**EXHIBIT3.1**

** **

**CHARTER**

** **

**OF**

** **

**TENNESSEE COMMERCEBANCORP, INC.**

** **

The undersigned person, having capacity tocontract and act as the Incorporator of a corporation under the TennesseeBusiness Corporation Act, adopts the following Charter for such Corporation:

 

1.             Name.The name of the Corporation is:

 

TENNESSEECOMMERCE BANCORP, INC.

 

2.             Stock.The maximum number of shares which the Corporation shall have authority toissue is five million (5,000,000) shares of voting common stock having $1.00par value, that have unlimited voting rights and that are entitled to receivethe net assets of the corporation upon dissolution. There shall be nopreemptive rights for holders of common stock.

 

The authorized amount of preferred stock of theCorporation shall be one million (1,000,000) shares, but said preferred stockmay be increased or decreased from time to time in accordance with theprovisions of the laws of Tennessee. Except as otherwise limited by law, theBoard of Directors shall be empowered to issue such stock in one or moreseries, and with such rights and preferences and upon such terms, includingconvertibility, as the Board shall determine.

 

3.             RegisteredAgent. The Corporation’s initial registered office is 381 MalloryStation Road, Suite 207, Franklin, Tennessee 37067, which is located inWilliamson County, and its initial registered agent at that office is Arthur F.Helf.

 

4.             Incorporator.The Incorporator of the Corporation is:

 
| Steven J. Eisen   1700 Nashville City Center   511 Union Street   Nashville, Tennessee 37219 |
|----------------------------------------------------------------------------------------------|

 

5.             PrincipalOffice. The principal office of the Corporation is:

 
| 381 Mallory Station  Road, Suite 207   Franklin, Tennessee 37067 |
|-----------------------------------------------------------------------|

 

6.             Profit.The Corporation is for profit.

 

7.             Purpose.The purpose or purposes for which the Corporation is organized are:

 

To acquire by purchase, lease or otherwise, andto hold, operate, manage, develop, encumber and otherwise deal with any and allkinds of real and personal property and to engage in any business notprohibited by law under the laws of Tennessee; and to do any and all thingsnecessary or incidental in the operation of such business or businesses.

 

8.             Boardof Directors. The property, affairs and business of the corporation shallbe managed by a Board of Directors. The number of directors shall be asspecified in the Bylaws of the corporation. The Board of Directors may changethe number of authorized directors from time to time by amending the bylawspursuant to a resolution adopted by an 80% vote of the directors then inoffice. No decrease in the number of directors shall shorten the term of anyincumbent directors.

 

(a)           Noticeof Nominations. Directors shall be elected at the annual shareholders’meeting, and nominations for directors must be mailed to and received by thesecretary of the Corporation at the principal office of the Corporation notless than one hundred twenty (120) days prior to the meeting at which directorsare to be elected.

 

(b)           Classes.The Board of Directors shall be divided into three (3) classes, designatedClasses I, II and III, with each class to be as nearly equal in number aspossible. The first term of office of the directors in Class I shallexpire at the first annual shareholders’ meeting that takes place after theelection of the directors in Class I. The first term of office of thedirectors in Class II shall expire at the second annual shareholders’meeting that takes

 

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place after the electionof the directors in Class II. The first term of office of the directors inClass III shall expire at the third annual shareholders’ meeting thattakes place after the election of the directors in Class III. Subject tothe foregoing, at each annual shareholders’ meeting, the successors to theclass of directors whose term shall then expire shall be elected to hold officefor a term expiring at the third succeeding annual shareholders’ meeting anduntil their successors are elected and qualified. A director need not be ashareholder in order to be elected to the Board of Directors.

 

(c)           Removal.Any or all of the directors of the Corporation may be removed for cause by avote of a majority of the entire Board of Directors. “Cause” shall include, butnot be limited to, a director willfully or without reasonable cause beingabsent from any regular or special meeting for the purpose of obstructing orhindering the business of the Corporation, final conviction of a felony,declaration of unsound mind by court order, adjudication of bankruptcy orconduct otherwise prejudicial to the interest of the Corporation.

