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| 8-K - SUPERIOR BANCORP | v167052_8k.htm |
| EX-99 - SUPERIOR BANCORP | v167052_ex99.htm |
EXHIBIT
3
RESTATED
CERTIFICATE OF INCORPORATION
OF
SUPERIOR BANCORP
Superior
Bancorp, a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (“DGCL”), does hereby certify
that:
1. The
name of the corporation is Superior Bancorp (the “Corporation”). The Corporation
was originally incorporated under the name “The Bank Corporation.”
2. The
original Certificate of Incorporation of the Corporation was filed with the
Delaware Secretary of State on April 7, 1998.
3. This
Restated Certificate of Incorporation of the Corporation amends the first
paragraph of Section 4.1 to increase the number of authorized shares of common
stock to Two Hundred Million (200,000,000) shares as proposed in resolutions
adopted by the Board of Directors of the Corporation and approved at a special
meeting of the Corporation’s stockholders which was duly called and held upon
notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware and at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
4. The
Board of Directors of the Corporation has duly adopted this Restated Certificate
of Incorporation pursuant to the provisions of Section 245 of the DGCL in the
form set forth as follows:
ARTICLE I
The name
of the Corporation is Superior Bancorp.
ARTICLE II
The
address of the Corporation’s registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle, Zip Code 19801, and the name of the registered agent at such
office is The Corporation Trust Company.
ARTICLE III
The
purposes of the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the DGCL, including but not limited to
the following:
Section 3.1 To engage in any
lawful act or activity for which corporations may be organized under the
DGCL;
Section 3.2 To purchase and
sell the stock of banks;
Section 3.3 To acquire, and
pay for in cash, stock or bonds of this Corporation or otherwise, the goodwill,
rights, assets and property, and to undertake or assume the whole or any part of
the obligations or liabilities of any person, firm, association or
corporation;
Section 3.4 To acquire, hold,
use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise
dispose of letters patent of the United States or any foreign country, patent
rights, licenses and privileges, inventions, improvements and processes,
copyrights, trademarks and trade names, relating to or useful in connection with
any business of this Corporation;
Section 3.5 To acquire by
purchase, subscription or otherwise, and to receive, hold, own, guarantee, sell,
assign, exchange, transfer, mortgage, pledge or otherwise dispose of or deal in
and with any of the shares of the capital stock, or any voting trust
certificates in respect of the shares of capital stock, scrip, warrants, rights,
bonds, debentures, notes, trust receipts, and other securities, obligations,
choses in action and evidences of indebtedness or interest issued or created by
any corporations, joint stock companies, syndicates, associations, firms, trusts
or persons, public or private, or by the government of the United States of
America, or by any foreign government, or by any state, territory, province,
municipality or other political subdivision or by any governmental agency, and
as owner thereto to possess and exercise all the rights, powers and privileges
of ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof;
Section 3.6 To borrow or raise
money for any of the purposes of the Corporation and, from time to time without
limit as to amount, to draw, make, accept, endorse, execute and issue promissory
notes, drafts, bills of exchange, warrants, bonds, debentures and other
negotiable or non-negotiable instruments and evidences of indebtedness, and to
secure the payment of any thereof and of the interest thereon by mortgage upon
or pledge, conveyance or assignment in trust of the whole or any part of the
property of the Corporation, whether at the time owned or thereafter acquired,
and to sell, pledge or otherwise dispose of such bonds or other obligations of
the Corporation for its corporate purposes;
Section 3.7 To purchase,
receive, take by grant, gift, devise, bequest or otherwise, lease, or otherwise
acquire, own, hold, improve, employ, use and otherwise deal in and with real or
personal property, or any interest therein, wherever situated, and to sell,
convey, lease, exchange, transfer or otherwise dispose of, or mortgage or
pledge, all or any of the Corporation’s property and assets, or any interest
therein, wherever situated; and
Section 3.8 In general, to
possess and exercise all the powers and privileges granted by the DGCL or by any
other law of Delaware or by this Restated Certificate of Incorporation together
with any powers incidental thereto, so far as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the Corporation.
