or periods of time and upon any terms and conditions. H. LENDING MONEY. The power to (i) lend money to any person upon any terms ------------- and conditions; (ii) modify, renew or extend the time for payment of any obligations, secured or unsecured, payable to me for any period or periods of time and upon any terms and conditions; (iii) foreclose as an incident to the collection of any obligation, any deed of trust or other lien securing such obligation; and (iv) bid on the property at such foreclosure sale or otherwise acquire the property without foreclosure and to retain the property so obtained. I. HOLDING PROPERTY IN NOMINEE FORM. The power to register and hold any ---------------------------------- securities or other property in the name of a nominee or in any other form without disclosure of the fiduciary relationship, or to hold the same unregistered in such form that they will pass by delivery. J. EXERCISE OF SECURITY RIGHTS. With regard to securities of mine, ------------------------------ including stocks, bonds and any evidence of indebtedness, the power to (i) vote any such securities in person or by special, limited or general proxy at any shareholders' meeting, with or without the power of substitution; (ii) consent to or participate in any contract, lease, mortgage, foreclosure, voting trust, purchase, sale or other action by any corporation, company or association; (iii) consent to, participate in, facilitate or implement any plan of incorporation, reincorporation, reorganization, consolidation, merger, liquidation, readjustment or other similar plan with respect to any such corporation, company or association; and (iv) exercise all options, rights and privileges, including the exercise or sale of conversion, subscription or other rights of whatever nature pertaining to any such securities, and to subscribe for additional securities or other property. K. TRANSFERS TO AND FROM REVOCABLE TRUST. The power to assign, transfer and ------------------------------------- convey all or any part of my real or personal property, or my interest in such property, to, and withdraw such property from, (i) any revocable trust established by me during my lifetime; or (ii) any revocable trust established by my Attorney-in-Fact during my lifetime which directs the trustee or trustees to administer the trust for my benefit, and to distribute the trust property to my estate upon my death. L. GIFTS. The power to make gifts of my real or personal property or my ----- interest in such property to my children and grandchildren, including any child or grandchild of mine who may be acting as my Attorney-in-Fact, in amounts not to exceed the federal gift tax annual exclusion at the time the gift or gifts are made and in such manner as my Attorney-in-Fact deems appropriate, including, but not limited to, outright gifts, gifts in trust, or gifts to a custodian under a Uniform Gifts or Transfer to Minors Act, if, in the opinion of my Attorney-in-Fact, such gifts are advisable for tax purposes and the value of my remaining property is more than sufficient to provide for the continued -3- support and medical care of myself, my spouse and my dependents in accordance with our customary standard of living. M. RENUNCIATIONS. The power to renounce or disclaim in whole or in part the ------------- right of succession to any real or personal property or interest in such property passing to me as an heir or beneficiary under a Will or otherwise when, in the opinion of my Attorney-in-Fact, a renunciation or disclaimer is advisable for tax purposes. N. INSURANCE. The power to exercise any right with regard to any life, --------- disability or other insurance contract or annuity contract owned by me or acquired by my Attorney-in-Fact on my behalf, including, but not limited to, the right to (i) change coverage or coverages of any such contract; (ii) borrow upon any such contract; (iii) select options with respect to any such contract; and (iv) make or change the beneficiary designation of any such contract, except that my Attorney-in-Fact cannot be designated as beneficiary unless my Attorney-in-Fact is my spouse or a child or grandchild of mine. O. RETIREMENT PLANS. The power to exercise any right with regard to any ----------------- retirement plan I may have or entered into on my behalf by my Attorney-in-Fact, including, but not limited to, the power to (i) create and contribute to an individual retirement account, an employee benefit plan, or other retirement plan; (ii) to "roll over" plan benefits; (iii) borrow money from any such plan; (iv) select options with respect to any such plan; and (v) make or change the beneficiary designation of any such plan, except that my Attorney-in-Fact cannot be designated beneficiary unless my Attorney-in-Fact is my spouse or a child or grandchild of mine. ARTICLE III SPECIFIC POWERS RELATING TO SUPPORT, PERSONAL AFFAIRS AND HEALTH CARE My Attorney-in-Fact may exercise the following powers relating to my support, personal affairs and health care: A. SUPPORT. The power to do any acts, including the disbursing of monies ------- belonging to me, which, in the opinion of my Attorney-in-Fact, may be necessary or proper for any purpose in connection with the support and maintenance of myself, my spouse, and my dependents in accordance with our customary standard of living, including, but not limited to, provisions for housing, clothing, food, transportation, recreation, education, and the employing of any person whose services may be needed for such purposes. B. PERSONAL AFFAIRS. The power to do any acts, including the disbursing of ---------------- monies belonging to me, which, in the opinion of my Attorney-in-Fact, may be necessary or proper in connection with the conduct of my personal affairs, including, but not limited to, the (i) continuation, use or termination of any charge accounts; (ii) payments or contributions to any charitable, religious or educational organizations; (iii) dealing with my mail and representing me in any matter concerning the U.S. Postal Service; (iv) continuation or discontinuation of my membership in any club or other organization; and (v) acceptance or resignation, on my behalf, from any offices or positions which I may hold, including any fiduciary positions. C. HEALTH CARE. The power to do any acts, including the disbursing of any ----------- monies belonging to me, which, in the opinion of my Attorney-in-Fact, may be necessary or proper for any purpose in connection with the medical, dental, surgical, psychiatric or custodial care and treatment of myself, my spouse, and my dependents, including, but not limited to, the power to (i) provide such care and treatment at any hospital, nursing home or institution or for the employing of any physician, -4- psychiatrist, nurse or other person whose services may be needed for such care; (ii) receive confidential medical information regarding me, waive on my behalf any physician-patient or other privilege, and consent to the release of medical information; and (iii) consent to medical or psychiatric treatment, including administration of anesthesia, performance of operations, and other procedures on my body by physicians and surgeons and other medical personnel, including technicians, assistants, and nurses working under the supervision of physicians and surgeons. ARTICLE IV MISCELLANEOUS SPECIFIC POWERS My Attorney-in-Fact may exercise the following miscellaneous powers: A. TAX MATTERS. The power to perform any and all acts that I might perform ----------- with respect to any and all federal, state, local and foreign taxes for prior years, as well as for tax years ending subsequent to the date of the execution of this Power of Attorney, including, but not limited to, the power to (i) execute any Internal Revenue Service Power of Attorney Form, including Form 2848, on my behalf, appointing my Attorney-in-Fact or any other person as my Attorney-in-Fact; (ii) make, execute and file returns, amended returns, powers of attorney, and declarations of estimated tax, joint or otherwise; (iii) represent me before any office of the Internal Revenue Service or other taxing authority with respect to any audit or other tax matter involving any tax year or period; (iv) receive confidential information; (v) receive, endorse, and collect checks refunding taxes, penalties or interest; (vi) execute waivers of restrictions on assessment or collection of deficiencies in tax; (vii) execute consents extending the statutory period for assessment or collection of taxes; (viii) execute and prosecute protests or claims for refund or applications for correction of assessed value; (ix) execute closing agreements; (x) prosecute, defend, compromise or settle any tax matter; and (xi) delegate authority to or substitute another agent or attorney respecting any such taxes or tax matters. B. BANKING TRANSACTIONS. The power to (i) make deposits in or withdrawals --------------------- from any account of mine in any banking, trust or investment institution, whether such account is in my name or in joint names of myself and any other person; (ii) open any account or interest with any such institution in my name or in the name of my Attorney-in-Factor or in our names jointly; (iii) endorse any