<PAGE> 1
As filed with the Securities and Exchange Commission on February 22, 1995.
File No. 33-___________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
THE SECURITIES ACT OF 1933
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
BANK SOUTH CORPORATION
(Exact Name of Issuer as Specified in its Charter)
GEORGIA 56-1048216
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
55 MARIETTA STREET, ATLANTA, GEORGIA 30303
(404) 529-4111
(Address, Including Zip Code, and Telephone Number of Principal
Executive Offices)
GWINNETT BANCSHARES, INC. STOCK OPTION PLAN
(Full Title of the Plan)
RALPH E. HUTCHINS, JR.
CHIEF FINANCIAL OFFICER AND SECRETARY
BANK SOUTH CORPORATION
55 MARIETTA STREET
ATLANTA, GEORGIA 30303
(404) 529-4075
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
COPIES TO:
LAURA G. THATCHER
ALSTON & BIRD
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered (1) Offering Price Aggregate Registration Fee
Per Unit (2) Offering Price (2)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $5.00 par value (3) 261,713 $6.48 $1,695,900.24 $584.80
======================================================================================================================
</TABLE>
(1) This Registration Statement covers the maximum number of shares that will
be available for issuance under the above referenced Plan when such Plan
is assumed by the Registrant. This Registration Statement also covers
any additional shares that may hereafter become exercisable as a result
of the adjustment and anti-dilution provisions of the Registrant's above
referenced Plan.
(2) Determined in accordance with Rule 457(h), the registration fee
calculation is based on the average option price per share for the
shares presently subject to options.
(3) Includes Rights to purchase Registrant's Series A Participating Preferred
Stock pursuant to the Registrant's Rights Agreement dated April 6, 1988.
================================================================================
<PAGE> 2
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registrant Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993.
(2) All reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
Registrant's 1993 Annual Report on Form 10-K.
(3) The description of Common Stock contained in the Registrant's
Registration Statements filed under Section 12 of the Exchange Act, including
all amendments or reports filed for the purpose of updating such description.
(4) All other documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold.
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As provided under Georgia law, Registrant's Articles of Incorporation
provide that a director shall not be personally liable to the corporation or
its shareholders for monetary damages for breach of duty of care or any other
duty owed to the corporation as a director, except that such provision shall
not eliminate or limit the liability of a director (a) for any appropriation,
in violation of his duties, of any business opportunity of the corporation, (b)
for acts or omissions which involve intentional misconduct or a knowing
violation of law, (c) for unlawful corporate distributions, or (d) for any
transaction from which the director received an improper benefit.
Under Article V of its Bylaws, the Registrant is required to indemnify
its directors to the full extent permitted by Georgia law. The Georgia
Business Corporation Code provides that a corporation may indemnify its
directors, officers, and agents against judgments, fines, penalties, amounts
paid in settlement, and reasonable expenses, including attorney's fees,
resulting from
II-1
<PAGE> 3
various types of legal actions or proceedings, including, but not limited to
any threatened, pending, or completed action, suit or proceeding whether civil,
criminal, administrative, or investigative and whether formal or informal, if
the actions of the party being indemnified meet the standards of conduct
specified therein. Determination concerning whether or not the applicable
standard of conduct has been met can be made by (a) the Board of Directors by a
majority vote of a quorum consisting of disinterested directors, (b) a majority
vote of a committee of disinterested directors, (c) independent legal counsel,
or (d) an affirmative vote of a majority of shares held by the disinterested
shareholders. No indemnification shall be made to or on behalf of a corporate
director, officer, employee or agent (i) in connection with a proceeding by or
in the right of the corporation in which such person was adjudged liable to the
corporation or (ii) in connection with any other proceeding in which such
person was adjudged liable on the basis that personal benefit was improperly
received by him.
Registrant's directors and officers are insured against losses arising
from any claim against them as such for wrongful acts or omissions, subject to
certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
Exhibit Number Description
-------------- -----------
4(a) Registrant's Amended and Restated
Articles of Incorporation
4(b) Registrant's Amended and Restated Bylaws
4(c) Bank South Corporation Rights Agreement
(included as Exhibit 1 to the Form 8
Amendment to the Form 8-A filed with
the Commission on April 8, 1988 (File
No. 0-4554) and incorporated herein by
reference.)
5 Opinion of Alston & Bird
23(a) Consent of Alston & Bird (included in
Exhibit 5)
II-2
<PAGE> 4
Exhibit Number Description
-------------- -----------
23(b) Consent of Ernst & Young LLP
23(c) Consent of Price Waterhouse LLP
24 Power of Attorney (contained in Part II
at page II-5)
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities being offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section
15(d)
II-3
<PAGE> 5
of the Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on February 16,
1995.
BANK SOUTH CORPORATION
(Registrant)
By: /s/ RALPH E. HUTCHINS, JR.
----------------------------------------
Ralph E. Hutchins, Jr.
Chief Financial Officer and
Corporate Secretary
KNOW BY ALL MEN BY THESE PRESENT that each person whose signature
appears below constitutes and appoints Patrick L. Flinn or Ralph E. Hutchins,
Jr. and either of them (with full power in each to act alone), as true and
lawful attorneys-in-fact, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any amendments to
this Registration Statement and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C> <C>
/s/ PATRICK L. FLINN Chairman and February 16, 1995
- --------------------------------------------- Chief Executive Officer
Patrick L. Flinn (Principal Executive Officer)
/s/ RALPH E. HUTCHINS, JR. Chief Financial Officer and February 16, 1995
- --------------------------------------------- Corporate Secretary
Ralph E. Hutchins, Jr. (Principal Financial Officer)
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ J. BRENT LEE Corporate Treasurer February 16, 1995
- --------------------------------------------- and Comptroller
J. Brent Lee (Principal Accounting Officer)
Director
- ---------------------------------------------
Bernard W. Abrams
Director
- ---------------------------------------------
Ray C. Anderson
/s/ KENNETH W. CANNESTRA Director February 16, 1995
- ---------------------------------------------
Kenneth W. Cannestra
/s/ JOHN S. CARR Director February 16, 1995
- ---------------------------------------------
John S. Carr
/s/ SIDNEY E. JENNETTE, JR. Director February 16, 1995
- ---------------------------------------------
Sidney E. Jennette, Jr.
/s/ LYNN H. JOHNSTON Director February 16, 1995
- ---------------------------------------------
Lynn H. Johnston
/s/ WILLIAM M. McCLATCHEY, M.D. Director February 16, 1995
- ---------------------------------------------
William M. McClatchey, M.D.
/s/ JOHN E. McKINLEY III Director February 16, 1995
- ---------------------------------------------
John E. McKinley, III
Director
- ---------------------------------------------
Julia W. Morgan
/s/ BARRY PHILLIPS Director February 16, 1995
- ---------------------------------------------
Barry Phillips
</TABLE>
II-6
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ BEN G. PORTER Director February 16, 1995
- ---------------------------------------------
Ben G. Porter
/s/ JOHN W. ROBINSON, JR. Director February 16, 1995
- ---------------------------------------------
John W. Robinson, Jr.
/s/ FELKER W. WARD, JR. Director February 16, 1995
- ---------------------------------------------
Felker W. Ward, Jr.
