EXHIBIT 3.1
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ARTICLES OF AMENDMENT
to the
ARTICLES OF INCORPORATION
of
GEORGIA BANK FINANCIAL CORPORATION
(To Be Known as Southeastern Bank Financial Corporation)
1.
The name of the corporation is Georgia Bank Financial Corporation (the
"Corporation").
2.
The Corporation hereby amends its Articles of Incorporation by deleting
Article One in its entirety and inserting in lieu thereof a new Article One as
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follows:
"ARTICLE ONE
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The name of the corporation is Southeastern Bank Financial Corporation."
3.
This Amendment was adopted by resolution of the board of directors on June
20, 2005.
4.
This Amendment was adopted by the board of directors without shareholder
action pursuant to Section 14-2-1002 of the Official Code of Georgia, which
provides that a corporation's board of directors may adopt an amendment to the
corporation's articles of incorporation that changes the corporate name without
shareholder action.
All other provisions of the Articles of Incorporation shall remain in full
force and effect.
IN WITNESS WHEREOF, the Corporation has executed these Articles of
Amendment on the 20th day of June 2005.
GEORGIA BANK FINANCIAL CORPORATION
By: /s/ R. Daniel Blanton
------------------------------------------
R. Daniel Blanton
President and Chief Executive Officer
ATTEST:
By: /s/ Ronald L. Thigpen
-------------------------------
Ronald L. Thigpen
Executive Vice President and Chief Operating Officer
[ CORPORATE SEAL ]
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
GEORGIA BANK FINANCIAL CORPORATION
1.
The name of the corporation is Georgia Bank Financial Corporation (the
"Corporation").
2.
Article Two of the Articles of Incorporation of the Corporation is amended
in its entirety to read as follows:
"ARTICLE TWO
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The Corporation shall have the authority, exercisable by its board of
directors, to issue up to 10,000,000 shares of its common stock, $3.00 par
value per share."
Except as expressly amended hereby, all other provisions of the Articles of
Incorporation shall remain in full force and effect.
3.
The purpose of this amendment is to effect a one-for-three reverse stock
split among the Corporation's $1.00 par value common stock while maintaining the
Corporation's authority to issue up to 10,000,000 shares of common stock.
4.
Effective upon the filing of this Amendment, each three (3) outstanding
shares of the $1.00 par value common stock of the Corporation held by each
record holder shall be deemed converted into one share of the $3.00 par value
common stock of the Corporation, and each remaining share (if any) of the $1.00
par value common stock shall be canceled and the holders thereof paid cash in
lieu thereof equal to the book value per share of the $1.00 par value common
stock of the Corporation on the date of filing of this amendment, or $3.19 per
share. At the option of each record holder, such conversion of shares may be
effected on a certificate by certificate basis for each certificate representing
shares of the $1.00 par value common stock held by such record holder on the
date of filing of this Amendment, and each share (if any) of the $1.00 par value
common stock from each certificate not converted shall be canceled and such
record holder paid cash in lieu thereof at a rate of $3.19 per share.
5.
This amendment was duly approved by the holders of a majority of the shares
of the Corporation in accordance with Section 14-2-1003 of the Georgia Business
Corporation Code at the Annual Meeting of Shareholders held on April 12, 1995.
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment
to the Articles of Incorporation to be executed and attested by its duly
authorized officers this 19th day of April 1995.
GEORGIA BANK FINANCIAL CORPORATION
By: /s/ Patrick G. Blanchard
-----------------------------------------
Patrick G. Blanchard
President and Chief Executive Officer
ATTEST:
By: /s/ Travers W. Paine, III
-------------------------------
Travers W. Paine, III
Corporate Secretary
[ CORPORATE SEAL ]
ARTICLES OF MERGER
OF
FCS FINANCIAL CORPORATION
WITH AND INTO
GEORGIA BANK FINANCIAL CORPORATION
Pursuant to Section 14-2-1105 of the Georgia Business Corporation Code,
GEORGIA BANK FINANCIAL CORPORATION, a Georgia corporation ("GBFC"), and FCS
FINANCIAL CORPORATION, a Georgia corporation ("FCS"), submit the following
Articles of Merger:
1.
Attached hereto as Exhibit A and incorporated herein by reference is a copy
of the Agreement and Plan of Merger (the "Plan of Merger") between FCS and GBFC,
which provides for the merger (the "Merger") of FCS with and into GBFC.
2.