checks or negotiable instruments payable to me for collection or deposit to such accounts and to sign, execute and deliver checks or drafts on such accounts; and (iv) exercise any right, option or privilege pertaining to any account, deposit, certificate of deposit, or other interest with any such institution. C. SAFE DEPOSITS. The power to (i) have access to any safe deposit box held ------------- in my name or in joint names of myself and any other person; (ii) lease one or more safe deposit boxes for safekeeping of my assets; and (iii) deal with the contents of any safe deposit box, including the removal of such contents. D. EMPLOYMENT OF ADVISORS. The power to employ persons, firms and ------------------------ corporations to advise or assist my Attorney-in-Fact, including, but not limited to, agents, accountants, auditors, brokers, attorneys-at-law, custodians, investment counsel, rental agents, realtors, appraisers and tax specialists. E. LEGAL ACTIONS. The power to cause to be commenced, prosecuted, defended, ------------- appealed, compromised, settled, arbitrated or discontinued in my name as plaintiff or defendant, as the case may be, any legal or equitable proceedings, judicial or administrative. F. LEGAL DOCUMENTS. The power to make, execute, endorse, acknowledge, and --------------- deliver any and all instruments under seal, oath, verification or otherwise, including, but not limited to, receipts, endorsements, releases, compromises, deeds, leases, mortgages, deeds of trust, security agreements, contracts, assignments, options, stock powers, proxies, promissory notes, bonds, financing -5- statements, subordination agreements, checks, negotiable instruments and satisfaction of mortgages, deeds of trust and security agreements. ARTICLE V RESTRICTIONS Notwithstanding the grant of powers in this Durable Power of Attorney, my Attorney-in-Fact shall have no power to (i) deal with insurance policies I may own on the life of my Attorney-in-Fact; or (ii) except as specifically authorized herein, cause assets to pass to my Attorney-in-Fact or in discharge of my Attorney-in-Fact's legal obligation, whether by inter vivos transfer, designation of beneficiary of any contract or in any other manner. ARTICLE VI EFFECT OF PRINCIPAL'S SUBSEQUENT DISABILITY This Durable Power of Attorney is executed pursuant to Article 2 of Chapter 32A of the General Statutes of North Carolina and shall not be affected by my subsequent incapacity or mental incompetence. ARTICLE VII ADMINISTRATIVE PROVISIONS A. ACCOUNTINGS. My Attorney-in-Fact shall not be required to file any ----------- inventory or accounts with any Court or Clerk of Court. However, my Attorney-in-Fact shall have the duty to keep full and accurate inventories and accountings of all transactions for me as my agent. Such inventories and accountings shall be made available for inspection upon request by me or by my guardian or personal representative. B. THIRD PARTY RELIANCE. Third parties may rely upon the representations of -------------------- my Attorney-in-Fact as to all matters relating to any power granted to my Attorney-in-Fact, and no person who may act in reliance upon the representations of my Attorney-in-Fact or the authority granted to my Attorney-in-Fact shall incur any liability to me or my estate as a result of permitting my Attorney-in-Fact to exercise any power. C. REMOVAL AND RESIGNATION OF ATTORNEY-IN-FACT. I shall have the absolute -------------------------------------------- right to remove an Attorney-in-Fact at any time in a writing signed by me and acknowledged before a notary public and delivered to the Attorney-in-Fact. An Attorney-in-Fact shall have the right to resign in a writing signed by the Attorney-in-Fact and acknowledged before a notary public and delivered to me and to any other Attorney-in-Fact acting under this Durable Power of Attorney or, if none, to the named successor Attorney-in-Fact, if any. D. PARTIAL INVALIDITY. If any part of this Durable Power of Attorney is ------------------- declared invalid or unenforceable under applicable law, such decision shall not affect the validity of the remaining parts. E. REVOCATION OF PRIOR POWERS OF ATTORNEY-IN-FACT. By executing this ------------------------------------------------- Durable Power of Attorney, it is my intent to revoke any and all powers of attorney for any purpose which have been previously executed by me, excluding any Health Care Power of Attorney previously or simultaneously executed by me. F. COMPENSATION OF ATTORNEY-IN-FACT. My Attorney-in-Fact may receive that --------------------------------- compensation for my