EXHIBIT 3.1
AMENDED AND RESTATED CHARTER
OF
NATIONAL COMMERCE BANCORPORATION
UNDER SECTION 48-20-107 OF THE TENNESSEE BUSINESS CORPORATION ACT
Pursuant to the provisions of Section 48-20-107 of the Tennessee Business
Corporation Act, the undersigned corporation adopts the following Amended and
Restated Charter:
FIRST. The name of this Corporation is NATIONAL COMMERCE BANCORPORATION.
SECOND. The address of the principal office of this Corporation in the State
of Tennessee is One Commerce Square, Memphis, Tennessee, County of
Shelby, 38150.
THIRD. (a) The complete address of the Corporation's registered office in
Tennessee is One Commerce Square, Memphis, Tennessee, County of
Shelby, 38150.
(b) The name of the registered agent to be located at the address
listed in part (a) of this Article Third is Charles A. Neale.
FOURTH. The general nature of the business to be transacted by this
Corporation is:
(1) To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage,
pledge or otherwise dispose of or deal in and with any of the
shares of the capital stock (whether such shares be voting or
nonvoting), or any voting trust certificates in respect of the
shares of capital stock, scrip, warrants, rights, bonds,
debentures, notes, trust receipts, and other securities,
obligations, choses in action and evidences of indebtedness or
interest issued or created by banks, trust companies or other
corporations, joint stock companies, syndicates, associations,
firms, trusts or persons, public or private, or by the government
of the United States of America, or by any state or other
governmental agency, and as owner thereof to possess and exercise
all the rights, powers and privileges of ownership, including the
right to execute consents and vote thereon, and to do any and all
acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
(2) To the extent permitted by law, to promote, finance, aid and
assist, financially and otherwise, any bank, trust company, other
corporation, association, joint stock company, syndicate, firm,
trust or person, public or private, governmental agency or other
entity, of which any stock, share, voting trust certificate, bond,
mortgage, debenture, note, right, warrant, scrip, commercial
paper, chose in action, contract, evidence of indebtedness or
other obligation or security is held directly or indirectly by or
for the Corporation, or in the business, financing or welfare of
which the Corporation shall have any interest; and in connection
therewith and to the extent permitted by law, to guarantee or
become surety for the performance of any undertaking or
obligations of such entity; to guarantee by
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endorsement or otherwise the payment of the principal of or
interest or dividends on or sinking fund payments with respect to
any such security of any such entity or any other payments
whatsoever to be made by it; and to join in any reorganization
with respect to such entity.
(3) To pay for any property, securities, rights or interests acquired
by the Corporation in cash or other property, rights or interests
held by the Corporation or by issuing and delivering in exchange
therefor its own property, stock, shares, bonds, debentures, notes
or warrants for capital stock, certificates of indebtedness,
obligations or other securities howsoever evidenced.
(4) To acquire by purchase, gift, lease, exchange or otherwise, real
and personal property, or either, situated either within or
without the State of Tennessee; and to lease, sell, or otherwise
dispose of or encumber the same; to turn the same to account as
may seem expedient; and, in particular, to prepare building sites,
and to construct, reconstruct, alter, improve, manage and maintain
buildings of all kinds including bank buildings, general office
buildings, and other structures.
(5) To conduct a general real estate business, whether as principal or
as agent or in any other capacity whatsoever, in the purchase,
sale, lease, exchange, and management of real estate and the
negotiation of loans thereon; to buy, sell, deal, and trade in
mortgages or other liens on or interest in real estate.
(6) To conduct a general insurance agency and insurance brokerage
business of all kinds including but not limited to fire, life,
accident, fidelity, plate glass, boiler, theft, health,
hospitalization, burglary, marine, airplane, credit, and all other
kinds of insurance whatsoever, and in all its branches.
