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EXHIBIT 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COMMUNITY BANCSHARES, INC.
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
COMMUNITY BANCSHARES, INC.
Community Bancshares, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), does hereby certify as
follows:
(a) The name of the Corporation is Community Bancshares, Inc. The
original Certificate of Incorporation of the Corporation was filed with the
Delaware Secretary of State on December 13, 1983 under the name Blountsville
Bancshares, Inc.
(b) This Amended and Restated Certificate of Incorporation was duly
adopted and approved by the stockholders of the Corporation in accordance with
the provisions of Sections 242 and 245 of the Delaware General Corporation Law.
(c) The text of the Amended and Restated Certificate of Incorporation
of the Corporation is hereby restated and amended to read in its entirety as
follows:
ARTICLE I
NAME
The name of the corporation is Community Bancshares, Inc. (the
"Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
Delaware 19801. The name of the registered agent of the Corporation in the State
of Delaware at the registered office is The Corporation Trust Company.
ARTICLE III
PURPOSES
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any and all lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware as now or hereinafter in force. The Corporation shall possess and
exercise all of the powers and privileges granted by the General Corporation Law
of the State of Delaware, by any other law or by this Certificate, together with
all such powers and privileges incidental thereto as may be necessary or
convenient to the conduct, promotion or attainment of the purposes of the
Corporation.
ARTICLE IV
CAPITALIZATION
(a) The Corporation shall be authorized to issue 20,200,000 shares of
capital stock (the "Corporation Shares"), of which 20,000,000 shares shall be
shares of Common Stock, $0.10 par value ("Common Stock"), and 200,000 shares
shall be shares of Preferred Stock, $0.10 par value ("Preferred Stock").
(b) Shares of Preferred Stock may be issued in one or more series at
such time or times and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects except that the dates from which dividends accrue or
accumulate with respect thereto may vary.
(c) The Board of Directors is expressly authorized at any time, and
from time to time, to provide for the issuance of shares of Preferred Stock in
one or more series, with such voting powers, full or limited, or without voting
powers, and with such designations, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
and as are not stated and expressed in this Certificate of Incorporation, or any
amendment thereto, including (but without limiting the generality of the
foregoing) the following:
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(i) The distinctive designation and number of shares
comprising such series, which number may (except where
otherwise provided by the Board of Directors in creating such
series) be increased or decreased (but not below the number of
shares then outstanding) from time to time by action of the
Board of Directors.
(ii) The dividend rate or rates on the shares of such series
and the relation which such dividends shall bear to the
dividends payable on any other class of capital stock or on
any other series of Preferred Stock, the terms and conditions
upon which and the periods in respect of which dividends shall
be payable, whether and upon what conditions such dividends
shall be cumulative and, if cumulative, the date or dates from
which dividends shall accumulate.
(iii) Whether the shares of such series shall be redeemable,
and, if redeemable, whether redeemable for cash, property or
rights, including securities of any other corporation, at the
option of either the holder or the Corporation or upon the
happening of a specified event, the limitations and
restrictions with respect to such redemption, the time or
times when, the price or prices or rate or rates at which, the
adjustments with which and the manner in which such shares
shall be redeemable, including the manner of selecting shares
of such series for redemption if less than all shares are to
be redeemed.
(iv) The rights to which the holders of shares of such series
shall be entitled, and the preferences, if any, over any other
series (or of any other series over such series), upon the
voluntary or involuntary liquidation, dissolution,
distribution or winding up of the Corporation, which rights
may vary depending on whether such liquidation, dissolution,
distribution or winding up is voluntary or involuntary, and,
if voluntary, may vary at different dates.
(v) Whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund, and, if
so, whether and upon what conditions such purchase, retirement
or sinking fund shall be cumulative or non-cumulative, the
extent to which the manner in which such fund shall be applied
to the purchase or redemption of the shares of such series for
retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof.
(vi) Whether the shares of such series shall be convertible
into or exchangeable for shares of any other class or of any
other series of any class of capital stock of the Corporation,
and, if so convertible or exchangeable, the price or prices or
the rate or rates of conversion or exchange and the method, if
any, of adjusting the same, and any other terms and conditions
of such conversion or exchange.