/s/ VIRGIL R. WILLIAMS Director February 16, 1995
- ---------------------------------------------
Virgil R. Williams
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Sequential
----------
Exhibit Number Description Page No.
- -------------- ----------- --------
<S> <C>
4(a) Registrant's Amended and Restated Articles of Incorporation
4(b) Registrant's Amended and Restated Bylaws
4(c) Bank South Corporation Rights Agreement (included as Exhibit 1 to the
Form 8 Amendment to the Form 8-A filed with the Commission on April 8,
1988 (File No. 0-4554) and incorporated herein by reference)
5 Opinion of Alston & Bird
23(a) Consent of Alston & Bird (included in Exhibit 5)
23(b) Consent of Ernst & Young LLP
23(c) Consent of Price Waterhouse LLP
24 Power of Attorney (contained in Part II at page II-5)
</TABLE>
<PAGE> 1
EXHIBIT 4(a)
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF BANK SOUTH CORPORATION
<PAGE> 2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BANK SOUTH CORPORATION
Pursuant to Section 14-2-1007 of the Georgia Business
Corporation Code, Bank South Corporation hereby amends and restates the
Articles of Incorporation of Bank South Corporation in their entirety (with all
provisions of the heretofore existing Articles of Incorporation being hereby
amended) as follows:
ARTICLE ONE
Name
The name of the corporation is Bank South Corporation.
ARTICLE TWO
Nature of Business
The general nature of the businesses to be engaged in by the
corporation shall be:
(a) To act as a holding company and to acquire and own stock and other
interests in other businesses of any lawful character, including but not
limited to banks, insurance agencies, mortgage loan and servicing businesses,
data processing businesses, factors' businesses, and other financially oriented
businesses;
(b) To operate insurance agencies; to make and acquire mortgage loans
and render mortgage loan services; to render data processing services; to
render factoring services; and to render other financial and business services;
(c) To purchase, own, hold, sell, transfer, exchange and lease
personal and all property of every kind and description and wherever located.
In addition, the corporation shall have the power to engage in any
other business in any way related to the above or in aid thereof, and to do all
things and acts usually and lawfully done in the premises by similar
corporations or persons engaged in like businesses.
ARTICLE THREE
Powers to Conduct Business
The corporation shall have all the powers necessary or
convenient for the pursuit of its purposes and the transaction of its business;
in addition, it shall have all the rights, powers,
<PAGE> 3
privileges and immunities which are now or may hereafter be allowed
corporations under the laws of the State of Georgia, including all such powers,
rights and immunities permitted by law but not set forth in this petition.
ARTICLE FOUR
Powers to Enter Contracts
The corporation shall have the power to enter into any
partnership or joint venture with any individual or other corporation and to
guarantee or become surety upon or to endorse the contracts or obligations of
any other corporation, firm or individual, and to make any purely accommodation
guaranty, endorsement or contract of suretyship, whether or not the corporation
has any direct interest in the subject matter of the contract guaranteed,
endorsed or in regard to which it is a surety.
ARTICLE FIVE
Duration
The corporation shall have perpetual duration.
ARTICLE SIX
Principal Office
The principal office of the corporation shall be 55 Marietta
Street, N.W., Atlanta, Fulton County, Georgia, but the corporation shall have
the privilege of establishing offices elsewhere, whether in the State of
Georgia or otherwise.
ARTICLE SEVEN
Authorized Shares
A. The total number of shares of capital stock which the
corporation shall have authority to issue is 105,000,000 shares, consisting of
100,000,000 shares of Common Stock of the par value of Five Dollars ($5.00)
each and 5,000,000 shares of Preferred Stock of the par value of Twenty-Five
Dollars ($25.00) each. The voting powers, designations, preferences and
relative rights of the classes of stock of the corporation which are fixed by
these Articles of Incorporation, and the authority expressly vested in the
Board of Directors to fix by resolution or resolutions providing for the issue
of Preferred Stock, the voting powers (if any), designations, preferences and
relative rights of the shares of Preferred Stock which are not fixed by these
Articles of Incorporation, are as follows:
(1) Subject to the provisions of any applicable
law, or of the By-Laws of the corporation as from time to time
amended, with respect to the fixing of a record
- 2 -
<PAGE> 4
date for the determination of stockholders entitled to vote and
except as otherwise provided by any applicable law or by the
resolution or resolutions of the Board of Directors providing for
the issue of any series of Preferred Stock, the holders of
outstanding shares of Common Stock shall have and possess
exclusive voting power and rights for the election of directors
and for all other purposes, with each holder of record of shares
of Common Stock being entitled to one vote for each share of
Common Stock standing in his name on the books of the corporation
in the election of directors and on all other matters presented to
the stockholders.
(2) Except as otherwise provided by applicable
law, or by the resolution or resolutions of the Board of Directors
providing for the issue of any series of Preferred Stock, the
holders of shares of Preferred Stock, as such holders, (i) shall
not have any right to vote, and are hereby specifically excluded
from the right to vote, in the election of directors or for any
other purposes, and (ii) shall not be entitled to notice of any
meeting of stockholders.
(3) Before any sum or sums shall be set aside or
applied to the purchase of any outstanding Common Stock, and
before any dividend shall be declared or paid or any distribution
ordered or made upon the Common Stock (other than a dividend
payable in shares of Common Stock), the corporation shall have
complied with the dividend and sinking fund requirements (if any)
set forth in any resolution or resolutions of the Board of
Directors with respect to the issue of any series of Preferred
Stock of which any shares shall at the time be outstanding.
(4) Subject to the provisions of subparagraph
(A)(3) of this Article 7, and to such other limitations as may be
specified in any resolution or resolutions of the Board of
Directors providing for the issue of any series of Preferred
Stock, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series,
to receive such dividends as may be declared by the Board of
Directors from time to time.
(5) In the event of any liquidation, dissolution,
or winding up of the corporation, whether voluntary or
involuntary, after payment shall have been made to the holders of
Preferred Stock of the full amount to which any series of the
Preferred Stock is entitled as set forth in the resolution or
resolutions of the Board of Directors providing for the issue
thereof, the holders of Common Stock shall be entitled, to the
exclusion of the holders of Preferred Stock of any and all series,
to share in all remaining assets of the corporation available for
distribution to its stockholders ratably according to the number
of shares of Common Stock held by them. Neither the merger nor
consolidation of the corporation with or into any other
corporation or corporations, nor the merger or consolidation of
any other corporation or corporations into or with the
corporation, nor the sale, transfer, mortgage, pledge or lease by
the corporation of all or any part of its assets shall be deemed
to be a liquidation, dissolution or winding up of the corporation.
- 3 -
<PAGE> 5
(6) The Preferred Stock may be issued from time
to time in one o r more series of any number of shares, except
that the aggregate number of shares issued and not canceled of any
and all such series shall not exceed the total number of shares of
Preferred Stock hereinbefore authorized. Each series of Preferred
Stock shall be distinctively designated by number, letter or
descriptive words.
