EXHIBIT
3.1
As Amended
Effective January 28, 2010
BYLAWS
OF
SYNOVUS FINANCIAL CORP.
ARTICLE I. OFFICES
Section 1.
Principal Office.
The principal office for the transaction of the
business of the corporation shall be located in Muscogee County, Georgia, at such place within said
County as may be fixed from time to time by the Board of Directors.
Section 2.
Other Offices.
Branch offices and places of business may be established
at any time by the Board of Directors at any place or places where the corporation is qualified to
do business, whether within or without the State of Georgia.
ARTICLE II. SHAREHOLDERS’ MEETINGS
Section 1.
Meetings, Where Held.
Any meeting of the shareholders of the
corporation, whether an annual meeting or a special meeting, may be held either at the principal
office of the corporation or at any place in the United States within or without the State of
Georgia.
Section 2.
Annual Meetings.
The annual meeting of the shareholders of the
corporation for the election of Directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date and at such time and place as is
determined by the Board of Directors of the corporation each year. Provided, however, that if the
Board of Directors shall fail to set a date for the annual meeting of shareholders in any year,
that the annual meeting of the shareholders of the corporation shall be held on the fourth Thursday
in April of each year; provided, that if said day shall fall upon a legal holiday, then such annual
meeting shall be held on the next day thereafter ensuing which is not a legal holiday. Unless
determined otherwise by the Board of Directors, the Chairman of the Board or the Chief Executive
Officer shall act as chairman at all annual meetings.
Section 3.
Special Meetings.
A special meeting of the shareholders of the
corporation, for any purpose or purposes whatsoever, may be called at any time by the Chairman of
the Board, the Chief Executive Officer, a majority of the Board of Directors, or one or more
shareholders of the corporation representing at least 66 2/3% of the votes entitled to be cast by
the holders of all of the issued and outstanding shares of common stock of the
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corporation. Such a call for a special meeting must state the purpose of the meeting. Unless
otherwise determined by the Board of Directors, the Chairman of the Board or the Chief Executive
Officer shall act as chairman at all special meetings. This section, as it relates to the call of
a special meeting of the shareholders of the corporation by one or more shareholders representing
at least 66 2/3% of the votes entitled to be cast by the holders of all of the issued and
outstanding shares of common stock of the corporation shall not be altered, deleted or rescinded
except upon the affirmative vote of the shareholders of the corporation representing at least 66
2/3% of the votes entitled to be cast by the holders of all of the issued and outstanding shares of
common stock of the corporation.
Section 4. Notice of Shareholder Business and Director Nominations.
(a) Nominations of persons for election to the Board of Directors and the proposal of other
business to be considered by the shareholders may be made at an annual meeting only (1) pursuant to
the corporation’s notice of meeting, (2) by or at the direction of the Board of Directors or (3) by
any shareholder of the corporation who is a shareholder of record at the time of giving notice
provided for in this Section 4, is entitled to vote at the meeting, and complies with the notice
procedures set forth in this Section 4.
(b) In addition to any other applicable requirements, for nominations of persons for election
to the Board of Directors or other business to be properly brought before an annual meeting by a
shareholder pursuant to this Section 4, timely notice of any nominations of persons for election to
the Board of Directors or of any other business to be brought before an annual meeting of
shareholders by a shareholder must be provided in writing to the Secretary of the corporation. To
be timely, a shareholder’s notice shall be delivered to or received at the principal executive
offices of the corporation (directed to the Secretary at the address, facsimile or electronic mail
address specified in the corporation’s most recent proxy statement) not later than the close of
business on the 90
th
day nor earlier than the close of business on the 120
th
day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that
in the event that the date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareholder to be timely must be so delivered not
earlier than the close of business on the 120
th
day prior to the date of such annual
meeting and not later than the 90
th
day prior to the date of such annual meeting or, if
the first public announcement of the date of such annual meeting is less than 100 days prior to the
date of such annual meeting, the 10
th
day following the day on which public announcement
of the date of such meeting is first made by the corporation) and such business must constitute a
proper subject to be brought before such meeting. To be in proper form, such shareholder
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notice shall set forth (1) as to each person whom the shareholder proposes to nominate for election
as a director (A) all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(including such person’s written consent to being named in the Proxy Statement in connection with
such annual meeting as a nominee and to serving as a director if elected), (B) evidence reasonably
satisfactory to the corporation that such nominee has no interests that would limit such nominee’s
ability to fulfill his or her duties of
office and (C) a statement
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whether each such nominee, if elected, intends to tender promptly
following such person’s failure to receive the required vote for election or re-election at the
next meeting at which such person would face election or re-election, an irrevocable resignation
effective upon acceptance of such resignation by the Board of Directors, in accordance with the
corporation’s Corporate Governance Guidelines; (2) as to any other business that the shareholder
proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and any material
interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (3) as to the shareholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address of such shareholder, as
they appear on the corporation’s books, and of such beneficial owner and (ii) the class and number
of shares of the corporation that are owned beneficially and/or held of record by such shareholder
and such beneficial owner, as well as information on (A) any hedging activities entered into by
such shareholder or beneficial owner or derivative positions held or beneficially held by such
shareholder or beneficial owner in each case with respect to shares or other equity interests of
the corporation and (B) any other transactions, series of transactions, agreements, arrangements or
understandings that have been entered into by or on behalf of such shareholder or beneficial owner
the effect or intent of which is to increase or decrease the voting power or economic ownership of
such shareholder or beneficial owner with respect to shares or other equity interests of the
corporation. In addition, if the shareholder intends to solicit proxies from the shareholders of
the corporation, such shareholder’s notice shall notify the corporation of this intent. If a
shareholder fails to notify the corporation of his or her intent to solicit proxies and does in
fact solicit proxies, the chairman shall have the authority, in his or her discretion, to strike
the proposal or nomination by the shareholder.
(c) Only such business shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting pursuant to the corporation’s notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting at which directors
are to be elected only pursuant to the corporation’s notice of meeting (1) by or at the direction
of the Board of Directors or (2) by any shareholder of the corporation who is a shareholder of
record at the time of giving notice provided for in this Section 4(c), is entitled to vote at the
meeting, and complies with the notice procedures set forth in Section 4(b)(1). Nominations by
shareholders of persons for election to the Board of Directors may be made at such a special
meeting of shareholders if the shareholder’s notice required by this Section 4 is timely provided
in writing to the Secretary of the corporation. To be timely, a shareholder’s notice shall be
delivered to or received at the principal executive offices of the corporation (directed to the
Secretary at the address, facsimile or electronic mail address specified in the corporation’s most
recent proxy statement) not later than the close of business on the 90
th
day nor earlier
than the close of business on the 120
th
day prior to the date of such special meeting
(or if the first public announcement of the date of such annual meeting is less than 100 days prior
to the date of such special meeting, the 10
th
day following the day on which public
announcement of the date of such special meeting and of the nominees proposed by the Board of
Directors is first made by the corporation).
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(d) For purposes of this Section 4, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news
service or in a document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(e) Only those persons who are nominated in accordance with the procedures set forth in this
Section 4 shall be eligible for election as directors at any meeting of shareholders.
Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at any
shareholders meeting except in accordance with the procedures set forth in this Section 4. This
Section 4 applies to proposals made or sought to be made at any meeting, whether or not such
proposals are sought to be included in the corporation’s proxy statement pursuant to the federal
proxy rules. The chairman shall, if the facts warrant, determine and declare to the meeting that
business has not been properly brought before the meeting in accordance with the provisions of this
Section 4, and if the chairman should so determine, the chairman shall so declare to the meeting
and any such business not properly brought before the meeting shall not be transacted. In addition,
if the chairman of the meeting determines that a nomination of a director or directors was not made
in accordance with the procedures specified in this Section 4, the chairman of the meeting shall
declare to the meeting that the nomination was defective and such defective nomination shall be
disregarded. In no event shall any adjournment or postponement of an annual or special meeting or
the announcement thereof commence a new time period for the giving of a shareholder’s notice as
described in this Section 4.
(f) Notwithstanding the foregoing provisions of this Section 4, a shareholder shall also
comply with all applicable requirements of the federal securities laws and the rules and
regulations thereunder with respect to the matters set forth in this Section 4; provided, however,
that references in these bylaws to the federal securities laws or the rules promulgated thereunder
are not intended to and shall not limit the requirements applicable to nominations or proposals as
to any other business to be considered pursuant to Section 4(a) or 4(b) of these bylaws. Nothing in
this bylaw shall be deemed to affect any rights of shareholders to request inclusion of proposals
in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 5.
Notice of Meetings.
Unless waived, notice of each annual meeting and of
each special meeting of the shareholders of the corporation shall be given to each shareholder of
record entitled to vote, not less than ten (10) days nor more than sixty (60) days prior to said
meeting. Such notice shall specify the place, day and hour of the meeting; and in the case of a
special meeting, it shall also specify the purpose or purposes for which the meeting is called.
Within thirty (30) days of receipt from the shareholders of the corporation of sufficient written
demands for a special meeting which comply with and satisfy the requirements of Article 1, Section
3, for the call of a special meeting, the Secretary of the corporation will issue notice calling
for a special meeting of the shareholders to be held within sixty (60) days of such notice.
Section 6.
Waiver of Notice.
Notice of an annual or special meeting of the
shareholders of the corporation may be waived by any shareholder, either before or after the
meeting;
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and the attendance of a shareholder at a meeting, either in person or by proxy, shall of itself
constitute waiver of notice and waiver of any and all objections to the place or time of the
meeting, or to the manner in which it has been called or convened, except when a shareholder
attends solely for the purpose of stating, at the beginning of the meeting, an objection or
objections to the transaction of business at such meeting.
Section 7.
Quorum, Voting and Proxy.
Shareholders representing a majority of the
votes entitled to be cast by the holders of all of the issued and outstanding shares of common
stock of the corporation shall constitute a quorum at a shareholders’ meeting. Any shareholder may
be represented and vote at any shareholders’ meeting by proxy, which such shareholder has duly
executed in writing or by any other method permitted by the Official Code of Georgia Annotated,
filed with the Secretary of the corporation on or before the date of such meeting; provided,
however, that no proxy shall be valid for more than 11 months after the date thereof unless
otherwise specified in such proxy.
The common stock of the corporation shall have the following voting rights:
(a) Except as otherwise provided in paragraph (b) below, every holder of record of the common
stock shall be entitled to one (1) vote in person or by proxy on each matter submitted to a vote at
a meeting of shareholders for each share of the common stock held of record by such holder as of
the record date of such meeting.
(b) Notwithstanding paragraph (a) above, every holder of record of a share of the common stock
meeting any one of the following criteria, shall be entitled to ten (10) votes in person or by
proxy on each matter submitted to a vote at a meeting of shareholders for each share of the common
stock held of record by such holder as of the record date of such meeting which:
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(1)
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has had the same beneficial owner since April 24, 1986; or
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(2)
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has had the same beneficial owner for a continuous period of
greater than 48 months prior to the record date of such meeting; or
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(3)
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is held by the same beneficial owner to whom it was issued by
the corporation in or as a part of an acquisition of a banking or non-banking
company by the corporation where the resolutions adopted by the corporation’s
Board of Directors approving said acquisition specifically reference and grant
such rights; or
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(4)
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is held by the same beneficial owner to whom it was issued by
the corporation, or to whom it transferred by the corporation from treasury
shares held by the corporation, and the resolutions adopted by the
corporation’s Board of Directors approving such issuance and/or transfer
specifically reference and grant such rights; or
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(5)
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was acquired under any employee, officer and/or director
benefit plan maintained for one or more employees, officers and/or directors of
the
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corporation, and/or its subsidiaries, and is held by the same beneficial
owner for whom it was acquired under the terms and provisions of such plan;
or
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(6)
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was acquired by reason of participation in a dividend
reinvestment plan approved by the corporation and is held by the same
beneficial owner for whom it was acquired under the terms and provisions of
such plan; or
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(7)
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is owned by a holder who, in addition to shares which are
beneficially owned under the provisions of paragraph (b) (1)-(6) above, is the
beneficial owner of less than 100,000 shares of common stock of the
corporation, with such amount to be appropriately adjusted to properly reflect
any change in the shares of common stock of the corporation by means of a stock
split, a stock dividend, a recapitalization or otherwise occurring after April
24, 1986.
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(c) For purposes of paragraphs (b) above and (e) below:
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(1)
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any transferee of a share of the common stock receiving such stock:
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(i)
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by gift; or
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(ii)
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by bequest, devise or otherwise through the law
of inheritance, descent and distribution from a descendant’s estate; or
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(iii)
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by distribution from a trust holding such
stock for the benefit of such transferee; or
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(2)
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any corporate transferee receiving such common stock solely in
exchange for the capital stock of such corporate transferee prior to December
31, 1986, provided that the transferor(s) of such common stock and their
respective donees, legatees and devises own all of the issued and outstanding
shares of capital stock of such corporate transferee;
shall be deemed in each case to be the same beneficial owner as the transferor.
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Any transfer of any share of the capital stock of a corporate transferee described in
subparagraph (c) (2) above, other than by means described in subparagraph (c) (1) above
shall disqualify all shares of the common stock held by such corporate transferee from the
operation of this paragraph (c).
(d) For purposes of paragraph (b) above, shares of the common stock acquired pursuant to a
stock option shall be deemed to have been acquired on the date the option was granted, and any
shares of common stock acquired by the beneficial owner as a direct
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result of a stock split, stock dividend or other type of distribution of shares with respect
to existing shares (“Dividend Shares”) will be deemed to have been acquired and held continuously
from the date on which the shares with regard to which the Dividend Shares were issued were
acquired.
(e) For purposes of paragraph (b) above, any share of the common stock held in “street” or
“nominee” name shall be presumed to have been acquired by the beneficial owner subsequent to April
24, 1986 and to have had the same beneficial owner for a continuous period of less than 48 months
prior to the record date of the meeting in question. This presumption shall be rebuttable by
presentation to the corporation’s Board of Directors by such beneficial owner of evidence
satisfactory to the corporation’s Board of Directors that such share has had the same beneficial
owner continuously since April 24, 1986 or such share has had the same beneficial owner for a
period greater than 48 months prior to the record date of the meeting in question.
