AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
BLUE VALLEY BAN CORP.
A CORPORATION ORIGINALLY INCORPORATED IN THE
STATE OF KANSAS ON JUNE 21, 1989
ARTICLE ONE
NAME OF CORPORATION
The name of the corporation is Blue Valley Ban Corp. (the
"Corporation").
ARTICLE TWO
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of Kansas
is 11935 Riley, Overland Park, Johnson County, Kansas 66213. The name of its
registered agent at such address is Robert D. Regnier.
ARTICLE THREE
GENERAL NATURE OF BUSINESS
The purpose of the Corporation is to engage in any lawful conduct or
activity for which corporations may be organized under the Kansas General
Corporation Code.
ARTICLE FOUR
DURATION
The duration of the Corporation shall be perpetual.
ARTICLE FIVE
CAPITAL STOCK
AUTHORIZED SHARES
1. The total number of shares of stock the Corporation has authority to
issue shall be 30,000,000 shares, of which 15,000,000 shares shall be designated
Preferred Stock (the
"Preferred Stock") and 15,000,000 shares shall be designated Common Stock, par
value $1.00 per share (the "Common Stock").
2. The relative rights, voting power, preferences and restrictions of the
shares of each class of stock that are fixed by the Articles of Incorporation,
and the express grant of authority to the Board of Directors of the Corporation
to fix by resolution or resolutions certain rights, voting power, preferences
and restrictions, are as follows:
PREFERRED STOCK
3. Shares of Preferred Stock may be issued in one or more series at such
time or times and for such consideration as the Board of Directors may
determine. Each such series shall be given a distinguishing designation. All
shares of any one series shall have preferences, limitations and relative rights
identical with those of other shares of the same series and, except to the
extent otherwise provided in the description of such series, with those of other
shares of Preferred Stock.
4. The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(a) The distinguishing designation and number of shares constituting
that series, which number may (except where otherwise provided by the Board
of Directors in creating such series) be increased or decreased from time
to time by action of the Board of Directors;
(b) The dividend rate, if any, on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and
the relative rights of priority, if any, of payment of dividends on shares
of that series over shares of any other series or over the Common Stock;
(c) The voting rights, if any, that shares of that series shall have,
and the terms of such voting rights;
(d) Whether the shares of that series shall be convertible into or
exchangeable for cash, shares of stock of any other class or any other
series, indebtedness or other property or rights, including securities of
another corporation, and, if so, the terms and conditions of such exchange
or conversion, including the rate or rates of conversion, and whether such
rate shall be a designated amount or an amount determined in accordance
with a designated formula or by reference to extrinsic data or events, the
date or dates upon or after which they shall be convertible or
exchangeable, the duration for which they shall be convertible or
exchangeable, the event or events upon or after which they shall be
convertible or exchangeable, and whether they shall be convertible or
exchangeable at the option of the Corporation, the shareholder or another
person, and the method (if any) of adjusting the rate of conversion or
exchange in the event of a stock split, stock dividend, combination of
shares or similar event;
(e) Whether or not the shares of that series shall be redeemable and,
if so, the terms and conditions of such redemption, including the date or
dates upon or after which
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the shares of that series shall be redeemable, whether they shall be
redeemable at the option of the Corporation, the shareholder or another
person, the amount per share payable in the event of redemption (which
amount may vary under different conditions and at different redemption
dates), whether such amount shall be a designated amount or an amount
determined in accordance with a designated formula or by reference to
extrinsic data or events, and whether such amount shall be paid in cash,
indebtedness, securities or other property or rights, including securities
of any other corporation;
(f) Whether that series shall have a retirement or sinking fund for
the purchase or redemption of shares of that series, and, if so, the terms
and amount payable into such fund;
(g) The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series over shares of any other series or over the Common Stock;
(h) Whether the issuance of any additional shares of such series, or
of any shares of any other series, shall be subject to restrictions as to
issuance, or as to the powers, preferences or rights of any such other
series; and
(i) Any other preferences, powers, privileges, and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of the shares of that series, as the
Board of Directors may deem advisable and as shall not be inconsistent with
these Articles of Incorporation or the Kansas General Corporation Code.