The Board of Directors of FCS duly adopted the Plan of Merger at a meeting
on July 22, 1992, and ratified the Plan of Merger at a meeting on August 17,
1992. The holders of the $1.00 par value common stock of FCS (the "FCS Common
Stock"), the only class of stock of FCS outstanding, duly approved the Plan of
Merger at a special meeting of shareholders on September 10, 1992, with 414,583
shares (or 75.3%) of the 550,305 outstanding shares of FCS Common Stock voted in
favor, 4,500 shares voted against and 750 shares abstaining.
3.
The Board of Directors of GBFC duly adopted the Plan of Merger at a meeting
on July 22, 1992. The shareholders of GBFC were not required to approve the
Plan of Merger.
4.
Pursuant to Section 3 of the Plan of Merger, the Merger shall be effective
as of 9:00 a.m. on Thursday, December 31, 1992, or such later time as these
Articles of Merger shall be filed with the Secretary of State.
GEORGIA BANK FINANCIAL CORPORATION
By: /s/ Patrick G. Blanchard
------------------------------------------
Patrick G. Blanchard
President and CEO
ATTEST:
By: /s/ Travers W. Paine, III
-------------------------------
Travers W. Paine, III
Secretary
[ CORPORATE SEAL ]
FCS FINANCIAL CORPORATION
By: /s/ Ronald Thigpen
------------------------------------------
Ronald Thigpen
President and CEO
ATTEST:
By: /s/ Carl R. Thompson
-------------------------------
Carl R. Thompson
Secretary
[ CORPORATE SEAL ]
Exhibit A
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Plan of Merger") is made and
entered into as of July 22, 1992, by and between GEORGIA BANK FINANCIAL
CORPORATION, a corporation organized and existing under the laws of the State of
Georgia ("GBFC"), and FCS FINANCIAL CORPORATION, a corporation organized and
existing under the laws of the State of Georgia ("FCS").
W I T N E S S E T H:
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WHEREAS, GBFC and FCS are parties to an Agreement and Plan of
Reorganization dated as of July 22, 1992, providing that FCS shall be merged
with and into GBFC upon the terms and subject to the conditions of said
Agreement and this Plan of Merger; and
WHEREAS, the respective boards of directors of GBFC and FCS deem it
advisable and in the best interest of each such corporation and their respective
shareholders that FCS be merged with and into GBFC upon such terms and
conditions;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Definitions. Except as otherwise specifically provided herein, for
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the purposes of this Plan of Merger, the following capitalized terms shall have
the meanings set forth below, respectively:
(a) "Agreement": The Agreement and Plan of Reorganization, dated as
of July 22, 1992, by and between GBFC and FCS, and all exhibits attached
thereto and schedules delivered pursuant thereto.
(b) "Certificates": Certificates or agreements that immediately
prior to the Effective Date represented outstanding shares of FCS Common
Stock or Converting Options, as discussed in Section 7.
(c) "Code": The Georgia Business Corporation Code, Chapter 2 of
Title 14 of the Official Code of Georgia Annotated.
(d) "Consideration": The consideration, payable in cash, in exchange
for the shares of FCS Common Stock or Converting Options surrendered in the
Merger pursuant to Sections 6 and 7 this Plan of Merger.
(e) "Conversion Price": For each share of FCS Common Stock, $12.45
per share of FCS Common Stock.
(f) "Converting Option": Each option to purchase a share of FCS
Common Stock which (i) is issued and outstanding as of the date of this
Agreement; (ii) has not been exercised as of the Effective Date; and (iii)
for which the Exercise Price as of the Effective Date is less than the
Conversion Price.
(g) "Dissenter Provisions": Article 13 of the Code.
(h) "Dissenting Shares": The FCS Common Stock which is outstanding
immediately before the Effective Date which is held by Shareholders who
fully comply with the Dissenter Provisions, as discussed in Section 8.
(i) "Effective Date": The date and time at which the Merger
contemplated by this Plan of Merger becomes effective pursuant to the Code.
(j) "Exchange Agent": A bank to be selected by GBFC (which may be
GBTC Augusta), acting as Exchange Agent, as specified in Section 7.
(k) "Exercise Price": With respect to an option to purchase FCS
Common Stock, the aggregate cash and non-cash consideration payable per
share of FCS Common Stock upon the exercise of such option (non-cash
consideration being valued for these purposes at its fair market value as
determined by the Board of Directors of GBFC).
(l) "FCS": FCS Financial Corporation, a corporation organized and
existing under the laws of the State of Georgia.
(m) "FCS Common Stock": FCS's $1.00 par value per share common
stock.
(n) "First Columbia": First Columbia Bank, a banking corporation
organized and existing under the laws of the State of Georgia.