 

(d)           Vacancies.Newly created directorships resulting from an increase in the number ofauthorized directors and vacancies occurring in the Board of Directors for anyreason, including, without limitation, removal from office by vote of thedirectors as herein provided, shall be filled only by a vote of 80% of theentire Board of Directors. Any director so elected shall hold office until theannual meeting of shareholders at which the term of the class to which he hasbeen elected expires.

 

(e)           Amendmentof this Section. The provisions of this Article 8 may not berepealed or amended in any respect, nor may the number of directors beincreased by shareholders, unless such action is approved by the affirmativevote of the holders of not less than two-thirds of the outstanding votingshares of the Corporation, subject to the provisions of any series of preferredshares which may at the time be outstanding.

 

(f)            Powers.In furtherance and not in limitation of the powers conferred by the laws of theState of Tennessee, the Board of Directors is expressly authorized andempowered:

 

i)              Tomake, alter, amend and repeal the Bylaws, subject to the power of theshareholders to alter or repeal the Bylaws made by the Board of Directors;

 

ii)             Toauthorize and issue, without shareholder consent, obligations of theCorporation, secured and unsecured, under such terms and conditions as theBoard in its sole discretion may determine, and to pledge or mortgage assecurity therefor real or personal property of the Corporation, including afteracquired property;

 

iii)            Todetermine whether any and, if so, what part of the capital of the Corporationin compliance with applicable law shall be paid in dividends to theshareholders, and to direct and determine other use and disposition of any suchcapital;

 

iv)           Toestablish bonus, profit sharing, stock option, or other types of incentivecompensation plans for the employees, including officers and directors of theCorporation; to fix the amount of profits to be shared or distributed; and todetermine the persons who participate in any such plans and the amount of theirrespective participations;

 

v)            Todesignate by resolution or resolutions passed by a majority of the whole Boardone or more committees, each consisting of two (2) or more directors,which, to the extent permitted by law and authorized by the resolution or theBylaws, shall have and may exercise the powers of the Board;

 

vi)           Toelect such officers as the Board may deem necessary, who shall have suchauthority and perform such duties as may be prescribed from time to time by theBoard;

 

vii)          Toprovide for the reasonable compensation of its own members in the Bylaws and tofix the terms and conditions upon which such compensation will be paid;

 

viii)         Todeclare, in addition to the dividend declaration rights provided in theTennessee Business Corporation Act, a one-for-one stock dividend only toshareholders who beneficially own less than 20% of the outstanding votingshares of the Corporation;

 

ix)            Inaddition to the powers and authority hereinbefore or by statute expresslyconferred upon it, the Board of Directors may exercise all such powers and doall such acts and things as may be exercised or done by the Corporation,subject nevertheless to the provisions of the laws of the State of Tennessee, thisCharter, and the Bylaws of the Corporation.

 

9.             Amendmentof Quorum or Voting Requirement. The shareholders may adopt or amend abylaw that fixes a greater quorum or voting requirement for shareholders (orvoting groups of shareholders) than is required by law. Any vote byshareholders to

 

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approve a merger,consolidation, share exchange, or similar transaction which otherwise wouldrequire a majority vote of shareholders shall require a two-thirds vote ofshareholders. Amendment of this Article 9 also shall require atwo-thirds vote.

 

10.           Liability

 

(a)           Tothe fullest extent that the law of the State of Tennessee, as it exists on thedate hereof or as it may hereafter be amended, permits the limitation orelimination of the liability of directors, no director of the Corporation shallbe personally liable to the Corporation or its shareholders for monetarydamages for breach of fiduciary duty as a director.