COMMON STOCK
5. The holders of Common Stock shall be entitled to one vote per share on
all matters to be voted on by the stockholders of the Corporation.
6. To the extent permitted under the Kansas General Corporation Code and
subject to the provisions of the Preferred Stock, the holders of Common Stock
shall be entitled to participate ratably on a per share basis in the payment of
dividends, whether in cash, property or securities of the Corporation, when and
as declared thereon by the Board of Directors.
7. Subject to the provisions of the Preferred Stock, the holders of Common
Stock shall be entitled to participate ratably on a per share basis in all
distributions to the holders of Common Stock in any liquidation, dissolution or
winding up of the Corporation.
ARTICLE SIX
ACTION BY STOCKHOLDERS
1. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the
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Corporation and may not be effected by any consent in writing by such
stockholders. Meetings of stockholders may be held within or without the State
of Kansas, as the bylaws of the Corporation may provide. Election of Directors
need not be by written ballot.
2. The books of the Corporation may be kept outside the State of Kansas at
such place or places as may be designated from time to time by the Board of
Directors or in the bylaws of the Corporation. Stockholders shall have the right
to inspect the books and records of the Corporation to the extent and in the
manner provided by Kansas law, subject to reasonable restrictions as may be
determined by the Board of Directors or the officers of the Corporation, from
time to time with respect to any request for such inspection.
3. Except as otherwise required by law and subject to the right of holders
of Preferred Stock then outstanding, special meetings of stockholders may be
called by the President of the Corporation or by or at the direction of a
majority of the Board of Directors, and shall be called by the Chairman of the
Board, the President or the Secretary upon the written request of the holders of
not less than twenty percent (20 %) of all of the outstanding shares of the
Corporation entitled to vote at the meeting. The business transacted at a
special meeting of stockholders shall be limited to that stated in the notice of
such meeting or in a duly executed waiver thereof.
4. Except as otherwise provided by these Articles of Incorporation or as
otherwise required by any applicable law, and subject to the rights of the
holders of any Preferred Stock then outstanding, all of the shares of the
capital stock of the Corporation entitled to vote on a matter shall vote on such
matter together as a single class.
5. The holders of capital stock of the Corporation shall not be entitled to
use cumulative voting on any matter.
6. Except as may otherwise be required by applicable law or regulation or
be expressly authorized by the entire Board of Directors, a stockholder may make
a nomination or nominations for Director of the Corporation at an annual meeting
of stockholders or may bring up any other matter for consideration and action by
the stockholders at an annual meeting of stockholders, only if the provisions of
subsections A, B, C and D hereto shall have been satisfied. If such provisions
shall not have been satisfied, any nomination sought to be made or other
business sought to be presented by a stockholder for consideration and action by
the stockholders at such a meeting shall be deemed not properly brought before
the meeting, shall be ruled by the Chairman of the meeting to be out of order,
and shall not be presented or acted upon at the meeting.
A. The stockholder must be a stockholder of record on the record date
for such annual meeting, must continue to be a stockholder of record
at the time of such meeting, and must be entitled to vote thereat.