(o) "GBFC": Georgia Bank Financial corporation, a corporation
organized and existing under the laws of the State of Georgia.
(p) "GBTC Augusta": Georgia Bank & Trust Company of Augusta, a
banking corporation organized and existing under the laws of the State of
Georgia.
(q) "Merger": The merger of FCS with and into GBFC as provided in
Section 2.
(r) "Option Plan": The FCS Financial corporation 1984 Incentive
Stock Option Plan.
(s) "Plan of Merger": This Plan of Merger.
(t) "Shareholders' Meeting": The meeting of the FCS Shareholders
called for the purpose of voting on this Plan of Merger.
(u) "Surviving Corporation": GBFC as the surviving corporation in
the Merger.
2. Merger. In accordance with the provisions of the Agreement, this Plan
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of Merger and applicable laws, rules and regulations, at the Effective Date, FCS
shall be merged with and into GBFC, and GBFC shall be the Surviving Corporation
and shall continue its existence under the laws of the State of Georgia under
the name "Georgia Bank Financial Corporation."
3. Effective Date. Subject to the satisfaction of all requirements of
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law and the terms and conditions specified in the Agreement and this Plan of
Merger, including, among other conditions, receipt of approval of the Merger by
the Board of Governors of the Federal Reserve System and the Georgia Department
of Banking and Finance, the Merger shall become effective on the date and at the
time set forth in the Articles of Merger filed with the Georgia Secretary of
State in accordance with the provisions of Section 14-2-1105 of the Code.
4. Effect of Merger. At the Effective Date, (i) FCS shall be merged into
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and continued in GBFC as the surviving corporation, and the separate existence
of FCS shall cease; (ii) title to all real estate and other property owned by
each of GBFC and FCS as of the Effective Date shall be vested in GBFC as the
Surviving corporation; (iii) GBFC as the Surviving corporation shall be liable
for all the liabilities of GBFC and FCS of every kind and description; and (iv)
any proceeding pending against GBFC or FCS may be continued as if the Merger has
not occurred, or GBFC as the Surviving Corporation may be substituted in any
proceeding for FCS.
5. Stock Options. At the Effective Date, (i) the Option Flan shall be
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canceled; (ii) each Converting Option outstanding thereunder shall be converted
into the right to receive, in cash, the excess of the Conversion Price over the
Exercise Price for such option; (iii) all other options to purchase FCS Common
Stock outstanding thereunder shall be canceled; and (iv) the Option Plan and all
options
thereunder shall not thereafter confer any rights with respect to the FCS Common
Stock or GBFC Common Stock.
6. Conversion of Shares.
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(a) At the Effective Date and as a result of the Merger,
automatically and without further act of the parties or the shareholders of
FCS, (i) each share of FCS Common Stock issued and outstanding shall be
converted into the right to receive, in cash, the Conversion Price; and
(ii) each share of FCS Common Stock held by FCS in the treasury of FCS or
held by GBFC other than in a fiduciary capacity shall be canceled and
extinguished.
(b) If, as of a record date that is prior to the Effective Date,
there occurs an increase, decrease, or other change in the number of
outstanding shares of FCS Common Stock as a result of a stock split, stock
dividend or reverse stock split, the Conversion Price which shares of FCS
Common Stock may be converted into the right to receive pursuant to this
Section shall be proportionally adjusted.
7. Exchange of Shares and Converting Options.
-----------------------------------------
(a) As soon as practicable after the Effective Date, a bank to be
selected by GBFC (which may be GBTC Augusta), acting as exchange agent (the
"Exchange Agent"), shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Date represented
outstanding shares of FCS Common Stock or a certificate or option agreement
representing Converting Options (collectively, the "Certificates"), a form
letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent), and instructions for
use in effecting the surrender of the Certificates in exchange for the
Consideration payable with respect to such shares or Converting Options.
Upon surrender of a Certificate for exchange and cancellation to the
Exchange Agent, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in exchange
therefor a check in payment of the Consideration to which such holder shall
have become entitled pursuant to the provisions hereof and the Certificate
so surrendered shall forthwith be noted "canceled" on its face.