(f) For purposes of this section, a beneficial owner of a share of common stock is defined to
include a person or group of persons who, directly or indirectly, through any contract,
arrangement, undertaking, relationship or otherwise has or shares (1) voting power, which includes
the power to vote, or to direct the voting of such share of common stock, (2) investment power,
which includes the power to direct the sale or other disposition of such share of common stock, (3)
the right to receive, retain or direct the distribution of the proceeds of any sale or other
disposition of such share of common stock, or (4) the right to receive or direct the disposition of
any distributions, including cash dividends, in respect of such share of common stock. For purposes
of paragraphs (a) through (e) above, all determinations concerning beneficial ownership, changes
therein, or the absence of any such change, shall be made by the corporation’s Board of Directors.
Written procedures designed to facilitate such determinations shall be established by the
corporation’s Board of Directors and refined from time to time. Such procedures shall provide,
among other things, the manner of proof of facts that will be accepted and the frequency with which
such proof may be required to be renewed. The corporation’s Board of Directors shall be entitled
to rely on all information concerning beneficial ownership of the common stock coming to its
attention from any source and in any manner reasonably deemed by it to be reliable, but the
corporation shall not be charged with any other knowledge concerning the beneficial ownership of
the common stock. Any disputes arising concerning beneficial ownership, changes therein, or the
absence of any such changes, pursuant to this paragraph (f), shall be definitively resolved by a
determination of the corporation’s Board of Directors made in good faith.
Section 8.
Voting Rights.
The voting rights of shares of common stock of the
corporation shall not be altered, deleted or rescinded except upon the affirmative vote of the
shareholders of the corporation representing at least 66 2/3% of the votes entitled to be cast by
the holders of all of the issued and outstanding shares of common stock of the corporation.
Section 9.
No Meeting Necessary When.
Any action required by law or permitted to
be taken at any shareholders’ meeting may be taken without a meeting if, and only if, written
consent, setting forth the action so taken, shall be signed by all of the shareholders entitled
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to vote with respect to the subject matter thereof. Such consent shall have the same force and
effect as a unanimous vote of the shareholders and shall be filed with the Secretary and recorded
in the Minute Book of the corporation.
ARTICLE III. DIRECTORS
Section 1.
Number.
The Board of Directors of the corporation shall consist of not
less than 8 nor more than 25 Directors. The number of Directors may vary between said minimum and
maximum, and within said limits, (i) the Board of Directors or (ii) the shareholders representing
at least 66 2/3% of the votes entitled to be cast by the holders of all of the issued and
outstanding shares of common stock of the corporation may, from time to time, by resolution fix the
number of Directors to comprise said Board. This section, as it relates to, from time to time,
fixing the number of Directors of the corporation by (i) the Board of Directors or (ii) the
shareholders of the corporation representing at least 66 2/3% of the votes entitled to be cast by
the holders of all of the issued and outstanding shares of common stock of the corporation, shall
not be altered, deleted or rescinded except upon the affirmative vote of the shareholders of the
corporation representing at least 66 2/3% of the votes entitled to be cast by the holders of all of
the issued and outstanding shares of common stock of the corporation.
Section 2.
Election and Tenure.
Each member of the Board of Directors of the
corporation shall be elected at the annual meeting of shareholders and shall hold office for a term
expiring at the next succeeding annual meeting of shareholders and until his or her successor is
duly elected and qualified or until his or her earlier retirement, resignation, removal or death.
Except as provided in Article III, Section 10 of these bylaws, a nominee for director shall be
elected to the Board of Directors if the votes cast for such nominee’s election exceed the votes
cast against such nominee’s election; provided, however, that directors shall be elected by a
plurality of the votes cast at any meeting of shareholders for which (a) the Secretary of the
corporation receives a notice that a shareholder has nominated a person for election to the Board
of Directors in compliance with the advance notice requirements for shareholder nominees for
directors set forth in Article II, Section 4 of these bylaws and (b) such nomination has not been
withdrawn by such shareholder on or prior to the day next preceding the date the corporation first
mails its notice of meeting for such meeting to the shareholders. If directors are to be elected
by a plurality of the votes cast, shareholders shall not be permitted to vote against a nominee.
Section 3.
Powers.
The Board of Directors shall have authority to manage the
affairs and exercise the powers, privileges and franchises of the corporation as they may deem
expedient for the interests of the corporation, subject to restrictions imposed by law, the terms
of the Articles of Incorporation, bylaws and such policies and directions as may be prescribed from
time to time by the shareholders of the corporation.
Section 4.
Meetings.
The annual meeting of the Board of Directors shall be held
without notice immediately following the annual meeting of the shareholders of the corporation, on
the same date and at the same place as said annual meeting of the shareholders. The Board by
resolution may provide for regular meetings, which may be held without notice as and when scheduled
in such resolution. Special meetings of the Board may be called at
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any time by the Chairman of the Board, the Chief Executive Officer, the Lead Director, or by any
two or more Directors.
Section 5.
Notice and Waiver; Quorum.
Notice of any special meeting of the Board
of Directors shall be given to each Director personally or by mail, telegram, cablegram or
telephone, or by any other means customary for expedited business communications, at least one day
prior to the meeting. Such notice may be waived, either before or after the meeting; and the
attendance of a Director at any special meeting shall of itself constitute a waiver of notice of
such meeting and of any and all objections to the place or time of the meeting, or to the manner in
which it has been called or convened, except where a Director states, at the beginning of the
meeting, any such objection or objections to the transaction of business. A majority of the Board
of Directors shall constitute a quorum at any Directors’ meeting.
Section 6.
No Meeting Necessary, When.
Any action required by law or permitted to
be taken at any meeting of the Board of Directors or any committee thereof may be taken without a
meeting if written consent, setting forth the action so taken, shall be signed by all the Directors
or committee members. Such consent shall have the same force and effect as a unanimous vote of the
Board of Directors and shall be filed with the Secretary and recorded in the Minute Book of the
corporation.
Section 7.
Telephone Conference Meetings
. Members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting of the Board or
committee by means of telephone conference or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation in a meeting
pursuant to this section shall constitute presence in person at such meeting.
Section 8.
Voting.
At all meetings of the Board of Directors each Director shall
have one vote and, except as otherwise provided herein or provided by law, all questions shall be
determined by a majority vote of the Directors present.
Section 9.
Removal.
Any one or more Directors or the entire Board of Directors
may be removed from office, with or without cause, by the affirmative vote of the shareholders of
the corporation representing at least 66 2/3% of the votes entitled to be cast by the holders of
all of the issued and outstanding shares of common stock of the corporation at any shareholders’
meeting with respect to which notice of such purpose has been given. This section, as it relates to
the removal of Directors of the corporation by the shareholders of the corporation representing at
least 66 2/3% of the votes entitled to be cast by the holders of all of the issued and outstanding
shares of common stock of the corporation, shall not be altered, deleted or rescinded except upon
the affirmative vote of the shareholders of the corporation representing at least 66 2/3% of the
votes entitled to be cast by the holders of all of the issued and outstanding shares of common
stock of the corporation.
Section 10.
Vacancies.