(7) To engage in and carry on either as principal or as agent, or in
any other capacity whatsoever, the business of rendering
management services and advice to any and all types of business
enterprise and activity in connection with the operation,
management, supervision, control, personnel policies, purchasing,
selling, advertising, financing, and all other phases of
operation.
(8) To borrow or raise money for any of the purposes of the
Corporation and from time to time without limit as to amount, to
draw, make, accept, endorse, execute and issue promissory notes,
drafts, bills of exchange, warrants, bonds and other negotiable or
non-negotiable instruments and evidences of indebtedness therefor,
to make and enter into indentures or trust agreements, to make and
issue its debenture bonds or certificates of indebtedness, payable
to bearer or otherwise, with or without interest coupons attached,
and in addition to such interest, until such debenture bond or
certificate of indebtedness is discharged but not thereafter,
with or without participation in the earnings, or a share of the
earnings of the Corporation, and to secure the payment of any of
the foregoing evidences of indebtedness and of the interest
thereof by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the Corporation
whether at the time owned or thereafter acquired, and to sell,
pledge, exchange
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or otherwise dispose of such obligations of the Corporation for
its corporate purposes.
(9) To loan to any person, firm or corporation any of its surplus
funds, either with or without security.
(10) In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by
the laws of Tennessee upon corporations formed under the
Tennessee Business Corporation Act, and amendments thereto, and
to do any and all of the things hereinbefore set forth to the
same extent as natural persons might or could do, it being hereby
specifically provided that the enumeration of certain specific
powers herein shall not be held to limit or restrict in any
manner such general powers; provided, however, and
notwithstanding any provision in this Restated Charter or any
amendment thereof to the contrary, so long as the Corporation is
subject to the provisions of the United States Bank Holding
Company Act of 1956 or acts amendatory thereof, the Corporation
shall not engage in any activities prohibited thereby, unless it
is determined that any such activity is exempt therefrom or the
prohibition is other wise inapplicable thereto.
The objects and purposes specified in the foregoing Article Fourth
shall, except where otherwise expressed, be in nowise limited or
restricted by reference to or inference from the terms of any other
clause hereof, but the objects and purposes specified in each of the
foregoing clauses of this Article Fourth shall be regarded as
independent objects and purposes.
FIFTH. This Corporation shall have the authority to issue a maximum of
400,000,000 shares of common stock, par value $2.00 per share, which
shares collectively shall have unlimited voting rights and the right
to receive the net assets of the Corporation upon dissolution. No
holder of any class of this Corporation's common stock shall have
preemptive rights. Members of the Board of Directors, other than
directors elected to fill vacancies caused by an increase in the
number of directors or by the removal, death or resignation of
existing directors, shall be elected by the shareholders only and
shall be elected by a plurality of the votes cast in any such
election.
Except as otherwise provided by the laws of the State of Tennessee, as
now in effect or hereafter amended, the Bylaws of the Corporation may
be amended or repealed or additional Bylaws may be adopted by the
Board of Directors by a vote of a majority of the entire Board of
Directors.
The Corporation is hereby authorized to issue 5,000,000 shares of
preferred stock without par value and subject to the following
designations, preferences, limitations and relative rights:
I. So long as any of the preferred stock is outstanding, no dividends
(other than (i) dividends on common stock payable in common stock,
(ii) dividends payable in stock junior to the preferred stock both
as to dividends and upon liquidation, and (iii) cash in lieu of
fractional shares in connection with any such dividends) shall be
paid or declared in cash or otherwise, nor shall any other
distribution be made
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on the common stock or any other securities junior to the preferred
stock as to dividends, unless (a) there shall be no arrearages in
dividends on the preferred stock for all previous dividend periods,
and the full dividend on the preferred stock for the current
dividend period shall have been or shall then be paid or declared
and funds set aside therefor, and (b) the Corporation shall not be
in default on its obligation to redeem any of the preferred stock
called for redemption.