(vii) The voting powers, full and/or limited, if any, of the
shares of such series, and whether and under what conditions
the shares of such series (along or together with the shares
of one or more other series having similar provisions) shall
be entitled to vote separately as a single class, for the
election of one or more additional directors of the
Corporation in case of dividend arrearages or other specified
events, or upon other matters.
(viii) Whether the issuance of any additional shares of such
series, or of any shares of any other series, shall be subject
to restrictions as to issuance, or as to the powers,
preferences or rights of any such other series.
(ix) Any other preferences, privileges and powers and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions of such series, as
the Board of Directors may deem advisable and as shall not be
inconsistent with the provisions of this Certificate of
Incorporation.
(d) Unless and except to the extent otherwise required by law or
provided in the resolution or resolutions of the Board of Directors creating any
series of Preferred Stock pursuant to this Article IV, the holders of the
Preferred Stock shall have no voting power with respect to any matter
whatsoever. In no event shall the Preferred Stock be entitled to more than one
vote in respect of each share of stock.
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(e) Shares of Preferred Stock redeemed, converted, exchanged,
purchased, retired or surrendered to the Corporation, or which have been issued
and reacquired in any manner, may, upon compliance with any applicable
provisions of the General Corporation Law of the State of Delaware, be given the
status of authorized and unissued shares of Preferred Stock and may be reissued
by the Board of Directors as part of the series of which they were originally a
part or may be reclassified into and reissued as part of a new series or as a
part of any other series, all subject to the protective conditions or
restrictions of any outstanding series of Preferred Stock.
(f) Such numbers of shares of Common Stock as may from time to time be
required for such purpose shall be reserved for issuance (i) upon conversion of
any shares of Preferred Stock or any obligation of the Corporation convertible
into shares of Common Stock which is at the time outstanding or issuable upon
exercise of any options or warrants at the time outstanding and (ii) upon
exercise of any options or warrants at the time outstanding to purchase shares
of Common Stock.
(g) Without affecting rights granted to holders of warrants, options,
and other forms of convertible securities by law or contract, no holder of any
Corporation Shares of any kind, class, or series shall have, as a matter of
right, any preemptive or preferential right to subscribe for, purchase or
receive any of the Corporation Shares of any kind, class or series or any
Corporation securities or obligations, whether now or hereafter authorized.
ARTICLE V
LIMITATION ON PERSONAL LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability: (a) for any breach of the director's
duty of loyalty to the Corporation or its stockholders; (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) under Section 174 of the General Corporation Law of the
State of Delaware (or the corresponding provision of any successor act or law);
and (d) for any transaction from which the director derived an improper personal
benefit. If the law of the State of Delaware is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of
directors, then the liability of directors to the Corporation or its
stockholders shall be limited or eliminated to the fullest extent permitted by
law of the State of Delaware as so amended from time to time. Any repeal or
modification of the provisions of this Article V, either directly or by the
adoption of an inconsistent provision of this Certificate, shall be prospective
only and shall not adversely affect any right or protection set forth herein
existing in favor of a particular individual at the time of such repeal or
modification.