B. The stockholder must deliver or cause to be delivered a written
notice to the secretary of the Corporation. Such notice must be
received by the secretary no less than one hundred twenty (120)
days prior to the day corresponding to the date on which the
Corporation released its proxy statement in connection with the
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previous year's annual meeting; provided, however, that if the
date of the annual meeting has been changed by more than thirty
(30) days from the date of the previous year's annual meeting,
such notice must be received by the secretary a reasonable time
prior to the time at which notice of such meeting is delivered to
the stockholders. The notice shall specify (a) the name and
address of the stockholder as they appear on the books of the
Corporation, (b) the class and number of shares of the
Corporation which are beneficially owned by the stockholder; (c)
any material interest of the stockholder in the proposed business
described in the notice; (d) if such business is a nomination for
director, each nomination sought to be made, together with the
reasons for each nomination, a description of the qualifications
and business or professional experience of each proposed nominee
and a statement signed by each nominee indicating his or her
willingness to serve if elected, and disclosing the information
about him or her that is required by the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and the rules and
regulations promulgated thereunder to be disclosed in the proxy
materials for the meeting involved if he or she were a nominee of
the Corporation for election as one of its directors; (e) if such
business is other than a nomination for director, the nature of
the business, the reasons why it is sought to be raised and
submitted for a vote of the stockholders and if and why it is
deemed by the stockholder to be beneficial to the Corporation,
and (f) if so requested by the Corporation, all other information
that would be required to be filed with the Securities and
Exchange Commission if, with respect to the business proposed to
be brought before the meeting, the person proposing such business
was a participant in a solicitation subject to Section 14 of the
1934 Act.
C. Notwithstanding satisfaction of the provisions of subsection A
and subsection B, the proposed business described in the notice
may be deemed not to be properly brought before the meeting if,
pursuant to state law or to any rule or regulation of the
Securities and Exchange Commission, it was offered as a
stockholder proposal and was omitted, or had it been so offered,
it could have been omitted, from the notice of, and proxy
material for, the meeting (or any supplement thereto) authorized
by the Board of Directors.
D. In the event such notice is timely given pursuant to subsection B
and the business described therein is not disqualified pursuant to
subsection C, such business may be presented by, and only by, the
stockholder who shall have given the notice required by subsection A
or a representative of such stockholder who is qualified under the
law of the State of Kansas to present the proposal on the
stockholder's behalf at the meeting.
ARTICLE SEVEN
NUMBER, CLASSIFICATION AND ELECTION OF DIRECTORS; VACANCIES
1. The number of Directors constituting the entire Board of Directors shall
be neither less than three (3) nor more than twelve (12). Subject to the rights
of the holders of any Preferred Stock then outstanding, the specific number of
Directors within such minimum and
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maximum shall be authorized from time to time by, and only by, resolution duly
adopted by a majority of the total number of Directors then constituting the
entire Board of Directors.
2. At the first annual meeting of stockholders following the filing of
these Amended and Restated Articles of Incorporation with the Secretary of State
of the State of Kansas after being adopted by the stockholders of the
Corporation, the Board of Directors shall be divided into three (3) classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as possible, of one-third of the total number of Directors then constituting the
entire Board of Directors. At such first annual meeting, Directors will be
elected to serve staggered terms of either one, two or three years. The length
of each Director's term shall depend upon the initial classification of the
Director. Directors elected to Class I shall serve a one year term. Directors
elected to Class II shall serve a two year term. Directors elected to Class III
shall serve a three year term.
At each annual stockholders' meeting thereafter, Directors elected to
succeed the Directors whose terms expire at such meeting shall be elected for a
full three year term. Initially, the number of Directors shall be five. If the
number of Directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain or attain, to the extent possible, the
equality of the number of Directors in each class. In no case shall a decrease
in the number of Directors shorten the term of any incumbent Director. A
Director shall hold office until the annual meeting for the year in which such
Director's term expires and until a successor shall be duly elected and
qualified, or until such Director's earlier death, resignation or removal.
3. Subject to the rights of the holders of any Preferred Stock then
outstanding, any vacancies existing on the Board of Directors for any reason,
including by reason of any increase in the number of Directors, shall be filled
only by the Board of Directors, acting by the affirmative vote of a majority of
the Directors then in office. The term of a Director elected to fill a vacancy
shall expire upon the expiration of the term of office of the class in which
such vacancy occurred.
4. The Board of Directors may authorize the appointment of a Chairman of
the Board of Directors, who may, but need not be, the President of the
Corporation.
