EXHIBIT 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
WACHOVIA CORPORATION
Pursuant to Section 55-10-07 of the General Statutes of North
Carolina, Wachovia Corporation hereby submits the following for the purpose of
amending and restating its articles of incorporation.
I.
The name of the corporation is Wachovia Corporation.
II.
The period of duration of the corporation shall be perpetual.
III.
The purpose or purposes for which the corporation is organized are:
(1) To exercise all of the powers of a general business corporation
under the laws of North Carolina, including but not limited to the powers
specifically described in (2) and (3) below.
(2) To operate as a one bank or multi-bank holding company and in
general to act as a holding company and to acquire and own stock or other
interests in other businesses of any lawful character and, as shareholder or as
owner of other interests in such businesses, to exercise all rights incident
thereto.
(3) In furtherance of any of these purposes, the corporation shall
have power to execute contracts of guaranty and to issue bonds or other
evidences of indebtedness which may be secured or unsecured and which may be
convertible into Common Stock of the corporation.
IV.
The corporation shall have authority to issue One Billion
(1,000,000,000) shares of Common Stock with par value of Five Dollars ($5.00)
per share and Fifty Million (50,000,000) shares of Preferred Stock with par
value of Five Dollars ($5.00) per share.
The Board of Directors of the corporation shall have authority to
fix the preferences, limitations and relative rights of the Preferred Stock with
par value of Five Dollars ($5.00) per share, and to establish series of such
Preferred Stock and determine the variations between series.
V.
The address of the registered office of the corporation is Wachovia
Building, 301 North Main Street, Winston-Salem, Forsyth County, North Carolina
27101, and the name of its registered agent at such address is Kenneth W.
McAllister.
VI.
The name and address of the incorporator is John G. Medlin, Jr., 301
North Main Street, Winston-Salem, North Carolina 27101.
VII.
The number of the directors of the corporation may be fixed by the
bylaws but shall not be less than nine (9).
The Board of Directors shall be divided into three classes as equal
in number as may be feasible, with the term of office of one class expiring each
year. The members of the initial Board of Directors shall be divided into three
classes as hereinafter provided in Article VIII, with directors of the first
class to hold office for a term expiring at the first annual meeting
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of shareholders, directors of the second class to hold office for a term
expiring at the second annual meeting of shareholders and directors of the third
class to hold office for the term expiring at the third annual meeting of
shareholders. At each annual meeting of shareholders, successors to the
directors whose terms shall then expire shall be elected to hold office for
terms expiring at the third succeeding annual meeting. In case of any vacancies,
by reason of an increase in the number of directors or otherwise, each
additional director may be elected by the Board of Directors to hold office
until the end of the term he is elected to fill and until his successor shall
have been elected and qualified in the class to which such director is assigned
and for the term or remainder of the term of such class. Directors shall
continue in office until others are chosen and qualified in their stead. When
the number of directors is changed, any newly created directorships or any
decrease in directorships shall be so assigned among the classes by a majority
of the directors then in office, though less than a quorum, as to make all
classes as equal in number as may be feasible. No decrease in the number of
directors shall shorten the term of any incumbent director.
Any director may be removed from office as a director, but only for
cause, by the affirmative vote, at a meeting called as provided in the bylaws
for that purpose, of at least 66-2/3% in interest of the holders of voting stock
of the corporation issued and outstanding, including a majority in interest of
the holders of issued and outstanding voting stock of the corporation held by
persons other than any person who is an Interested Shareholder (as defined in
paragraph (3) of Section D of Article X hereof).
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the corporation may have the
right, voting separately by
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class or series, to elect directors at an annual or special meeting of
shareholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms of such Preferred
Stock applicable thereto, and such directors so elected shall not be divided
into classes pursuant to this Article unless expressly provided by such terms.
VIII.
The number of directors constituting the initial Board of Directors
shall be thirteen (13) and the names and addresses of the persons who are to
serve as directors until the first, second, and third annual meetings of
shareholders or until their successors are elected and qualified are:
First Class: Terms Expiring At First Annual Meeting
Albert L. Butler, Jr. Sherwood H. Smith, Jr.
