EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
CENTURA BANKS, INC.
The undersigned does hereby submit these Amended and Restated Articles
of Incorporation (the "Articles") for the purpose of integrating into one
document its original articles of incorporation and all amendments thereto, said
original articles having been filed previously for the purpose of forming a
business corporation under the laws of the State of North Carolina:
ARTICLE I
The name of the corporation is CENTURA BANKS, INC. (the "Corporation").
ARTICLE II
The period of duration of the Corporation is perpetual.
ARTICLE III
The purpose for which the Corporation is organized is to engage in any
lawful act or activity for which corporations may be organized under Chapter 55
of the General Statutes of North Carolina (the "North Carolina Business
Corporation Act" or the "Act").
ARTICLE IV
Section 4.1. Total Number of Shares of Stock. The total number of
shares of capital stock of all classes that the Corporation shall have the
authority to issue is 125,000,000 shares. The authorized capital stock is
divided into 25,000,000 shares of preferred stock, without par value (the
"Preferred Stock"), and 100,000,000 shares of common stock, without par value
(the "Common Stock").
Section 4.2. Preferred Stock. (a) The shares of Preferred Stock of the
Corporation may be issued from time to time in one or more classes or series,
the shares of each class or series to have such voting powers, full or limited,
or no voting powers, and such designations, preferences and rights (or
qualifications, limitations or restrictions thereof) as are stated in the
resolution or resolutions providing for the issue of such class or series
adopted by the Board of Directors as provided in Section 4.2(b).
(b) Authority is granted to the Board of Directors of the Corporation,
subject to the provisions of this Article IV and to the limitations prescribed
by the North Carolina Business Corporation Act, to authorize the issuance of one
or more classes, or series within a class, of Preferred Stock and with respect
to each such class or series to fix by resolution or resolutions the voting
powers, full or limited, if any, of the shares of such class or series and the
designations, preferences and rights (or qualifications, limitations or
restrictions thereof).
Section 4.3. Common Stock. The shares of Common Stock of the
Corporation shall be of one and the same class. Subject to the rights of the
Preferred Stock provided for by resolution or resolutions of the Board of
Directors pursuant to this Article IV or by the Act, the holders of shares of
Common Stock shall have one vote per share on all matters on which holders of
shares of Common Stock are entitled to vote.
The holders of shares of Common Stock shall receive the net assets of
the Corporation upon dissolution.
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ARTICLE V
The minimum amount of consideration to be received by the Corporation
for its shares before it shall commence business is Ten Dollars ($10.00) in cash
or property of equivalent value.
ARTICLE VI
The shareholders of the Corporation shall have no right to cumulate
their votes for the election of directors.
ARTICLE VII
The shareholders of the Corporation shall have no preemptive right to
acquire additional or treasury shares of the Corporation.
ARTICLE VIII
The address of the registered office of the Corporation in the State of
North Carolina is 131 North Church Street, Rocky Mount, Nash County, North
Carolina, and the name of its registered agent at such address is John B.
Fleming, Jr.
ARTICLE IX
Section 9.1. Number of Directors. The number of directors constituting
the Board of Directors shall be not less than 15 nor more than 30, as specified
in the Bylaws of the Corporation (the "Bylaws"), divided into three classes as
described in Section 9.2.
Section 9.2. Classified Board of Directors. The Board of Directors
shall be divided into three (3) classes, Class I, Class II, and Class III, which
shall be as nearly equal in number as possible. At the first annual meeting of
shareholders of the Corporation following the filing of the original Articles of
Incorporation of this Corporation with the North Carolina Secretary of State in
1990, each Director in Class I was elected to a term of one (1) year, each
Director in Class II was elected to a term of two (2) years, and each Director
in Class III was elected to a term of three (3) years, to serve until the
election and qualification of a successor or until their earlier resignation,
death, or removal from office. After the expiration of the term of office for
each class of Directors elected at the first annual meeting of shareholders, the
Directors of each class have been and shall be elected for a term of three (3)
years, to serve until the election and qualification of their successors or
until their earlier resignation, death, or removal from office.
Section 9.3. Removal of Directors. Any Director, or the entire Board of
Directors, may be removed from office at any time, with or without cause, but
only by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all of the shares of capital stock of
the Corporation then entitled to vote generally in the election of Directors. If
a Director was elected by the holders of one class or series of capital stock,
or of a group of such classes or series, only members of that voting group may
participate in the vote to remove him.