Subject to the foregoing provisions, such dividends as may be
determined by the Board of Directors may be declared and paid from
time to time on the common stock or on any stock junior to the
preferred stock, without any right or participation therein by the
holders of the preferred stock.
II. In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary ("liquidation"), the
holders of the preferred stock shall be entitled to receive an
amount per share equal to the amount fixed and determined by the
Board of Directors in the resolution establishing the preferred
stock, plus an amount equal to all dividends accrued on the
preferred stock to the date fixed for the payment in liquidation,
before any distribution shall be made to the holders of the common
stock or any stock junior to the preferred stock as to the
distribution of assets upon liquidation. If the assets of the
Corporation are insufficient to permit the payment of the full
preferential amounts payable to the holders of the preferred stock,
then the assets available for distribution to holders of the
preferred stock shall be distributed ratably to the holders of the
preferred stock, in proportion to the full preferential amounts
payable on their respective shares upon liquidation.
III. This Restated Charter does not establish series of the preferred
stock and does not fix and determine variations in the relative
rights and preferences as between series of the preferred stock.
There is hereby expressly vested in the Board of Directors of the
Corporation the authority to divide the class of preferred stock
authorized in this Restated Charter into series, and to fix and
determine, in the manner provided by law, the relative rights and
preferences of the shares of any series so established. The Board
of Directors is also authorized to make any changes in the
designations, terms, limitations or relative rights or preferences
of any series of the preferred stock, before the issuance of any
shares of that series, in the manner provided by law.
SIXTH. The amount of capital with which this Corporation will begin business
shall be Five Thousand Dollars ($5,000.00).
SEVENTH. The Board of Directors of the Corporation shall consist of not less
than three (3) and not more than twenty-five (25) natural persons. The
exact number of directors shall be fixed from time to time by the Board
of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors. The Board of Directors shall be divided into
three (3) classes, as nearly equal in number as possible, with the term
of office of one class expiring each year. At the annual meeting of
shareholders in 1983, directors of the first class shall be elected to
hold office for a term expiring at the next succeeding annual meeting,
and upon expiration of such one-year term and thereafter, such class of
directors
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shall be eligible to hold office for terms of three (3) years. At the
annual meeting of shareholders in 1983, directors of the second class
shall be elected to hold office for a term expiring at the second
succeeding annual meeting, and upon the expiration of such two-year
term and thereafter, such class of directors shall be eligible to hold
office for terms of three (3) years. At the annual meeting of
shareholders in 1983, directors of the third class shall be elected to
hold office for a term expiring at the third succeeding annual
meeting, and thereafter such class of directors shall continue to be
eligible to hold office for terms of three (3) years. Newly created
directorships resulting from an increase in the number of directors
and vacancies occurring in the Board for any reason, including the
removal of directors, may be filled by the Board of Directors acting
by a majority of directors then in office, although less than a
quorum, and any directors so chosen shall hold office until the next
election of the class for which the director shall have been chosen
and until a successor shall be elected and qualified.
Notwithstanding any other provision of this Restated Charter or the
Bylaws of the Corporation, and notwithstanding specification of some
lesser percentage by law, any one or more directors or the entire
Board of Directors of the Corporation may be removed for cause, at any
time, by the affirmative vote of at least two-thirds of the entire
Board of Directors.
Notwithstanding any provision of this Restated Charter or of the
Bylaws of this Corporation, and notwithstanding the specification of
some lesser percentage by law, the affirmative vote of the holders of
two-thirds or more of the outstanding shares of each class of stock of
the Corporation entitled to vote thereon shall be required to amend,
alter, change or repeal any provision of this Article Seventh;
provided, however, that if a two-thirds majority of the entire Board
of Directors shall adopt a resolution setting forth a proposed
amendment to this Article Seventh and directing that it be submitted
to a vote at a meeting of shareholders, then such amendment shall be
approved upon receiving the affirmative vote of the holders of a
majority of all the outstanding shares of each class of stock of the
Corporation entitled to vote thereon.
