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EXHIBIT 3
[Restated Electronically for
SEC Filing Purposes Only]
RESTATED CHARTER
O'CHARLEY'S INC.
Article I. The name of the Corporation is O'Charley's Inc., incorporated
on or about January 19, 1984.
Article II. The duration of the Corporation is perpetual.
Article III. The street address of the principal and registered office
and the registered agent of the Corporation in the State of Tennessee shall be:
Gregory L. Burns
Suite 102, One Lakeview Place
25 Century Boulevard
Nashville, Tennessee 37214
Article IV. The Corporation is for profit.
Article V. The purpose or purposes for which the corporation is
organized are:
(a) To establish, build, purchase, lease, own, acquire, improve,
manage and operate restaurants and eating places of all kinds;
(b) To manufacture, purchase, acquire, own, use, deal in, sell
and dispose of food products of all kinds and any ingredients, articles,
material, licenses, equipment and property related or incidental
thereto;
(c) To acquire, own, hold, assign, sell and dispose of and
operate franchises for the purposes enumerated herein and set as a
franchisor or franchisee in connection therewith;
(d) To engage in any lawful business; and
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(e) To do all things necessary or appropriate in connection or
associated with all or any of the above.
The Corporation shall have and exercise all powers necessary or
convenient to effect any or all of the purposes for which the Corporation is
organized and shall likewise have the powers provided by the Tennessee Business
Corporation Act or as the Act shall hereafter be amended.
Article VI. The maximum number of shares of stock the corporation is
authorized to issue is:
(A) Fifty million (50,000,000) shares of Common Stock.
(B) One Hundred Thousand (100,000) shares of preferred stock.
Shares of preferred stock may be issued from time to time in one or more
series, each such series to be so designated as to distinguish the
shares thereof from the shares of all other series and classes. The
Board of Directors is hereby vested with the authority to divide
preferred stock into series and to fix and determine the relative rights
and preferences of the shares of any series so established.
(C) Series A Junior Preferred Stock. Pursuant to the authority
vested in the Board of Directors in accordance with the provisions of
this Article VI of the Restated Charter, the Board of Directors does
hereby create, authorize and provide for the issuance of the Series A
Junior Preferred Stock out of the class of 100,000 shares of preferred
stock, no par value per share (the "Preferred Stock"), having the voting
powers, designation, relative, participating, optional and other special
rights, preferences, and qualifications, limitations and restrictions
thereof that are set forth as follows:
(1) Designation and Amount. The shares of such series shall
be designated as Series A Junior Preferred Stock ("Series A
Preferred Stock") and the number of shares constituting such
series shall be 50,000. Such number of shares may be adjusted by
appropriate action of the Board of Directors.
(2) Dividends and Distributions. Subject to the prior and
superior rights of the holders of any shares of any other series
of Preferred Stock or any other shares of Preferred Stock of the
Corporation ranking prior and superior to the shares of Series A
Preferred Stock with respect to dividends, each holder of one
one-thousandth (1/1000) of a share (a "Unit") of Series A
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for that purpose, dividends at the same rate as dividends are
paid with respect to the Common Stock. In the event that the
Corporation shall at any time after December 8, 2000 (the "Rights
Dividend Declaration Date") (i) declare or pay any dividend on
outstanding shares of Common Stock payable in shares of Common
Stock; (ii) subdivide outstanding shares of
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Common Stock; or (iii) combine outstanding shares of Common Stock
into a smaller number of shares, then in each such case the
amount to which the holder of a Unit of Series A Preferred Stock
was entitled immediately prior to such event pursuant to the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which shall be the number of
shares of Common Stock that are outstanding immediately after
such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(3) Voting Rights. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each Unit of Series A Preferred Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of
the shareholders of the Corporation. In the event the Corporation
shall at any time after the Rights Dividend Declaration Date (i)
declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock; (ii) subdivide outstanding
shares of Common Stock; or (iii) combine the outstanding shares
of Common Stock into a smaller number of shares, then in each
such case the number of votes per Unit to which holders of Units
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 shall be the number of shares of
Common Stock that are outstanding immediately after such event
and the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein or by law, the
holders of Units of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all
matters submitted to a vote of shareholders of the Corporation.
(C) Except as set forth herein or required by law, holders of
Units 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 shares of Common
Stock as set forth herein) for the taking of any corporate
action.
(4) Reacquired Shares. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such Units shall, upon their
cancellation, become authorized but unissued Units 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.