(b) In the event that any holder of FCS Common Stock or Converting
Options converted in accordance with this Plan of Merger is unable to
deliver the Certificate which represents such shares or options of the
holder, GBFC, in the absence of actual notice that any shares or options
theretofore represented by any such Certificate have been acquired by a
bona fide purchaser, shall deliver to such holder the Consideration to
which such holder is entitled in accordance with the provisions of this
Plan of Merger upon the presentation of all of the following: (i) evidence
to the reasonable satisfaction of GBFC that any such certificate has been
lost, wrongfully taken or destroyed; (ii) such security or indemnity as may
be reasonably requested by GBFC to indemnify and hold GBFC and the Exchange
Agent harmless; and (iii) evidence satisfactory to GBFC that such person is
the owner of the shares or options theretofore represented by each
Certificate claimed by him to be lost, wrongfully taken or destroyed and
that he is the person who would be entitled to present such Certificate for
exchange pursuant to this Agreement.
(c) No interest shall be paid on any Consideration with respect to
any shares of FCS Common Stock or Converting Options until the owner
thereof shall have surrendered the certificate representing such shares or
options pursuant to Section 7(a) or complied with the requirements of
Section 7(b) (if applicable).
(d) If any Consideration is to be issued to any person other than the
person in whose name the Certificate surrendered in exchange therefor is
registered, it shall be a condition of the issuance thereof that the
Certificate so surrendered shall be properly endorsed (or accompanied by an
appropriate instrument of transfer) and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to the
Exchange Agent, in advance, any transfer or other taxes required by reason
of the payment of the Consideration with respect
to the shares or options represented by the Certificate to a person other
than the registered holder of the Certificate surrendered, or required for
any other reason, or shall establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not payable.
(e) After the Effective Date there shall be no transfer on the stock
transfer books of FCS of the shares of FCS Common Stock which are
outstanding immediately prior to the Effective Date or any Converting
Options. If, after the Effective Date, Certificates representing such
shares or options are presented for transfer to the Exchange Agent, they
shall be noted "canceled" on their face and exchanged for Consideration as
provided herein.
8. Holders of Dissenting Shares. Notwithstanding anything in this Plan
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of Merger to the contrary, the FCS Common Stock that is outstanding immediately
before the Effective Date and that is held by shareholders who object to the
Merger and fully comply with the Dissenter Provisions shall not be converted
into or be exchanged for the consideration provided in this Plan of Merger.
Instead, (i) the holders of such shares (the "Dissenting Shares"), upon
compliance with the Dissenter Provisions, shall be entitled to payment of the
fair value of such shares in accordance with the Dissenter Provisions; (ii) each
of the Dissenting Shares shall be canceled and extinguished; and (iii) in the
event any holder of Dissenting Shares shall subsequently withdraw his demand for
payment of the fair value of such shares or shall fail to establish his
entitlement to appraisal rights in accordance with the Dissenter Provisions,
such holder shall forfeit the right to an appraisal of such shares and such
shares shall thereupon be deemed to have been converted into and have become
exchanged for the consideration provided in Section 6.
9. No Rights as Shareholders. The holder of a Certificate or
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Certificates representing shares of FCS Common Stock issued and outstanding
immediately prior to the Effective Date shall have no rights with respect to
such shares other than the right to surrender such Certificate or Certificates
and receive in exchange therefor the consideration provided in Section 6 or to
perfect the right to receive payment for such shares pursuant to the Dissenter
Provisions.
10. Conditions. The obligations of the respective parties to this Plan of
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Merger shall be subject to the fulfillment or waiver on or before the Effective
Date of the respective conditions to the parties' obligations set forth in
Article Eight of the Agreement.
11. Termination. This Plan of Merger may be terminated prior to the
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Effective Date by the parties hereto as provided in Article Nine of the
Agreement.
12. Amendments. To the extent permitted by law, this Plan of Merger may
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be amended by a subsequent writing signed by all of the parties hereto upon the
approval of the Board of Directors of each of the parties hereto; provided,
--------
however, that the provisions of Section 6 relating to the manner or basis in
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which shares of FCS Common Stock or Converting Options will he converted into
the right to receive consideration shall not be amended after the Shareholders'
Meeting without the approval of the holders of at least a majority of the issued
and outstanding shares of the FCS Common Stock.
13. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall constitute one and the same instrument.
14. Governing Law. This Plan of Merger shall be governed by and construed
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in accordance with the laws of the State of Georgia, except to the extent
federal law shall be applicable.
IN WITNESS WHEREOF, each of GBFC and FCS have caused this Plan of Merger to
be executed on its behalf and its corporate seal to be hereunto affixed as of
the date first above written.