EIGHTH. Any action which the Board of Directors of this Corporation may
properly take may be taken without a meeting. If all directors consent
to taking such action without a meeting, the affirmative vote of the
number of directors that would be necessary to authorize or take such
action at a meeting shall be the act of the Board. The action must be
evidenced by one or more written consents setting forth the action so
taken, signed by each member of the Board of Directors, indicating
each signing director's vote or abstention on the action, and shall be
included in the minutes or filed with the corporate records reflecting
the action taken.
The Corporation shall have the right to purchase its own shares in
accordance with Sections 48-16-302 and 48-16-401 of the Tennessee
Business Corporation Act.
The Board of Directors may authorize and the Corporation may make
certain distributions to its shareholders, in accordance with Section
48-16-401 of the Tennessee Business Corporation Act.
NINTH. SECTION 1. Certain Definitions.
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For the purpose of this Article Ninth, the terms:
A. "Business Combination" means any merger, consolidation, or
amalgamation of the Corporation or any of its subsidiaries with any
Person; any sale, lease, exchange, mortgage, pledge, transfer or
other disposition to or with any Person of net assets of the
Corporation having an aggregate fair market value in excess of
$5,000,000; the issuance or transfer by the Corporation or any of
its subsidiaries of any securities of the Corporation to any Person
in exchange for cash, securities or other property having a fair
market value in excess of $5,000,000; a liquidation of the
Corporation proposed by any Person; any reclassification of
securities or recapitalization of the Corporation.
B. "Interested Shareholder" means any Person, other than the
Corporation or any of its subsidiaries, who (i) is the beneficial
owner, directly or indirectly, of more than 5% of the voting power
of any class of outstanding voting stock; or (ii) is an Affiliate
of the Corporation and at anytime within the two-year period
immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 5% or more of the voting power of
any class of the then outstanding voting stock.
C. "Affiliate" has the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act
of 1934, as in effect on January 1, 1983.
D. "Minimum Price Per Share" shall mean the higher of (i) the highest
gross per share price paid or agreed to be paid by the Interested
Shareholder for any shares of common stock of the Corporation
acquired or agreed to be acquired by it (1) within the four-year
period immediately prior to the first public announcement of the
Business Combination (the "Announcement Date"), or (2) in the
transaction in which it became an Interested Shareholder, whichever
is higher, or (ii) the fair market value per share of common stock
of the Corporation on the Announcement Date or on the date on which
the Interested Shareholder became an Interested Shareholder,
whichever is higher. The calculation of the Minimum Price Per Share
shall require appropriate adjustments for capital changes,
including without limitation stock splits, stock dividends and
reverse stock splits.
E. "Person" shall mean any individual, firm, partnership, trust,
business association, corporation, or other entity.
SECTION 2. Vote Required for Business Combinations.
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In addition to any affirmative vote required by law or this Restated
Charter, and except as otherwise expressly provided in Section 3 of
this Article Ninth, any Business Combination shall require the
affirmative vote of the holders of at least two-thirds of the out-
standing shares of each class of capital voting stock of the
Corporation.
SECTION 3. When Higher Vote is Not Required.
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The provisions of Section 2 of this Article Ninth shall not be
applicable to (i) any Business Combination not with or involving any
Interested Shareholders or an Affiliate of an Interested Shareholder
if the conditions of the following Paragraph A are met, in which event
such Business Combination shall require only such affirmative vote as
is required by law and any other provision of this Restated Charter,
or (ii) any Business Combination with or involving an Interested
Shareholder or an Affiliate of an Interested Shareholder if all of the
conditions in both of the following Paragraphs A and B are met, in
which event such Business Combination shall require only such
affirmative vote as is required by law and any other provision of this
Restated Charter.
A. Approval by the Board of Directors. The Business Combination shall
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have been approved by at least two-thirds of the entire Board of
Directors of the Corporation at anytime prior to the consummation
of the Business Combination.
