RESTATED ARTICLES OF INCORPORATION
OF
FIRST COMMERCE CORPORATION
First Commerce Corporation, a Louisiana corporation (the
"Corporation"), through its undersigned President and Secretary and by authority
of its Board of Directors, does hereby certify that:
FIRST: The Restated Articles of Incorporation set forth in Paragraph
Fifth below accurately set forth the Articles of Incorporation of the
Corporation and all amendments thereto in effect at the date hereof.
SECOND: Each amendment has been effected in conformity with law.
THIRD: The date of incorporation of the Corporation was May 16, 1974,
and the date of these Restated Articles is February 18, 1997.
FOURTH: On February 18, 1997, the Board of Directors (i) pursuant to
Section 33A(2) of the Business Corporation Law of Louisiana ("BCL"), amended
Article III to delete Paragraph C thereof dealing with a series of preferred
stock no longer outstanding and to redesignate Article IIID as Article IIIC, and
(ii) pursuant to Section 34 of the BCL, adopted resolutions authorizing the
execution and filing of these Restated Articles of Incorporation.
FIFTH: The Restated Articles of Incorporation of the Corporation are as
follows:
ARTICLE I. Name
The name of the Corporation is First Commerce Corporation.
ARTICLE II. Purpose
The purpose of the Corporation is to engage in any lawful activity for
which corporations may be formed under the Business Corporation Law of
Louisiana.
ARTICLE III. Capital
A. The Corporation has authority to issue one hundred million
(100,000,000) shares of $5.00 par value per share Common Stock and five million
(5,000,000) shares of no par value per share Preferred Stock.
B. Shares of the Preferred Stock may be issued from time to time
in one or more classes or series, each of which shall have such distinctive
designation or title and such
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voting rights, preferences and relative, optional or other special rights, and
qualifications, limitations or restrictions as shall be fixed by the Board of
Directors of the Corporation prior to the issuance of any shares thereof by
amendment to these Articles of Incorporation adopted by the Board of Directors.
C. Of the 5,000,000 shares of authorized no par value per share
Preferred Stock, 1,000,000 shares shall constitute a separate series of
Preferred Stock with the voting powers and the preferences and rights
hereinafter set forth.
(1) Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock"). The number of shares constituting the
Series A Preferred Stock may be increased or decreased by resolution of
the Board of Directors further amending the Articles of Incorporation;
provided, that no decrease shall reduce the number of shares of Series
A Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
(2) Dividends and Distributions
(a) Subject to the rights of the holders of any
shares of stock ranking prior to the Series A Preferred Stock
with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of Common Stock,
par value $5.00 per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series
A Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (i) $1 or (ii) subject
to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A
Preferred Stock. If the Corporation shall at any time declare
or pay any dividend on the Common
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Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series
A Preferred Stock were entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (a) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, if
no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1 per share on the Series A
Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the shares of
Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board
of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
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(3) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred Stock
shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Corporation. If
the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) Except as otherwise provided herein, in any other
Articles of Amendment creating a series of Preferred Stock or
any similar stock, or by law, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock
and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise
provided by law, holders of Series A Preferred Stock shall
have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for taking any
corporate action.
(4) Certain Restrictions.
(a) Whenever quarterly dividends or other dividends
or distributions payable on the Series A Preferred Stock as
provided in Paragraph (2) are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
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(i) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in
accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration
of the respective annual dividend rates and other
relative rights and preferences of the respective
series and classes, shall determine in good faith
will result in fair and equitable treatment among the
respective series or classes.
(b) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (a) of this Paragraph
(4), purchase or otherwise acquire such shares at such time
and in such manner.
(5) Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued
as part of a new series of Preferred Stock subject to the conditions
and
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restrictions on issuance set forth herein, in the Articles of
Incorporation, or in any other Articles of Amendment creating a series
of Preferred Stock or any similar stock or as otherwise required by
law.
(6) Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock unless, prior thereto,
the holders of shares of Series A Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred
Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (b) to the holders of shares of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or
winding up. If the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under the proviso in
clause (a) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(7) Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other property, then in any
such case each share of Series A Preferred Stock shall at the same time
be similarly exchanged or changed into an amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. If the Corporation
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
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Stock (by reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(8) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(9) Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation's Preferred
Stock.
(10) Amendment. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series
A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a
single class.
ARTICLE IV. Directors
A. The Board of Directors shall consist of not less than three nor more
than thirty persons, the exact number of which shall be as designated in the
By-laws, or, if not so designated, as shall be elected from time to time by the
shareholders.
B. Any director absent from a meeting of the Board of Directors or a
committee thereof may be represented by any other director, who may cast the
vote of the absent director according to the written instructions, general or
special, of the absent director.
