Exhibit 3.1
SECOND AMENDED AND
RESTATED
CERTIFICATE OF
INCORPORATION
OF
GUARANTY BANCORP
GUARANTY BANCORP, a corporation duly
organized and existing under the Delaware General Corporation Law,
does hereby certify:
1. The corporation’s original
certificate of incorporation was filed on March 3, 2004 under
the name Centennial C Corp . The corporation has previously
filed an amended and restated certificate of incorporation on
June 8, 2005 and an amendment thereto on May 6,
2008.
2. The following amendment and
restatement of the corporation’s Certificate of Incorporation
was duly adopted in accordance with the provisions of Sections 242
and 245 of the Delaware General Corporation Law by the favorable
vote of the holders of a majority of the outstanding stock entitled
to vote thereon:
FIRST. The name of the corporation
is Guaranty Bancorp.
SECOND. The address of the
corporation’s registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, New Castle County,
Wilmington, DE 19801. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD. The purpose of the
corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH. The total number of shares
of all classes of stock that the corporation shall have authority
to issue is 200,000,000, of which 143,750,000 shares of the par
value of one-tenth of one cent ($0.001) per share shall be a
separate class designated as Voting Common Stock (“Voting
Common Stock”), 6,250,000 shares of the par value of
one-tenth of one cent ($0.001) shall be a separate class designated
as Non-Voting Common Stock (“Non-Voting Common Stock,”
and together with Voting Common Stock, “Common Stock”)
and 50,000,000 shares of the par value of one-tenth of one cent
($0.001) shall be a separate class designated as Preferred
Stock.
COMMON STOCK
Except as may be provided in this
Second Amended and Restated Certificate of Incorporation or
required by law, the Voting Common Stock shall have voting rights
in the election of directors and on all other matters presented to
stockholders, with each holder of Voting Common Stock being
entitled to one vote for each share of Voting Common Stock held of
record by such holder on such matters.
The holders of Non-Voting Common
Stock, as such, shall have no voting power and shall not be
entitled to vote on any matter except as otherwise required by law
or as otherwise expressly provided for herein. Except as
otherwise provided herein, Non-Voting Common Stock shall in all
other respects carry the same rights and privileges as Voting
Common Stock (including in respect of dividends and in respect of
distributions upon any dissolution, liquidation or winding up of
the corporation) and be treated the same as Voting Common Stock
(including in any merger, consolidation, share exchange or other
similar transaction); provided that, if the corporation shall in
any manner split, subdivide or combine (including by way of a
dividend payable in shares of Voting Common Stock or Non-Voting
Common Stock) the outstanding shares of Voting Common Stock or
Non-Voting Common Stock, the outstanding shares of the other such
class of Common Stock shall likewise be split, subdivided or
combined in the same manner proportionately and on the same basis
per share, and provided further, that any dividend on the Common
Stock that is payable in Common Stock shall be paid only in
Non-Voting Common Stock on the Non-Voting Common Stock and only in
Voting Common Stock on the Voting Common Stock.
Notwithstanding the foregoing, and in addition to any other vote
required by law, the affirmative vote of a majority of the
outstanding shares of Non-Voting Common Stock, voting separately as
a class, shall be required to amend, alter or repeal (including by
merger, consolidation or otherwise) any provision of this Second
Amended and Restated Certificate of Incorporation that adversely
affects the powers, preferences or rights of the Non-Voting Common
Stock contained herein in a manner that is materially adverse from
the effect of such amendment, alteration or repeal on the Voting
Common Stock.
Subject to the rights of the holders
of any series of Preferred Stock, holders of Common Stock shall be
entitled to receive such dividends and distributions (whether
payable in cash or otherwise) as may be declared on the Common
Stock from time to time out of assets or funds of the corporation
legally available therefor. Subject to the rights of the holders of
any series of Preferred Stock, in the event of any liquidation,
dissolution or winding-up of the corporation (whether voluntary or
involuntary), the assets of the corporation available for
distribution to stockholders shall be distributed in equal amounts
per share to the holders of Common Stock.
Any holder of Voting Common Stock
may at any time and from time to time elect to convert any number
of shares of Voting Common Stock then held by such stockholder into
an equal number of shares of Non-Voting Common Stock with the prior
approval of the Board of Directors acting in its sole and absolute
discretion or pursuant to a written agreement with the corporation
expressly providing for such conversion. Any holder of Non-Voting
Common Stock may convert any number of shares of Non-Voting Common
Stock into an equal number of shares of Voting Common Stock, but
only if such conversion is in connection with (i) a transfer
that is made in accordance with and as permitted by guidance and
policies established by the Board of Governors of the Federal
Reserve System as applicable and in effect at the time of transfer
or (ii) with the prior approval of the Board of Directors
acting in its sole and absolute discretion (the “Conversion
Conditions”). If the corporation ceases to be a bank holding
company, then the Conversion Conditions shall lapse and any holder
of Non-Voting Common Stock may
convert such shares of Non-Voting
Common Stock into Voting Common Stock without limitation as
described herein.
Until presented and surrendered for
cancellation following any such conversion satisfying one or more
of the Conversion Conditions, each certificate representing shares
of Non-Voting Common Stock in respect of which a conversion has
occurred in accordance with this Article FOURTH shall be
deemed to represent the number of shares of Voting Common Stock
into which such shares have been converted, and upon presentation
and surrender of such certificate the holder thereof shall be
entitled to receive a certificate for the appropriate number of
shares of Voting Common Stock. Upon a conversion pursuant to
this Article FOURTH, each converted share of Non-Voting Common
Stock shall be retired.
PREFERRED STOCK
Shares of Preferred Stock may be
issued in one or more series from time to time as determined by the
Board of Directors of the corporation, and the Board of Directors
of the corporation is authorized to fix by resolution or
resolutions the designations and the powers, preferences and
rights, and the qualifications, limitations and restrictions
thereof, of the shares of each series of Preferred Stock, including
the following:
(i) the distinctive serial
designation of such series which shall distinguish it from other
series;
(ii) the number of shares
included in such series;
(iii) whether dividends shall
be payable to the holders of the shares of such series and, if so,
the basis on which such holders shall be entitled to receive
dividends (which may include, without limitation, a right to
receive such dividends or distributions as may be declared on the
shares of such series by the Board of Directors of the corporation,
a right to r