Section 3.9 The business and
purposes specified in the foregoing clauses shall, except where otherwise
expressed, be in nowise limited or restricted by reference to, or inference
from, the terms of any other clause in this Restated Certificate of
Incorporation, but the business and purposes specified in each of the foregoing
clauses of this Article shall be regarded as an independent business and
purpose.
ARTICLE
IV
Section
4.1 Authorization
of Capital. The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue shall be Two
Hundred and Five Million (205,000,000) shares, comprising Two Hundred Million
(200,000,000) shares of Common Stock, with a par value of $.001 per share, and
Five Million (5,000,000) shares of Preferred Stock, with a par value of $.001
per share, as the Board of Directors may decide to issue pursuant to Section
4.3, which constitutes a total authorized capital of all classes of capital
stock of Two Hundred and Five Thousand Dollars ($205,000.00).
A
description of the respective classes of stock and a statement of the
designations, preferences, voting powers, relative, participating, optional or
other special rights and privileges, and the qualifications, limitations and
restrictions of such Preferred Stock as the Board of Directors may by resolution
or resolutions decide to issue, and the Common Stock are as
follows:
Section 4.2 Common
Stock.
(a) Voting Rights. Except as
otherwise required by law or this Restated Certificate of Incorporation, each
holder of Common Stock shall have one vote in respect of each share of stock
held by him of record on the books of the Corporation for the election of
Directors and on all matters submitted to a vote of stockholders of the
Corporation.
(b) Dividends. Except as otherwise
provided by the resolution or resolutions of the Board of Directors providing
for the issuance of any series of Preferred Stock pursuant to Section 4.3, the
holders of shares of Common Stock shall be entitled to receive, when and if
declared by the board of Directors, out of the assets of the Corporation which
are by law available thereof, dividends payable either in cash, in property or
in shares of capital stock.
(c) Dissolution, Liquidation or Winding
Up. Except as otherwise provided by the resolution or resolutions of the
Board of Directors providing for the issuance of any series of Preferred Stock
pursuant to section 4.3, in the event of any dissolution, liquidation or winding
up of the affairs of the Corporation, after distribution in full of the
preferential amounts, if any, to be distributed to the holders of such Preferred
Stock, the rights of the holders of Common Stock to receive any remaining assets
of the Corporation shall be as provided by law.
Section 4.3 Preferred Stock.
The Board of Directors of the Corporation is authorized subject to the
limitations prescribed by law and the provisions of this Section 4.3, to adopt
one or more resolutions to provide for the issuance from time to time in one or
more series of any number of shares of Preferred Stock, up to a maximum of five
million (5,000,000) shares, and to establish the number of shares to be included
in each such series, and to fix the designation, relative rights, preferences,
qualifications and limitations of the shares of each such series. The authority
of the Board of Directors with respect to each such series shall include, but
not be limited to, a determination of the following:
(a) The
number of shares constituting that series and the distinctive designation of
that series;
(b) The
dividend rate on the shares of that series, whether dividends shall be
cumulative and, if so, from which date or dates, and whether they should be
payable in preference to, or in another relation to, the dividends payable on
any other class or classes or series of stock;
(c)
Whether that series shall have voting rights, in addition to the voting rights
provided by law, and, if so, the terms of such voting rights;
(d)
Whether that series shall have conversion or exchange privileges and, if so, the
terms and conditions of such conversion or exchange, including provision for
adjustments for the conversion or exchange rate in such events as the Board of
Directors shall determine;
(e)
Whether or not the shares of that series shall be redeemable and, if so, the
terms and conditions of such redemption, including the manner of selecting
shares for redemption if less than all shares are to be redeemed, the date or
dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption dates;
(f)
Whether that series shall be entitled to the benefit of a sinking fund to be
applied to the purchase or redemption of shares of that series and, if so, the
terms and amounts of such sinking funds;
(g) The
rights of the shares of that series to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issuance of any additional stock (including additional
shares of such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any outstanding stock of
the Corporation;
(h) The
right of the shares of that series in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and whether such
rights shall be in preference to, or in other relation to, the comparable rights
or any other class or classes or series of stock; and
(i) Any
other relative, participating, optional or other special rights, qualifications,
limitations or restrictions of that series.
