EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
FIRST DEPOSIT BANCSHARES, INC.
1.
The name of the Corporation is: "FIRST DEPOSIT BANCSHARES, INC."
2.
The Corporation is organized pursuant to the provisions of the Georgia
Business Corporation Code.
3.
The object of the Corporation is pecuniary gain and profit, and the
Corporation is formed for the purpose of becoming and operating as a bank
holding company and engaging in such related and permissible activities in
connection therewith as the Board of Directors may from time to time specify by
resolution.
4.
(a) The Corporation shall have authority to issue Ten Million (10,000,000)
shares of common stock (the "Common Stock"), no par value, and Ten Million
(10,000,000) shares of preferred stock (the "Preferred Stock").
(b) The Board of Directors of the Corporation is authorized, subject to
limitations prescribed by law and the provisions of this Article, to provide for
the issuance of the shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of Georgia to establish
from time to time the number of shares to be included in each such series, and
to fix the designation, powers, preferences, and relative rights of the shares
of each such series and the qualifications, or restrictions thereof. The
authority of the Board of Directors with respect to each series shall include,
but not be limited to, determination of the following:
(i) The number of shares constituting that series and the distinctive
designation of that series;
(ii) The dividend rate 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 payments of dividends
on shares of that series;
(iii) Whether that series shall have voting rights, in addition to
the voting rights provided by law, and, if so, the terms of
such voting rights;
(iv) Whether that series shall have conversion privileges, and, if
so, the terms and conditions of such conversion, including
provisions for adjustment of the conversion rate in such events
as the Board of Directors shall determine;
(v) 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 they shall be
redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions
and at different redemption rates;
(vi) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so,
the terms and amount of such sinking fund;
(vii) 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; and
(viii) Any other relative rights, preferences and limitations of that
series.
5.
The initial registered office of the Corporation shall be at 8458
Campbellton Street, Douglasville, Douglas County, Georgia 30134-1803. The
initial registered agent of the Corporation at such address shall be Alpha A.
Fowler, Jr.
6.
The mailing address of the initial principal office of the corporation is
8458 Campbellton Street, Douglasville, Douglas County, Georgia 30134-1803.
7.
(a) The Board of Directors shall be divided into three (3) classes, Class
I, Class II and Class III, which shall be as nearly equal in number as possible.
Each director in Class I shall be elected to an initial term of one (1) year,
each director in Class II shall be elected to an initial term of two (2) years,
each director in Class III shall be elected to an initial term of three (3)
years, and each director shall serve until the election and qualification of his
or her successor or until his or her earlier resignation, death or removal from
office. Upon the expiration of the initial terms of office for each Class of
directors, the directors of each Class shall be elected for terms of three (3)
years,
-2-
to serve until the election and qualification of their successors or until their
earlier resignation, death or removal from office.
(b) Unless two-thirds (2/3) of the directors then in office shall approve
the proposed change, this Article 7 may be amended or rescinded only by the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the propos ed change must be contained in the notice of the meeting.
8.
(a) Except as provided in paragraph (b) of this Article 8, the Board of
Directors shall have the right to adopt, amend or repeal the bylaws of the
Corporation by the affirmative vote of a majority of all directors then in
office, and the shareholders shall have such right by the affirmative vote of a
majority of the issued and outstanding shares of the Corporation entitled to
vote in an election of directors.
(b) Notwithstanding paragraph (a) of this Article 8, any amendment of the
bylaws of the Corporation changing the number of directors shall require the
affirmative vote of two-thirds (2/3) of all directors then in office or the
affirmative vote of the holders of eighty percent (80%) of the issued and
outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the proposed change must be contained in the notice of the meeting.
9.
(a) At any shareholders' meeting with respect to which notice of such
purpose has been given, the entire Board of Directors or any individual director
may be removed without cause only by the affirmative vote of the holders of at
least eighty percent (80%) of the issued and outstanding shares of the
Corporation entitled to vote in an election of directors.
(b) At any shareholders' meeting with respect to which notice of such
purpose has been given, the entire Board of Directors or any individual director
may be removed with cause only by the affirmative vote of the holders of at
least a majority of the issued and outstanding shares of the Corporation
entitled to vote in an election of directors.
(c) For purposes of this Article 9, a director of the Corporation may be
removed for cause if (i) the director has been convicted of a felony; (ii) any
bank regulatory authority having jurisdiction over the Corporation requests or
demands the removal; or (iii) at least two-thirds (2/3) of the directors of the
Corporation then in office, excluding the director to be removed, determine that
the director's conduct has been inimical to the best interests of the
Corporation.
-3-
(d) Unless two-thirds (2/3) of the directors then in office shall approve
the proposed change, this Article 9 may be amended or rescinded only by the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote in an election of
directors, at any regular or special meeting of the shareholders, and notice of
the proposed change must be contained in the notice of the meeting.
10.
The initial Board of Directors of the Corporation shall consist of eight
(8) members who shall be and whose addresses are:
Alpha A. Fowler, Jr.