(7) Authority is hereby expressly granted to and
vested in the Board of Directors to issue the Preferred Stock at
any time, or from time to time, as Preferred Stock of any one or
more series and in connection with the establishment of each such
series to fix by resolution or resolutions providing for the issue
of the shares thereof the voting powers, if any, and the
designation, preferences and relative rights of each such series
of Preferred Stock to the full extent now or thereafter permitted
by these Articles of Incorporation and the laws of the State of
Georgia, including, with out limiting the generality of the
foregoing, all of the following matters which may vary between
each series:
(a) The distinctive designation of such
series and the number of shares which constitute such
series, which number may be increased or decreased
either before or subsequent to the issuance of any
shares of such series (but not below the number of
shares then outstanding), from time to time by action
of the Board of Directors;
(b) The dividend rate of such series,
the dates of payment thereof, and any limitations,
restrictions, or conditions on the payment of
dividends, including whether dividends shall be
cumulative and, if so, from which date or dates, and
the relative rights or priority, if any, of payment
of dividends on shares of each series;
(c) The price or prices at which, and
the terms, times and conditions on which, the shares
of such series may be redeemed at the option of the
corporation;
(d) The amount or amounts payable upon
the shares of such series in the event of voluntary
or involuntary liquidation, dissolution or winding up
of the corporation, and the relative rights of
priority, if any, of payment to the holders of shares
of each series;
(e) Whether or not the shares of such
series shall be entitled to the benefit of a sinking
fund or a purchase fund to be applied to the
redemption or purchase of such series, and if so
entitled, the amount of such fund and the manner of
its application, including the price or prices at
which the shares of such series may be redeemed or
purchased through the application of such fund;
- 4 -
<PAGE> 6
(f) Whether or not the shares of such
series shall be made convertible into, or
exchangeable for, shares of any other class or
classes of stock of the corporation, or the shares of
any other series of Preferred Stock, and, if made so
convertible or exchangeable, the conversion price or
prices, or the rate or rates of exchange, and the
adjustments thereof, if any, at which such conversion
or exchange may be made, and any other terms and
conditions of such conversion or exchange;
(g) Whether or not the shares of such
series shall have any voting powers and, if voting
powers are so granted, the extent of such voting
powers and the terms and conditions under which such
voting powers may be exercised;
(h) Whether or not the issue of any
additional shares of such series or of any future
series in addition to such series shall be subject to
restrictions in addition to the restrictions, if any,
on the issue of additional shares imposed in the
resolution or resolutions fixing the terms of any
outstanding series of Preferred Stock theretofore
issued pursuant to this Article 7 and, if subject to
additional restrictions, the extent of such
additional restrictions; and
(i) Whether or not the shares of such
series shall be entitled to the benefit of
limitations restricting the purchase of, the payment
of dividends on, or the making of other distributions
in respect of stock of any class of the corporation,
and the terms of any such restrictions; provided,
however, that such restrictions shall not include any
prohibition of the payment of dividends on any series
of Preferred Stock.
B. The corporation may purchase its own shares of capital
stock out of unreserved and unrestricted earned surplus and capital surplus
available therefor and as otherwise provided by law.
C. The Board of Directors may from time to time distribute to
stockholders out of capital surplus of the corporation a portion of its assets,
in cash or in property.
Series A Participating Preferred Stock
The Board of Directors of the corporation, in April 1988, created the
Series A Participating Preferred Stock of the corporation. In April 1994, the
number of shares constituting such series was increased to 700,000. The
designation, amount, voting powers, preferences and relative, participating,
optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as follows:
- 5 -
<PAGE> 7
1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Stock" (the "Series A Preferred
Stock") and shall have a par value of $25.00 per share. The number of shares
constituting such series shall be 700,000.
2. Dividends and Distributions.
(i) The holders of shares of Series A Preferred Stock, in preference
to the holders of Common Stock and of any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on the
last day of March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance of a share
or fraction of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $10.00 or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock of the corporation or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the corporation shall at any
time after the date hereof declare or pay any dividend on Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(ii) The corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in subparagraph (i) of this paragraph 2
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share
on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A Preferred Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before
- 6 -
<PAGE> 8
such Quarterly Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 30 days prior to the date fixed for the payment
thereof.
3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(i) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the shareholders of the
corporation. In the event the corporation shall at any time after the date
hereof declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
and any other capital stock of the corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
shareholders of the corporation.
(iii) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock
and any other Capital Stock of the corporation having general voting rights as
set forth herein) for taking any corporate action.
4. Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in paragraph 2 above are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the corporation shall not:
(a) declare or pay dividends on, or make any other distributions on,
any shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
- 7 -
<PAGE> 9
(b) declare or pay dividends on or make any other distributions on
an shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then entitled;
(c) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, provided that the
corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the corporation
ranking junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(d) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of Directors) to all
holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series
or classes.
(ii) The corporation shall not permit any subsidiary of the
corporation to purchase or otherwise acquire for consideration any shares of
stock of the corporation unless the corporation could, under subparagraph (i)
of this paragraph 4, purchase or otherwise acquire such shares at such time and
in such manner.
5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the corporation in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject
to the conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of corporation, no distribution shall be made (i) to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred Stock shall
be entitled to receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate amount
to be distributed per share to holders of Common Stock, or (ii) to the holders
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred
- 8 -
<PAGE> 10
Stock and all other such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the corporation shall at any time
after the date hereof declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise)
into a greater or lesser number of shares of Common Stock, then in each such
case the aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(a) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
7. Consolidation, Merger, etc. In case the corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the corporation shall at any time after the date hereof declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable; provided, however, that the corporation may purchase or
otherwise acquire outstanding shares of Series A Preferred Stock in the open
market or by offer to any holders of shares of Series A Preferred Stock.
9. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holders fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
10. Rank. The Series A Preferred Stock shall rank junior with
respect to payment of dividends and on liquidation to all other series of the
corporation's Preferred Stock that specifically provide that they shall rank
senior to the Series A Preferred Stock.
11. Amendment. The Articles of Incorporation of the corporation
shall not be limited in any manner that would materially alter or change the
powers, preferences or special rights of the
- 9 -
<PAGE> 11
Series A Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of two-thirds of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
ARTICLE EIGHT
No Preemptive Rights
No stockholder of the corporation shall, because of his
ownership of stock, have a preemptive or other right to purchase, subscribe
for, or take any part of any stock or any part of the notes, debentures, bonds,
or other securities convertible into or carrying options or warrants to
purchase stock of the corporation issued, optioned or sold by it after its
incorporation. Any part of the capital stock and any part of the notes,
debentures or other securities convertible into or carrying options or warrants
to purchase stock of the corporation may at any time be issued, optioned for
sale, and sold or disposed of by the corporation pursuant to action of its
Board of Directors to such persons and upon such terms as may to such Board
seem proper without first offering such stock or securities or any part thereof
to existing stockholders.
