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RESTATED CERTIFICATE OF INCORPORATION
OF FIRST BANKS AMERICA, INC.
Pursuant to the provisions of Section 245 of the General Corporation
Law of the State of Delaware, the undersigned, First Banks America, 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 First Banks America, Inc.
The name under which the corporation was originally organized was Commerce
Southwest Inc.
2. This Restated Certificate of Incorporation has been duly adopted
in accordance with the provisions of Section 245 of the General Corporation
Law of the State of Delaware. Amendments to the Restated Certificate of
Incorporation of the Corporation were adopted by the Corporation's
stockholders on August 23, 1995. The Board of Directors, by resolution,
authorized the preparation of this Restated Certificate of Incorporation,
which restates and integrates the aforesaid amendments but does not further
amend the Corporation's Restated Certificate of Incorporation as duly filed
with the Secretary of State, there being no discrepancy between the provision
of such Restated Certificate of Incorporation, as amended, and the provisions
of this Restated Certificate of Incorporation.
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 First Banks
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America, 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 in
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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 classes
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of capital stock which the Corporation shall have authority to
issue is thirteen million six hundred sixty-six thousand six
hundred sixty-six (13,666,666) 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) six
million six hundred sixty-six thousand six hundred sixty-six
(6,666,666) shares of a class designated Common Stock, par value
$0.15 per share ("Common Stock"), and (c) four million (4,000,000)
shares
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of a class designated Class B Common Stock, par value $0.15
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
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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, the holders of Class B Common Stock shall participate
equally per share only if and to the extent such cash dividends
exceed $0.45 per share on the Common Stock per calendar year (for
example, if the Board of Directors declares and the Corporation
pays a dividend of $0.75 per share of Common Stock for a given
calendar year, holders of Class B Common Stock shall be entitled to
a dividend of $0.30 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
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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 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
record holder 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.
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(v) Retirement of Shares. Shares of Class B Common
Stock which have been issued and have been converted into 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.
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FIFTH: The Corporation shall have perpetual existence.
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SIXTH: The number of directors of the Corporation shall
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be fixed in the By-Laws.
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.
NINTH: (A) Whereby under the laws of the State of
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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
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otherwise required by law or any agreement between this Corporation
and any national securities exchange.
(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 the
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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
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misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner 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.
4. This Restated Certificate of Incorporation shall be effective on
August 31, 1995.
IN WITNESS WHEREOF, First Banks America, Inc. has caused this
Certificate to be duly executed this 23th day of August, 1995.
First Banks America, Inc.
By: /s/James F. Dierberg
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James F. Dierberg
Chairman of the Board of Directors,
Chief Executive Officer and President
ATTEST:
By: /s/Allen H. Blake
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Allen H. Blake
Secretary
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