Any vacancy occurring in the Board of Directors caused by
the removal of a Director pursuant to Section 9 of this Article III shall be filled by the
shareholders, or if authorized by the shareholders, by the Board of Directors. Any other
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vacancy occurring in the Board of Directors, including, without limitation, vacancies occurring by
reason of an increase in the number of directors comprising the Board or the death, resignation,
retirement, disqualification or removal of any Director other than pursuant to Section 9 of this
Article III, may be filled by the Board of Directors or the shareholders until the next succeeding
annual meeting of shareholders and until a successor is duly elected and qualified. Vacancies in
the Board of Directors filled by the Board of Directors may be filled by the affirmative vote of a
majority of the remaining Directors, though less than a quorum, or the sole remaining Director, as
the case may be.
Section 11.
Dividends.
The Board of Directors may not make a distribution to the
shareholders if, after giving it effect, the corporation would not be able to pay its debts as they
become due in the usual course of business or the corporation’s total assets would be less than the
sum of its total liabilities plus the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of
the shareholders whose preferential rights are superior to those receiving the distribution. The
effect of the distribution shall be determined as set forth in Section 14-2-640 of the Georgia
Business Corporation Code.
Section 12.
Committees.
In the discretion of the Board of Directors, said Board
from time to time may elect or appoint, from its own members, an Executive Committee, an Audit
Committee, a Corporate Governance and Nominating Committee, a Compensation Committee and such other
committee or committees as said Board may see fit to establish. Each such committee shall consist
of two or more Directors, and each shall possess such powers and be charged with such
responsibilities as are delegated by the Board by resolution, subject to the limitations imposed in
these bylaws and by applicable law.
Executive Committee
The Executive Committee shall, during the intervals between meetings of the corporation’s
Board of Directors, possess and may exercise any and all powers of the corporation’s Board of
Directors in the management and direction of the business and affairs of the corporation in which
specific direction has not been given by the corporation’s Board of Directors.
Section 13.
Officers and Salaries.
The Board of Directors shall elect all officers
of the corporation and shall approve the remuneration, including remuneration from employee benefit
plans, of all officers, except that the Board of Directors shall not have the responsibility to
approve salaries for officers who are not executive officers.
Section 14.
Compensation of Directors.
Directors shall be entitled to receive
compensation for their service as Directors and such fees and expenses, if any, for attendance at
each regular or special meeting of the Board and any adjournments thereof, as may be fixed from
time to time by resolution of the Board, and such fees and expenses shall be payable even though an
adjournment be had because of the absence of a quorum; provided, however, that nothing herein
contained shall be construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of either standing or special committees may
be allowed such
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compensation as may be provided from time to time by resolution of the Board for serving upon and
attending meetings of such committees.
Section 15.
Advisory Directors.
The Board of Directors of the corporation may at
its annual meeting, or from time to time thereafter, appoint any individual to serve as a member of
an Advisory Board of Directors of the corporation. Any individual appointed to serve as a member
of an Advisory Board of Directors of the corporation shall be entitled to attend all meetings of
the Board of Directors and may participate in any discussion thereat, but such individual may not
vote at any meeting of the Board of Directors or be counted in determining a quorum for such
meeting. It shall be the duty of members of the Advisory Board of Directors of the corporation to
advise and provide general policy advice to the Board of Directors of the corporation at such times
and places and in such groups and committees as may be determined from time to time by the Board of
Directors, but such individuals shall not have any responsibility or be subject to any liability
imposed upon
a director or in any manner otherwise deemed a director. The same compensation paid to directors
for their services as directors shall be paid to members of an Advisory Board of Directors of the
corporation for their services as advisory directors. Each member of the Advisory Board of
Directors except in the case of his earlier death, resignation, retirement, disqualification or
removal, shall serve until the next succeeding annual meeting of the Board of Directors and
thereafter until his successor shall have been appointed.
Section 16.
Emeritus Directors.
Effective January 28, 2010, no additional
directors shall be appointed as members of the Emeritus Board of Directors of the corporation.
Members of the Emeritus Board of Directors of the corporation who are serving as such on January
28, 2010 shall continue to be appointed annually by the Chairman of the Board of Directors of the
corporation at the Annual Meeting of the Board of Directors of the corporation, or from time to
time thereafter. Each member of the Emeritus Board of Directors of the corporation, except in the
case of his earlier death, resignation, retirement, disqualification or removal, shall serve until
the next succeeding Annual Meeting of the Board of Directors of the corporation. Any individual
appointed as a member of the Emeritus Board of Directors of the corporation may, but shall not be
required to, attend meetings of the Board of Directors of the corporation and may participate in
any discussions thereat, but such individual may not vote at any meeting of the Board of Directors
of the corporation or be counted in determining a quorum at any meeting of the Board of Directors
of the corporation, as provided in Section 5 of Article III of the bylaws of the corporation. It
shall be the duty of the members of the Emeritus Board of Directors of the corporation to serve as
goodwill ambassadors of the corporation, but such individuals shall not have any responsibility or
be subject to any liability imposed upon a member of the Board of Directors of the corporation or
in any manner otherwise be deemed to be a member of the Board of Directors of the corporation. Each
member of the Emeritus Board of Directors of the corporation shall be paid such compensation as may
be set from time to time by the Chairman of the Board of Directors of the corporation and shall
remain eligible to participate in any Director Stock Purchase Plan maintained by, or participated
in, from time to time by the corporation according to the terms and conditions thereof.
11
ARTICLE IV. OFFICERS
Section 1.
Selection.
The Board of Directors at each annual meeting shall elect or
appoint a Chief Executive Officer, a President, a Secretary and a Treasurer, each to serve for the
ensuing year and until his successor is elected and qualified, or until his earlier resignation,
removal from office, or death. The Board of Directors, at such meeting, may or may not, in the
discretion of the Board, elect a Chairman of the Board, one or more Vice Chairmen of the Board, a
Chief Operating Officer, one or more Vice Chairmen of the corporation, one or more Chairmen of the
Board-Emeritus and/or one or more Vice Presidents and, also may elect or appoint one or more
Assistant Vice Presidents and/or one or more Assistant Secretaries and/or one or more Assistant
Treasurers. When more than one Vice President is elected, they may, in the discretion of the Board,
be designated Executive Vice President, First Vice President, Second Vice President, etc.,
according to seniority or rank, and any person may hold two or more offices, except that neither
the Chief Executive Officer nor President shall also serve as the Secretary.
Section 2.
Removal, Vacancies.
Any officers of the corporation may be removed from
office at any time by the Board of Directors, with or without cause. Any vacancy occurring in any
office of the corporation may be filled by the Board of Directors.
Section 3.
Chief Executive Officer.
The Chief Executive Officer shall, under the
direction of the Board of Directors, have responsibility for the general direction of the
corporation’s business, policies and affairs. The Chief Executive Officer shall have such other
authority and perform such other duties as usually appertain to the chief executive office in
business corporations or as are provided by the Board of Directors.
Section 4.
President.
The President shall, under the direction of the Chief
Executive Officer, have direct superintendence of the corporation’s business, policies, properties
and affairs. The President shall have such further powers and duties as from time to time may be
conferred upon or assigned to such officer by the Board of Directors, the Chairman of the Board or
the Chief Executive Officer.
Section 5.
Vice Presidents.
The Executive Vice Presidents, if any, and Vice
Presidents shall have such powers and duties as from time to time may be conferred upon or assigned
to them by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the
President. An Executive Vice President or other officer may be responsible for the assignment of
duties to subordinate Vice Presidents.
Section 6.
Secretary.