ARTICLE NINE
Certain Business Combinations
Fair Price Provisions
A. (1) Subject to the provisions of any series of Preferred
Stock which may at the time be outstanding and in addition to any affirmative
vote required by law or these Articles of Incorporation, and except as
otherwise expressly provided in paragraph B of this Article 9:
(a) any merger or consolidation of the corporation or any
Subsidiary (as defined below) with (i) any Interested Shareholder
(as defined below) or (ii) any other corporation (whether or not
itself an Interests Shareholder) which is or after such merger or
consolidation would be an Affiliate (as defined below) of any
Interested Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of any assets of the
corporation or any Subsidiary having an aggregate Fair Market
Value (as defined below) of $1,000,000 or more; or
(c) the issuance or transfer by the corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value of $1,000,000 or
more; or
- 10 -
<PAGE> 12
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or on
behalf of any Interested Shareholder or any Affiliate of any
Interested Shareholder; or
(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 other transaction (whether or not with or into
or otherwise involving an Interested Shareholder) which has the
effect, directly or indirectly, or increasing the proportionate
share 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;
shall require the affirmative vote of the holders of at least 95% of the then
outstanding shares of Common Stock of the corporation, including the
affirmative vote of the holders of at least 95% of the then outstanding shares
of Common Stock of the corporation other than those beneficially owned by such
Interested Shareholder. Such affirmative votes shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
(2) The term "Business Combination" as used in this
Article 9 shall mean any transaction which is referred to in any one or more of
the clauses (a) through (e) of subparagraph (1) of this paragraph A.
B. The provisions of paragraph A of this Article 9 shall not
be applicable to any particular Business Combination and such Business
Combination shall require only such affirmative vote as is required by law and
any other provisions of these Articles of Incorporation, if all of the
conditions specified in either of the following subparagraphs (1) or (2) are
met.
(1) The Business Combination shall have been approved by
a majority of the Continuing Directors (as defined below); provided that such
approval shall only be effective if obtained at a meeting at which a Continuing
Director Quorum (as defined below) is present; or
(2) All of the following conditions shall have been met:
(a) The aggregate amount of (x) cash and (y) Fair
Market Value as of the date of the consummation of the Business
Combination of other consideration to be received per share by
holders of Common Stock in such Business Combination shall be at
least equal to the highest amount determined under subclauses
(i), (ii) and (iii) below:
(i) (if applicable) the highest per
share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the Interested
Shareholder for any share of Common Stock of the
corporation acquired by it (A) within the two year period
immediately prior to the first
- 11 -
<PAGE> 13
public announcement of the proposal of the Business
Combination (the "Announcement Date") or (B) in the
transaction in which it became an Interested
Shareholder, whichever is higher;
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date on
which the Interested Shareholder became an Interested
Shareholder (such later date is referred to in this
Article 9 as the "Determination Date"), whichever is
higher, and
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of Common Stock
determined pursuant to subparagraph (2)(a)(ii) above,
multiplied by the ratio of (A) the highest missions,
transfer taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any shares of Common Stock of
the corporation acquired by it within the two year period
immediately prior to the Announcement Date to (B) the Fair
Market Value per share of Common Stock of the corporation
on the first day in such two year period on which the
Interested Shareholder acquired any shares of Common
Stock.
(b) The aggregate amount of (x) cash and (y) Fair
Market Value as of the date of the consummation of the Business
Combination of other consideration to be received per share by
holders of shares of any class of outstanding Preferred Stock of
the corporation shall be at least equal to the highest amounted
under subclauses (i),(ii),(iii) and (iv) below:
(i) (if applicable) the highest per
share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Preferred
Stock acquired by it (A) within the two year period
immediately prior to the Announcement Date or (B) in the
transaction in which it became an Interested
Shareholder, whichever is higher;
(ii) the highest preferential amount per
share to which the holders of shares of such class of
Preferred Stock would be entitled in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the corporation, regardless
of whether the Business Combination to be consummated
constitutes such an event;
(iii) the Fair Market Value per share of
such class of Preferred Stock on the Announcement Date or
on the Determination Date, whichever is higher; and
(iv) (if applicable) the price per share
equal to the Fair Market Value per share of such class of
Preferred Stock determined pursuant to subparagraph
(2)(b)(iii) above, multiplied by the ratio of (A)
the highest per
- 12 -
<PAGE> 14
share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Preferred
Stock acquired by it within the two year period
immediately prior to the Announcement Date to (B) the Fair
Market Value per share of such class of Preferred Stock on
the first day in such two year period on which the
Interested Shareholder acquired any shares of such
class of Preferred Stock.
The provisions of this subparagraph (2)(b) shall be required to be met with
respect to every class of Preferred Stock of the corporation, whether or not
the Interested Shareholder has previously acquired any shares of a particular
class of Preferred Stock.
(c) The consideration to be received by holders of a
particular class of outstanding stock shall be in cash or in the
same form as the Interested Shareholder has previously paid for
shares of such class of stock; if the Interested Shareholder has
paid for shares of any class of any stock with varying forms of
consideration, the form of consideration for such class of stock
shall be either cash or the form used to acquire the largest
number of shares of such class of stock previously acquired by it.
(d) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination, (i) except as approved by a majority of the
Continuing Directors, there shall have been no failure to declare
and pay at the regular date therefor any dividends (whether or not
cumulative) on outstanding Preferred Stock of the corporation;
(ii) there shall have been (A) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a
majority of the Continuing Directors, and (B) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of
Common Stock, unless the failure so to increase such annual rate
is approved by a majority of the Continuing Directors; and (iii)
such Interested Shareholder shall not have become the beneficial
owner of any additional shares of Common Stock except as part of
the transaction which results in such Interested Shareholder
becoming an Interested Shareholder. The approval by a majority of
the Continuing Directors of any exception to the requirements set
forth in clauses (i) and (ii) above shall only be effective if
obtained at a meeting at which a Continuing Director Quorum is
present.
(e) After such Interested Shareholder has become an
Interested Shareholder, 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 any tax
credits or other tax advantages provided by the corporation,
whether in anticipation of or in connection with such Business
Combination or otherwise.
- 13 -
<PAGE> 15
(f) A proxy statement complying with the
requirements of the Securities and Exchange Act of 1934, whether
or not the corporation is then subject to such requirements,
shall be mailed to the shareholders of the corporation for the
purpose of soliciting shareholder approval of such Business
Combination and shall contain at the front thereof, in the
prominent place (i) any recommendations as to the advisability (or
inadvisability) of the Business Combination which the Continuing
Directors may choose to state, and (ii) the opinion of a reputable
national investment banking firm as to the fairness (or lack
thereof) of the terms of the Business Combination, from the point
of view of the remaining public shareholders of the corporation
(such investment banking firm to be engaged solely on behalf of
the remaining public shareholders, to be paid a reasonable fee for
its services by the corporation upon receipt of such opinion, to
be an investment banking firm which has not previously been
associated with the Interested Shareholder and, if there are at
the time any such directors, to be selected by a majority of the
Continuing Directors).
C. For the purposes of this Article 9:
(1) The term "person" shall mean any individual,
firm, corporation or other entity.
(2) The term "Interested Shareholder" shall mean any
person (other than the corporation or any Subsidiary and other
than any profit-sharing, employee stock ownership or other
employee benefit plan of the corporation or any Subsidiary or any
trustee of or fiduciary with respect to any such plan when acting
in such capacity) who or which:
(a) is the beneficial owner (as
hereinafter defined) of more than twenty percent (20%)
of the corporation's Common stock; or
(b) is an Affiliate (as hereinafter
defined) of the corporation and at any time within the two
year period immediately prior to the date of the
determination was the beneficial owner of more than twenty
percent (20%) of the corporation's Common Stock; or
(c) is an assignee of or has otherwise
succeeded to any shares of the corporation's Common Stock
which were at any item within the two year period
immediately prior to the date of the determination
beneficially owned by any Interested Shareholder, if 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.