GEORGIA BANK FINANCIAL CORPORATION
By: /s/ Patrick G. Blanchard
------------------------------------------
Patrick G. Blanchard
President and CEO
ATTEST:
By: /s/ Travers W. Paine, III
-------------------------------
Travers W. Paine, III
Secretary
[ CORPORATE SEAL ]
FCS FINANCIAL CORPORATION
By: /s/ Ronald Thigpen
------------------------------------------
Ronald Thigpen
President and CEO
ATTEST:
By: /s/ Carl R. Thompson
-------------------------------
Carl R. Thompson
Secretary
[CORPORATE SEAL]
ARTICLES OF INCORPORATION
OF
GEORGIA BANK FINANCIAL CORPORATION
ARTICLE ONE
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The name of the corporation is "Georgia Bank Financial Corporation."
ARTICLE TWO
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The corporation shall have authority, exercisable by its board of
directors, to issue up to 10,000,000 shares of common stock, $1.00 par value per
share, and 5,000,000 shares of a special class of stock, $1.00 par value per
share, which shall be established and designated from time to time by the board
of directors, in such series and with such preferences, limitations and relative
rights as may be determined by the board of directors.
ARTICLE THREE
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The street address and county of the initial registered office of the
corporation shall be at 301 Wheeler Executive Center, Augusta, Richmond County,
Georgia 30909. The initial registered agent of the corporation at such address
shall be Travers W. Paine III.
ARTICLE FOUR
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The name and address of the incorporator of the corporation is:
Travers W. Paine III
301 Wheeler Executive Center
Augusta, Georgia 30909
ARTICLE FIVE
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The mailing address of the initial principal office of the corporation is:
3530 Wheeler Road
Augusta, Georgia 30909
ARTICLE SIX
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The names and addresses of the initial directors of the corporation are:
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William J. Badger
HOWARD LUMBER COMPANY
Post Office Box 1456
Augusta, Georgia 30914
Patrick G. Blanchard
GEORGIA BANK & TRUST COMPANY OF AUGUSTA
3530 Wheeler Road
Augusta, Georgia 30909
R. Daniel Blanton
GEORGIA BANK & TRUST COMPANY Of AUGUSTA
3530 Wheeler Road
Augusta, Georgia 30909
Randolph L. Burnette
J. B. WHITE & CO., INC.
1700 Gordon Highway
Augusta, Georgia 30906
Warren A. Daniel, CLU
1916 North Leg
Augusta, Georgia 30909
C. Linton DeVaughn III
DEVAUGHN, DYCHES & LEONARD, INC.
3665 Wheeler Road
Augusta, Georgia 30909
E. G. Meybohm
MEYBOHM REALTY, INC.
3523 Walton Way Extension
Augusta, Georgia 30909
Travers W. Paine III
PAINE, MCELREATH, RHODES & HYDER, P.C.
309 Wheeler Executive Center
Augusta, Georgia 30909
Robert W. Pollard, Sr.
POLLARD LUMBER COMPANY, INC.
Route 2, Box 657
Appling, Georgia 30802
Randolph R. Smith, M.D.
Suite 2-F
820 St. Sebastian Way
Augusta, Georgia 30904
ARTICLE SEVEN
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No director of the corporation shall be personally liable to the
corporation or its shareholders for monetary damages for breach of the duty of
care or other duty as a director, except that such liability shall not be
eliminated for:
(i) any appropriation, in violation of the director's duties, of any
business opportunity of the corporation;
(ii) acts or omissions which involve intentional misconduct or a knowing
violation of law;
(iii) the types of liability set forth in Section 14-2-832 (or any
successor or redesignation thereof) of the Georgia Business
Corporation Code; and
(iv) any transaction from which the director received an improper personal
benefit.
If at any time the Georgia Business Corporation Code shall have been
amended to authorize the further elimination or limitation of the liability of a
director, then the liability of each director of the corporation shall be
eliminated or limited to the fullest extent permitted by such Code, as so
amended, without further action by the shareholders, unless the provisions of
the Georgia Business Corporation Code, as amended, require further action by the
shareholders.
Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect the elimination or limitation of liability or alleged
liability pursuant hereto of any director of the corporation for or with respect
to any acts or omissions of such director prior to such repeal or modification.
ARTICLE EIGHT
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(a) Except as otherwise provided in this Article and subject to the
further terms and conditions set forth herein, holders of shares of the
corporation shall have a preemptive right, granted on uniform terms and
conditions prescribed by the board of directors, to acquire proportional amounts
of the corporation's unissued shares upon the decision of the board of directors
to issue them; provided that the board of directors shall provide holders
entitled to preemptive rights a period of at least thirty days within which such
rights may be exercised.