It shall be the duty of the Secretary to keep a record of
the proceedings of all meetings of the shareholders and Board of Directors; to keep the stock
records of the corporation; to notify the shareholders and Directors of meetings as provided by
these bylaws; and to perform such other duties as may be prescribed by the Chairman of the Board,
Chief Executive Officer, President or Board of Directors. Any Assistant Secretary, if elected,
shall perform the duties of the Secretary during the absence or disability of the Secretary and
shall perform such other duties as may be prescribed by the Chairman of the Board, Chief Executive
Officer, President, Secretary or Board of Directors.
Section 7.
Treasurer.
The Treasurer shall keep, or cause to be kept, the financial
books and records of the corporation, and shall faithfully account for its funds. He shall make
such
12
reports as may be necessary to keep the Chairman of the Board, the Chief Executive Officer,
the President and Board of Directors fully informed at all times as to the financial condition of
the corporation, and shall perform such other duties as may be prescribed by the Chairman of the
Board, the Chief Executive Officer, President or Board of Directors. Any Assistant Treasurer, if
elected, shall perform the duties of the Treasurer during the absence or disability of the
Treasurer, and shall perform such other duties as may be prescribed by the Chairman of the Board,
Chief Executive Officer, President, Treasurer or Board of Directors.
ARTICLE V. CONTRACTS, ETC.
Section 1.
Contracts, Deeds and Loans.
All contracts, deeds, mortgages, pledges,
promissory notes, transfers and other written instruments binding upon the corporation shall be
executed on behalf of the corporation by the Chairman of the Board, if elected, Chief Executive
Officer, the President, or by such other officers or agents as the Board of Directors may designate
from time to time. Any such instrument required to be given under the seal of the corporation may
be attested by the Secretary or Assistant Secretary of the corporation.
Section 2.
Proxies.
The Chairman of the Board, Chief Executive Officer, any Vice
Chairman of the Board, any Vice Chairman of the corporation, the President, any Executive Vice
President, Secretary or Treasurer of the corporation shall have full power and authority, on behalf
of the corporation, to attend and to act and to vote at any meetings of the shareholders, bond
holders or other security holders of any corporation, trust or association in which the corporation
may hold securities, and at and in connection with any such meeting shall possess and may exercise
any and all of the rights and powers incident to the ownership of such securities and which as
owner thereof the corporation might have possessed and exercised if present, including the power to
execute proxies and written waivers and consents in relation thereto. In the case of conflicting
representation at any such meeting, the corporation shall be represented by its highest ranking
officer, in the order first above stated. Notwithstanding the foregoing, the Board of Directors
may, by resolution, from time to time, confer like powers upon any other person or persons.
ARTICLE VI. CHECKS AND DRAFTS
Checks and drafts of the corporation shall be signed by such officer or officers or such other
employees or persons as the Board of Directors may from time to time designate.
ARTICLE VII. STOCK
Section 1.
Certificates of Stock.
Shares of capital stock of the corporation shall
be issued in certificate or book-entry form. Certificates shall be numbered consecutively and
entered into the stock book of the corporation as they are issued. Each certificate shall state on
its face the fact that the corporation is a Georgia corporation, the name of the person to whom the
shares are issued, the number and class of shares (and series, if any) represented by the
certificate and their par value, or a statement that they are without par
13
value. In addition, when and if more than one class of shares shall be outstanding, all share
certificates of whatever class shall state that the corporation will furnish to any shareholder
upon request and without charge a full statement of the designations, relative rights, preferences
and limitations of the shares of each class authorized to be issued by the corporation.
Section 2.
Signature; Transfer Agent; Registrar.
Share certificates shall be
signed by the President or Vice President and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the corporation, and shall bear the seal of the corporation
or a facsimile thereof. The Board of Directors may from time to time appoint transfer agents and
registrars for the shares of capital stock of the corporation or any class thereof, and when any
share certificate is countersigned by a transfer agent or registered by a registrar, the signature
of any officer of the corporation appearing thereon may be a facsimile signature. In case any
officer who signed, or whose facsimile signature was placed upon, any such certificate shall have
died or ceased to be such officer before such certificate is issued, it may nevertheless be issued
with the same effect as if he continued to be such officer on the date of issue.
Section 3.
Stock Book.
The corporation shall keep at its principal office, or at
the office of its transfer agent, wherever located, with a copy at the principal office of the
corporation, a book, to be known as the stock book of the corporation, containing in alphabetical
order the name of each shareholder of record, together with his address, the number of shares of
each kind, class or series of stock held by him and his social security number. The stock book
shall be maintained in current condition. The stock book, including the share register, or the
duplicate copy thereof maintained at the principal office of the corporation, shall be available
for inspection by any shareholder at any meeting of the shareholders upon request and shall also be
made available for inspection and copying upon the request of any shareholder owning in excess of
2% of the corporation’s common stock, which request must be made in accordance with the provisions
of Section 14-2-1602 of the Official Code of Georgia Annotated, as amended. The information
contained in the stock book and share register may be stored on punch cards, magnetic tape, or any
other approved information storage devices related to electronic data processing equipment,
provided that any such method, device, or system employed shall first be approved by the Board of
Directors, and provided further that the same is capable of reproducing all information contained
therein, in legible and understandable form, for inspection by shareholders or for any other proper
corporate purpose.
Section 4.
Transfer of Stock; Registration of Transfer.
The stock of the
corporation shall be transferred only by surrender of the certificate and transfer upon the stock
book of the corporation. Upon surrender to the corporation, or to any transfer agent or registrar
for the class of shares represented by the certificate surrendered, of a certificate properly
endorsed for transfer, accompanied by such assurances as the corporation, or such transfer agent or
registrar, may require as to the genuineness and effectiveness of each necessary endorsement and
satisfactory evidence of compliance with all applicable laws relating to securities transfers and
the collection of taxes, it shall be the duty of the corporation, or such transfer agent or
registrar, to issue a new certificate, cancel the old certificate and record the transactions upon
the stock book of the corporation.
14
Section 5.
Registered Shareholders.
Except as otherwise required by law, the
corporation shall be entitled to treat the person registered on its stock book as the owner of the
shares of the capital stock of the corporation as the person exclusively entitled to receive
notification, dividends or other distributions, to vote and to otherwise exercise all the rights
and powers of ownership and shall not be bound to recognize any adverse claim.
Section 6.
Record Date.
For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express
consent to or dissent from any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action affecting the interests of shareholders, the Board of Directors may
fix, in advance, a record date. Such date shall not be more than seventy (70) nor less than ten
(10) days before the date of any such meeting nor more than seventy (70) days prior to any other
action. In each case, except as otherwise provided by law, only such persons as shall be
shareholders of record on the date so fixed shall be entitled to notice of and to vote at such
meeting and any adjournment thereof, to express such consent or dissent, or to receive payment of
such dividend or such allotment of rights, or otherwise be recognized as shareholders for any other
related purpose, notwithstanding any registration of a transfer of shares on the stock book of the
corporation after any such record date so fixed.
Section 7.
Lost Certificates.