(3) A person shall be a "beneficial owner" of any
Common Stock:
(a) which such person or any of its
Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly; or
- 14 -
<PAGE> 16
(b) which such person or any of its
Affiliates or Associates has, directly or indirectly,
(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 is beneficially owned,
directly or indirectly, by any other person with which
such 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 Common Stock.
(4) For the purposes of determining whether a person
is an Interested Shareholder pursuant to subparagraph (2) of this
paragraph C, the number of shares of Common Stock deemed to be
outstanding shall include shares deemed owned through application
of subparagraph (3) of this paragraph C but shall not include any
other shares of Common Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(5) The terms "Affiliate" or "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on March 1, 1983.
(6) The term "Subsidiary" means any corporation of
which a majority of any class of equity security is owned,
directly or indirectly, by the corporation; provided that for the
purposes of the definition of Interested Shareholder set forth in
subparagraph (2) of this paragraph C, 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.
(7) The term "Continuing Director" means any member
of the Board of Directors of the corporation (the "Board") who is
unaffiliated with the Interested Shareholder and was a member of
the Board prior to the time that the Interested Shareholder became
an Interested Shareholder, and any successor of a Continuing
Director who is unaffiliated with the Interested Shareholder and
is recommended or elected to succeed a Continuing Director by a
majority of Continuing Directors, provided that such
recommendation or election shall only be effective if made at a
meeting at which a Continuing Director Quorum is present.
(8) The term "Continuing Director Quorum" means the
number of Continuing Directors equal to the greater of a majority
of the Continuing Directors in office immediately prior to the
time that the Interested Shareholder became an Interested
Shareholder or nine continuing Directors, and which are capable of
- 15 -
<PAGE> 17
exercising the powers conferred upon them under the provisions of
the Articles of Incorporation or By-Laws of the corporation or by
law.
(9) The term "Fair Market Value" means, as of any
date, (i) in case of stock, the highest closing sale price during
the 30 consecutive days immediately preceding such date 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 consecutive
days preceding such date on the National Association of Securities
Dealers Automated Quotations System or any system then in use, or,
if no such quotations are available, the fair market value on such
date of a share of such stock as determined in good faith by a
majority of Continuing Directors, provided that such determination
shall only be effective if made at a meeting at which a Continuing
Director Quorum is present; and (ii) in the case of property other
than cash or stock, the fair market value of such property on such
date as determined in good faith by a majority of Continuing
Directors, provided that such determination shall only be
effective if made at a meeting at which a Continuing Director
Quorum is present.
(10) In the event of any Business Combination in
which the corporation survives, the phrase "other consideration to
be received," as used in subparagraphs (2)(a) and (b) of paragraph
B of this Article 9 shall include the shares of Common Stock
and/or the shares of any other class of stock retained by the
holders of such shares.
D. Nothing contained in this Article 9 shall be construed to
relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
E. The provisions of this Article 9 may not be repealed or
amended in any respect, unless such action is approved by the affirmative vote
of the holders of not less than 95% of the outstanding shares of Common Stock
of the corporation, subject to the provisions of any series of Preferred Stock
which may at the time be outstanding; provided that if there is an Interested
Shareholder, such 95% vote must include the affirmative vote of the holders of
at least 95% of the outstanding shares of Common stock other than those
beneficially owned by the Interested Shareholder, subject to the provisions of
any series of Preferred Stock which may at the time be outstanding.
- 16 -
<PAGE> 18
ARTICLE TEN
Certain Business Combinations
Minimum Voting Requirements
A. Subject to the provisions of any series of Preferred Stock
which may at the time be outstanding, the affirmative vote of the holders of
not less than 75% of the outstanding shares of Common Stock of the corporation
and the affirmative vote of the holders of not less than 66-2/3% of the
outstanding shares of Common Stock of the corporation other than those
beneficially owned (as defined in Article 9) by an Interested Shareholder (as
defined in Article 9) (the "two-tier voting requirement"), shall be required
for the approval or authorization of any Business Combination (as defined in
Article 9) of the corporation with such Interested Shareholder; provided that
the two-tier voting requirement shall not be applicable if the Business
Combination was approved by a majority of the Continuing Directors (as defined
in Article 9) at the meeting at which a Continuing Director Quorum (as defined
in Article 9) is present.
B. The provisions of this Article 10 may not be repealed or
amended in any respect, unless such action is approved by the affirmative vote
of the holders of not less than 75% of the outstanding shares of Common Stock
of the corporation, subject to the provisions of any series of Preferred Stock
which may at the time be outstanding; provided that if there is an Interested
Shareholder, such 75% vote must include the affirmative vote of the holders of
at least 66-2/3% of the outstanding shares of Common Stock other than those
beneficially owned by the Interested Shareholder, subject to the provisions of
any series of Preferred Stock which may at the time be outstanding.
ARTICLE ELEVEN
Business Combinations
Constituents
The Board of Directors of the corporation, when evaluating any
offer of another person (as defined in Article 9) to (a) make a tender or
exchange offer for any equity security of the corporation, (b) merge or
consolidate the corporation with another person, or (c) purchase or otherwise
acquire all or substantially all of the properties and assets of the
corporation (an "Acquisition Proposal"), shall, in connection with the exercise
of its business judgment in determining what is in the best interests of the
corporation and its shareholders, give due consideration to all relevant
factors, including without limitation the consideration begin offered in the
Acquisition Proposal in relation tot he then-current market price, but also in
relation to the then-current value of the corporation in a freely negotiated
transaction and in relation to the Board of Directors' then estimate of the
future value of the corporation as an independent entity, the social and
economic effects on the employees, customers, suppliers and other constituents
of the corporation and its subsidiaries and the communities in which the
corporation and its subsidiaries operate or are located and the desirability of
maintaining independence from any other banking entity.
- 17 -
<PAGE> 19
ARTICLE TWELVE
Limitation of Director Liability
No director of the corporation shall be personally liable to
the corporation or its shareholders for monetary damages for breach of his duty
of care or other duty as a director; provided that this provision shall
eliminate or limit the liability of a director only to the extent permitted
from time to time by the Georgia Business Corporation Code or any successor law
or laws.
******************************
These Amended and Restated Articles of Incorporation do not
contain amendments requiring shareholder approval, and were duly adopted in
accordance with the applicable provisions of Section 14-2-1002 of the Georgia
Business Corporation Code by the directors of the corporation effective as of
May 19, 1994.
These Amended and Restated Articles of Incorporation supersede
the original Articles of Incorporation as heretofore amended.
IN WITNESS WHEREOF, the undersigned executes these Amended and
Restated Articles of Incorporation this 19th day of May, 1994.
BANK SOUTH CORPORATION
By: /s/ JANE A. RATNER
------------------------------
Name: Jane A Ratner
Title: Corporate Counsel
- 18 -
<PAGE> 1
EXHIBIT 4(b)
AMENDED AND RESTATED BYLAWS OF BANK SOUTH CORPORATION
<PAGE> 2
AMENDED AND RESTATED BYLAWS
OF
BANK SOUTH CORPORATION
As Amended through February 16, 1995
<PAGE> 3
AMENDED AND RESTATED BYLAWS
OF
BANK SOUTH CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The corporation shall maintain at all
times a registered office in the State of Georgia and a registered agent at
that office.