Attorney-in-Fact services which commercial banking institutions customarily -6- charge for like services at the time such services are rendered. My Attorney-in-Fact may also waive any such compensation. G. NOMINATION OF GUARDIAN OF ESTATE. If proceedings are commenced after the -------------------------------- execution of this Durable Power of Attorney for the protection of my estate, I hereby nominate my Attorney-in-Fact to serve as my conservator or guardian of my estate. H. NOMINATION OF GUARDIAN OF PERSON. If proceedings are commenced after the -------------------------------- execution of this Durable Power of Attorney for the protection of my person, I hereby nominate my Attorney-in-Fact to serve as guardian of my person. I. PHOTOCOPIES. My Attorney-in-Fact is authorized to make photocopies of ----------- this document as frequently and in such quantity as my Attorney-in-Fact shall deem appropriate. All photocopies will have the same force as any original. J. EXCULPATION. My Attorney-in-Fact shall have no affirmative duty to act ----------- under this Power of Attorney and shall not be liable for any claim or demand arising out of such acts or omissions, except for willful misconduct or gross negligence. My Attorney-in-Fact and my Attorney-in-Fact's estate, heirs, successors and assigns are hereby released and forever discharged by me, my estate, my heirs, successors and assigns from all liability and from all claims or demands of all kinds arising out of the acts or omissions of my Attorney-in-Fact, except for willful misconduct or gross negligence. K. RELATION OF ATTORNEY-IN-FACT TO HEALTH CARE AGENT. Any decision ------------------------------------------------------- affecting my property or financial affairs, including a decision as to the disbursement of monies belonging to me, which is made by my Health Care Agent appointed pursuant to a Health Care Power of Attorney meeting the requirements of Article 3 of Chapter 32A of the General Statutes of North Carolina shall be binding upon my Attorney-in-Fact acting under this Durable Power of Attorney, and my Attorney-in-Fact acting under this Durable Power of Attorney shall not be required to inquire into whether any such decision is necessary to exercise powers relating to health care, or whether costs incurred by the Health Care Agent are reasonable, and shall not be liable to me, my estate, my heirs, successors, assigns and personal representatives for any acts or omissions arising from any such decision. L. GOVERNING LAW. This document shall be governed by the laws of the State ------------- of North Carolina in all respects, including its validity, construction, interpretation, and termination. I intend for this Durable Power of Attorney to be honored in any jurisdiction where it may be presented and for any such jurisdiction to refer to North Carolina law to interpret and determine the validity of this document and any of the powers granted under this document. ARTICLE VIII SUCCESSOR ATTORNEY-IN-FACT In the event my son, FREDERICK WILLETTS, III, is removed or resigns, as provided herein, or fails or ceases to continue to act as my Attorney-in-Fact for any reason, I hereby make, constitute and appoint my daughter, HELEN M. WILLETTS, and then my daughter, ELIZABETH M. WILLETTS (each to serve alone and successively, in the order named), my true and lawful successor Attorney-in-Fact. Any successor Attorney-in-Fact shall have the same rights, powers, duties and obligations of the original Attorney-in-Fact named herein. -7- IN WITNESS WHEREOF, I have executed the foregoing Durable Power of Attorney this, the 2nd day of August, 2000. /s/ Helen M. Willetts (SEAL) ---------------------------- HELEN M. WILLETTS -8- STATE OF NORTH CAROLINA NEW HANOVER COUNTY I, Terri Simmons Hall, a Notary Public of said County and State do hereby certify that HELEN M. WILLETTS personally appeared before me this day and acknowledged the due execution of the foregoing Durable Power of Attorney. This, the 2nd day of August, 2000. /s/ Terri Simmons Hall ---------------------------------- Notary Public My Commission Expires: September 17, 2001 [SEAL] -9- EX-99 4 ex992sched13d5-willetts.txt EXHIBIT 99.2 TO SCHEDULE 13D AMENDMENT NO. 5 STATE OF NORTH CAROLINA ) : COUNTY OF NEW HANOVER ) KNOW ALL MEN BY THESE PRESENTS: That I, Elizabeth Messick Willetts, of the City of Wilmington, County of New Hanover and State of North Carolina, do hereby constitute and appoint Frederick Willetts, III, of the same City, County and State, my true and lawful attorney, for me and in my name, 1. To enter upon and take possession of any lands, buildings, tenements, or