 

(b)           TheCorporation shall have the power to indemnify any director, officer, employee,agent of the Corporation, or any other person who is serving at the request ofthe Corporation in any such capacity with another Corporation, partnership,joint venture, trust, or other enterprises to the fullest extent permitted bythe law of the State of Tennessee, as it exists on the date hereof or as it mayhereafter be amended, and any such indemnification may continue as to anyperson who has ceased to be a director, officer, employee, or agent and mayinure to the benefit of the heirs, executors, and administrators of such aperson.

 

(c)           Ifthe Tennessee Business Corporation Act is amended after approval of this Article toauthorize corporate action further eliminating or limiting the personalliability of directors, then the liability of a director of the Corporationshall be eliminated or limited to the fullest extent permitted by the TennesseeBusiness Corporation Act, as so amended.

 

11.           Powers.This Corporation shall have all the powers granted to corporations under theTennessee Business Corporation Act.

 

12.           Amendmentof Charter. Except as provided in Articles 8 and 9, the provisionsof this Charter may be amended, altered, or repealed from time to time to theextent, and in the manner prescribed by the laws of the State of Tennessee andthe provisions of this charter, and any additional provisions so authorized maybe added. All rights herein conferred on the directors, officers, andshareholders are granted subject to this reservation.

 

13.           FiscalYear. The Corporation’s fiscal year shall end on December 31 of eachyear until changed by the Board of Directors or Bylaws.

 

Dated: March 22, 2000

 
|                                          | /s/ Steven J. Eisen           |
|-----------------------------------------------|-------------------------------|
|                                          | Steven J. Eisen, Incorporator |
|                                          |                          |
| This Instrument  Prepared By:                 |
| Baker, Donelson,  Bearman & Caldwell |
| 1700 Nashville City  Center                   |
| 511 Union Street                              |
| Post Office Box 190613                        |
| Nashville, Tennessee  37219                   |
| (615) 726-5600                                |

 

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**ARTICLES OF AMENDMENT TOTHE CHARTER**

** **

**OF**

** **

**TENNESSEE COMMERCEBANCORP, INC.**

** **

Pursuant to the provisions of Sections 48-20-101and 48-20-102 of Tennessee Business Corporation Act, the undersignedcorporation adopts the following Articles of Amendment to its charter:

 

**The name of the corporation is TENNESSEE COMMERCEBANCORP, INC..**

 

**The text of each amendment adopted is: The firstparagraph of Article 2 of the charter is amended to read as follows:**

 

Stock.The maximum number of shares which the Corporation shall have authority toissue is five million (5,000,000) shares of voting common stock having $0.50par value, that have unlimited voting rights and that are entitled to receivethe net assets of the corporation upon dissolution. There shall be nopreemptive rights for holders of common stock.

 

**The corporation is a for-profit corporation.**

 

**The amendment was adopted on November 18,2003, by the board of directors without shareholder approval, as such is notrequired under Section 48-20-102(4) of the Tennessee BusinessCorporation Act.**

 

**The amendment will be effective on December 31,2003.**

 

Date: November 18, 2003

 
|   | **TENNESSEE COMMERCE BANCORP, INC.** |
|--------|--------------------------------------|
|   |                                 |   |
|   | By:                                  | /s/ H. Lamar Cox |
|   |                                 | H. Lamar Cox, C.P.A. |
|   | Title:                               | Secretary |

 

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**ARTICLES OF AMENDMENT TOTHE CHARTER**

** **

**OF**

** **

**TENNESSEE COMMERCEBANCORP, INC.**

** **

Pursuant to the provisions of Section 48-20-101and 48-20-102 of Tennessee Business Corporation Act, the undersignedcorporation adopts the following Articles of Amendment to its charter:

 

1.             Thename of the corporation is TENNESSEE COMMERCE BANCORP, INC.

 

2.             Thetext of each amendment adopted is: The first paragraph of Article 2 of thecharter is amended to read as follows:

 

Stock.The maximum number of shares which the Corporation shall have authority toissue is ten million (10,000,0000) shares of voting common stock having $0.50par value, that have unlimited voting rights and that are entitled to receivethe net assets of the corporation upon dissolution. There shall be nopreemptive rights for holders of common stock.