Section 9.4. Vacancies. Any vacancy occurring in the Board of
Directors, including, without limitation, a vacancy resulting from an increase
in the number of Directors or from the failure by the shareholders to elect the
full authorized number of Directors, shall be filled only by the Board of
Directors or, if the Directors remaining in office constitute fewer than a
quorum of the Board, by the affirmative vote of a majority of the remaining
Directors or by the sole remaining Director. If the vacant office was held by a
Director elected by the holders of one class or series of capital stock, or of a
group of such classes or series, only the remaining Director or Directors
elected by that voting group are entitled to fill the vacancy.
Section 9.5. Factors to be Considered by the Directors. In connection
with the exercise of its or his judgment in determining what is in the best
interests of the Corporation and its shareholders, the Board of Directors of the
Corporation, any committee of the Board of Directors, or any individual director
may, but shall not be required to, in addition to considering the long-term and
short-term interests of the shareholders, consider any of the following factors
and any other factors which it or he deems relevant: (i) the social and economic
effects of the matter to be
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considered on the Corporation and its subsidiaries, its and their employees,
depositors, customers, and creditors, and the communities in which the
Corporation and its subsidiaries operate or are located; and (ii) when
evaluating a business combination or a proposal by another Person or Persons to
make a business combination or a tender or exchange offer or any other proposal
relating to a potential change of control of the Corporation (x) the business
and financial condition and earnings prospects of the acquiring Person or
Persons, including, but not limited to, debt service and other existing
financial obligations, financial obligations to be incurred in connection with
the acquisition, and other likely financial obligations of the acquiring Person
or Persons, and the possible effect of such conditions upon the Corporation and
its subsidiaries and the communities in which the Corporation and its
subsidiaries operate or are located, (y) the competence, experience, and
integrity of the acquiring Person or Persons and its or their management, and
(z) the prospects for successful conclusion of the business combination, offer
or proposal. The provisions of this Section shall be deemed solely to grant
discretionary authority to the directors and shall not be deemed to provide to
any constituency the right to be considered. As used in this Section, the term
"Person" means any individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity; when two or more Persons act
as a partnership, limited partnership, syndicate, or other group acting in
concert for the purpose of acquiring, holding, voting or disposing of securities
of the Corporation, such partnership, limited partnership, syndicate or group
shall also be deemed a "Person" for purposes of this Section.
ARTICLE X
Section 10.1. Approval of Business Combinations. With regard to any
Business Combination (as defined in Section 10.5(b)) between the Corporation and
any other corporation, person, or other entity, excluding its Subsidiaries (as
defined in Section 10.5(g)) except as provided in section 10.5(b)(x), such
Business Combination must be approved only as follows unless otherwise more
restrictively required by applicable North Carolina law:
(a) The Business Combination must be approved by resolution adopted by
affirmative vote of a majority of a quorum of the Board of Directors;
(b) In addition to the Board approval specified in section 10.1(a), the
Business Combination must receive one of the following levels of shareholder
approval:
(1) At a special or annual meeting of shareholders by an
affirmative vote of the shareholders holding at least a majority of the
shares of the Corporation issued and outstanding and entitled to vote
thereon if such Business Combination has received the prior approval by
resolution adopted by an affirmative vote of at least sixty-six and
two-thirds percent (66-2/3%) of the full Board of Directors before such
Business Combination is submitted for approval to the shareholders; or
(2) At a special or annual meeting of shareholders by affirmative
vote of the shareholders holding at least sixty-six and two-thirds
percent (66-2/3%) of the shares of the Corporation issued and
outstanding and entitled to vote thereon if such Business Combination
has received the prior approval by resolution adopted by an affirmative
vote of a majority of a quorum (but less than sixty-six and two-thirds
percent (66-2/3%) of the Board of Directors); and
(c) If the Business Combination is to be approved pursuant to Section
10.1(b)(2) the Business Combination as approved must grant to shareholders not
voting to approve the Business Combination the rights set forth in Section 10.2.