SECTION 2. OTHER OFFICES. The corporation may also have offices at
such other places both within and without the State of Georgia as the business
of the corporation may require or make desirable.
ARTICLE II
SHAREHOLDERS MEETINGS
SECTION 1. REGULAR MEETINGS. The regular meeting of the shareholders
of the corporation shall be held at the principal office of the corporation or
at such other place in the United States as may be determined by the board of
directors, at 11:00 a.m. on the third Thursday of the fourth month following
the close of each fiscal year, or at such other date and time as shall be
determined by the board of directors, for the purpose of electing directors and
transacting such other business as may properly be brought before the meeting.
SECTION 2. SPECIAL MEETINGS. (a) Special meetings shall be called by
the president or the secretary (i) when so directed by a majority of the entire
board of directors or (ii) upon a shareholder demand made in accordance with
the requirements of the Georgia Business Corporation Code, as amended from time
to time.
(b) Promptly after the receipt of written shareholder demands
purporting to comply with the provisions of the Georgia Business Corporation
Code, as amended from time to time (the 'Filing Date'), the corporation shall
engage independent inspectors for the purpose of determining the validity of
the demand(s) and any revocations thereof. Within 15 calendar days of the
Filing Date, such independent inspectors shall deliver to the corporation a
written report stating whether the demand comports with the requirements of the
Georgia Business Corporation Code, as amended from time to time. If such
written report states that the demand is adequate, or if no report is delivered
by the independent inspectors within 15 calendar days of the Filing Date, the
President or the Secretary of the corporation shall call a special shareholders
meeting by mailing notice within 15 days after receipt of the report by said
independent inspectors or after the expiration of the reporting period.
(c) The time, date, and place of any special shareholders meeting
shall be determined by the board of directors and shall be set forth in the
notice of meeting.
<PAGE> 4
SECTION 3. NOTICE OF MEETINGS. Unless otherwise required by law or
specified in the articles of incorporation or these bylaws, written notice of
every meeting of shareholders, stating the place, date and hour of the meeting,
shall be given, in a manner permitted by applicable law, to each shareholder of
record entitled to vote at such meeting not less than 10 nor more than 60 days
prior to the date of the meeting.
SECTION 4. QUORUM. The holders of a majority of the shares
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all
meetings of the shareholders (except as otherwise provided by law, the articles
of incorporation or these bylaws). If a quorum is not present at any meeting
of the shareholders, the holders of a majority of the shares present (in person
or represented by proxy) and entitled to vote thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the original meeting.
SECTION 5. VOTING. Unless otherwise provided by law, the articles of
incorporation, or certificates of designations with respect to any class of
preferred stock, each outstanding share, regardless of class, shall be entitled
to one vote on each matter voted on at a shareholders meeting. If a quorum
exists, action on a matter, other than the election of directors, is approved
by a voting group (as defined under applicable law) if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless the articles of incorporation, these bylaws, resolution of the board of
directors, or applicable law require a different vote. Directors shall be
elected by a plurality of the votes cast by the shares entitled to vote in the
election at a meeting at which a quorum is present. A shareholder may vote his
shares in person or by proxy; a shareholder may appoint a proxy to vote or
otherwise act for him by signing an appointment form. An appointment of a
proxy is valid for 11 months unless a shorter or longer period is expressly
provided in the appointment form.
SECTION 6. LIST OF SHAREHOLDERS; INSPECTION OF RECORDS. (a) The
corporation shall keep at its registered office or principal place of business,
or at the office of its transfer agent or registrar, a record of its
shareholders, giving their names and addresses and the number, class and
series, if any, of the shares held by each.
(b) Shareholders are entitled to inspect the corporate records as
provided in the Georgia Business Corporation Code, as amended from time to
time.
ARTICLE III
DIRECTORS
SECTION 1. POWERS. Except as otherwise provided by any legal
agreement among shareholders, the property, affairs and business of the
corporation shall be managed and directed by its board of directors, which may
exercise all powers of the corporation and do all lawful acts and things which
are not (by law, by any legal agreement among shareholders, by the articles of
incorporation or by these bylaws) directed or required to be exercised or done
by the shareholders.
- 2 -
<PAGE> 5
SECTION 2. NUMBER, ELECTION AND TERM. The number of directors which
shall constitute the whole Board shall be not less than five (5) nor more than
twenty-five (25), with the exact number of directors being established by
resolution of the Board of Directors from time to time; provided, however that
no decrease shall have the effect of shortening the term of any incumbent
director. The directors shall be elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present, except as hereinafter provided, and each director elected shall hold
office until his successor is elected and qualified or until his earlier
resignation, removal from office, or death. Directors shall be natural persons
who have attained the age of 21 years, but need not be residents of the State
of Georgia or shareholders of the corporation. Directors will not be elected
for terms beginning after their seventieth birthday. The board, from time to
time, may designate persons to act as advisory directors, and directors who
retire from the board because of age may be designated as advisory directors.
SECTION 3. NOMINATIONS. If any shareholder intends to nominate or
cause to be nominated any candidate for election to the Board of Directors
(other than any candidate to be sponsored by and proposed at the instance of
the management), such shareholder shall notify the President by first class
registered mail sent not less than 14 nor more than 50 days before the
scheduled meeting of the shareholders at which directors will be elected.
However, if less than 21 days notice of the meeting is given to shareholders,
such nomination shall be delivered or mailed to the President not later than
the close of the seventh day following the date on which the notice of the
shareholders' meeting was mailed. Such notification shall contain the
following information, to the extent known to the shareholder giving such
notification:
(1) The names and addresses of each nominee to be proposed;
(2) Their principal present occupations;
(3) To the knowledge of the shareholder who proposed to make such
nominations, the total number of shares that may be voted for
each of the proposed nominees; and
(4) The names and address of the shareholders who propose to make
such nominations, and the number of shares of the corporation
owned by each of such shareholders.
Any nominations for directors not in accordance with this requirement may be
disregarded by the Chairman of the meeting, and upon instruction by the
Chairman, votes cast for each such nominee shall be disregarded by vote
tellers. In the event, however, a person should be nominated by more than one
shareholder, and if one such nomination complies with this requirement, such
nomination shall be honored, and all shares voted for such nominee shall be
counted.
SECTION 4. VACANCIES. Vacancies, including vacancies resulting from
any increase in the number of directors, but not including vacancies resulting
from removal from office by the shareholders (except as provided in Section 9
of this Article), may be filled by the board of directors or by a majority of
the directors then in office (if the directors remaining in office constitute
less than a quorum), and a director so chosen shall hold office until the next
annual election and until his successor is duly elected and
- 3 -
<PAGE> 6
qualified, unless sooner displaced. If there are no directors in office, then
vacancies shall be filled through election by the shareholders.
SECTION 5. MEETINGS AND NOTICE. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Georgia. Regular meetings of the board of directors may be
held without notice at such time and place as shall from time to time be
determined by resolution of the board. Special meetings of the board may be
called by the chairman of the board or by any three directors upon one day
notice given in a manner permitted by law. Such notice shall state a
reasonable time, date and place of meeting, but the purpose need not be stated
therein. Unless otherwise provided by law, the articles of incorporation or
these bylaws, directors may participate in a meeting of the board, or any
committee thereof, by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear each other.