(b) Notwithstanding the foregoing, there shall be no preemptive right with
respect to the issuance of:
(1) Shares issued as a share dividend;
(2) Fractional shares;
(3) Shares issued to effect a merger or share exchange;
(4) Shares issued pursuant to the acquisition of substantially all
the assets of any other corporation, partnership, association, or trust;
(5) Shares issued as compensation to directors, officers, agents or
employees of the corporation, its subsidiaries, or affiliates upon terms
and conditions approved or ratified by the affirmative vote of the holders
of a majority of the shares entitled to vote thereon;
(6) Shares issued to satisfy conversion, option, warrant or other
share purchase rights created to provide compensation, incentive or reward
to directors, officers, agents, or employees of the corporation, its
subsidiaries, or affiliates upon terms and conditions, or in accordance
with a stock option, employee stock ownership, profit sharing, pension or
similar plan or arrangement, approved or ratified by the affirmative vote
of the holders of a majority of the shares entitled to vote thereon;
(7) Shares authorized in the articles of incorporation that are
issued within one year from the effective date of incorporation;
(8) Shares issued under a plan of reorganization approved in a
proceeding under any applicable law of the State of Georgia or the United
States of America relating to the reorganization of corporations;
(9) Shares sold otherwise than for money, deemed by the board of
directors in good faith to be advantageous to the corporation's business,
other than shares sold pursuant to subparagraph (1) or (2) of this
paragraph; or
(10) Shares released by waiver from their preemptive rights by the
affirmative vote or written consent of the holders of two-thirds of the
shares of the class to be issued. Any vote or consent shall be binding on
all shareholders and their transferees for the time specified in the vote
or consent up to but not exceeding one year form the date thereof and shall
protect the corporation, its management, and all persons who may within
that time acquire the shares so released.
(c) No holder of shares of any class or series of securities issued by the
corporation shall have, solely by virtue of such ownership, any preemptive right
with respect to shares of any other class or series which may be issued or sold
by the corporation.
(d) A shareholder may waive his or her individual preemptive right at any
time, and the holders of a class of shares may waive the preemptive rights of
the class granted in this Article by the affirmative vote or written consent of
the holders of two-thirds of the shares of the class with preemptive lights. The
waiver of preemptive rights with respect to past issuances of shares shall be
effective if made by the person who was the shareholder at the time the shares
were issued. A waiver evidenced by a writing is irrevocable even though it is
not supported by consideration.
(e) Shares that are otherwise validly issued and outstanding shall not be
affected by reason of any violation of preemptive rights granted in this Article
with respect to their issuance.
(f) Notwithstanding anything in this Article to the contrary, no
shareholder of the corporation shall have any preemptive right to acquire
securities of the corporation unless said shareholder is resident in the State
of Georgia, or such other state in which the corporation is legally permitted to
offer and sell its securities, provided that the corporation shall have no
obligation to take any action to qualify to offer or sell its securities in any
state other than the State of Georgia.
(g) No action shall be maintained to enforce any liability for violation
of preemptive rights granted in this Article unless brought within three years
of the discovery or notice of the violation) but in no event shall any action be
brought to enforce a liability for violation of preemptive rights more than five
years after the issuance giving rise to the violation.
ARTICLE NINE
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(a) Subject to the definitions hereinafter contained in paragraph (c) of
this Article, in addition to any vote otherwise required by law or these
Articles of Incorporation, a business combination shall be:
(1) Unanimously approved by the continuing directors, provided that
the continuing directors constitute at least three members of the board of
directors at the time of such approval; or
(2) Recommended by at least two-thirds of the continuing directors
and approved by at least a majority of the votes entitled to be cast by
holders of voting shares, other than voting shares beneficially owned by
the interested shareholder who is, or whose affiliate is, a party to the
business combination.