Section 10.2. Fair Price. When any Business Combination above is
approved pursuant to Section 10.1(b)(2), any shareholder not voting to approve
the Business Combination may elect to sell his shares for cash to the
Corporation at their "Fair Price" (as defined in Section 10.5(f)), upon so
notifying the Corporation in writing within twenty (20) days after receiving
written notification of his rights hereunder and that the Business Combination
was approved by the Corporation's shareholders. The Corporation shall have ten
(10) days after receipt of the shareholder's tender of shares to make payment in
cash. Tender of shares may be made simultaneously with, or after, the
shareholder's written notification that he is electing to be paid the Fair Price
of his shares. The Business Combination shall not be consummated until all
shareholders electing to sell their shares for cash to the Corporation at their
Fair Price pursuant to this Article X have been paid in full by the Corporation.
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Section 10.3. Certain Restrictions on Business Combinations.
Notwithstanding any other provision of this Article X, prior to the consummation
of any Business Combination between the Corporation and a Control Person (as
defined in Section 10.5(c)):
(a) such Control Person shall not have received the benefit, directly
or indirectly (except proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or tax credits provided by the
Corporation; and
(b) there shall have been no increase or reduction in the annual rate
of dividends paid on the Corporation's common stock after the Control Person
became such (except as necessary to reflect any subdivision of the common
stock), unless such increase or reduction has been approved by a majority of
Disinterested Directors (as defined in Section 10.5(e)).
Section 10.4. Amendments to Articles of Incorporation. Amendments to
these Articles of Incorporation shall be adopted only upon receiving the
affirmative vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of all the shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereon; provided, however, that if such
amendment shall have received prior approval by resolution adopted by an
affirmative vote of a majority of Disinterested Directors, then the affirmative
vote of the holders of at least a majority of all the shares of capital stock of
the Corporation issued and outstanding and entitled to vote, or such greater
percentage approval as required by North Carolina law, shall be sufficient to
amend these Articles of Incorporation.
Section 10.5. Definitions. As used in this Article X, the following
terms shall have the following meanings:
(a) "Affiliate," as used in defining "Control Person," shall mean a
corporation, person, group, or other entity that directly or indirectly
controls, is controlled by, or is under common control with the Control Person.
(b) "Business Combination" shall mean (i) any merger or consolidation
of the Corporation into any other corporation, person, group or other entity
where the Corporation is not the surviving or resulting entity; (ii) any merger
or consolidation of the Corporation with or into any Control Person or with any
corporation, person, group or other entity where the merger or consolidation is
proposed by or on behalf of a Control Person; (iii) any sale, lease, exchange,
transfer, hypothecation or other disposition of all or substantially all of the
assets of the corporation; (iv) any sale, lease, exchange, transfer,
hypothecation or other disposition of a Substantial Part (as defined in Section
10.5(h)) of the assets of the Corporation to a Control Person, whether in a
single transaction or in related transactions; (v) the issuance of any
securities of the Corporation to a Control Person; (vi) the acquisition by the
Corporation of any securities of a Control Person unless such acquisition
commences prior to the person becoming a Control Person or is an attempt to
prevent the Control Person from obtaining greater control of the Corporation;
(vii) the acquisition by the Corporation of all or substantially all of the
assets of any Control Person or any corporation, person, group or other entity
where the acquisition is proposed by or on behalf of a Control Person; (viii)
the adoption of any plan or proposal for the liquidation or dissolution of the
Corporation which is proposed by or on behalf of a Control Person; (ix) any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding shares of
any class of equity or convertible securities of the Corporation which is
beneficially owned or controlled by a Control Person; (x) any of the
transactions described in this definition of Business Combination which are
between the Corporation and any of its Subsidiaries and which are proposed by or
on behalf of any Control Person; or (xi) any agreement, plan, contract or other
arrangement providing for any of the transactions described in this definition
of Business Combination.
(c) "Control Person" shall mean and include any corporation, person,
group or other entity which, together with its Affiliates prior to a Business
Combination, beneficially owns (as the term is defined by federal securities
law) ten percent (10%) or more of the shares of any class of equity or
convertible securities of the Corporation, and any Affiliate of any such
corporation, person, group or other entity.
(d) "Corporation" shall mean Centura Banks, Inc. and its Subsidiaries,
or any one of them, and their successors.
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(e) "Disinterested Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee of, a
Control Person and was a member of the Board of Directors prior to the time a
Control Person became such, or the successor of a Disinterested Director who is
unaffiliated with, and not a nominee of, a Control Person and who is recommended
to succeed a Disinterested Director by a majority of Disinterested Directors
then on the Board of Directors.