Participation in the meeting shall constitute presence in person.
SECTION 6. QUORUM. At all meetings of the board a majority of
directors shall constitute a quorum for the transaction of business, and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the board, except as may be otherwise specifically
provided by law, by the articles of incorporation, by these bylaws or by
contract. If a quorum shall not be present at any meeting of the board, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 7. CONSENT OF DIRECTORS. Unless otherwise restricted by the
articles of incorporation of these bylaws, any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if the action is evidenced by one or more
written consents describing the action taken and signed by each director or
committee member, and the writing or writings are delivered to the corporation
for inclusion in the minutes or filing with the corporate records. Such
consent shall have the same force and effect as a unanimous vote of the board
of committee, as the case may be.
SECTION 8. COMMITTEES. The board of directors may by resolution
create one or more committees and appoint one or more members of the board of
directors to serve on them. The board may designate one or more directors as
alternate members of any committee, who may replace any absent member at any
meeting of such committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise all of the authority of the board of
directors in the management of the business and affairs of the corporation,
subject to limitations imposed by law or the articles of incorporation. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors. A majority of
each committee may determine its action and may fix the time and places of its
meetings, unless otherwise provided by the board of directors. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
In addition to any other committees that may be established by the
board of directors pursuant to this Section 8, there shall be a committee known
as the executive committee which shall be composed of not less than three nor
more than six directors appointed by the board. The executive committee shall
meet regularly at such times as it may fix and shall make a report of its
actions to the board, which may
- 4 -
<PAGE> 7
be either verbal or in writing. The executive committee shall have and may
exercise the powers of the board of directors in the management of the affairs
and property of the corporation in the interim between meetings of the board,
subject to limitations imposed by law or the articles of incorporation. The
board may in appointing the committee elect one of its members as chairman to
preside and perform any and all other duties designated by the committee.
SECTION 9. REMOVAL OF DIRECTORS. At any shareholders meeting, with
respect to which notice of such purpose has been given, any director may be
removed from office, with or without cause, by a majority of the votes entitled
to be cast, and his successor may be elected at the same or any subsequent
meeting of shareholders; provided that to the extent any vacancy created by
such removal is not filled through an election within 130 days after such
removal, the remaining directors, by majority vote, shall be entitled to fill
any such vacancy.
SECTION 10. COMPENSATION OF DIRECTORS. Directors shall be entitled
to such compensation for their services as directors or members of any
committee of the board as shall be fixed from time to time by resolution
adopted by the board, and shall also be entitled to reimbursement for any
reasonable expenses incurred in attending any meeting of the board or any such
committee.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be chosen
by the board of directors and shall be a President and a Secretary. The board
of directors may also choose a Chairman of the Board, Vice Presidents, one or
more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers.
Any number of offices, except the offices of President and Secretary, may be
held by the same person. The board of directors may appoint such other
officers and agents as it shall deem necessary.
SECTION 2. COMPENSATION. The salaries of all officers and agents of
the corporation shall be fixed by the board of directors or a committee or
officer appointed by the board.
SECTION 3. TERM OF OFFICE. Unless otherwise provided by resolution
of the board of directors, the principal officers shall be chosen annually by
the board of directors at the first meeting of the board following the regular
meeting of shareholders of the corporation, or as soon thereafter as is
conveniently possible. Subordinate officers may be elected from time to time.
Each officer shall serve until his successor shall have been chosen and
qualified, or until his death, resignation or removal.
SECTION 4. REMOVAL. Any officer may be removed from office at any
time, with or without cause, by the board of directors, whenever in its
judgment the best interests of the corporation will be served thereby.
SECTION 5. VACANCIES. Any vacancy in an office, existing for any
reason, may be filled by the board of directors.
- 5 -
<PAGE> 8
SECTION 6. POWERS AND DUTIES. Except as otherwise provided by law,
the articles of incorporation or these bylaws, or as hereinafter provided, the
officers of the corporation shall each have such powers and duties as from time
to time may be conferred by the board of directors.
(a) President. The President shall be the chief executive officer of
the corporation, shall preside as chairman at all meetings of shareholders
(unless the board shall have created an office of Chairman of the Board), and
shall have general and active management of the business of the corporation and
shall see that all orders and resolutions of the board of directors are carried
into effect. The President shall have such authority as generally pertains to
the office of president.
(b) Secretary. The Secretary shall attend all meetings of the board
of directors and all meetings of the shareholders and record all the
proceedings of the meeting of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders, and shall perform such other duties as may
be prescribed by the board of directors or President, under whose supervision
he shall be. He shall have custody of the corporate seal of the corporation
and he, or an assistant secretary, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest to affixing by his signature.
(c) Bonds and Sureties. If required by the board of directors, any
officer or employee shall give the corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
(d) Signatures. The signature of any officer, employee or agent upon
any document of the corporation may be made by facsimile or machine signature
under such limitations and circumstances as the board of directors or any
appropriate committee of the board of directors may provide from time to time.
(e) Execution of Instruments, Documents, Etc. All agreements,
indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements,
petitions, schedules, accounts, affidavits, bonds, undertakings, proxies,
certifications, purchases, sales, cancellations, guaranties, and, without
limiting the generality of the foregoing, any and all other instruments,
documents, or contracts of any kind or character, may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the corporation by
the Chairman of the Board, the President or any Vice President, or any
Assistant Vice President, Cashier, or any other Officer. Any such instruments
may also be executed, acknowledged, verified, delivered, accepted or attested
in behalf of the corporation in such other manner by such other Officers as the
Board of Directors may from time to time direct. The provisions of this
Article IV, Section 6(e), are supplementary to any other provisions of these
bylaws.
- 6 -
<PAGE> 9
SECTION 7. VOTING SECURITIES OF CORPORATION. Unless otherwise
provided by the board of directors, the President shall have full power and
authority on behalf of the corporation to attend and to act and vote at any
meetings of security holders of corporations in which the corporation may hold
securities, and at such meetings shall possess and may exercise any and all
rights and powers incident to the ownership of such securities which the
corporation might have possessed and exercised if it had been present. The
board of directors by resolution from time to time may confer like powers upon
any other person or persons.
ARTICLE V
INDEMNIFICATION
SECTION 1. RIGHT OF INDEMNIFICATION. The corporation shall indemnify
each current and former director (and the heirs and legal representatives of
such directors) to the maximum extent permitted by state law, but only to the
extent not preempted by federal law.
SECTION 2. ADVANCE OF EXPENSES. The corporation shall advance
expenses incurred by a current or former director with respect to any
proceeding for which indemnification is available if such director complies
with the provisions of applicable law.
SECTION 3. RIGHTS OF INDEMNIFICATION CUMULATIVE. The rights of
indemnification provided in this Article V shall be in addition to any rights
to which any director or officer or other person may otherwise be entitled
under any bylaw, agreement, vote of shareholders, or otherwise, and shall be in
addition to the power of the corporation to purchase and maintain insurance
with respect to any director, officer or other person.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. FORM OF CERTIFICATE. Every holder of record of fully-paid
shares in the corporation shall be entitled to have a certificate in such form
as the board of directors may from to time prescribe.