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(5) Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the
holders of Units of Series A Preferred Stock shall be entitled to
share in any assets remaining ratably with the holders of the
Common Stock. In the event the Corporation shall at any time
after the Rights Dividend Declaration Date (i) increase by way of
stock split or similar transaction the number of outstanding
shares of Common Stock; (ii) subdivide the outstanding shares of
Common Stock; or (iii) combine the outstanding shares of Common
Stock into a smaller number of shares, then in each such case the
aggregate amount to which holders of Units of Series A Preferred
Stock were entitled prior to such event shall be adjusted by
multiplying such amount by a fraction, the numerator of which
shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of
which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(6) Share Exchange, Merger, Etc. In case the Corporation
shall enter into any share exchange, merger, combination or other
transaction in which the shares of Common Stock are exchanged for
or converted into other stock or securities, cash and/or any
other property, then in any such case Units of Series A Preferred
Stock shall at the same time be similarly exchanged for or
converted into an amount per Unit (subject to the provision for
adjustment hereinafter set forth) equal to 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 converted or exchanged. In the event the
Corporation shall at any time after the Rights Dividend
Declaration Date (i) declare any dividend on outstanding shares
of Common Stock payable in shares of Common Stock; (ii) subdivide
outstanding shares of Common Stock; or (iii) combine outstanding
Common Stock into a smaller number of shares, then in each such
case the amount set forth in the immediately preceding sentence
with respect to the exchange or conversion of Units of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of
Common Stock that are outstanding immediately after such event
and the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(7) Redemption. The Units of Series A Preferred Stock shall
not be redeemable at the option of the Corporation or any holder
thereof. Notwithstanding the foregoing sentence of this Section,
the Corporation may acquire Units of Series A Preferred Stock in
any other manner permitted by law and the Restated Charter or
Bylaws of the Corporation.
(8) Ranking. The Units of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any
other class of preferred stock
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that hereafter may be issued by the Corporation as to the payment
of dividends and the distribution of assets, unless the terms of
any such series or class shall provide otherwise.
(9) Amendment. The Restated Charter, including without
limitation the provisions hereof, shall not hereafter be amended,
either directly or indirectly, or through merger or share
exchange with another corporation, in any manner that would alter
or change the powers, preferences or special rights of the Series
A Preferred Stock so as to affect the holders thereof adversely
without the affirmative vote of the holders of a majority or more
of the outstanding Units of Series A Preferred Stock, voting
separately as a class.
(10) Fractional Shares. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or
fractions shall entitle the holder, in proportion to such
holder's 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.
Article VII. The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than three nor more than twelve directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. At the 1990 annual meeting
of shareholders, Class I directors shall be elected for a one-year term, Class
II directors for a two-year term and Class III directors for a three-year term.
At each succeeding annual meeting of shareholders beginning in 1991, successors
to the class of directors whose term expires at that annual meeting shall be
elected for a three-year term. 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, and any
additional director of any class elected to fill a vacancy resulting from an
increase 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 term expires and until
his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Any
vacancy on the Board of Directors that results from an increase in the number of
directors may be filled by a majority of the Board of Directors then in office,
and any other vacancy occurring in the Board of Directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining term
as that of his predecessor.
Any director may be removed from office but only for cause by the
affirmative vote of the
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holders of a majority of the voting power of the shares entitled to vote for the
election of directors, considered for this purpose as one class.
Notwithstanding the foregoing, whenever the holders of any one or more
classes 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 shareholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Charter applicable thereto, and such directors so elected shall
not be divided into class pursuant to this Article VII unless expressly provided
by such terms. In the event of a vacancy among the directors so elected by the
holders of preferred stock, the remaining preferred directors may fill the
vacancy for the unexpired term.
Notwithstanding any other provisions of this Charter, the affirmative
vote of holders of two-thirds of the voting power of the shares entitled to vote
at an election of directors shall be required to amend, alter, change or repeal,
or to adopt any provisions as part of this Charter or as part of the
Corporation's Bylaws inconsistent with the purpose and intent of, this Article
VII.
Article VIII. To the fullest extent permitted by the Tennessee Business
Corporation Act as the same is effective on the date hereof or may hereafter be
amended from time to time, a director of the Corporation shall not be liable to
the Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director. If the Tennessee Business Corporation Act is amended after
approval by the shareholders of this provision to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Tennessee Business Corporation Act, as so
amended from time to time. Any repeal or modification of this Article VIII by
the shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification or with respect to events occurring prior to such time.
Article IX. The Bylaws of this Corporation may be amended, altered,
modified or repealed by resolution adopted by the Board of Directors subject to
any provisions of law then applicable.
Article X.