B. Price and Form of Consideration. Both of the following conditions
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shall have been met:
(i) The aggregate amount of the cash and the fair market value
as of the date of the consummation of the Business
Combination of consideration other than cash to be received
per share by holders of outstanding capital voting stock of
the Corporation in such Business Combination shall be at
least equal to the Minimum Price Per Share.
(ii) The consideration to be received by holders of a particular
class of outstanding voting stock shall be in cash or in the
same form as the Interested Shareholder has previously paid
for shares of such class of voting stock. If the Interested
Shareholder has paid for shares of any class of voting stock
with varying forms of consideration, the form of
consideration for such class of voting stock shall be either
cash or the form used to acquire the largest number of
shares of such class of voting stock previously acquired by
it.
SECTION 4. Determination of Certain Matters.
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Notwithstanding any other provision of this Restated Charter or the
Bylaws of the Corporation, the directors of the Corporation shall have
the power and duty to determine for the purposes of this Article
Ninth, on the basis of information known to them after rea sonable
inquiry, (A) whether a Person is an Interested Shareholder, (B) the
number of shares of voting stock beneficially owned by any Person, (C)
whether a Person is an Affiliate of another, and (D) whether the net
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of
securities by the Corporation or any of its subsidiaries in any
Business Combination has, an aggregate fair market value of $5,000,000
or more.
SECTION 5. No Effect on Fiduciary Obligations of Interested
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Shareholders.
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Nothing contained in this Article Ninth shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by
law.
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SECTION 6. Amendment, Repeal and Other Matters.
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Notwithstanding any provisions of this Restated Charter or the Bylaws
of the Corporation, and notwithstanding the specification of some
lesser percentage by law, the affirmative vote of the holders of two-
thirds or more of the outstanding shares of each class of stock of the
Corporation entitled to vote thereon shall be required to amend,
alter, change or repeal any provision of this Article Ninth; provided,
however, that if at least two-thirds majority of the entire Board of
Directors shall adopt the resolution setting forth the proposed
amendment to this Article Ninth and directing that it be submitted to
a vote at a meeting of the shareholders, then such amendment shall be
approved upon receiving the affirmative vote of the holders of a
majority of the outstanding shares of each class of stock of the
Corporation entitled to vote thereon.
TENTH. The Corporation is to have perpetual existence. The Corporation is
for profit.
ELEVENTH. Special meetings of shareholders may be called by the Chairman,
President or a Vice President, or by a majority of the members of the
Board of Directors acting with or without a meeting, upon notice to
the shareholders being delivered not less than ten (10) days nor more
than two (2) months before the date of the meeting. Such notice shall
include a description of the purpose or purposes for which the meeting
is called and shall be effective when mailed postpaid and correctly
addressed to the shareholder's address shown in the Corporation's
current record of shareholders.
Special meetings of shareholders also may be called by the holders of
at least ten percent (10%) of all the votes entitled to be cast on any
issue proposed to be considered at such meeting upon request in
writing, signed, dated and delivered either in person or by registered
or certified mail, return receipt requested, to the Secretary of the
Corporation by such shareholders at least ninety (90) days before the
date of the meeting. Upon receipt of such request, it shall be the
duty of such Secretary forthwith to cause to be given to the
shareholders entitled thereto notice of such meeting, which notice
shall be given on a date not more than one (1) month after the date
such request was delivered to such Secretary, as such Secretary may
fix and shall be effective when mailed postpaid and correctly
addressed to the shareholder's address shown in the Corporation's
current record of shareholders.
TWELFTH. No director of this Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except: (i) for any breach of the
director's duty of loyalty to the Corporation or its shareholders;
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; or (iii) for
unlawful distributions under Section 48-18-304 of the Tennessee
Business Corporation Act.
NATIONAL COMMERCE BANCORPORATION
By: /s/ David T. Popwell
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David T. Popwell, Secretary
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