(f) "Fair Price" shall mean the highest of the following: (i) the
highest price per share paid for the Corporation's shares during the four years
immediately preceding the Section 10.1(b)(2) vote of shareholders by any
shareholder who, at the time of the Section 10.1(b)(2) shareholder vote,
beneficially owned five percent (5%) or more of the Corporation's common stock
and who, in whole or in part, votes in favor of the Business Combination; (ii)
the cash value of the highest price per share previously offered pursuant to a
tender offer to the shareholders of the Corporation within the four years
immediately preceding the Section 10.1(b)(2) shareholder vote; (iii) the
aggregate earnings per share of the Corporation's common stock during the four
fiscal quarters immediately preceding the Section 10.1(b)(2) shareholder vote,
multiplied by the highest price/earnings ratio of the Corporation's common stock
at any time during the four fiscal quarters or up to the date the Section
10.1(b)(2) shareholder vote occurs; (iv) the highest price per share (including
brokerage commissions, soliciting dealers' fees and dealer-management
compensation) paid by a Control Person in acquiring any of its holdings of the
Corporation's common stock; (v) the fair value per share of a share of the
Corporation's common stock as determined by an investment banking or appraisal
firm chosen by a majority of the members of the Board of Directors voting
against the Business Combination, if any such firm is chosen by such members of
the Board of Directors acting in their discretion (such firm, if chosen, shall
be entitled to be paid by the Corporation a reasonable fee for its services upon
its rendering a determination of the fair value of the Corporation's common
stock) not taking into consideration the fact that the shares are held by a
minority of the Corporation's shareholders.
(g) "Subsidiaries" shall mean any entity in which the Corporation owns,
directly or indirectly, a majority of voting stock.
(h) "Substantial Part" shall mean more than ten percent (10%) of the
total assets of the Corporation, as of the end of the Corporation's most recent
fiscal year prior to the time the determination is being made.
ARTICLE XI
The Board of Directors shall have the power to amend or repeal the
Bylaws except to the extent otherwise provided in the Act. In addition to any
requirements of the Bylaws and the Act as in effect from time to time (and
notwithstanding the fact that a lesser percentage may be specified by the Bylaws
or the Act), the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all the shares of capital
stock of the Corporation then entitled to vote generally in the election of
directors, voting together as a single class, shall be required for the
shareholders of the Corporation to amend or repeal the Bylaws.
ARTICLE XII
Section 12.1. Limitation on Directors' Liability For Acts or Omissions.
A Director of the Corporation shall have no personal liability arising out of an
action whether by or in the right of the Corporation or otherwise for monetary
damages for breach of any duty as a Director. This Section 12.1 shall not be
effective, however, with respect to: (i) acts or omissions that the Director at
the time of such breach knew or believed were clearly in conflict with the best
interests of the Corporation, (ii) any liability under Section 55-8-33 of the
North Carolina General Statutes; (iii) any transaction from which the Director
derived an improper personal benefit; or (iv) acts or omissions occurring prior
to 12:01 a.m. on July 1, 1990. This Section 12.2 shall apply to acts or
omissions occurring at or after 12:01 a.m. on July 1, 1990.
Section 12.2. Repeal or Modification. Any repeal or modification of
Section 12.2 shall not adversely affect any right or protection of a Director of
the Corporation existing at the time of such repeal or modification.
ARTICLE XIII
Section 13.1. Opt-Out of North Carolina Shareholder Protection Act. The
provisions of the North Carolina Shareholder Protection Act, whether as
previously codified in Article 7 of Chapter 55 of the North
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Carolina General Statutes or as codified, effective July 1, 1990, in Article 9
of Chapter 55 of the North Carolina General Statutes, and as amended from time
to time, shall not be applicable to the Corporation.
Section 13.2. Opt-Out of North Carolina Control Share Acquisition Act.
The provisions of the North Carolina Control Share Acquisition Act, whether as
previously codified in Article 7A of Chapter 55 of the North Carolina General
Statutes or as codified, effective July 1, 1990, in Article 9A of Chapter 55 of
the North Carolina General Statutes, and as amended from time to time, shall not
be applicable to the Corporation.
IN WITNESS WHEREOF, the undersigned has executed these Articles this
19th day of April, 2000.
CENTURA BANKS, INC.
By: /s/ Frank A. Hirsch, Jr. (SEAL)
Name: Frank A. Hirsch, Jr.
Title: Secretary
