EXHIBIT 3.1
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 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 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 particu lar, 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 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
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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 otherwise 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
75,000,000 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 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
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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 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
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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
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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 outstanding 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
provi sion 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 consider ation 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
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shall have the power and duty to determine for the purposes of this Article
Ninth, on the basis of information known to them after reasonable 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 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.
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
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unlawful distributions under Section 48-18-304 of the Tennessee Business
Corporation Act.
NATIONAL COMMERCE BANCORPORATION
By: /s/ Gus B. Denton
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Gus B. Denton, Secretary
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