2850 Galsworthy Drive 408 Drummond Drive
Winston-Salem, NC 27106 Raleigh, NC 27609
Donald R. Hughes Charles McKenzie Taylor
105 Kimberly Terrace 19 Muscogee Avenue, NW
Greensboro, NC 27408 Atlanta, GA 30305
Second Class: Term Expiring At Second Annual Meeting
John M. Belk J. Tylee Wilson
435 Hempstead Place 2585 Club Park Road
Charlotte, NC 28027 Winston-Salem, NC 27104
James K. Glenn Erwin Zaban
2403 Reynolda Drive 3374 Old Plantation Road, NW
Winston-Salem, NC 27104 Atlanta, GA 30327
J. Mack Robinson
3500 Tuxedo Road, NW
Atlanta, GA 30305
Third Class: Term Expiring At Third Annual Meeting
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John L. Clendenin John G. Medlin, Jr.
5290 North Powers Ferry Road 1056 Kenleigh Circle
Atlanta, GA 30327 Winston-Salem, NC 27106
Thomas H. Davis Thomas R. Williams
1190 Arbor Road 3200 Arden Road, NW
Winston-Salem, NC 27104 Atlanta, GA 30305
IX.
No holder of stock of the corporation shall be entitled as of right
to subscribe for or purchase any additional or increased stock of the
corporation of any class, whether now or hereafter authorized, including
obligations convertible into any class of stock, or stock of any class
convertible into stock of any other class, or obligations, stock or other
securities carrying warrants or rights to subscribe to stock of the corporation
of any class, whether now or hereafter authorized, but any and all shares of
stock, bonds, debentures or other securities or obligations, whether or not
convertible into stock or carrying warrants entitling the holders thereof to
subscribe to stock, may be issued, sold or disposed of from time to time by
authority of the Board of Directors of the corporation to such persons, firms or
corporations and for such consideration, as far as it may be permitted by law,
as the Board of Directors shall from time to time determine.
X.
A. Any Business Combination (as defined in paragraph (1) of Section
D of this Article) shall require only such affirmative vote as is required by
law and any other provision of these Articles if either all of the conditions
set forth in clauses (i), (ii) and (iii) have been satisfied or if the
conditions set forth in clause (iv) have been satisfied:
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(i) The consideration to be received by holders of Common
Stock shall be cash or in the same form as previously has been paid
by or on behalf of any Interested Shareholder (as defined in
paragraph (3) of Section D of this Article) in connection with its
direct or indirect acquisition of beneficial ownership of any shares
of Common Stock. If the consideration paid by or on behalf of the
Interested Shareholder for shares of Common Stock varied as to form,
the form of consideration to be received by holders of Common Stock
shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of Common Stock previously
acquired by the Interested Shareholder;
(ii) The aggregate amount of the cash and the Fair Market
Value (as defined in paragraph (9) of Section D of this Article) of
consideration other than cash to be received per share by holders of
Common Stock in any Business Combination shall be at least equal to
the greater of (a) the Fair Market Value per share of Common Stock
on the date of the first public announcement of the proposal of a
Business Combination (the "Announcement Date") or on the date on
which the Interested Shareholder became an Interested Shareholder,
whichever is higher, multiplied by the ratio of (1) the highest per
share price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder for any
shares of Common Stock acquired by it within the two-year period
immediately prior to the Announcement Date to (2) the Fair Market
Value per share of Common Stock on the first day in such two-year
period on which the Interested Shareholder acquired any shares of
Common Stock
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or (b) the highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by such Interested
Shareholder in acquiring any of the corporation's Common Stock;
(iii) After becoming an Interested Shareholder and prior to
the consummation of any Business Combination, (A) such Interested
Shareholder shall not have acquired any newly issued shares of
capital stock, directly or indirectly, from the corporation (except
upon conversion of convertible securities acquired by it prior to
becoming an Interested Shareholder or upon compliance with the
provisions of this Article or as a result of a pro rata stock
dividend or stock split) and (B) such Interested Shareholder shall
not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax credits
provided by the corporation, or made any major changes in the
corporation's business or equity capital structure;
(iv) The Business Combination shall have been approved by at
least 66-2/3% of the Continuing Directors (as defined in paragraph
(8) of Section D of this Article) and, if deemed advisable by a
majority of the Continuing Directors, the Board of Directors shall
have obtained an opinion of a reputable investment banking firm to
the effect that the financial terms of such Business Combination are
fair from the point of view of the holders of Voting Shares (as
defined in paragraph (5) of Section D of this Article) other than
the Interested Shareholder (such investment banking firm to be
selected by a majority
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of the Continuing Directors, to be furnished with all information it
reasonably requests, and to be paid a reasonable fee for its
services upon receipt by the corporation of such opinion).