When a person to whom a certificate of stock has
been issued alleges it to have been lost, destroyed or wrongfully taken, and if the corporation,
transfer agent or registrar is not on notice that such certificate has been acquired by a bona fide
purchaser, a new certificate may be issued upon such owner’s compliance with all of the following
conditions, to-wit: (a) He shall file with the Secretary of the corporation, and the transfer agent
or the registrar, his request for the issuance of a new certificate, with an affidavit setting
forth the time, place and circumstances of the loss; (b) He shall also file with the Secretary, and
the transfer agent or the registrar, a bond with good and sufficient security acceptable to the
corporation and the transfer agent or the registrar, or other agreement of indemnity acceptable to
the corporation and the transfer agent or the registrar, conditioned to indemnify and save harmless
the corporation and the transfer agent or the registrar from any and all damage, liability and
expense of every nature whatsoever resulting from the corporation’s or the transfer agent’s or the
registrar’s issuing a new certificate in place of the one alleged to have been lost; and (c) He
shall comply with such other reasonable requirements as the Chief Executive Officer, the President
or the Board of Directors of the corporation, and the transfer agent or the registrar shall deem
appropriate under the circumstances.
Section 8
.
Replacement of Mutilated Certificates
. A new certificate may be issued
in lieu of any certificate previously issued that may be defaced or mutilated upon surrender for
cancellation of a part of the old certificate sufficient in the opinion of the Secretary and the
transfer agent or the registrar to duly identify the defaced or mutilated certificate and to
protect the corporation and the transfer agent or the registrar against loss or liability. Where
sufficient identification is lacking, a new certificate may be issued upon compliance with the
conditions set forth in Section 7 of this Article VII.
15
ARTICLE VIII. INDEMNIFICATION AND REIMBURSEMENT
Subject to any express limitations imposed by applicable law, every person now or hereafter
serving as a director, officer, employee or agent of the corporation and all former directors and
officers, employees or agents shall be indemnified and held harmless by the corporation from and
against the obligation to pay a judgement, settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan), and reasonable expenses (including attorneys’
fees and disbursements) that may be imposed upon or incurred by him or her in connection with or
resulting from any threatened, pending, or completed, action, suit, or proceeding, whether civil,
criminal, administrative, investigative, formal or informal, in which he or she is, or is
threatened to be made, a named defendant or respondent: (a) because he or she is or was a director,
officer, employee, or agent of the corporation; (b) because he or she 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, employee benefit plan or other enterprise; or (c)
because he or she is or was serving as an employee of the corporation who was employed to render
professional services as a lawyer or an accountant to the corporation; regardless of whether such
person is acting in such a capacity at the time such obligation shall have been imposed or
incurred, if (i) such person acted in a manner he or she believed in good faith to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal proceeding, if
such person had no reasonable cause to believe his or her conduct was unlawful or (ii), with
respect to an employee benefit plan, such person believed in good faith that his or her conduct was
in the interests of the participants in and beneficiaries of the plan.
Reasonable expenses incurred in any proceeding shall be paid by the corporation in advance of
the final disposition of such proceeding if authorized by the Board of Directors in the specific
case, or if authorized in accordance with procedures adopted by the Board of Directors, upon
receipt of a written undertaking executed personally by or on behalf of the director, officer,
employee, or agent to repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation, and a written affirmation of his or her good faith
belief that he or she has met the standard of conduct required for indemnification.
The foregoing rights of indemnification and advancement of expenses shall not be deemed
exclusive of any other right to which those indemnified may be entitled, and the corporation may
provide additional indemnity and rights to its directors, officers, employees or agents to the
extent they are consistent with law.
The provisions of this Article VIII shall cover proceedings whether now pending or hereafter
commenced and shall be retroactive to cover acts or omissions or alleged acts or omissions which
heretofore have taken place. In the event of death of any person having a right of indemnification
or advancement of expenses under the provisions of this Article VIII, such right shall inure to the
benefit of his or her heirs, executors, administrators and personal representatives. If any part
of this Article VIII should be found to be invalid or
16
ineffective in any proceeding, the validity and effect of the remaining provisions shall not
be affected.
ARTICLE IX.
MERGERS, CONSOLIDATIONS AND OTHER DISPOSITIONS OF ASSETS
The affirmative vote of the shareholders of the corporation representing at least 66 2/3% of
the votes entitled to be cast by the holders of all of the issued and outstanding shares of common
stock of the corporation shall be required to approve any merger or consolidation of the
corporation with or into any corporation, and the sale, lease, exchange or other disposition of
all, or substantially all, of the assets of the corporation to or with any other corporation,
person or entity, with respect to which the approval of the corporation’s shareholders is required
by the provisions of the corporate laws of the State of Georgia. This Article shall not be altered,
deleted or rescinded except upon the affirmative vote of the shareholders representing at least 66
2/3% of the votes entitled to be cast by the holders of all of the issued and outstanding shares of
common stock of the corporation.
ARTICLE X.
CRITERIA FOR CONSIDERATION OF TENDER OR OTHER OFFERS
Section 1.
Factors to Consider.
The Board of Directors of the corporation may, if
it deems it advisable, oppose a tender or other offer for the corporation’s securities, whether the
offer is in cash or in the securities of a corporation or otherwise. When considering whether to
oppose an offer, the Board of Directors may, but is not legally obligated to, consider any
pertinent issues; by way of illustration, but not of limitation, the Board of Directors may, but
shall not be legally obligated to, consider any or all of the following:
(i) whether the offer price is acceptable based on the historical and present
operating results or financial condition of the corporation;
(ii) whether a more favorable price could be obtained for the corporation’s
securities in the future;
(iii) the impact which an acquisition of the corporation would have on the
employees, depositors and customers of the corporation and its subsidiaries and the
communities which they serve;
(iv) the reputation and business practices of the offeror and its management and
affiliates as they would affect the employees, depositors and customers of the
corporation and its subsidiaries and the future value of the corporation’s stock;
(v) the value of the securities, if any, that the offeror is offering in exchange
for the corporation’s securities, based on an analysis of the worth of the
corporation as compared to the offeror or any other entity whose securities are
being offered; and
17
(vi) any antitrust or other legal or regulatory issues that are raised by the offer.
Section 2.
Appropriate Actions.
If the Board of Directors determines that an
offer should be rejected, it may take any lawful action to accomplish its purpose including, but
not limited to, any or all of the following: (i) advising shareholders not to accept the offer;
(ii) litigation against the offeror; (iii) filing complaints with governmental and regulatory
authorities; (iv) acquiring the corporation’s securities; (v) selling or otherwise issuing
authorized but unissued securities of the corporation or treasury stock or granting options or
rights with respect thereto; (vi) acquiring a company to create an antitrust or other regulatory
problem for the offeror; and (vii) soliciting a more favorable offer from another individual or
entity.
ARTICLE XI. AMENDMENT
Except as otherwise specifically provided herein, the bylaws of the corporation may be
altered, amended or added to by the affirmative vote of the shareholders of the corporation
representing 66 2/3% of the votes entitled to be cast by the holders of all of the issued and
outstanding shares of common stock of the corporation present and voting therefor at a
shareholders’ meeting or, subject to such limitations as the shareholders may from time to time
prescribe, by a majority vote of all the Directors then holding office at any meeting of the Board
of Directors.
18
EXHIBIT 10.1
FORM OF TARP RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (“Agreement”) is made effective as of the grant date set
forth below by and between SYNOVUS FINANCIAL CORP., a Georgia corporation (the “Corporation”), and
(“Executive”).