other structures, or any part, or parts, thereof, that belong to me, or to the possession whereof, I may be entitled; 2. To ask, collect and receive, any rents, profits, issues, or income of any and all such lands, buildings, tenements, or other structures, or any part, or parts, thereof; 3. To make, execute and deliver, any deed, mortgage, or lease, whether with or without, covenants and warranties, in respect of any such lands, buildings, tenements, or other structures, or of any part, or parts, thereof, and to manage any such lands, and to manage, repair, alter, rebuild, reconstruct, any buildings, houses, or other structures, or any part, or parts, thereof, that may now, or hereafter, be erected upon any such lands; 4. To demand, sue for, collect, recover and receive all goods, claims, debts, monies, interest and demands whatsoever, now due, or that may hereafter be due, or belong to me (including the right to institute any action, suit, or legal proceeding, for the recovery of any land, buildings, tenements, or other structures, or any part, or parts, thereof, to the possession whereof I may be entitled), and to make, execute and deliver receipts, releases, or other, discharges therefor, under seal, or otherwise; 5. To make, execute, endorse, accept and deliver, any and all bills of exchange, checks, drafts, notes and trade acceptances; 6. To pay all sums of money, at any time, or times, that may hereafter be owing by me, upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed accepted and delivered by me, or for me, and in my name, by my said attorney; -1- 7. To sell any and all shares of stocks, bonds, or other securities, now, or hereafter, belonging to me, that may be issued by any association, trust, or corporation, whether private or public, and to make, execute and deliver an assignment, or assignments, of any such shares of stocks, bonds, or other securities; 8. To defend, settle, adjust, compound, submit to arbitration, and compromise all actions, suits, accounts, reckonings, claims and demands, whatsoever, that now are, or hereafter shall be, pending between me and any person, firm, or corporation, in such manner, and in all respects as my said attorney shall think fit; 9. To enter into, make, sign, execute and deliver, acknowledge and perform, any contract, agreement, writing, or thing, that may, in the opinion of my said attorney, be necessary, or proper, to be entered into, made, or signed, sealed, executed, delivered, acknowledged or performed; 10. Without, in any wise, limiting the foregoing, generally to do, execute and perform, any other act, deed, matter, or thing, whatsoever, that ought to be done, executed and performed, or that, in the opinion of my said attorney, ought to be done, executed, or performed, in and about the premises, of every nature and kind, whatsoever, as fully and effectually as I could do, if personally present. And I, the said Elizabeth Messick Willetts, do hereby ratify and confirm all whatsoever my said attorney shall do, or cause to be done, in, or about, the premises, by virtue of this power of attorney. IN WITNESS WHEREOF, I have hereunto set my hand and seal, in the City of Wilmington, County of New Hanover and State of North Carolina, on this 3rd day of July, 1978. /s/ Elizabeth Messick Willetts ------------------------------------- Elizabeth Messick Willetts -2- STATE OF NORTH CAROLINA ) : COUNTY OF NEW HANOVER ) On this 3rd day of July, 1978, personally appeared before me Harriet D. Lee, a Notary Public in and for the State and County above-mentioned, Elizabeth Messick Willetts, and acknowledged the due execution of the foregoing instrument for the purposes therein stated. Witness my hand and official seal this 3rd day of July, 1978. /s/Harriet D. Lee --------------------------------- Notary Public My commission expires: April 4, 1985 -3- EX-99 5 ex993sched13d5-willetts.txt EXHIBIT 99.3 TO SCHEDULE 13D AMENDMENT NO. 5 NORTH CAROLINA NEW HANOVER COUNTY: GENERAL POWER OF ATTORNEY ------------------------- KNOW ALL MEN BY THESE PRESENTS THAT I, Helen Margaret Willetts, of New Hanover County, North Carolina, have made, constituted and appointed, and by these presents do make, constitute and appoint Frederick Willetts, III, of New Hanover County, North Carolina, (herein, whether one or more, described in the singular), my true and lawful attorney in fact, for me and in my name and stead, to do and perform all and every act, deed, matter and thing whatsoever with, in and about my estate, property, real and personal, and affairs, as fully and effectually to all intents and purposes as I might or could do in my own proper