(b) The vote required by (a), above, does not apply to a business
combination if each of the following conditions is met:
(1) The aggregate amount of the cash, and the fair market value as of
five days before the consummation of the business combination of
consideration other than cash, to be received per share by holders of any
common shares, or, if authorized, preferred shares of the corporation, in
such business combination is at least equal to the highest of the
following:
(A) The highest per share price, including any brokerage
commissions, transfer taxes, and soliciting dealers' fees, paid by the
interested shareholder for any shares of the same class or series
acquired by it:
(i) within the two-year period immediately prior to the announcement
date; or
(ii) in the transaction in which the interested shareholder became an
interested shareholder, whichever is higher;
(B) The fair market value per share of such class or series as
determined on the announcement date or as determined on the
determination date, whichever is higher, or
(C) In the case of shares other than common shares, the highest
preferential amount per share to which the holders of shares of such
class or series are entitled in the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the
corporation, provided that this subparagraph shall apply only if the
interested shareholder has acquired shares of such class or series
within the two-year period immediately prior to the announcement date;
(2) The consideration to be received by the holders of any class or
series of outstanding shares is to be in cash or in the shares of the same
class or series. If the interested shareholder has paid for shares of any
class or series of shares with varying forms of consideration, the form of
consideration for such class or series of shares shall be either cash or
the form used to acquire the largest number of shares of such class or
series previously acquired by it;
(3) After the interested shareholder has become an interested
shareholder and prior to the consummation of such business combination:
(A) Unless approved by a majority of the continuing directors,
there shall have been:
(i) no failure to declare and pay at the regular date therefore any
full periodic dividends, whether or not cumulative, on any
outstanding preferred shares of the corporation;
(ii) no reduction in the annual rate of dividends paid on any class of
common shares, except as necessary to reflect any subdivision of
the shares;
(iii) any increase in such annual rate of dividends as is necessary to
reflect any reclassification, including any reverse share split,
recapitalization, reorganization, or any similar transaction
which has the effect of reducing the number of outstanding
shares; and
(iv) no increase in the interested shareholder's percentage ownership
of any class or series of shares of the corporation by more than
one percent in any twelve-month period.
(B) The provisions of divisions (i) and (ii) of subparagraph (A)
of this paragraph shall not apply if the interested shareholder or an
affiliate or associate of the interested shareholder did not vote as a
director of the corporation in a manner inconsistent with divisions
(i) and (ii) of subparagraph (A) of this paragraph and the interested
shareholder, within ten days after any act or failure to act
inconsistent with divisions (i) and (ii) of subparagraph (A) of this
paragraph, notified the board of directors of the corporation in
writing that the interested shareholder disapproved thereof and
requested in good faith that the board of directors rectify the act or
failure to act; and
(4) After the interested shareholder has become an interested
shareholder, the interested shareholder has not received the benefit,
directly or indirectly, except proportionately as a shareholder, of any
loans, advances, guarantees, pledges, or other financial assistance or any
tax credits or other tax advantages provided by the corporation or any of
its subsidiaries, whether in anticipation of or in connection with such
business combinations or otherwise.
(c) As used in this Article, the following definitions apply:
(1) "affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls or is controlled by or is under common
control with a specified person;
(2) "announcement date" means the date of the first general public
announcement of the proposal of are business combination;
(3) "associate," when used to indicate a relationship with any
person, means:
(A) Any entity other than the corporation or a subsidiary of the
corporation, of which the person is an officer, director, or partner
or is the beneficial owner of ten percent or more of any class of
equity securities;
(B) Any trust or other estate in which the person has a
beneficial interest of ten percent or more or as to which the person
serves as trustee or in a similar fiduciary capacity; and
(C) Any relative or spouse of the person, or any relative of
such spouse, who has the same home as the person;
(4) A person shall be considered to be the "beneficial owner" of any
equity securities:
(A) Which the person or any of the person's affiliates or
associates owns, directly or indirectly;
(B) Which the person or any of the person's affiliates or
associates, directly or indirectly, has:
(i) 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
(ii) the right to vote pursuant to any agreement, arrangement, or
understanding; or
(C) Which are owned, directly or indirectly, by any other person
with which the person or any of the person's affiliates or associates
has any agreement, arrangement, or understanding for the purpose of
acquiring, holding, voting, or disposing of such securities.