ARTICLE V
Section 5.1 General
Provisions. The business and affairs of the Corporation shall be managed
under the direction of the Board of Directors. The exact number of Directors
shall be fixed from time to time by, or in the manner provided in, the Bylaws of
the Corporation, and may be increased or decreased as therein provided.
Directors of the Corporation need not be elected by ballot unless required by
the Bylaws.
Section 5.2 Directors Appointed by a
Specific Class of Stockholders. To the extent that any holders of any
class or series of stock other than Common Stock issued by the Corporation shall
have the separate right, voting as a class or series, to elect Directors, the
Directors elected by such class or series shall be deemed to constitute an
additional class of Directors and shall have a term of office for one year or
such other period as may be designated by the provisions of such class or series
providing such separate voting right to the holders of such class or series of
stock.
Section 5.3 Nominations.
Advance notice of nominations for the election of Directors shall be given in
the manner and to the extent provided in the Bylaws of the
Corporation.
Section 5.4 Vacancies.
Vacancies and newly created directorships resulting from any increase in the
authorized number of Directors may be filled by a majority of the Board of
Directors, and any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall only be filled by the affirmative vote
of a majority of the remaining Directors then in office, even though less than a
quorum of the Board of Directors, or by a sole remaining Director. Any Director
elected in accordance with the preceding sentence of this Section 5.4 shall hold
office for the remainder of the full term of the Directors whose vacancy is so
filled and until such Director’s successor shall have been elected and
qualified.
ARTICLE VI
The
Corporation is to have perpetual existence.
ARTICLE
VII
In
furtherance and not in limitation of the powers conferred upon it by law, the
Board of Directors is expressly authorized:
Section 7.1 To adopt, repeal,
alter or amend the Bylaws of the Corporation by a vote of a majority of the
entire Board of Directors.
Section 7.2 To authorize and
cause to be executed mortgages and liens upon the real and personal property of
the Corporation.
Section 7.3 To set apart, out
of any of the funds of the Corporation available for dividends, a reserve or
reserves for any proper purpose and to abolish any such reserve in the manner in
which it was created.
Section 7.4 By a majority of
the whole Board of Directors, to designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. The
Board of Directors may designate one or more Directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. The Bylaws may provide that, in the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, or in the Bylaws of the Corporation, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation’s property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the Bylaws of the Corporation; and, unless the resolution or Bylaws
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
Section 7.5 When and as
authorized by the stockholders in accordance with statute, to sell, lease or
exchange all or substantially all of the property and assets of the Corporation,
including its goodwill and its corporate franchises, upon such terms and
conditions and for such consideration, which may consist in whole or in part of
money or property, including shares of stock in and/or other securities of any
other corporation or corporations, as the Board of Directors shall deem
expedient and for the best interests of the Corporation.
ARTICLE VIII
Section 8.1 Except as provided
in Section 8.2 of this Article VIII, any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of the stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders. Advance notice of items
of business to be considered at any meeting of the stockholders shall be given
in the manner and to the extent provided in the Bylaws of the
Corporation.
Section 8.2 Notwithstanding
the foregoing, this Article VIII shall not apply to the Corporation if it does
not have a class of voting stock that is either (i) listed on a national
securities exchange, (ii) authorized for quotation on an inter dealer quotation
system of the registered national securities association, or (iii) held of
record by more than two thousand (2,000) stockholders.
ARTICLE IX
Section 9.1 Limitation of 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 (i) for any breach of the
Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the Director derived an improper personal
benefit.
If the
DGCL is amended after the date hereof to authorize action by corporations
organized pursuant to the DGCL to further eliminate or limit 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 DGCL, as
amended.
Section 9.2 Indemnification of
Directors.