person if personally present, including, but without limitation, the following; l. To sell, exchange, mortgage, pledge or otherwise encumber or dispose of any of my property, real or personal; 2. To buy or otherwise acquire any property; 3. To invest or reinvest, lease or let or otherwise manage any of my property; 4. To commence, carry on, or defend all actions, suits or other proceedings touching any of my property, or touching anything in which I or my property may be in anywise concerned; 5. To demand, sue for, enforce payment of, receive and give receipts or discharges for all moneys, securities, debts, chattels or other personal property whatsoever now belonging or hereafter to belong to me; 6. To pay, settle or compromise, or submit to arbitration, all debts, taxes, accounts, claims or disputes between me and any other person; 7. To draw upon any bank, corporation, firm, association or individual, for any sum or sums of money to which I may be entitled as I might or could do; 8. Upon receipt of any dividends, interest, income or moneys, to deposit the same in my name in any financial institution; -1- 9. To make or endorse promissory notes, or to renew the same from time to time; 10. To prepare, execute or file income or other tax returns; 11. To employ or dismiss agents or attorneys; 12. To act as my attorney or proxy in respect to any stocks, bonds, or other investments; 13. To take out or renew fire or other casualty insurance on any of my property; 14. To execute, acknowledge or deliver in my name or to sign my name to, any deed, contract, instrument, certificate or document; 15. To enter any safe deposit box which I may now or hereafter have; 16. To render annually an inventory and account of all transactions as my attorney in fact for the preceding year. These inventories and accounts need not be filed or recorded in any office, but a copy thereof shall he furnished to me and to my nearest relatives. 17. To make contributions or donations to tax-exempt organizations, institutions or agencies in such amounts and at such times as my attorney in fact believes would be in accordance with my wishes; all such contributions shall be considered my contributions for all purposes; 18. To make gifts of money or property to such of my relatives and friends (including any individual named herein as attorney in fact) in amounts and at times determined in the sole discretion of my attorney in fact, provided such gifts shall not exceed $3,000 per person per calendar year; all such gifts shall be considered my gifts for all purposes. And I do give and grant unto my said attorney in fact all of the powers and discretions set forth in North Carolina General Statutes, Section 32-27, as it exists on the date of this power of attorney, which section I hereby incorporate by reference, in addition to all powers and discretions conferred by Paragraphs 1 through 18 above. And I do hereby ratify and confirm all things so done by my said attorney in fact within the scope of the authority given said attorney in fact, as fully and to the same extent as if by me personally done and performed. -2- Should Frederick Willetts, III, my said attorney in fact, resign, refuse to serve, die or become disabled, I hereby appoint Frederick Willetts, Jr., as successor attorney in fact, with all the powers and discretions described herein. All powers of attorney heretofore executed by me are hereby revoked and terminated. This power of attorney shall be revoked only by my death, by the appointment of a guardian of my property, or by written revocation duly recorded, made by me while mentally competent. This power of attorney is executed pursuant to the provisions of North Carolina General Statutes 47-115.1 with the intention that this power of attorney and the authority of my attorney in fact hereunder shall continue in effect notwithstanding any incapacity or mental incompetence which may be incurred by me subsequent to my execution and acknowledgement of this instrument. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 28th day of December, 1978. /s/ Helen Margaret Willetts (SEAL) ------------------------------ Helen Margaret Willetts NORTH CAROLINA NEW HANOVER COUNTY: I, Garvin E. Faulkner, a Notary Public in and for State and County aforesaid, do certify that Helen Margaret Willetts personally came before me this day and acknowledged the due execution of the foregoing power of attorney. WITNESS my hand and official seal this 28th day of December, 1978. /s/ Garvin D. Faulkner ------------------------------ Notary Public My commission expires: October 10, 1980 -3- -----END PRIVACY-ENHANCED MESSAGE-----