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EXHIBIT 3(a)
RESTATEMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BANCTEXAS GROUP INC.
AS OF AUGUST 30, 1994
Pursuant to the provisions of Section 245 of the General
Corporation Law of the State of Delaware, the undersigned,
BANCTEXAS GROUP INC., a Delaware corporation (the "Corporation"),
incorporated on January 25, 1978, hereby amends and restates its
Restated Certificate of Incorporation as follows:
1. The present name of the corporation is BancTexas Group
Inc. The name under which the corporation was originally organized
was Commerce Southwest Inc.
2. An Amendment to the Restated Certificate of Incorporation
of the Corporation and this Restatement of the Certificate of
Incorporation of the Corporation was adopted by the Corporation's
stockholders on August 18, 1994, to become immediately effective
upon the filing of this Restatement of the Certificate of
Incorporation of the Corporation with the office of the Delaware
Secretary of State.
3. The Certificate of Incorporation of the Corporation is
hereby restated in its entirety to read as follows:
FIRST: The name of the Corporation is BancTEXAS Group
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Inc.
SECOND: The address of its registered office in the
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State of Delaware is 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage
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in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the
State of Delaware.
FOURTH: (A) The total number of shares of all
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classes of capital stock which the Corporation shall have
authority to issue is one hundred sixty-three million
(163,000,000) shares consisting of (a) three million
(3,000,000) shares of a class designated as Preferred
Stock, par value $1.00 per share ("Preferred Stock"), (b)
one hundred million (100,000,000) shares of a class
designated Common Stock, par value $.01 per share
("Common Stock"), and (c) sixty
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million (60,000,000) shares of a class designated Class B Common Stock,
par value $0.01 per share ("Class B Common Stock").
(B) The designations and the powers, preferences, rights,
qualifications, limitations, and restrictions of the Preferred
Stock, the Common Stock, and the Class B Common Stock are as
follows:
1. Provisions Relating to the Preferred Stock. Shares of
Preferred Stock may be issued in one or more series as determined
from time to time by the Board of Directors. All shares of any one
series of Preferred Stock will be identical, except as to the dates
of issue and the dates from which dividends on shares of the series
issued on different dates will cumulate, if dividends on the shares
of such series are cumulative. Authority is hereby expressly
granted to the Board of Directors to authorize the issuance of one
or more series of Preferred Stock, and to fix by one or more
resolutions providing for the issuance of each such series the
voting powers, designations, preferences and relative,
participating, optional, redemption, conversion, exchange or other
special rights, qualifications, limitations or restrictions of such
series, and the number of shares in such series, to the full extent
now or hereafter permitted by law.
2. Provisions Relating to the Common Stock and the Class B
Common Stock.
(a) General. Except as otherwise provided herein, or as
otherwise provided by applicable law, all shares of Common Stock
and Class B Common Stock shall have identical rights and privileges
in every respect.
(b) Voting. The Common Stock and the Class B Common Stock
shall each be fully voting stock entitled to one vote per share
with respect to the election of directors and for all other
purposes. The holders of Common Stock and Class B Common Stock
shall, unless otherwise required by law or by another provision of
this Certificate of Incorporation, vote as a single class on all
matters. In all elections for directors of the Corporation, each
stockholder shall have the right to cast as many votes in the
aggregate as shall equal the number of voting shares held by such
stockholder in the Corporation, multiplied by the number of
directors to be elected by the class to which such stockholder
belongs at such election, and each stockholder may cast the whole
number of votes, either in person or by proxy, for one candidate or
distribute them among two or more candidates.
(c) Dividends. Subject to the limitations prescribed herein,
holders of Common Stock and Class B Common Stock shall participate
equally in any dividends (whether payable in cash, stock or
property) when and as declared by the Board of Directors of the
Corporation out of the assets of the Corporation legally available
therefor and the Corporation shall treat the Common Stock and Class
B Common Stock identically in respect of any subdivisions or
combinations (for example, if the Corporation effects a two-for-one
stock split with respect to the Common Stock, it shall at the same
time effect a two-for-one stock split with respect to the Class B
Common Stock); provided, however, that (i) with respect to
dividends payable in cash by the Corporation,
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the holders of Class B Common Stock shall participate equally per share only
if and to the extent such cash dividends exceed $0.03 per share on the Common
Stock per calendar year (for example, if the Board of Directors
declares and the Corporation pays a dividend of $0.05 per share of
Common Stock for a given calendar year, holders of Class B Common
Stock shall be entitled to a dividend of $0.02 per share); and (ii)
dividends payable in shares of Common Stock (or rights to subscribe
for or purchase shares of Common Stock or securities or
indebtedness convertible into shares of Common Stock) shall be paid
only on shares of Common Stock and dividends payable in shares of
Class B Common Stock (or rights to subscribe for or purchase shares
of Class B Common Stock or securities or indebtedness convertible
into shares of Class B Common Stock) shall be paid only on shares
of Class B Common Stock (for example, if the Board of Directors
declares and the Corporation pays a five percent (5%) stock
dividend on the Common Stock, payable in shares of Common Stock, at
the same time the Board of Directors shall declare and the
Corporation shall pay a five percent (5%) stock dividend on the
Class B Common Stock payable in shares of Class B Common Stock).