ARTICLE V. Vote Required for Corporate Action
The affirmative vote of the holders of two-thirds of the voting power
present or represented by proxy at a meeting of shareholders shall be required
to amend these Articles of Incorporation and shall be necessary to constitute
shareholder approval whenever such approval is required by law for a merger,
consolidation, sale of assets or dissolution.
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ARTICLE VI. Indemnification
The Corporation shall have the power to indemnify its present and
former officers, directors, employees and agents, and directors, officers,
employees and agents of other corporations or entities to the extent set forth
in or contemplated or authorized by the Bylaws. No amendment limiting the right
to indemnification shall affect the entitlement of any person to indemnification
whose claim thereto results from conduct occurring prior to the date of such
amendment.
ARTICLE VII. Reversion
Cash, property or share dividends, shares issuable to shareholders in
connection with a reclassification of stock, and the redemption price of
redeemed shares, which are not claimed by the shareholders entitled thereto
within one year after the dividend or redemption price became payable or the
shares became issuable, despite reasonable efforts by the Corporation to pay the
dividend or redemption price or deliver the certificates for the shares to such
shareholders within such time, shall, at the expiration of such time, revert in
full ownership to the Corporation, and the Corporation's obligation to pay such
dividend or redemption price or issue such shares, as the case may be, shall
thereupon cease; provided that the Board of Directors may, at any time, for any
reason satisfactory to it, but need not, authorize (1) payment of the amount of
any cash or property dividend or redemption price or (2) issuance of any shares,
ownership of which has reverted to the Corporation pursuant to this Article VII,
to the entity who or which would be entitled thereto had such reversion not
occurred.
ARTICLE VIII. Special Meetings of Shareholders
At any time, upon the written request of any shareholder or
shareholders holding in the aggregate a majority of the total voting power, the
Secretary of the Corporation shall call a special meeting of shareholders to be
held at the registered office at such time as the Secretary may fix, not less
than fifteen nor more than sixty days after the actual receipt of the request.
Such requests must state the specific purpose or purposes of the special meeting
and the business to be conducted thereat shall be limited to such purpose or
purposes. Except as provided in this Article VIII, no shareholder or
shareholders shall have power to call or cause to be called a special meeting of
shareholders.
ARTICLE IX. Limitation of Liability of Directors and Officers
A. No director or officer of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages for breach of his fiduciary
duty as a director or officer, provided that the foregoing provision shall not
eliminate or limit the liability of a director or officer for (a) any breach of
his duty of loyalty to the Corporation or its shareholders; (b) acts
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or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (c) liability for unlawful distributions of the
Corporation's assets to, or redemption or repurchase of the Corporation's shares
from shareholders of the Corporation, under and to the extent provided in La.
R.S. 12:92D; or (d) any transaction from which he derived an improper personal
benefit.
B. The Board of Directors may (a) cause the Corporation to enter into
contracts with directors and officers providing for the limitation of liability
set forth in this Article IX to the fullest extent permitted by law, (b) adopt
by-laws or resolutions, or cause the Corporation to enter into contracts,
providing for indemnification of directors and officers of the Corporation and
other persons, and (c) cause the Corporation to exercise the powers set forth in
R.S. 12:83F, notwithstanding that some or all of the members of the Board of
Directors acting with respect to the foregoing may be parties to such contracts,
or beneficiaries of such by-laws or resolutions of the exercise of such powers.
C. Notwithstanding any other provisions of these Articles of
Incorporation, the affirmative vote of at least 80% of the total voting power
shall be required to amend or repeal this Article IX, and any amendment or
repeal of this Article IX shall not adversely affect any elimination or
limitation of liability of a director or officer of the Corporation under this
Article IX with respect to any action or inaction occurring prior to the time of
such amendment or repeal.
These Restated Articles of Incorporation are dated February 18, 1997.
FIRST COMMERCE CORPORATION
By: /s/ Ian Arnof
--------------------------------
Ian Arnof
President
By: /s/ Michael A. Flick
--------------------------------
Michael A. Flick
Secretary
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ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ORLEANS
BEFORE ME, the undersigned authority, personally came and appeared Ian
Arnof and Michael A. Flick, to me known to be the President and Secretary,
respectively, of First Commerce Corporation and the persons who executed the
foregoing instrument in such capacities, and who, being duly sworn, acknowledged
in my presence and in the presence of the undersigned witnesses that they were
authorized to and did execute the foregoing instrument in such capacities for
said corporation, as its and their free act and deed.
IN WITNESS WHEREOF, the appearers and witnesses and I have hereunto
affixed our signatures on this 18th day of February, 1997.
WITNESSES:
/s/ Sandra A. Hayden /s/ Ian Arnof
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Sandra A. Hayden Ian Arnof
/s/ Robin J. Thompson /s/ Michael A. Flick
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Robin J. Thompson Michael A. Flick
/s/ Edward H. Whitfield
------------------------
Edward H. Whitfield
NOTARY PUBLIC
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