(a) Each
person who was or is made a party to, or is threatened to be made a party to, or
is involved in, any threatened, pending or completed action, suit or proceeding,
whether formal or informal, whether of a civil, criminal, administrative or
investigative nature (hereinafter a “proceeding”), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or was a
Director of the Corporation, whether the basis of such proceeding is an alleged
action or inaction in an official capacity or in any other capacity while
serving as a Director, shall be indemnified and held harmless by the Corporation
to the fullest extent permissible under Delaware law, as the same exists or may
hereafter exist in the future (but, in the case of any future change, only to
the extent that such change permits the Corporation to provide broader
indemnification rights than the law permitted prior to such change), against all
costs, charges, expenses, liabilities and losses (including, without limitation,
attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of
1974 (“ERISA”) excise taxes, or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has ceased
to be a Director and shall inure to the benefit of his or her heirs, executors
and administrators.
(b) The
Corporation shall pay expenses actually incurred in connection with any
proceeding in advance of its final disposition; provided, however, that if
Delaware law then requires, the payment of such expenses incurred in advance of
the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
Director or officer is not entitled to be indemnified.
(c) If a
claim under subsection 9.2(a) hereof is not paid in full by the Corporation
within thirty (30) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel or its stockholders) to have made
a determination that indemnification of the claimant is permissible in the
circumstances because the claimant has met the applicable standard of conduct,
if any, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met the standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the standard of
conduct.
Section 9.3 Indemnification of
Officers, Employees and Agents. The Corporation may provide
indemnification to employees and agents of the Corporation to the fullest extent
permissible under Delaware law.
Section 9.4 Expenses as a
Witness. To the extent that any Director, officer, employee or agent of
the Corporation is, by reason of such position, or position with another entity
at the request of the Corporation, a witness in any action, suit or proceeding,
he or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her on his or her behalf in connection
therewith.
Section 9.5 Insurance. The
Corporation may maintain insurance, at its expense, to protect itself and any
Director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under Delaware
law.
Section 9.6 Indemnity
Agreements. The Corporation may enter into agreements with any Director,
officer, employee or agent of the Corporation providing for indemnification to
the fullest extent permissible under Delaware law.
Section 9.7 Separability. Each
and every paragraph, sentence, term and provision of this Article IX is separate
and distinct so that if any paragraph, sentence, term or provision hereof shall
be held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or enforceability of any other
paragraph, sentence, term or provision hereof. To the extent required, any
paragraph, sentence, term or provision of this Article IX may be modified by a
court of competent jurisdiction to preserve its validity and to provide the
claimant with, subject to the limitations set forth in this Article IX and any
agreement between the Corporation and claimant, the broadest possible
indemnification permitted under applicable law.
Section 9.8 Contract Right.
Each of the rights conferred on Directors of the Corporation by Sections 9.1,
9.2 and 9.4 of this Article IX, and on officers, employees or agents of the
Corporation by Section 9.4 of this Article, shall be a contract right, and any
repeal or amendment of the provisions of this Article shall not adversely affect
any right hereunder of any person existing at the time of such repeal or
amendment with respect to any act or omission occurring prior to the time of
such repeal or amendment, and, further, shall not apply to any proceeding,
irrespective of when the proceeding is initiated, arising from the service of
such person prior to such repeal or amendment.
Section 9.9 Nonexclusivity.
The rights conferred in this Article shall not be exclusive of any other rights
that any person may have or hereafter acquire under any statute, Bylaw,
agreement, vote of stockholders or disinterested Directors or
otherwise.
ARTICLE
X
The
Corporation reserves the right to amend, alter or repeal any provision contained
in this Restated Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
subject to this reservation.
IN
WITNESS WHEREOF, Superior Bancorp has caused this Restated Certificate of
Incorporation to be signed by its undersigned duly authorized officer as of the
19th
day of November, 2009.
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SUPERIOR
BANCORP
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By:
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/s/
Rick D. Gardner
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Rick
D. Gardner
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Vice
Chairman
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