(d) Liquidation. In the event the Corporation is liquidated,
dissolved or wound up, whether voluntarily or involuntarily, the
holders of the Common Stock and the Class B Common Stock shall
participate equally in any distribution.
(e) Voluntary Conversion of Class B Common Stock.
(i) Conversion Rights. Each share of
Class B Common Stock may be converted into one
(1) share of Common Stock at the option of any
holder thereof at any time after the fifth
(5th) anniversary of the date of its issuance
by the Corporation. For the foregoing purpose,
a share of Class B Common Stock issued as a
stock dividend or pursuant to a stock split,
reclassification or other combination, shall
be deemed to have been issued on the date of
the share of Class B Common Stock with respect
to which it is so issued.
(ii) Conversion Procedures. Any holder
of Class B Common Stock desiring to exercise
such holder's option to convert such Class B
Common Stock in accordance with the foregoing
shall surrender the certificate or
certificates representing the Class B Common
Stock to be converted, duly endorsed to the
Corporation or in blank, at the principal
executive office of the Corporation, and shall
give written notice to the Corporation at such
office that such holder elects to convert the
number of shares represented by such
certificate or certificates, or a specified
number thereof. As promptly as practicable
after the surrender for conversion of any
Class B Common Stock, the Corporation shall
execute and deliver or cause to be executed
and delivered to the holder of such Class B
Common Stock certificates representing the
shares of Common Stock issuable upon such
conversion. In case any certificate or
certificates representing shares of Class B
Common Stock shall be surrendered for
conversion for only a part
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of the shares represented thereby, the Corporation shall
execute and deliver to the holders of the certificate or
certificates for shares of Class B Common Stock so surrendered a new
certificate or certificates representing the shares of Class B
Common Stock not converted, dated the same date as the certificate
or certificates representing the Common Stock. Shares of the Class B
Common Stock converted as aforesaid shall be deemed to have been
converted immediately prior to the close of business on the date
such shares are duly surrendered for conversion, and the person or
persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the
recordholder or holders of such shares of Common Stock as of such
date.
(iii) Recapitalization, Consolidation, or
Merger of the Corporation. In the event that
the Corporation shall be recapitalized,
consolidated with, or merged with or into any
other corporation (a "Reorganization") and the
terms thereof shall provide (i) that the Class
B Common Stock shall remain outstanding after
such Reorganization and (ii) for any change in
or conversion of the Common Stock, then the
terms of such Reorganization shall include a
provision to the effect that each share of
Class B Common Stock after such Reorganization
shall thereafter be entitled to receive upon
conversion the same kind and amount of
securities or assets as shall be distributable
upon such Reorganization with respect to one
share of Common Stock.
(iv) Reservation of Shares. The
Corporation shall at all times reserve and
keep available out of its authorized but
unissued shares of Common Stock, solely for
the purpose of effecting the conversion of
Class B Common Stock as herein provided, such
number of shares of Common Stock as shall from
time to time be sufficient to effect the
conversion of all outstanding shares of Class
B Common Stock and shall take all such
corporate action as may be necessary to assure
that such shares of Common Stock may be
validly and legally issued upon conversion of
all of the outstanding shares of Class B
Common Stock; and if, at any time the number
of authorized but unissued shares of Common
Stock shall not be sufficient to effect the
conversion of the Class B Common Stock, the
Corporation shall take such corporate action
as may be necessary to increase its authorized
but unissued shares of Common Stock to such
number of shares as shall be sufficient for
such purpose.
(v) Retirement of Shares. Shares of
Class B Common Stock which have been issued
and have been converted into
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Common Stock, repurchased, or reacquired in any other manner
by the Corporation shall not be reissued.