ARTICLE EIGHT
REMOVAL OF DIRECTORS
Subject to the rights of the holders of any Preferred Stock then
outstanding, (i) any Director, or the entire Board of Directors, may be removed
from office at any time by the affirmative vote of the holders of record of
outstanding shares representing at least sixty-six and two-thirds percent (66
2/3 %) of the voting power of all the shares of capital stock of the Corporation
then entitled to vote generally in the election of Directors, voting together as
a single class, and (ii) to the extent permitted by law, any Director may be
removed from office at any time, but only for Cause, by the affirmative vote of
a majority of the entire Board of Directors. As used in these Articles of
Incorporation, the term "Cause" means (i) conviction of the Director of a
felony; (ii) declaration by order of a court that the Director is of unsound
mind; or (iii) gross
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abuse of trust that is proven by clear and convincing evidence to have been
committed in bad faith.
ARTICLE NINE
INDEMNIFICATION OF OFFICERS, DIRECTORS AND ADVISORY DIRECTORS
The Corporation shall indemnify each officer, Director and advisory
Director of the Corporation to the fullest extent permitted by applicable law.
The modification or repeal of this ARTICLE NINE shall not adversely affect the
right to indemnification of an officer, Director or advisory Director hereunder
with respect to any act or omission occurring prior to such modification or
repeal.
ARTICLE TEN
LIMITATION ON PERSONAL LIABILITY OF DIRECTORS AND ADVISORY DIRECTORS
No Director or advisory Director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a Director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Kansas General Corporation Code as
presently in effect or as the same may hereafter be amended. Any repeal or
modification of this ARTICLE TEN shall not adversely affect any right or
protection of a Director or advisory Director of the Corporation existing at the
time of such repeal modification.
ARTICLE ELEVEN
CONTROL SHARE ACQUISITIONS
The Corporation expressly elects to be governed by ss.ss. 17-1286 et seq.
of the Kansas General Corporation Code to the same extent as if such provisions,
as amended from time to time, were restated in their entirety herein.
ARTICLE TWELVE
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation expressly elects to be governed by ss.ss. 17-12, 100 et
seq. of the Kansas General Corporation Code to the same extent as if such
provisions, as amended from time to time, were restated in their entirety
herein.
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ARTICLE THIRTEEN
AMENDMENT OF BYLAWS
The Board of Directors is hereby authorized to make, amend, alter or
repeal the bylaws of the Corporation, subject to the power of the stockholders
as described below to make, amend, alter or repeal the bylaws of the
Corporation. Notwithstanding the foregoing or any other provisions of these
Amended and Restated Articles of Incorporation or of the bylaws of the
Corporation, the affirmative vote of at least sixty-six and two-thirds percent
(66 2/3%) of the then outstanding capital stock of the Corporation, voting
together as a single class, shall be required to amend or repeal, or adopt any
provisions inconsistent with, ARTICLE TWO, ARTICLE THREE and ARTICLE EIGHT of
the bylaws of the Corporation.
ARTICLE FOURTEEN
AMENDMENT OF ARTICLES
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in these Articles of Incorporation in the manner now or
hereafter prescribed herein and by the laws of the State of Kansas, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
Notwithstanding the above provision or any other provisions of the Articles of
Incorporation or the bylaws of the Corporation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66 2/3 %) of the voting
power of the shares of the then outstanding voting stock of the Corporation,
voting together as a single class, shall be required to amend or repeal, or
adopt any provisions inconsistent with, ARTICLES SIX, SEVEN, EIGHT, NINE, TEN,
ELEVEN, TWELVE, THIRTEEN or this ARTICLE FOURTEEN of these Articles of
Incorporation.
These Amended and Restated Articles of Incorporation were proposed by the
Board of Directors of the Corporation and adopted by the Corporation's
stockholders in accordance with the provisions of K.S.A. 17-6605 and K.S.A.
17-6602.
Dated January 12,2000. BLUE VALLEY BAN CORP.
By: /s/ Robert D. Regnier
Robert D. Regnier
President
ATTEST:
/s/ Patricia L. Day
Patricia L. Day, Secretary