ARTICLE VI
INDEMNIFICATION
(a) The Corporation shall indemnify, and upon request shall advance
expenses (including attorneys' fees) to, in the manner and to the fullest extent
permitted by law, any officer or director (or the estate of any such person) who
was or is a party to, or is threatened to be made a party to, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, investigative or otherwise, by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan (an "indemnitee"). The Corporation
may, to the fullest extent permitted by law, purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, other enterprise or employee benefit plan
against any liability which may be asserted against such person. To the fullest
extent permitted by law, the indemnification and advances provided for herein
shall include expenses (including attorneys' fees), judgments, penalties, fines
and amounts paid in settlement. The indemnification provided herein shall not be
deemed to limit the right of the Corporation to indemnify any other person for
any such expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement to the fullest extent permitted by law, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(b) Notwithstanding the foregoing, the Corporation shall not indemnify
any such indemnitee who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
Corporation to secure a judgment in its favor against such indemnitee with
respect to any claim, issue or matter as to which the indemnitee shall have been
adjudged to be liable to the Corporation, unless and only to the
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extent that, the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such indemnitee is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) The rights to indemnification and advancement of expenses set forth
in this Article VI are intended to be greater than those which are otherwise
provided for in the General Corporation Law of the State of Delaware, are
contractual between the Corporation and the person being indemnified, his heirs,
executors and administrators, and, with respect to this Article VI are
mandatory, notwithstanding a person's failure to meet the standard of conduct
required for permissive indemnification under the General Corporation Law of the
State of Delaware, as amended from time to time. The rights to indemnification
and advancement of expenses set forth in this Article VI are nonexclusive of
other similar rights which may be granted by law, this Certificate, the Bylaws,
a resolution of the Board of Directors or stockholders or an agreement with the
Corporation, which means of indemnification and advancement of expenses are
hereby specifically authorized.
(d) Any repeal or modification of the provisions of this Article VI,
either directly or by the adoption of an inconsistent provision of this
Certificate, shall be prospective only and shall not adversely affect any right
or protection set forth herein existing in favor of a particular individual at
the time of such repeal or modification. In addition, if an amendment to the
General Corporation Law of the State of Delaware limits or restricts in any way
the indemnification rights permitted by law as of the date hereof, such
amendment shall apply only to the extent mandated by law and only to activities
of persons subject to indemnification under this Article VI which occur
subsequent to the effective date of such amendment.
ARTICLE VII
ACTION BY STOCKHOLDERS
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called meeting of stockholders of the
Corporation and may not be effected by consent in writing by such stockholders.
ARTICLE VIII
SPECIAL PROVISIONS
In furtherance and not in limitation of the powers conferred by law,
the following provisions for the regulation of the Corporation, its directors
and stockholders are hereby established:
(a) The Corporation shall have the right to purchase, take, receive or
otherwise acquire, hold, own, pledge, transfer or otherwise dispose of its own
capital stock to the full extent of undivided profits, earned surplus, capital
surplus or other funds lawfully available therefor.
(b) No contract or other transaction between the Corporation and one or
more of its directors or officers or between the Corporation or any other
person, corporation, firm, association or entity in which one or more of its
directors or officers are directors or officers or are financially interested,
shall be void or voidable because of such relationship or interest, or because
such director or officer is present at or participates in the meeting of the
Board of Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction, or solely because his or their votes are counted
for such purpose, if such contract or transaction is permitted by the Delaware
General Corporation Law, Section 144, as now or hereafter in effect.
(c) The Corporation may from time to time enter into any agreement to
which all, or less than all, holders of record of the issued and outstanding
shares of the Corporation's Shares are parties, restricting the transfer or
registration of transfer of any or all of the Corporation's Shares, upon such
reasonable terms and conditions as may be approved by resolution or resolutions
adopted by the Corporation's Board of Directors.
(d) Subject to any provision contained in any resolution of the Board
of Directors adopted pursuant to Section (c) of Article IV of this Certificate
of Incorporation requiring an increase or increases in the number of directors,
the number of directors constituting the Board of Directors shall be that number
as shall be fixed from time to time in the manner provided by Article IX of this
Certificate of Incorporation and by Bylaws in conformity therewith. Election of
directors need not be by written ballot unless the Bylaws of the Corporation
shall so provide.
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In addition to all of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter or repeal the Bylaws of the
Corporation.
Wherever the term "Board of Directors" is used in this Certificate of
Incorporation, such term shall mean the Board of Directors of the Corporation;
provided, however, that, to the extent any committee of directors of the
Corporation is lawfully entitled to exercise the powers of the Board of
Directors, such committee may exercise any right or authority of the Board of
Directors under this Certificate of Incorporation.