 

3.             Thecorporation is a for-profit corporation.

 

4.             Theamendment was adopted at a meeting of the directors on May 3, 2006, and ata meeting of the shareholders on May 3, 2006.

 

5.             Theamendment will become effective upon its filing with the Secretary of State.

 

Date: May 22, 2006
|   | **TENNESSEE COMMERCE BANCORP, INC.** |
|--------|--------------------------------------|
|   | ** **                           |
|   |                                 |   |
|   | By:                                  | /s/ H. Lamar Cox |
|   | Title:                               | Secretary |

 

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**ARTICLES OF AMENDMENT**

** **

**OF THE**

** **

**CHARTER, AS AMENDED,**

** **

**OF**

** **

**TENNESSEE COMMERCEBANCORP, INC.**

** **

Pursuant to the provisions of Section 48-16-102and 48-20-106 of the Tennessee Business Corporation Act, the undersignedcorporation adopts the following Articles of Amendment to its charter, asamended:

 

1.             Thename of the corporation (the “Corporation”) is TENNESSEE COMMERCEBANCORP, INC.

 

2.             TheCorporation’s charter, as amended, is hereby amended by the addition of a newsection 14 stating the number, designation, relative rights, preferences andlimitations of a new series of preferred stock as fixed by the board ofdirectors, which section shall read in its entirety as follows:

 

14.           FixedRate Cumulative Perpetual Preferred Stock, Series A.

 

(a)           Designationand Number of Shares. There is hereby created out of the authorized andunissued shares of preferred stock of the Corporation a series of preferredstock designated as the “Fixed Rate Cumulative Perpetual Preferred Stock, Series A”(the “Designated Preferred Stock”). The authorized number of shares ofDesignated Preferred Stock shall be 30,000 with a par value of $0.50 per share.

 

(b)           StandardProvisions. The Standard Provisions contained in Annex A attached heretoare incorporated herein by reference in their entirety and shall be deemed tobe a part of this Section 14 to the same extent as if such provisions hadbeen set forth in full herein.

 

(c)           Definitions.The following terms are used in this Section 14 (including the StandardProvisions in Annex A hereto) as defined below:

 

(i)            “CommonStock” means the common stock, par value $0.50 per share, of theCorporation.

 

(ii)           “DividendPayment Date” means February 15, May 15, August 15 and November 15of each year.

 

(iii)          “JuniorStock” means the Common Stock and any other class or series of stock of theCorporation the terms of which expressly provide that it ranks junior toDesignated Preferred Stock as to dividend rights and/or as to rights onliquidation, dissolution or winding up of the Corporation.

 

(iv)          “LiquidationAmount” means $1,000 per share of Designated Preferred Stock.

 

(v)           “MinimumAmount” means $7,500,000.

 

(vi)          “ParityStock” means any class or series of stock of the Corporation (other thanDesignated Preferred Stock) the terms of which do not expressly provide thatsuch class or series will rank senior or junior to Designated Preferred Stockas to dividend rights and/or as to rights on liquidation, dissolution orwinding up of the Corporation (in each case without regard to whether dividendsaccrue cumulatively or non-cumulatively).

 

(vii)         “SigningDate” means the Original Issue Date.

 

(d)           CertainVoting Matters. Holders of shares of Designated Preferred Stock will beentitled to one vote for each such share on any matter on which holders ofDesignated Preferred Stock are entitled to vote, including any action bywritten consent.

 

3.             TheseArticles of Amendment were duly adopted by the board of directors of theCorporation on December 16, 2008. Shareholder action was not required.