(5) "business combination" means:
(A) Any merger or consolidation of the corporation or any
subsidiary with:
(i) any interested shareholder; or
(ii) any other entity, whether or not itself an interested
shareholder, which is, or after the merger or consolidation would
be, an affiliate of an interested shareholder that was an
interested shareholder prior to the consummation of the
transaction;
(B) Any sale, lease, transfer, or other disposition, other than
in the ordinary course of business, in a transaction or series of
transactions in any twelve-month period, to any interested shareholder
or any affiliate of any interested shareholder, other than the
corporation or any of its subsidiaries, of any assets of the
corporation or any subsidiary having, measured at the time the
transaction or transactions are approved by the board of directors of
the corporation, an aggregate book value as of the end of the
corporation's most recently ended fiscal quarter of ten percent or
more of the net assets of the corporation as of the end of such fiscal
quarter;
(C) Any issuance or transfer by the corporation or any
subsidiary, in one transaction or a series of transactions in any
twelve-month
period, or equity securities of the corporation or any subsidiary
which have an aggregate market value of five percent or more of the
total market value of the outstanding common and preferred shares of
the entity whose shares are being issued to any interested shareholder
or any affiliate of any interested shareholder, other than the
corporation or any of its subsidiaries, except pursuant to the
exercise of warranty or rights to purchase securities offered pro rata
to all holders of the corporation's voting shares or any other method
affording substantially proportionate treatment to the holders of
voting shares;
(D) The adoption of any plan or proposal for the liquidation or
dissolution of the corporation in which anything other than cash will
be received by an interested shareholder or any affiliate of any
interested shareholder; or
(E) Any reclassification of securities, including any reverse
stock split, recapitalization of the corporation, any merger or
consolidation of the corporation with any of its subsidiaries, which
has the effect, directly or indirectly, in one or a series of
transactions in any twelve-month period, of increasing by five percent
or more of the proportionate amount of the outstanding shares of any
class or series of equity securities of the corporation or any
subsidiary which is directly or indirectly beneficially owned by any
interested shareholder or any affiliate of any interested shareholder;
(6) "continuing director" means any member of the board of directors
who is not an affiliate or associate of an interest shareholder of any of
its affiliates, other than the corporation or any of its subsidiaries, and
who was a director of the corporation prior to the determination date, and
any successor to such continuing director who is not an affiliate or an
associate of an interested shareholder or any of its affiliates, other than
the corporation or its subsidiaries, and is recommended or elected by a
majority of all of the continuing directors;
(7) "control," including the terms "controlling," "controlled by" and
"under common control with," means the possession, directly or indirectly,
of die power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities,
by contract, or otherwise;
(8) "determination date" means the date on which an interested
shareholder first became an interested shareholder;
(9) "entity" means a state charter banking corporation, federally
charter banking association, business corporation (including a bank holding
company), partnership, trust, state or federally chartered savings and loan
association or other financial institution;
(10) "fair market value" means:
(A) In the case of securities, the highest closing sale price,
during the period including the determination date and the 29 calendar
days prior to such date, of the security on the principal United
States securities exchange registered under the Securities Exchange
Act of 1934 on which the security is listed, or, if the security is
not listed on any such exchange, the highest closing sales price or,
if note is available, the average of the highest bid and asked prices
reported with respect to the security, in each case during the 30-day
period referred to above, on the National Association of Securities
Dealers, Inc. Automatic Quotation System, or any system then in use,
or, if no such quotations are available, the fair market value on the
date in question of the security as determined in good faith at a duly
called meeting of the board of directors, or, if there are no
continuing directors, by the entire board of directors; and
(B) In the case of property other than securities, the fair
market value of such property on the date in question as determined in
good faith at a duly called meeting of the board of directors by a
majority of all of the continuing directors, or, if there are no
continuing directors, by the entire board of directors of the
corporation;
(11) "interested shareholder" means any person, other than the
corporation or its subsidiaries or a trustee holding stock for the benefit
of employees of the corporation or its subsidiaries, pursuant to an
employee benefit plan or arrangement, that:
(A) Is a party to, or an affiliate of whom is a party to, the
business combination in question; and
---
(B) Is the beneficial owner of twenty percent or more of the
voting power of the outstanding voting shares of the corporation; or
--
(C) Is an affiliate of the corporation and, at any time within
the two-year period immediately prior to the date in question was the
beneficial owner of twenty percent or more of the voting power of the
then outstanding voting shares of the corporation.
For the purpose of determining whether a person is an interested
shareholder, the number of voting shares deemed to be outstanding
shall not include any unissued voting shares which may be issuable
pursuant to any agreement, arrangement, or understanding, or upon
exercise of conversion rights, warrants, or options, or otherwise;
(12) "net assets" means the amount by which the total assets of an
entity exceed the total debts of the entity;
(13) "person" means a natural person or an entity; and
(14) "voting shares" means shares entitled to vote generally in the
election of directors.
ARTICLE TEN
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The shareholders of the corporation, without a meeting, may take any action
required to be taken at a meeting of the shareholders, or any action which may
be taken at such a meeting, if written consent setting forth the action to be
taken is signed by those persons who would be entitled to vote at a meeting
those shares having voting power to cast not less than the minimum number (or
numbers, in the case of voting by classes) 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. Such action by less than unanimous consent may not be
taken with respect to any election of directors as to which shareholders would
be entitled to cumulative voting.
IN WITNESS WHEREOF, the Undersigned executes these Articles of
incorporation this ____ day of September, 1991.
/s/ Travers W. Paine III
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Travers W. Paine III
Incorporator
PAINE, McELREATH, RHODES & HYDER, P.C.
Attorneys at Law
301 Wheeler Executive Center
Augusta, Georgia 30909
404/738-9710