WHEREAS, Executive has been awarded Restricted Stock Units (“RSUs”) under the Corporation’s
2007 Omnibus Plan (“Plan”).
NOW, THEREFORE, in accordance with the provisions of the Plan and this Agreement, Executive
hereby agrees to the following terms and conditions:
Executive is hereby granted RSUs as follows:
Date of Grant:
, 200___
Vesting Period: Please refer to Section 2 of this Agreement
Total Number of RSUs:
(a)
Vesting Conditions
. The RSUs will be subject to three separate vesting
requirements: the service-based vesting requirement set forth in paragraph (b) below (the
“Service Requirement”), the performance-based vesting requirement set forth in paragraph (c)
below (the “Performance Requirement”), and the requirement that the Corporation repay all or
a portion of its obligations under the U.S. Treasury Department’s Capital Purchase Program
under the Troubled Asset Relief Program (“TARP”) as set forth in paragraph (d) below (the
“TARP Requirement”). All three vesting requirements — the Service Requirement, the
Performance Requirement and the TARP Requirement — must be satisfied as described below in
order for the RSUs to vest.
(b)
Service Based Requirement
. If Executive remains in the continuous employ of the
Corporation or a Subsidiary of the Corporation through the date(s) indicated in Column I
below, the RSUs will become non-forfeitable (i.e., “vest”) to the extent indicated in Column
II below:
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(I)
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(II)
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If employment
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the % of the RSUs
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continues through
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then
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which vest is
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, 200___
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100%
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[or]
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, 200___
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___%
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[or]
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, 200___
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___%
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[or]
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, 200___
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___%
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[or]
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, 200___
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___%
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[or]
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, 200___
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___%
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Such vesting will occur (to the extent indicated in Column (II) above) at the close of
business on the applicable date(s) indicated in Column (I) above. Any RSUs for which the
Service Requirement is not satisfied on the date of Executive’s termination of employment
for any reason other than death or disability will be forfeited to the Corporation.
(c)
Performance Requirement
. In order for the RSUs to vest, the Corporation must
have a positive net income for two consecutive quarters as determined under generally
accepted accounting principles. Any RSUs for which the Performance Requirement is not
satisfied on the date of Executive’s termination of employment for any reason other than
death or disability will be forfeited to the Corporation.
(d)
TARP Requirement
. If the Corporation has not repaid its obligations under the
TARP, then the RSUs will not vest or otherwise become transferable until such TARP repayment
(except as necessary to reflect a merger or acquisition of the Company), except that: (i)
25% of the RSUs granted will vest at the time of repayment of 25% of the aggregate
obligations of the Corporation under TARP; (ii) an additional 25% of the RSUs granted (for
an aggregate total of 50% of the shares of RSUs granted) will vest at the time of repayment
of 50% of the aggregate obligations of the Corporation under TARP; (iii) an additional 25%
of the shares of RSUs granted (for an aggregate total of 75% of the shares of RSUs granted)
will vest at the time of repayment of 75% of the aggregate obligations of the Corporation
under TARP; and (iv) the remainder of the shares of RSUs granted will vest at the time of
repayment of 100% of the aggregate obligations of the Corporation under TARP. In
calculating such percentages, any portion of the RSUs transferred or sold to pay taxes shall
not count toward the percentages above.
(e)
Change of Control
. Notwithstanding the preceding provisions, the Service
Requirement and the Performance Requirement shall be deemed satisfied in the event of a
change of control event of the Corporation as defined in 26 CFR 1.280G-1, Q&A-27 through
Q&A-29, or as defined in 26 CFR 1.409A-3(i)(5)(i).
(f)
Termination of Employment
. In the event of Executive’s termination of
employment for any reason (other than death or disability) after the Service Requirement
2
and
the Performance Requirement have been satisfied, the RSUs will not be forfeited to the
Corporation and Executive (or Executive’s estate) will vest in such RSUs upon the
satisfaction of the TARP Requirement, regardless of Executive’s employment status. In the
event of an Executive’s death or disability, the Service Requirement and the Performance
Requirement shall be automatically satisfied and Executive (or Executive’s estate) will vest
in such RSUs upon the satisfaction of the TARP Requirement, regardless of Executive’s
employment status.
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3.
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Conversion of RSUs and Issuance of Shares
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Upon vesting of the RSUs, one share of the Corporation’s Common Stock shall be issued for
each RSU that vests on such vesting date, subject to the terms and conditions of this
Agreement and the Plan.
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4.
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Transfer of RSUs
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Unless otherwise permitted by the Committee, the RSUs may not be sold, transferred, pledged,
assigned or otherwise alienated or hypothecated, other than pursuant to a will or the laws
of descent and distribution. Any attempted disposition in violation of this Agreement and
the Plan shall be void.
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5.
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Status of Executive
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The Executive shall not be, or have rights as, a stockholder of the Corporation with respect
to any of the shares of Common Stock subject to the RSUs unless such RSUs have vested, and
shares underlying the RSUs have been issued and delivered to him or her. The Corporation
shall not be required to issue or transfer any certificates for shares of Common Stock upon
vesting of the RSUs until all applicable requirements of law have been complied with and
such shares have been duly listed on any securities exchange on which the Common Stock may
then be listed.
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6.
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Dividend Equivalents
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The RSUs will be credited with dividend equivalents equal to amount of cash dividend
payments that would have otherwise been paid if the shares of the Corporation’s Common Stock
represented by the RSUs (including deemed reinvested additional shares attributable to the
RSUs pursuant to this paragraph) were actually outstanding. These dividend equivalents will
be deemed to be reinvested in additional shares of the Corporation’s Common Stock determined
by dividing the deemed cash dividend amount by the Fair Market Value (as defined in the
Plan) of a share of the Corporation’s Common Stock on the applicable dividend payment date.
Such credited amounts will be added to the RSUs and will vest or be forfeited in accordance
with Section 2 based on the vesting or forfeiture of the initial RSUs to which they are
attributable. In addition, the RSUs will be credited with any dividends or distributions
that are paid in shares of the Corporation’s Common Stock represented by the RSUs and will
otherwise be adjusted by the Committee for other capital or corporate events as provided for
in the Plan.
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3
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7.
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Recoupment of RSUs or Other Awards Paid or Vested Based Upon Misstated Financials or
Other Performance Metric
.
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During any year in which any obligation arising from financial assistance received under
TARP is outstanding within the meaning of Treasury Regulations 31 CFR Part 30, “TARP
Standards for Compensation and Corporate Governance,” the Corporation shall not pay or allow
to vest, or if paid or vested shall recover from Executive any RSUs or other Plan awards
paid or vested to Executive, if such payment or vesting was based on a materially
inaccurate financial statements (which shall include but shall not be limited to statements
of earnings, revenues, or gains) or any other materially inaccurate performance metric or
criteria. The Committee shall base its determination as to whether a financial statement or
performance metric criteria is materially inaccurate on all the facts and circumstances, but
a financial statement or performance metric criteria shall be deemed to be materially
inaccurate with respect to Executive if Executive knowingly engaged in providing inaccurate
information (including knowingly failing to timely correct inaccurate information) relating
to those financial statements or performance metrics. The Corporation shall exercise its
rights under this Agreement to recover such awards or payments except to the extent that it
is unreasonable to do so. Executive agrees that, during any year in which any obligation
arising from financial assistance received under TARP is outstanding, if the RSUs or other
Plan awards paid or vested to Executive are based on materially inaccurate financial
statements (which shall include but not be limited to statements of earnings, revenues, or
gains) or any other materially inaccurate performance metric criteria, Executive will
promptly repay such award or payment to the Corporation upon request by the Corporation.