 

4.             Theforegoing amendment will become effective upon its filing with the TennesseeSecretary of State.

 

*[Remainder of Page Intentionally Left Blank]*

 

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IN WITNESS WHEREOF, Tennessee Commerce Bancorp, Inc.has caused these Articles of Amendment to be signed by Frank Perez, its ChiefFinancial Officer, this 17th day of December, 2008.

 
|   | **Tennessee Commerce Bancorp, Inc.** |
|--------|-------------------------------------------|
|   | ** **                                |
|   |                                      |   |
|   | By:                                       | /s/ Frank Perez |
|   |                                      |   |
|   | Name:                                     | Frank Perez |
|   |                                      |   |
|   | Title:                                    | Chief  Financial Officer |

 

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** **

**ANNEX A**

** **

**STANDARD PROVISIONS**

** **

Section 1.               GeneralMatters. Each share of Designated Preferred Stock shall be identical in allrespects to every other share of Designated Preferred Stock. The DesignatedPreferred Stock shall be perpetual, subject to the provisions of Section 5of these Standard Provisions that form a part of the Articles of Amendment. TheDesignated Preferred Stock shall rank equally with Parity Stock and shall ranksenior to Junior Stock with respect to the payment of dividends and the distributionof assets in the event of any dissolution, liquidation or winding up of theCorporation.

 

Section 2.               StandardDefinitions. As used herein with respect to Designated Preferred Stock:

 

(a)           “ApplicableDividend Rate” means (i) during the period from the Original IssueDate to, but excluding, the first day of the first Dividend Period commencingon or after the fifth anniversary of the Original Issue Date, 5% per annum and (ii) fromand after the first day of the first Dividend Period commencing on or after thefifth anniversary of the Original Issue Date, 9% per annum.

 

(b)           “AppropriateFederal Banking Agency” means the “appropriate Federal banking agency” withrespect to the Corporation as defined in Section 3(q) of the FederalDeposit Insurance Act (12 U.S.C. Section 1813(q)), or any successorprovision.

 

(c)           “Articlesof Amendment” means the Articles of Amendment or comparable instrumentrelating to the Designated Preferred Stock, of which these Standard Provisionsform a part, as it may be amended from time to time.

 

(d)           “BusinessCombination” means a merger, consolidation, statutory share exchange orsimilar transaction that requires the approval of the Corporation’sstockholders.

 

(e)           “BusinessDay” means any day except Saturday, Sunday and any day on which bankinginstitutions in the State of New York generally are authorized or required bylaw or other governmental actions to close.

 

(f)            “Bylaws”means the bylaws of the Corporation, as they may be amended from time to time.

 

(g)           “Charter”means the Corporation’s charter or similar organizational document.

 

(h)           “DividendPeriod” has the meaning set forth in Section 3(a).

 

(i)            “DividendRecord Date” has the meaning set forth in Section 3(a).

 

(j)            “LiquidationPreference” has the meaning set forth in Section 4(a).

 

(k)           “OriginalIssue Date” means the date on which shares of Designated Preferred Stockare first issued.

 

(l)            “PreferredDirector” has the meaning set forth in Section 7(b).

 

(m)          “PreferredStock” means any and all series of preferred stock of the Corporation,including the Designated Preferred Stock.

 

(n)           “QualifiedEquity Offering” means the sale and issuance for cash by the Corporation topersons other than the Corporation or any of its subsidiaries after theOriginal Issue Date of shares of perpetual Preferred Stock, Common Stock or anycombination of such stock, that, in each case, qualify as and may be includedin Tier 1 capital of the Corporation at the time of issuance under theapplicable risk-based capital guidelines of the Corporation’s AppropriateFederal Banking Agency (other than any such sales and issuances made pursuantto agreements or arrangements entered into, or pursuant to financing planswhich were publicly announced, on or prior to October 13, 2008).

 

(o)           “ShareDilution Amount” has the meaning set forth in Section 3(b).

 

(p)           “StandardProvisions” mean these Standard Provisions that form a part of the Articlesof Amendment relating to the Designated Preferred Stock.

 

(q)           “SuccessorPreferred Stock” has the meaning set forth in Section 5(a).

