Exhibit 3.1
ARTICLES OF INCORPORATION
OF
FOUR OAKS FINCORP, INC.
The undersigned, being of the age of eighteen years or more,
does hereby make and acknowledge these Articles of Incorporation for the purpose
of forming a business corporation under and by virtue of the laws of the State
of North Carolina:
1. The name of the corporation is Four Oaks Fincorp, Inc.
2. The address of the registered office of this corporation in the
State of North Carolina is 6144 US 301 South, Four Oaks, Johnston County, North
Carolina 27524; and the name of its registered agent at such address is Ayden R.
Lee, Jr.
3. The corporation shall have the authority to issue five million
(5,000,000) shares of capital stock with a par value of One Dollar ($1.00) per
share.
4. The name and address of the incorporator is D. Scott Coward, 2500
First Union Capitol Center, Raleigh, Wake County, North Carolina 27601.
5. The number of directors constituting the initial board of directors
shall be seven (7), and the names and addresses of the persons who are to serve
as directors until the first meeting of shareholders, or until their successors
are elected and qualified, are:
Name Address
Paula Canaday Bowman 6144 US 301 South
Four Oaks, North Carolina 27524
M.S. Canaday 6144 US 301 South
Four Oaks, North Carolina 27524
William J. Edwards 6144 US 301 South
Four Oaks, North Carolina 27524
Warren L. Grimes 6144 US 301 South
Four Oaks, North Carolina 27524
Ayden R. Lee, Jr. 6144 US 301 South
Four Oaks, North Carolina 27524
Percy Y. Lee 6144 US 301 South
Four Oaks, North Carolina 27524
Harold J. Sturdivant 6144 US 301 South
Four Oaks, North Carolina 27524
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6. A director of the corporation shall not be personally liable to the
corporation or otherwise for monetary damages for breach of any duty as a
director, except for liability with respect to (i) acts or omissions that the
director at the time of such breach knew or believed were clearly in conflict
with the best interests of the corporation; (ii) any liability under
N.C.Gen.Stat. Section 55-8-33; or (iii) any transaction from which the director
derived an improper personal benefit. If the North Carolina Business Corporation
Act is amended to authorize corporate action for further eliminating or limiting
personal liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent permitted by
the North Carolina Business Corporation Act, as so amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
7. Certain transactions of this corporation are limited as follows:
(a) With regard to any Business Combination (as hereinafter defined)
between this corporation and any other corporation, person, or other entity,
such Business Combination must be approved only as follows unless otherwise more
restrictively required by applicable North Carolina law:
(i) At a special or annual meeting of shareholders by an
affirmative vote of the shareholders holding at least a majority of the
shares of this corporation issued and outstanding and entitled to vote
thereon provided that such Business Combination has received the prior
approval by resolution adopted by an affirmative vote of at least
eighty percent (80%) of the full board of directors before such
Business Combination is submitted for approval to the shareholders; or
(ii) At a special or annual meeting of shareholders by
affirmative vote of the shareholders' holding at least eighty percent
(80%) of the shares of this corporation issued and outstanding and
entitled to vote thereon provided that such Business Combination has
not received the prior approval by resolution adopted by an affirmative
vote of at least eighty percent (80%) of the full board of directors,
but has received the prior approval by resolution adopted by an
affirmative vote of a majority of a quorum of the board of directors,
and further provided that such Business Combination as approved grants
to shareholders not voting to approve the Business Combination the
rights set forth in Article 7(b).
(b) When any Business Combination referred to in Article 7(a) above is
approved pursuant to Article 7(a)(ii), any shareholder not voting to approve the
Business Combination may elect to sell his shares for cash to this corporation
at their "fair price" (as hereinafter defined), upon so notifying this
corporation in writing within twenty (20) days after receiving written
notification of his rights hereunder and that the Business Combination was
approved by shareholders. This corporation shall have ten (10) days after
receipt of the shareholder's tender of shares to make payment in cash. Tender of
shares may be made simultaneously with, or after, the shareholder's written
notification that he is electing to be paid the "fair price" of his shares. The
Business Combination shall not be consummated until all shareholders electing to
sell their shares for cash to this corporation at their "fair price" pursuant to
this Article 7 have been paid in full by this corporation.
(c) Notwithstanding any other provision of this Article 7, prior to the
consummation of any Business Combination between this corporation and a control
person:
(i) such control person 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 this corporation unless such benefit has
been approved by a majority of Disinterested Directors (as hereinafter
defined); and
(ii) there shall have been no increase or reduction in the
annual rate of dividends paid on this corporation's common stock after
the control person became such (except as necessary to reflect any
subdivision of the common stock), unless such increase or reduction has
been approved by a majority of Disinterested Directors (as hereinafter
defined).
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(d) Definitions
(i) "Affiliate" as used in defining "control person" shall
mean a corporation, person, group, or other entity that directly or
indirectly controls, is controlled by, or is under common control with
the "control person."