(A) Subject to the provisions of any series of Preferred Stock
which may at the time be outstanding and convertible into shares of
Common Stock of this Corporation, the affirmative vote of at least 80%
of the outstanding shares of Common Stock held by shareholders other
than the "related person" (as hereinafter defined), shall be required
for the approval or authorization of any "business combination" (as
hereinafter defined) of this Corporation with any related person;
provided, however, that such voting requirement shall not be applicable
if:
(1) The business combination was approved by the Board of
Directors of the
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Corporation either (a) prior to the acquisition by such related person
of the beneficial ownership of 20% or more of the outstanding shares of
the Common Stock of the corporation, or (b) after such acquisition, but
only so long as such related person has sought and obtained the
unanimous approval by the Board of Directors of such acquisition of more
than 20% of the Common Stock prior to such acquisition being
consummated; or
(2) The business combination is solely between this Corporation
and another corporation, 50% or more of the voting stock of which is
owned by a related person; provided that each shareholder of this
Corporation receives the same type of consideration in such transaction
in proportion to his stockholdings; or
(3) All of the following conditions are satisfied:
(a) The cash or fair market value of the property, securities
or other consideration to be received per share by holders of
Common Stock of this Corporation in the business combination is
not less than the higher of (i) the highest per share price
(including brokerage commissions, soliciting dealers' fees,
dealer-management compensation, and other expenses, including,
but not limited to, costs of newspaper advertisements, printing
expenses and attorneys' fees) paid by such related person in
acquiring any of its holdings of this Corporation's Common Stock,
or (ii) an amount which bears the same or a greater percentage
relationship to the market price of this Corporation's Common
Stock immediately prior to the commencement of acquisition of
this Corporation's Common Stock by such related person, but in no
event in excess of two times the highest per share price
determined in (i), above; and
(b) After becoming a related person and prior to the
consummation of such business combination, (i) such related
person shall not have acquired any newly issued shares of capital
stock, directly or indirectly, from this Corporation (except upon
conversion of convertible securities acquired by it prior to
becoming a related person or upon compliance with the provision
of this Article or as a result of a pro rata stock dividend or
stock split) and (ii) such related person shall not have received
the benefit, directly or indirectly (except proportionately as a
shareholder) of any loans, advances, guarantees, pledges or other
financial assistance or tax credits provided by this Corporation,
or made any major changes in this Corporation's business or
equity capital structure; and
(c) A proxy statement complying with the requirements of the
Securities Exchange Act of 1934, whether or not this Corporation
is then subject to such requirements, shall be mailed to the
public shareholders of this Corporation for the purpose of
soliciting shareholders approval of such business combination and
shall contain at the front thereof, in a prominent place (i) any
recommendations as to the advisability (or inadvisability) of the
business combination which the
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continuing directors, or any outside directors, may choose to
state, and (ii) the opinion of a reputable national investment
banking firm as to the fairness (or not) of the terms of such
business combination, from the point of view of the remaining
public shareholders of this Corporation (such investment banking
firm to be engaged solely on behalf of the remaining public
shareholders, to be paid a reasonable fee for their services by
this Corporation upon receipt of such opinion, to be one of the
so-called major bracket investment banking firms which has not
previously been associated with such related person and, it there
are at the time any such directors, to be selected by a majority
of the continuing directors and outside directors).
For purposes of this Article:
(1) The term "business combination" shall mean (a) any merger or
consolidation of this Corporation with or into a related person, (b) any sale,
lease, exchange, transfer or other disposition, including without limitation, a
mortgage or any other security device, of all or any substantial part of the
assets of this Corporation (including without limitation any voting securities
of a subsidiary) or of a subsidiary, to a related person, (c) any merger or
consolidation of a related person with or into this Corporation or a subsidiary
of this Corporation, (d) any sale, lease exchange, transfer or other disposition
of all or any substantial part of the assets of a related person to this
Corporation or a subsidiary of this Corporation, (e) the issuance of any
securities of this Corporation or a subsidiary of this Corporation to a related
person, (f) the acquisition by this Corporation or a subsidiary of this
Corporation of any securities of a related person, (g) any reclassification of
Common Stock of this Corporation, or any recapitalization involving Common Stock
of this Corporation, consummated within five years after a related person
becomes a related person, and (h) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of business
combination.
(2) The term "related person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with their
"affiliates" and "associates" (defined below), "beneficially" owns (as this term
is defined in Rule l3d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934), in the aggregate 20% or more of the
outstanding shares of the Common Stock of this corporation, and any "affiliate"
or "associate" (as those terms are defined in Rule l2b-2 under the Securities
Exchange Act of 1934) of any such individual, corporation, partnership or other
person or entity;
(3) The term "substantial part" shall mean more than ten percent of the
total assets of the corporation in question, as of the end of its most recent
fiscal year ending prior to the time the determination is being made.
(4) Without limitation, any shares of Common Stock of this Corporation
which any related person has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise, shall be
deemed beneficially owned by such related person;
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(5) For the purpose of subparagraph (a)(3) of this Article, the term
"other consideration to be received" shall include, without limitation, Common
Stock of this Corporation retained by its existing public shareholders in the
event of a business combination with such related person in which this
Corporation is the surviving corporation; and
(6) With respect to any proposed business combination, the term
"continuing director" shall mean a director who was a member of the Board of
Directors of this Corporation immediately prior to the time that any related
person involved in the proposed business combination acquired 20% or more of the
outstanding shares of Common Stock of the Corporation, and the term "outside
director" shall mean a director who is not (a) an officer or employee of this
Corporation or any relative of an officer or employee, (b) a related person or
an officer, director employee, associate or affiliate of a related person, or a
relative of any of the foregoing, or (c) a person having a direct or indirect
material business relationship with this Corporation.
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