 

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(r)            “VotingParity Stock” means, with regard to any matter as to which the holders ofDesignated Preferred Stock are entitled to vote as specified in Sections 7(a) and7(b) of these Standard Provisions that form a part of the Articles ofAmendment, any and all series of Parity Stock upon which like voting rightshave been conferred and are exercisable with respect to such matter.

 

Section 3.               Dividends.

 

(a)           Rate.Holders of Designated Preferred Stock shall be entitled to receive, on eachshare of Designated Preferred Stock if, as and when declared by the board ofdirectors of the Corporation (the “Board of Directors”) or any duly authorizedcommittee of the Board of Directors, but only out of assets legally availabletherefor, cumulative cash dividends with respect to each Dividend Period (asdefined below) at a rate per annum equal to the Applicable Dividend Rate on (i) theLiquidation Amount per share of Designated Preferred Stock and (ii) theamount of accrued and unpaid dividends for any prior Dividend Period on suchshare of Designated Preferred Stock, if any. Such dividends shall begin toaccrue and be cumulative from the Original Issue Date, shall compound on eachsubsequent Dividend Payment Date (*i.e.*, nodividends shall accrue on other dividends unless and until the first DividendPayment Date for such other dividends has passed without such other dividendshaving been paid on such date) and shall be payable quarterly in arrears oneach Dividend Payment Date, commencing with the first such Dividend PaymentDate to occur at least 20 calendar days after the Original Issue Date. Inthe event that any Dividend Payment Date would otherwise fall on a day that isnot a Business Day, the dividend payment due on that date will be postponed tothe next day that is a Business Day and no additional dividends will accrue asa result of that postponement. The period from and including any DividendPayment Date to, but excluding, the next Dividend Payment Date is a “DividendPeriod”, provided that the initial Dividend Period shall be the period fromand including the Original Issue Date to, but excluding, the next DividendPayment Date.

 

Dividends that are payable on DesignatedPreferred Stock in respect of any Dividend Period shall be computed on thebasis of a 360-day year consisting of twelve 30-day months. The amount ofdividends payable on Designated Preferred Stock on any date prior to the end ofa Dividend Period, and for the initial Dividend Period, shall be computed onthe basis of a 360-day year consisting of twelve 30-day months, and actual dayselapsed over a 30-day month.

 

Dividends that are payable on DesignatedPreferred Stock on any Dividend Payment Date will be payable to holders ofrecord of Designated Preferred Stock as they appear on the stock register ofthe Corporation on the applicable record date, which shall be the 15th calendarday immediately preceding such Dividend Payment Date or such other record datefixed by the Board of Directors or any duly authorized committee of the Boardof Directors that is not more than 60 nor less than 10 days prior to suchDividend Payment Date (each, a “Dividend Record Date”). Any such daythat is a Dividend Record Date shall be a Dividend Record Date whether or notsuch day is a Business Day.

 

Holders of Designated Preferred Stock shall notbe entitled to any dividends, whether payable in cash, securities or otherproperty, other than dividends (if any) declared and payable on DesignatedPreferred Stock as specified in this Section 3 (subject to the otherprovisions of the Articles of Amendment).

 