B. If the provisions of Section A of this Article have not been
satisfied, any Business Combination shall require the affirmative vote, in
person or by proxy, at any meeting called as provided in the bylaws, of the
holders of at least 66-2/3% in interest of the Voting Shares of the corporation
issued and outstanding, including a majority in interest of the holders of
issued and outstanding Voting Shares of the corporation held by persons other
than an Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that some lesser percentage may be specified by
law or in any agreement with any national securities exchange or otherwise.
C. The provisions of Sections A and B of this Article shall not be
applicable to any particular Business Combination, and such Business Combination
shall require only such affirmative vote, if any, as is required by law and any
other provision of these Articles, if such Business Combination constitutes a
merger or consolidation of the corporation with, or any sale or lease to the
corporation or any Subsidiary (as defined in paragraph (7) of Section D of this
Article) of any assets of, or any sale or lease by the corporation or any
Subsidiary 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 elections of
directors is owned of record or beneficially by the corporation or its
Subsidiaries, provided that this Section C shall not apply to any transaction to
which any
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Affiliate (as defined in paragraph (6) of Section D of this Article) of any
Interested Shareholder is a party.
D. For the purposes of this Article:
(1) The term "Business Combination" as used in this Article shall
mean any transaction which is referred to in any one or more of clauses
(a) through (f) of this paragraph (1);
(a) Any merger or consolidation of the corporation or any
Subsidiary with or into (A) any Interested Shareholder or (B) any
other corporation (whether or not itself an Interested Shareholder)
which immediately before is, or after such merger or consolidation
would be, an Affiliate of an Interested Shareholder, or
(b) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with any Interested Shareholder or any Affiliate
of any Interested Shareholder of any assets of the corporation or
any subsidiary when such assets have an aggregate fair market value
of $25,000,000 or more, or
(c) The issuance or transfer to any Interested Shareholder or
any Affiliate of any Interested Shareholder by the corporation or
any Subsidiary (in one transaction or a series of related
transactions) of any equity securities of the corporation or any
Subsidiary where such equity securities have an aggregate fair
market value of $10,000,000 or more, or
(d) The adoption of any plan or proposal for the liquidation
or dissolution of the corporation, or
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(e) Any reclassification of securities (including any reverse
stock split), or recapitalization of the corporation, or any merger
or consolidation of the corporation with any of its Subsidiaries or
any similar transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect, directly
or indirectly, of increasing the percentage of the outstanding
shares of any class of equity or convertible securities of the
corporation or any Subsidiary which is directly or indirectly owned
by any Interested Shareholder or any Affiliate of any Interested
Shareholder, or
(f) Any agreement, contract or other arrangement providing for
any of the transactions described in this definition of "Business
Combination."
(2) A "person" shall mean any individual, firm, corporation or other
entity.
(3) "Interested Shareholder" shall mean any person (other than the
corporation or any Subsidiary) who or which, along with its Affiliates and
Associates (as defined in paragraph (6) of this Section D) as of the
record date for the determination of shareholders entitled to notice of
and to vote on any Business Combination or any proposed amendment,
alteration or repeal of any provision of these Articles or any bylaw of
the corporation, or immediately prior to the consummation of any such
Business Combination:
(i) Is the beneficial owner (as defined in paragraph (4) of
this Section D), directly or indirectly, of more than 10% of the
Voting Shares of the corporation or a Subsidiary, or
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(ii) Is an assignee of or has otherwise succeeded to any share
of capital stock of the corporation or a Subsidiary which was at any
time within two years prior thereto beneficially owed by any
Interested Shareholder, and such assignment or succession shall have
occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the Securities
Act of 1933.