(ii) "Business Combination" as used in this Article 7 shall
mean (a) any merger or consolidation of this corporation into any other
corporation, person, group or other entity where this corporation is
not the surviving or resulting entity; (b) any merger or consolidation
of this corporation with or into any control person (as hereinafter
defined) or with any corporation, person, group or other entity where
the merger or consolidation is proposed by or on behalf of a control
person; (c) any sale, lease, exchange, transfer, hypothecation or other
disposition of all or substantially all of the assets of this
corporation; (d) any sale, lease, exchange, transfer, hypothecation or
other disposition of a substantial part (as hereinafter defined) of the
assets of this corporation to a control person, whether in a single
transaction or in related transactions; (e) the issuance of any
securities of this corporation to a control person; (f) the acquisition
by this corporation of any securities of a control person unless such
acquisition commences prior to the person becoming a control person or
is an attempt to prevent the control person from obtaining greater
control of this corporation; (g) the acquisition by this corporation of
all or substantially all of the assets of any control person or any
corporation, person, group or other entity where the acquisition is
proposed by or on behalf of a control person; (h) the adoption of any
plan or proposal for the liquidation or dissolution of this corporation
which is proposed by or on behalf of a control person; (i) any
reclassification of securities (including any reverse stock split), or
recapitalization of this corporation which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of this
corporation which is beneficially owned or controlled by a control
person; (j) any agreement, plan, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(iii) "Control person" as used in this Article 7 shall mean
and include any corporation, person, group or other entity which,
together with their affiliates, prior to a Business Combination
beneficially owns (as the term is defined by federal securities law)
twenty-five percent (25%) or more of the shares of any class of equity
or convertible securities of this corporation, and any affiliate of any
such corporation, person, group or other entity.
(iv) "Disinterested Director" as used in this Article 7 shall
mean any member of the board of directors of this corporation who is
unaffiliated with, and not a nominee of, a control person and was a
member of the board of directors prior to the time a control person
became such, and any successor of a Disinterested Director who is
unaffiliated with, and not a nominee of, a control person and who is
recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the board of directors.
(v) "Fair price" as used in this Article 7 shall mean the
highest of the following: (a) the highest price per share paid for this
corporation's shares during the four years immediately preceding the
Article 7(a)(ii) vote of shareholders by any shareholder who, at the
time of the Article 7(a)(ii) shareholder vote, beneficially owned five
percent (5%) or more of this corporation's common stock and who, in
whole or in part, votes in favor of the Business Combination; (b) the
cash value of the highest price per share previously offered pursuant
to a tender offer to the shareholders of this corporation within the
four years immediately preceding the Article 7(a)(ii) shareholder vote;
(c) the aggregate earnings per share of this corporation's common stock
during the four fiscal quarters immediately preceding the Article
7(a)(ii) shareholder vote, multiplied by the highest price/earnings
ratio of the corporation's common stock at any time during the four
fiscal quarters or up to the day the Article 7(a)(ii) shareholder vote
occurs; (d) the highest price per share (including brokerage
commissions, soliciting dealers' fees and dealer-management
compensation) paid by a control person in acquiring any of its holdings
of this corporation's common stock; (e) the fair value per share of the
minority's shares as determined by an in investment banking or
appraisal firm chosen by a majority of the members of the board of
directors voting against the Business Combination, if any such firm is
chosen by such minority of the board of directors acting in their
discretion. Such firm, if chosen, shall be entitled to be paid by this
corporation a reasonable fee for its services upon its rendering a
determination of the fair value of the minority's shares; or (f) the
fair value per share of the minority's shares as determined by the firm
selected in (e) herein, if any, and such firm shall not take into
consideration that the shares are held by a minority of this
corporation's shareholders.
(vi) "Substantial part" as used in this Article 7 shall mean
more than ten percent (10%) of the total assets of this corporation, as
of the end of this corporation's most recent fiscal year prior to the
time the determination is being made.
8. Amendments to the Articles of Incorporation shall be adopted only
upon receiving the affirmative vote of the holders of at least eighty percent
(80%) of all the shares of capital stock of the corporation issued and
outstanding and entitled to vote thereon; provided, however, that if such
amendment shall have received prior approval by resolution adopted by an
affirmative vote of a majority of Disinterested Directors (as defined in Article
7), then the affirmative vote of the holders of at least a majority of all the
shares of capital stock of the corporation issued and outstanding and entitled
to vote, or such greater percentage approval as required by North Carolina law,
shall be sufficient to amend the Articles of Incorporation.
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9. The provisions of A rticle 9 and Article 9A of the North Carolina
Business Corporation Act, entitled "The North Carolina Shareholder Protection
Act" and "The North Carolina Control Share Acquisition Act," respectively, shall
not be applicable to the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of
February, 1997.
/s/ D. Scott Coward
-----------------------------
D. Scott Coward, Incorporator
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Articles of Amendment to
Articles of Incorporation of
Four Oaks Fincorp, Inc.
Pursuant to Section 55-10-06 of the North Carolina Business Corporation
Act, the undersigned corporation hereby submits these Articles of Amendment for
the purpose of amending its Articles of Incorporation:
1. The name of the corporation is Four Oaks Fincorp, Inc.
2. The Articles of Incorporation of the corporation are hereby amended
as follows:
Article III of the Articles of Incorporation is
hereby deleted in its entirety and is replaced with the
following Article III:
"3. The corporation shall have the authority to issue
ten million (10,000,000) shares of capital stock with a par
value of One Dollar ($1.00) per share."
3. The foregoing amendment was approved by, and proposed and
recommended to the corporation's shareholders by, the Board of Directors on
January 20, 2004, and approved by the shareholders on April 26, 2004, in
accordance with the provisions of Chapter 55 of the North Carolina General
Statutes.
4. These Articles of Amendment will become effective upon filing.
IN WITNESS WHEREOF, I have hereunto set my hand this 26th day
of April, 2004.
FOUR OAKS FINCORP, INC.
By: /s/ Ayden R. Lee, Jr.
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Ayden R. Lee, Jr.
Chief Executive Officer and President
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