(f) Mandatory Conversion of Class B Common Stock. If, at any
time while there are shares of Class B Common Stock issued and
outstanding, it shall be determined by the Board of Directors, in
its sole discretion, that legislation or regulations are enacted or
any judicial or administrative determination is made which would
prohibit the listing, quotation or trading of the Common Stock on
the New York Stock Exchange or the National Association of
Securities Dealers Automated Quotation System, or would otherwise
have a material adverse effect on the Corporation, in any such case
due to the Corporation having more than one class of common shares
outstanding, then the Board of Directors may by resolution convert
all outstanding shares of Class B Common Stock into shares of
Common Stock on a share-for-share basis. To the extent practicable,
notice of such conversion of Class B Common Stock specifying the
date fixed for said conversion shall be mailed, postage pre-paid,
at least ten (10) days but not more than thirty (30) days prior to
said conversion date to the holders of record of Common Stock and
Class B Common Stock at their respective addresses as the same
shall appear on the books of the Corporation; provided, however,
that no failure or inability to provide such notice shall limit the
authority or ability of the Board of Directors to convert all
outstanding shares of Class B Common Stock into shares of Common
Stock. Immediately prior to the close of business on said
conversion date (or, if said conversion date is not a business day,
on the next succeeding business day) each outstanding share of
Class B Common Stock shall thereupon automatically be converted
into a share of Common Stock and each certificate theretofore
representing shares of Class B Common Stock shall thereupon and
thereafter represent a like number of shares of Common Stock.
(g) Class Voting Under Certain Circumstances. None of the
provisions hereof affecting the powers, preferences, rights,
qualifications, limitations or restrictions of the Class B Common
Stock may be amended or repealed unless, in addition to any other
vote required by law or this Certificate of Incorporation, such
amendment shall be approved by the affirmative vote of the holders
of a majority of the shares of the Common Stock then outstanding,
voting as a separate class.
3. General. Subject to the foregoing provisions of this
Certificate of Incorporation, the Corporation may issue shares of
its Preferred Stock, Common Stock, and Class B Common Stock from
time to time for such consideration (not less than the par value
thereof) as may be fixed by the Board of Directors of the
Corporation, which is expressly authorized to fix the same in its
absolute and uncontrolled discretion, subject to the foregoing
conditions. Shares so issued for which the consideration shall have
been paid or delivered to the Corporation shall be deemed fully
paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be
liable for any further payments in respect of such shares.
FIFTH: The Corporation shall have perpetual
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existence.
SIXTH: The number of directors of the Corporation
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shall be fixed in the By-Laws.
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SEVENTH: The Board of Directors of the Corporation
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shall have power to make, alter or repeal the By-Laws of
the Corporation only with the prior approval of the
holders of a majority of the shares of Class B Common
Stock, subject to such restrictions upon the exercise of
such power as may be imposed by the stockholders in any
By-Laws adopted by them from time to time.
EIGHTH: The Corporation reserves the right to amend,
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alter, change or repeal any provision contained in the
Certificate of Incorporation or any amendment thereof in
the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted
subject to this reservation.
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(A) Whereby under the laws of the State of Delaware
a vote of stockholders is required to approve or
authorize any of the transactions set forth below, then
the affirmative vote or consent of 75% of the capital
stock of this Corporation entitled to vote in elections
of directors, voting as a single class, shall be required
to authorize or approve such transactions:
(1) a merger or consolidation with or
into any other corporation, or
(2) any sale, lease or exchange of all or
substantially all of the property and assets
of this Corporation to any other corporation,
person or other entity, or
(3) any purchase or lease of all or
substantially all of the assets of any
corporation, person or other entity by this
Corporation, or
(4) any combination of the outstanding
shares of Common Stock of this Corporation
into a smaller number of shares, or
if as of the record date for the determination of
stockholders entitled to notice thereof and to vote
thereon or consent thereto (i) such other corporation,
person or entity which is a party to a transaction
described in clauses (1), (2) or (3) above is the
beneficial owner, directly or indirectly, of at least 5%
of the total outstanding shares of stock of this
Corporation entitled to vote in elections of directors,
considered for this purpose as one class, or (ii) any
combination of the outstanding shares of Common Stock
into a smaller number of shares as described in clause
(4) above is proposed, directly or indirectly, by a
person, corporation or entity which is the beneficial
owner, directly or indirectly, of at least 5% of the
total outstanding shares of stock of this Corporation
entitled to vote in elections of directors, considered
for this purpose as one class. Such affirmative vote or
consent shall be in addition to the vote or consent of
the holders of the stock of this Corporation otherwise
required by law or any agreement between this Corporation
and any national securities exchange.
