EXHIBIT 3.1. Charter of National Commerce Bancorporation as amended and
restated
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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
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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 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
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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
175,000,000 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
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
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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 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.
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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.
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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 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
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Combination shall 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
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conditions 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 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.
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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.
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.
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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:
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- ---------------------------------- Gus B. Denton, Secretary
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