ARTICLE IX
BOARD OF DIRECTORS
(a) The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors. The number of the directors of the
Corporation shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors of the
Corporation, except that the minimum number of directors shall be fixed at no
less than nine (9) and the maximum number of directors shall be fixed at no more
than eighteen (18). The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
equal in number as possible, of one-third of the total number of directors
constituting the entire Board of Directors. The terms of the Class II directors
of the Corporation serving on the date on which this Certificate of
Incorporation first becomes effective (the "Effective Date") shall expire at the
annual meeting of stockholders first occurring following the Effective Date; the
terms of the Class III directors of the Corporation serving on the Effective
Date shall expire at the next annual meeting of stockholders following such
first annual meeting; and the terms of the Class I directors of the Corporation
serving on the Effective Date shall expire at the next annual meeting of
stockholders following such second annual meeting. At each succeeding annual
meeting of stockholders, successors to the class of directors whose term expires
at such annual meeting shall be elected for a term of three years and shall
serve until their successors are elected and qualified, or until their earlier
resignation, removal or death. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible.
(b) Nominations for election to the Board of Directors of the
Corporation at a meeting of stockholders must be made in accordance with the
Bylaws of the Corporation and any applicable law. The chairman of the meeting of
stockholders may, if the facts warrant, determine that a nomination was not made
in accordance with the foregoing procedures, and if the chairman should so
determine, the chairman shall so declare to the meeting and the defective
nomination shall be disregarded.
(c) Newly created directorships resulting from any increase in the
number of directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum, or by a sole remaining director. Any director of
any class chosen to fill a vacancy in such class shall hold office for a term
that shall coincide with the remaining term of that class, but in no case will a
decrease in the number of directors shorten the term of any incumbent director.
A director shall hold office until the annual meeting for the year in which his
or her term expires and until such director's successor shall have been elected
and qualified.
(d) Any director may be removed from office only for cause (as
hereinafter defined) and only by the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of all the shares of the Corporation
that are present or represented at a stockholder meeting for which a quorum
exists, voting together as a single class. "Cause" shall mean the director's
willful dishonesty towards, fraud upon, or deliberate injury or attempted injury
to the Corporation.
(e) Notwithstanding the foregoing paragraphs, whenever the holders of
any one or more class or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect directors
at an annual or special meeting of stockholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of the Certificate of Incorporation applicable thereto. The then
authorized number of directors of the Corporation shall be increased by the
number of additional directors to be elected, and such directors so elected
shall not be divided into classes pursuant to this Article IX unless expressly
provided by such terms or required by applicable law.
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ARTICLE X
AMENDMENTS
(a) Notwithstanding any of the provisions of this Certificate or the
Bylaws of the Corporation (and notwithstanding the fact that a lesser percentage
may be specified by law, this Certificate or the Bylaws of the Corporation), the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all the shares of the Corporation that are present and eligible to vote
at a stockholder meeting for which a quorum exists, voting together as a single
class, shall be required to repeal, or amend or adopt any provision inconsistent
with, Articles V, VI, VII, VIII, IX or X.
(b) Subject to the protective conditions or restrictions of any
outstanding series of Preferred Stock, any amendment to this Certificate of
Incorporation which shall increase or decrease the authorized capital stock of
any class or classes may be adopted by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote.
(c) The Board of Directors reserves the right from time to time to
amend, alter, change or repeal any provision contained in this Certificate in
the manner now or hereinafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
(d) The Board of Directors is authorized and empowered to amend, alter,
change or repeal the Corporation's Bylaws and adopt new Bylaws by a majority
vote of the directors then in office at any regular or special meeting of the
Board of Directors or by written consent, subject to any specific right under
Delaware law allowing stockholders of the Corporation to alter or repeal any
Bylaws made by the Board of Directors.
IN WITNESS WHEREOF, said Community Bancshares, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by Kennon R.
Patterson, Sr., its Chairman, President and Chief Executive Officer, and
attested by Bishop K. Walker, Jr., its Secretary, as of the 16th day of May,
2000.
COMMUNITY BANCSHARES, INC.
By: /s/ Kennon R. Patterson, Sr.
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Kennon R. Patterson, Sr.,
Chairman, President and
ATTEST: Chief Executive Officer
/s/ Bishop K. Walker, Jr.
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Bishop K. Walker, Jr.
Secretary