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(B) For purposes of this Article Ninth any corporation,
person or other entity shall be deemed to be the beneficial owner
of any shares of stock of this Corporation,
(1) which it owns directly, whether or
not of record, or
(2) which it has the right to acquire
pursuant to any agreement or understanding or
upon exercise of conversion rights, warrants,
options or otherwise, or
(3) which are beneficially owned,
directly or indirectly (including shares
deemed to be owned through application of
clause (2) above), by any affiliate (a person
that directly, or indirectly through one or
more intermediaries, controls, or is
controlled by or is under common control with
any such corporation, person or other entity)
or associate (any corporation or organization
of which such person is an officer or partner
or is, directly or indirectly, the beneficial
owner of 10% or more of any class of equity
security; any trust or other estate in which
such person has a substantial beneficial
interest or as to which such person serves as
trustee or in a similar fiduciary capacity;
and any relative or spouse of such person or
any relative of such spouse, who has the same
home as such person or who is a director or
officer of the corporation or any of its
parents or subsidiaries), or
(4) which are beneficially owned,
directly or indirectly (including shares
deemed owned through application of clause (2)
above), by any other corporation, person or
entity with which it or its affiliate or
associates (as such terms are defined in
clause (3) above) has any agreement or
arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of
stock of this Corporation.
For the purposes of this Article Ninth, the total outstanding
shares of any class of stock of this Corporation shall be deemed to
include shares owned through the application of clauses (B)(2), (3)
and (4) above for the purposes of calculating the percentage of
ownership of such corporation, person, or other entity, but shall
not be deemed to include any other shares which may be issuable
pursuant to any agreement or upon exercise of conversion rights,
warrants, options or otherwise.
(C) The Board of Directors shall have the power and duty to
determine for the purpose of this Article Ninth on the basis of
information known to this Corporation, whether
(1) such other corporation, person or
other entity beneficially owns more than 5% of
the total outstanding shares of stock of this
Corporation entitled to vote in elections of
directors,
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(2) a corporation, person, or entity is
an "affiliate" or "associate" (as defined in
paragraph (B) above) of another, and
(3) the memorandum of understanding
referred to in paragraph (D)(1) below is
substantially consistent with the transaction
covered thereby.
Any such determination shall be conclusive and binding for all
purposes of this Article Ninth.
(D) The provisions of this Article Ninth shall not apply to
(1) any merger or similar transaction
with any corporation, if the Board of
Directors of this Corporation has approved a
memorandum of understanding with such other
corporation with respect to such transaction
prior to the time that such other corporation
shall have become a beneficial owner of 5% or
more of the total outstanding shares of stock
of this Corporation entitled to vote in
elections of directors; or
(2) any merger or consolidation of this
Corporation with, or any sale or lease to this
Corporation or any subsidiary thereof of any
assets of, or any sale or lease by this
Corporation or any subsidiary thereof of any
assets to, any corporation of which a majority
of the outstanding shares of all classes of
stock entitled to vote in elections of
directors of such corporation is owned of
record or beneficially by this Corporation and
its subsidiaries.
(E) Except as may be otherwise provided by this Article
Ninth, or required by statute, an agreement of merger or
consolidation may be approved by a majority vote of the shares
issued and outstanding, taken at a meeting called for the purpose
of such approval.
(F) Notwithstanding any other provision of this Certificate
of Incorporation or by the By-Laws of this Corporation (and in
addition to any other vote that may be required by law, this
Certificate of Incorporation or the By-Laws of this Corporation)
the affirmative vote of 75% of the capital stock of this
Corporation entitled to vote in elections of directors, voting as
a single class, shall be required to amend, alter, change, or
repeal this Article Ninth.
TENTH: No director shall be personally liable to
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the Corporation or any stockholder for monetary damages
for breach of fiduciary duty as a director, except for
any matter in respect of which such director shall be
liable under Section 174 of the Delaware General
Corporation Law or any amendment thereto or successor
provision thereto or shall be liable by reason that, in
addition to any and all other requirements for such
liability, he (i) shall have breached his duty of loyalty
to the Corporation or its stockholders, (ii) shall not
have acted in good faith, (iii) shall have acted in a
manner involving intentional misconduct or a knowing
violation of law or, in failing to act, shall have acted
in a manner
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involving intentional misconduct or a knowing
violation of law or (iv) shall have derived an improper
personal benefit. Neither the amendment nor repeal of
Article Tenth, nor the adoption of any provision of the
Certificate of Incorporation inconsistent with this
Article Tenth, shall eliminate or reduce the effect of
this Article Tenth in respect of any matter occurring, or
any cause of action, suit or claim that, but for this
Article Tenth, would accrue or arise prior to such
amendment, repeal or adoption of an inconsistent
provision.
IN WITNESS WHEREOF, said BancTEXAS Group Inc. has caused this
Certificate to be duly executed this 26th day of August, 1994.
BancTEXAS Group Inc.
By: /s/ Nathan C. Collins
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Nathan C. Collins
Chairman of the Board of Directors,
President and Chief Executive Officer
ATTEST:
By: /s/ Richard H. Braucher
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Richard H. Braucher
Senior Vice President and Secretary
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