Executive hereby expressly authorizes the Corporation to deduct such amounts from any other
amount the Corporation may owe to Executive.
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(a)
Administration, Interpretation and Construction
. The terms and conditions set
forth in this Agreement will be administered, interpreted and construed by the Compensation
Committee, whose decisions will be final, conclusive and binding on the Corporation, on
Executive and on anyone claiming under or through the Corporation or Executive. Without
limiting the generality of the foregoing, any determination as to whether an event has
occurred or failed to occur which causes the RSUs to be forfeited pursuant to the terms and
conditions set forth in this Agreement, will be made in the good faith but absolute
discretion of the Compensation Committee. By accepting the transfer of RSUs, Executive
irrevocably consents and agrees to the terms and conditions set forth in this Agreement and
to all actions, decisions and determinations to be taken or made by the Compensation
Committee in good faith pursuant to the terms and conditions set forth in this Agreement.
(b)
Withholding
. The Corporation will have the right to withhold from any payments
to be made to Executive (whether under this Agreement or otherwise) any taxes the
Corporation determines it is required to withhold with respect to Executive under the laws
and regulations of any governmental authority, whether Federal, state or local and whether
domestic or foreign, in connection with this Agreement, including, without limitation, taxes
in connection with the transfer of RSUs or the lapse of restrictions on RSUs. Failure to
submit any such withholding taxes shall be deemed to cause otherwise lapsed restrictions on
RSUs not to lapse.
(c)
Rights Not Assignable or Transferable
. No rights under this Agreement will be
assignable or transferable other than by will or the laws of descent and distribution,
either voluntarily, or, to the full extent permitted by law, involuntarily, by way of
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encumbrance, pledge, attachment, levy or charge of any nature except as otherwise provided
in this Agreement. Executive’s rights under this Agreement will be exercisable during
Executive’s lifetime only by Executive or by Executive’s guardian or legal representative.
(d)
Terms and Conditions Binding
. The terms and conditions set forth in the Plan
and in this Agreement will be binding upon and inure to the benefit of the Corporation, its
successors and assigns, including any assignee of the Corporation and any successor to the
Corporation by merger, consolidation or otherwise, and Executive, Executive’s heirs,
devisees and legal representatives. In addition, the terms and conditions set forth in the
Plan and in this Agreement will be binding upon and inure to the benefit of Mellon and its
successors and assigns.
(e)
No Employment Rights
. No provision of this Agreement or the Plan will be deemed
to confer upon Executive any right to continue in the employ of the Corporation or a
Subsidiary or will in any way affect the right of the Corporation or a Subsidiary to dismiss
or otherwise terminate Executive’s employment at any time for any reason with or without
cause, or will be construed to impose upon the Corporation or a Subsidiary any liability for
any forfeiture of RSUs which may result under this Agreement if Executive’s employment is so
terminated.
(f)
No Liability for Good Faith Business Acts or Omissions
. Executive recognizes
and agrees that the Compensation Committee, the Board, or the officers, agents or employees
of the Corporation and its Subsidiaries, in their oversight or conduct of the business and
affairs of the Corporation and its Subsidiaries, may in good faith cause the Corporation or
a Subsidiary to act, or to omit to act, in a manner that may, directly or indirectly,
prevent the RSUs from vesting. No provision of this Agreement will be interpreted or
construed to impose any liability upon the Corporation, a Subsidiary, the Compensation
Committee, Board or any officer, agent or employee of the Corporation or a Subsidiary, for
any forfeiture of RSUs that may result, directly or indirectly, from any such action or
omission.
(g)
Recapitalization
. In the event that Executive receives, with respect to RSUs,
any securities or other property (other than cash dividends) as a result of any stock
dividend or split, spin-off, recapitalization, merger, consolidation, combination or
exchange of shares or a similar corporate change, any such securities or other property
received by Executive will likewise be held by Mellon and be subject to the terms and
conditions set forth in this Agreement and will be included in the term “RSUs.”
(h)
Appointment of Agent
. By accepting the transfer of RSUs, Executive irrevocably
nominates, constitutes, and appoints Mellon as Executive’s agent for purposes of
surrendering or transferring the RSUs to the Corporation upon any forfeiture required or
authorized by this Agreement. This power is intended as a power coupled with an interest
and will survive Executive’s death. In addition, it is intended as a durable power and will
survive Executive’s disability.
(i)
Legal Representative
. In the event of Executive’s death or a judicial
determination of Executive’s incompetence, reference in this Agreement to Executive shall be
deemed, where appropriate, to Executive’s heirs or devises.
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(j)
Titles
. The titles to sections or paragraphs of this Agreement are intended
solely for convenience and no provision of this Agreement is to be construed by reference to
the title of any section or paragraph.
(k)
Plan Governs
. The RSUs are being transferred to Executive pursuant to and
subject to the Plan, a copy of which is available upon request to the Corporate Secretary of
the Corporation. The provisions of the Plan are incorporated herein by this reference, and
all capitalized terms in this Agreement shall have the same meanings given to such terms in
the Plan. The terms and conditions set forth in this Agreement will be administered,
interpreted and construed in accordance with the Plan, and any such term or condition which
cannot be so administered, interpreted or construed will to that extent be disregarded.
(l)
Complete Agreement
. This instrument contains the entire agreement of the
parties relating to the subject matter of this Agreement and supersedes and replaces all
prior agreements and understandings with respect to such subject matter. The parties hereto
have made no agreements, representations or warranties relating to the subject matter of
this Agreement which are not set forth herein or incorporated by reference.
(m)
Amendment; Modification; Wavier
. No provision set forth in this Agreement may
be amended, modified or waived unless such amendment, modification or waiver shall be
authorized by the Compensation Committee and shall be agreed to in writing, signed by
Executive and by an officer of the Corporation duly authorized to do so; provided, however,
that Executive expressly agrees that, notwithstanding anything in this Agreement to the
contrary, the Corporation may unilaterally amend or modify this Agreement if required for
Company to comply with its obligations under TARP, whether currently existing, or
hereinafter enacted or promulgated, to the extent they affect this Agreement. No waiver by
either party hereto of any breach by the other party of any condition or provision set forth
in this Agreement to be performed by such other party will be deemed a waiver of a
subsequent breach of such condition or provision, or will be deemed a waiver of a similar or
dissimilar provision or condition at the same time or at any prior or subsequent time.
(n)
Governing Law
. The validity, interpretation, performance and enforcement of the
terms and conditions set forth in this Agreement will be governed by the laws of the State
of Georgia, the state in which the Corporation is incorporated, without giving effect to the
principles of conflicts of law of that state.
The Corporation has issued the RSUs in accordance with the foregoing terms and conditions and
in accordance with the provisions of the Plan. By signing below, Executive hereby agrees to the
foregoing terms and conditions of the RSUs.
IN WITNESS WHEREOF, Executive has set Executive’s hand and seal, effective as of the date and
year set forth above.
(L.S.)
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