(4) A person shall be the "beneficial owner" of any Voting Shares:
(a) Which such person or any of its Affiliates and
Associates beneficially own, directly or indirectly, or
(b) Which such person or any of its Affiliates or Associates
has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise or (B) the right to vote pursuant to any agreement,
arrangement or understanding, or
(c) Which are beneficially owned, directly or indirectly, by
any other person with which such first-mentioned person or any of
its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of capital stock of the corporation or a
Subsidiary, as the case may be.
(5) "Voting Shares" when used with respect to the corporation or a
Subsidiary shall mean shares of such corporation having general voting
power. For the purpose of
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determining whether a person is an Interested Shareholder pursuant to
paragraph (3) of this Section D, the outstanding Voting Shares shall
include shares deemed owned by a beneficial owner through application of
paragraph (4) of this Section D but shall not include any other Voting
Shares which may be issuable to any other person pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise.
(6) "Affiliate" and "Associate" shall have the respective meanings
given those terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on December 31, 1984.
(7) "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on December 31, 1984) is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (3) of this Section D, the
term "Subsidiary" shall mean only a corporation of which a majority of
each class of equity security is owned, directly or indirectly, by the
corporation.
(8) "Continuing Director" shall mean a person who was a member of
the Board of Directors of the corporation elected by the shareholders
prior to the date as of which an Interested Shareholder acquired in excess
of 10% of the Voting Shares of the corporation or a Subsidiary, or a
director who has been recommended to directly succeed a Continuing
Director or to join the Board of Directors by a majority of the remaining
Continuing Directors.
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(9) "Fair Market Value" shall mean (i) in the case of stock, the
highest closing sales price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange -- Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, or, if such stock
is not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
Systems or any system then in use, or, if such quotations are not
available, the fair market value on the date in question of a share of
such stock as determined in good faith by a majority of Continuing
Directors, and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined
in good faith by a majority of Continuing Directors.
E. The Continuing Directors, by a majority vote, shall have the
power and duty to determine for the purposes of this Article on the basis of
information known to them (a) the number of Voting Shares beneficially owned by
any person, (b) whether a person is an Affiliate or Associate of another, (c)
whether a person has an agreement, arrangement or understanding with another as
to the matters referred to in paragraph (4) of Section D of this Article, (d)
whether the assets of the corporation or any Subsidiary have an aggregate fair
market value of $25,000,000 or more, or (e) whether the consideration received
for the issuance or
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transfer of securities by the corporation or any Subsidiary has an aggregate
fair market value of $10,000,000 or more.
F. Nothing contained in this Article shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
XI.
Except as otherwise provided herein (and in addition to any other
vote that may be required by law, these Articles or the bylaws of the
corporation), the affirmative vote, in person or by proxy, at any meeting called
as provided in the bylaws, of the holders of at least 66-2/3% in interest of the
voting stock of the corporation issued and outstanding, including a majority in
interest of the holders of the issued and outstanding voting stock of the
corporation held by persons other than an Interested Shareholder, shall be
required to amend, alter or repeal Articles II, IV, VII, IX, X or XI or to adopt
any new provision inconsistent with such Articles, provided, however, that if at
the time of any such proposed amendment, alteration, repeal or adoption, (a)
there shall exist one or more Interested Shareholders and at least 66-2/3% of
the Continuing Directors approve such proposed amendment, alteration, repeal or
adoption, or (b) no such Interested Shareholder exists, and a majority of the
members of the Board of Directors approve such proposed amendment, alteration,
repeal or adoption, then the affirmative vote, in person or by proxy, at any
meeting called as provided in the bylaws, of the holders of a majority in
interest of the issued and outstanding voting stock of the corporation shall be
required to approve such amendment, alteration, repeal or adoption.
XII.
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To the full extent from time to time permitted by law, no person who is
serving or who has served as a director of the corporation shall be personally
liable in any action for monetary damages for breach of his or her duty as a
director, whether such action is brought by or in the right of the corporation
or otherwise. Neither the amendment or repeal of this Article, nor the adoption
of any provision of these Articles inconsistent with this Article, shall
eliminate or reduce the protection afforded by this Article to a director of the
corporation with respect to any matter which occurred, or any cause of action,
suit or claim which but for this Article would have accrued or arisen, prior to
such amendment, repeal or adoption.
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