8815 Campbellton Street
Douglasville, Georgia 30134
J. David Higgins
215 Canterbury Walk
Bremen, Georgia 30110
John L. King
4090 Lake Land Hills Drive
Douglasville, Georgia 30134
Mac C. Abercrombie, Jr.
2297 Sister Mill Road
Douglasville, Georgia 30315
Danny A. Belyeu
6445 Elizabeth Drive
Douglasville, Georgia 30134
Carlton H. Boyd
8752 Club Drive
Douglasville, Georgia 30134
Joseph H. Fowler
3116 Nightingale Lane
Douglasville, Georgia 30134
John B. Zellars
3710 Namore Drive
Atlanta, Georgia 30319
11.
(a) A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages, for breach of any duty as
a director, except for liability for:
(i) any appropriation, in violation of his or her duties, of any
business opportunity of the Corporation;
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
-4-
(iii) the types of liability set forth in Section 14-2-832 of the
Georgia Business Corporation Code dealing with unlawful
distributions of corporate assets to shareholders; or
(iv) any transaction from which the director derived an improper
personal benefit.
(b) Any repeal or modification of this Article by the shareholders of the
Corporation shall be prospective only and shall not adversely affect any right
or protection of a director of the Corporation existing at the time of such
repeal or modification.
(c) Unless two-thirds (2/3) of the directors then in office shall approve
the proposed change, this Article 11 may be amended or rescinded only by the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote thereon, at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
12.
Any action required by law or by the Bylaws of the Corporation to be taken
at a meeting of the shareholders of the Corporation, and any action which may be
taken at such a meeting, may be taken without a meeting, if written consent,
setting forth the action so taken, is signed by persons entitled to vote at a
meeting those shares having sufficient voting power to cast not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote were present and voted. Notice
of such action without a meeting by less than unanimous written consent shall be
given within ten (10) days after taking such action to those shareholders of
record on the date when the written consent is first executed and whose shares
were not represented on the written consent.
13.
(a) Except as set forth in subparagraph (b) of this Article 13, the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote thereon shall be
required to approve:
(i) any merger or share exchange of the Corporation with or into any
other corporation; and
(ii) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation to any other
corporation, person or other entity.
(b) The provisions of this Article 13 shall not apply to:
-5-
(i) any merger or similar transaction with any corporation if two-
thirds (2/3) of the directors of the Corporation then in office
approve such transaction prior to its consummation;
(ii) any merger or share exchange of the Corporation with, or any sale
or lease to the Corporation (or any subsidiary thereof) of any
assets of, or any sale or lease by the Corporation (or any
subsidiary thereof) of any of its assets to, any corporation of
which a majority of the outstanding shares of all classes of
stock entitled to vote in an election of directors is owned of
record or beneficially by the Corporation and its subsidiaries.
(c) Unless two-thirds (2/3) of the directors then in office shall approve
the proposed change, this Article 13 may be amended or rescinded only by the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote thereon at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
14.
(a) The Board of Directors, when evaluating any offer of another party (i)
to make a tender offer or exchange offer for any equity security of the
Corporation, (ii) to merge or consolidate any other corporation with the
Corporation, or (iii) to purchase or otherwise acquire all or substantially all
of the assets of the Corporation, shall, in determining what is in the best
interests of the Corporation and its shareholders, give due consideration to all
relevant factors, including without limitation: (A) the short-term and long-
term social and economic effects on the employees, customers, shareholders and
other constituents of the Corporation and its subsidiaries, and on the
communities within which the Corporation and its subsidiaries operate (it being
understood that any subsidiary bank of the Corporation is charged with providing
support to and being involved in the communities it serves); and (B) the
consideration being offered by the other party in relation to the then-current
value of the Corporation in a freely negotiated transaction and in relation to
the Board of Directors' then-estimate of the future value of the Corporation as
an independent entity.
(b) Unless two-thirds (2/3) of the directors then in office shall approve
the proposed change, this Article 14 may be amended or rescinded only by the
affirmative vote of the holders of at least eighty percent (80%) of the issued
and outstanding shares of the Corporation entitled to vote thereon, at any
regular or special meeting of the shareholders, and notice of the proposed
change must be contained in the notice of the meeting.
15.
Should any provision of these Articles of Incorporation, or any clause
hereof, be held to be invalid, illegal or unenforceable, in whole or in part,
the remaining provisions and clauses of these Articles of Incorporation shall
remain valid and fully enforceable.
-6-
16.
The Incorporator of the Corporation is Steven S. Dunlevie, whose address is
Suite 700, 1275 Peachtree Street, N.E., Atlanta, Fulton County, Georgia 30309-
3574.
IN WITNESS WHEREOF, the undersigned has caused these Articles of
Incorporation to be executed, this 22nd day of February, 1999.
FIRST DEPOSIT BANCSHARES, INC.
/s/ Steven S. Dunlevie
----------------------
STEVEN S. DUNLEVIE, Esq.
Attorney for Incorporator
-7-