SECTION 2. LOST CERTIFICATES. The corporation may issue a new
certificate in place of any certificate theretofore issued by the corporation
and alleged to have been lost, stolen or destroyed, upon the making of an
affidavit, in form and substance satisfactory to the corporation, of the fact
by the person claiming the certificate to be lost, stolen or destroyed. The
corporation may, in its discretion and as a condition precedent to the issuance
thereof, together with such other conditions precedent that it may reasonably
require, require the owner of such lost, stolen or destroyed certificate, or
his legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 3. TRANSFERS. (a) Transfers of capital shares of the
corporation shall be made only on the books of the corporation by the
registered holder thereof, or by its duly authorized attorney, or with a
- 7 -
<PAGE> 10
transfer clerk or transfer agent appointed as provided in Section 5 of this
Article, and on surrender of the certificate or certificates for such shares
properly endorsed and the payment of all taxes thereon.
(b) Except as otherwise provided by law or as provided elsewhere
herein, the corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, and
to vote as such owner, and for all other purposes, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof.
(c) Capital shares may be transferred by delivery of the certificates
thereof, accompanied either by an assignment in writing on the back of the
certificates or by separate written power of attorney to sell, assign and
transfer the same, signed by the record holder thereof, or by his duly
authorized attorney-in-fact, and accompanied by such evidence that all such
signatures are genuine, as the corporation, at its option, may request, but no
transfer shall affect the right of the corporation to pay any dividend upon the
stock to the holder of record as the holder in fact thereof for all purposes,
and no transfer shall be valid, except between the parties thereto, until such
transfer shall have been made upon the books of the corporation as herein
provided.
(d) The board may, from time to time, make such additional rules and
regulations as it may deem expedient, not inconsistent with these bylaws or the
articles of incorporation concerning the issue, transfer and registration of
certificates for shares of the corporation, and nothing contained herein shall
limit or waive any rights of the corporation with respect to such matters under
applicable law or any subscriptions or other agreement by which the corporation
is bound.
SECTION 4. RECORD DATE. In order that the corporation may determine
the shareholders entitled to notice of or to vote at any regular meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of shares
or for the purpose of any other lawful action, the board of directors may fix,
in advance, a record date, which shall not be more than 70 days and, in case of
a meeting of shareholders, not less than 10 days prior to the date on which the
particular action requiring such determination of shareholders is to be taken.
SECTION 5. TRANSFER AGENT AND REGISTRAR. The board of directors may
appoint one or more transfer agents or one or more transfer clerks and one or
more registrars, and may require all certificates of shares to bear the
signature or signatures of any of them.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DISTRIBUTIONS. Distributions upon shares of the
corporation, subject to the provisions, if any, of the articles of
incorporation, or any lawful agreement among shareholders, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Distributions may be paid in cash or in property, subject to applicable
provisions of the articles of incorporation. Before payment of
- 8 -
<PAGE> 11
any distribution, there may be set aside out of any funds of the corporation
available for distribution such sum or sums as the directors from time to time,
in their sole and absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing distributions, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the board of directors.
SECTION 3. SEAL. The corporate seal shall have inscribed thereon the
name of the corporation, the year of its organization and the words "Corporate
Seal" and "Georgia." The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
SECTION 4. BUSINESS COMBINATIONS. Sections 14-2-236 through 14-2-238
of the Official Code of Georgia Annotated (Supp. 1988) and Sections 14-2-1131
through 14-2-1133 of the Official Code of Georgia Annotated, effective on July
1, 1989, which set forth criteria to be met before a business combination as
defined in O.C.G.A. Section 14-2-236 (and the corresponding Section 14-2-1131
of the Revised Georgia Business Corporations Code) involving the corporation
shall become effective, shall apply in their entirety to the corporation, and
all business combinations of the corporation shall be conducted in accordance
with such Sections.
SECTION 5. SAVINGS CLAUSE. To the extent these bylaws conflict with
any provision of any state or federal law as such laws may be amended from time
to time, these bylaws shall be construed so as not to conflict with said law,
and any discretionary actions made hereunder shall be made in accordance with
applicable law.
ARTICLE VIII
AMENDMENTS
The board of directors shall have power to alter, amend or repeal
these bylaws or adopt new bylaws, but any bylaws adopted by the board of
directors may be altered, amended or repealed, and new bylaws may be adopted,
by the shareholders if the votes cast within the applicable voting group
favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation, these bylaws or applicable law requires otherwise.
- 9 -
<PAGE> 1
EXHIBIT 5
OPINION OF ALSTON & BIRD
<PAGE> 2
[Letterhead of Alston & Bird]
February 17, 1995
Bank South Corporation
55 Marietta Street
Atlanta, Georgia 30303
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel for Bank South Corporation, a Georgia
corporation (the "Company"), in the preparation of the referenced Form S-8
Registration Statement relating to the Gwinnett Bancshares, Inc. Stock Option
Plan (the "Plan") to be assumed by the Company in connection with the merger of
Gwinnett Bancshares, Inc. with and into the Company, and the proposed offer of
up to 261,713 shares of the Company's common stock, $5.00 par value
(hereinafter referred to as "Common Stock") upon exercise of options
outstanding under the Plan. In connection with the preparation of said
Registration Statement, we have examined originals or copies of corporate
records, certificates of public officials and of officers of the Company and
other instruments relating to the authorization and issuance of such shares of
Common Stock as we have deemed relevant and necessary for the opinion
hereinafter expressed.
On the basis of the foregoing, it is our opinion that the assumption
of the Plan by the Company and the proposed offer thereunder of up to 261,713
shares of Common Stock have been duly authorized by the Board of Directors of
the Company, and the shares, when issued in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement on Form S-8 and further consent to the reference to our
Firm wherever appearing in the Form S-8.
ALSTON & BIRD
By: /s/ LAURA G. THATCHER
------------------------------
Laura G. Thatcher
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF ERNST & YOUNG LLP
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Gwinnett Bancshares, Inc. Stock Option Plan (the
"Plan") to be assumed by Bank South Corporation (the "Company") in connection
with the merger of Gwinnett Bancshares, Inc. with and into the Company, of our
report dated January 20, 1994, except for Note 19, as to which the date is
January 31, 1994, with respect to the consolidated financial statements of the
Company incorporated by reference in its Annual Report (Form 10-K) for the year
ended December 31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
February 21, 1995
<PAGE> 1
EXHIBIT 23(c)
CONSENT OF PRICE WATERHOUSE LLP
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the Gwinnett Bancshares, Inc. Stock Option
Plan (the "Plan") to be assumed by Bank South Corporation (the "Company") in
connection with the merger of Gwinnett Bancshares, Inc. with and into the
Company, of our report dated January 16, 1992, relating to the consolidated
statements of operations, of cash flows and of changes in shareholders' equity
for the year ended December 31, 1991 of Bank South Corporation and its
subsidiaries appearing in the 1993 Bank South Corporation Annual Report to
Shareholders, which has been incorporated by reference in the Annual Report on
Form 10-K of Bank South Corporation for the fiscal year ended December 31,
1993.
PRICE WATERHOUSE LLP
Atlanta, Georgia
February 21, 1995