(b)           Priorityof Dividends. So long as any share of Designated Preferred Stock remainsoutstanding, no dividend or distribution shall be declared or paid on theCommon Stock or any other shares of Junior Stock (other than dividends payablesolely in shares of Common Stock) or Parity Stock, subject to the immediatelyfollowing paragraph in the case of Parity Stock, and no Common Stock, JuniorStock or Parity Stock shall be, directly or indirectly, purchased, redeemed orotherwise acquired for consideration by the Corporation or any of itssubsidiaries unless all accrued and unpaid dividends for all past DividendPeriods, including the latest completed Dividend Period (including, ifapplicable as provided in Section 3(a) above, dividends on suchamount), on all outstanding shares of Designated Preferred Stock have been orare contemporaneously declared and paid in full (or have been declared and asum sufficient for the payment thereof has been set aside for the benefit ofthe holders of shares of Designated Preferred Stock on the applicable recorddate). The foregoing limitation shall not apply to (i) redemptions,purchases or other acquisitions of shares of Common Stock or other Junior Stockin connection with the administration of any employee benefit plan in theordinary course of business (including purchases to offset the Share DilutionAmount (as defined below) pursuant to a publicly announced repurchase plan) andconsistent with past practice, *provided* thatany purchases to offset the Share Dilution Amount shall in no event exceed theShare Dilution Amount; (ii) purchases or other acquisitions by abroker-dealer subsidiary of the Corporation solely for the purpose ofmarket-making, stabilization or customer facilitation transactions in JuniorStock or Parity Stock in the ordinary course of its business; (iii) purchasesby a broker-dealer subsidiary of the Corporation of capital stock of theCorporation for resale pursuant to an offering by the Corporation of suchcapital stock underwritten by such broker-dealer subsidiary; (iv) anydividends or distributions of rights or Junior Stock in connection with astockholders’ rights plan or any redemption or repurchase of rights pursuant toany stockholders’ rights plan; (v) the acquisition by the Corporation orany of its subsidiaries of record ownership in Junior Stock or Parity Stock forthe beneficial ownership of any other persons (other than the Corporation orany of its subsidiaries), including as trustees or custodians; and (vi) theexchange or conversion of Junior Stock for or into other Junior Stock or ofParity Stock for or into other Parity Stock (with the same or lesser aggregateliquidation amount) or Junior Stock, in each case, solely to the extent requiredpursuant to binding contractual agreements entered into prior to the SigningDate or any subsequent agreement for the accelerated exercise, settlement orexchange thereof for Common Stock. “Share Dilution Amount” means theincrease in the number 

 

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of diluted shares outstanding (determinedin accordance with generally accepted accounting principles in the UnitedStates, and as measured from the date of the Corporation’s consolidatedfinancial statements most recently filed with the Securities and ExchangeCommission prior to the Original Issue Date) resulting from the grant, vestingor exercise of equity-based compensation to employees and equitably adjustedfor any stock split, stock dividend, reverse stock split, reclassification orsimilar transaction.

 

When dividends are not paid (or declared and asum sufficient for payment thereof set aside for the benefit of the holdersthereof on the applicable record date) on any Dividend Payment Date (or, in thecase of Parity Stock having dividend payment dates different from the DividendPayment Dates, on a dividend payment date falling within a Dividend Periodrelated to such Dividend Payment Date) in full upon Designated Preferred Stockand any shares of Parity Stock, all dividends declared on Designated PreferredStock and all such Parity Stock and payable on such Dividend Payment Date (or,in the case of Parity Stock having dividend payment dates different from theDividend Payment Dates, on a dividend payment date falling within the DividendPeriod related to such Dividend Payment Date) shall be declared *pro rata* so that the respective amounts of such dividendsdeclared shall bear the same ratio to each other as all accrued and unpaiddividends per share on the shares of Designated Preferred Stock (including, ifapplicable as provided in Section 3(a) above, dividends on suchamount) and all Parity Stock payable on such Dividend Payment Date (or, in thecase of Parity Stock having dividend payment dates different from the DividendPayment Dates, on a dividend payment date falling within the Dividend Periodrelated to such Dividend Payment Date) (subject to their having been declaredby the Board of Directors or a duly authorized committee of the Board ofDirectors out of legally available funds and including, in the case of ParityStock that bears cumulative dividends, all accrued but unpaid dividends) bearto each other. If the Board of Directors or a duly authorized committee of theBoard of Directors determines not to pay any dividend or a full dividend on aDividend Payment Date, the Corporation will provide written notice to theholders of Designated Preferred Stock prior to such Dividend Payment Date.

 

Subject to the foregoing, and not otherwise,such dividends (payable in cash, securities or other property) as may bedetermined by the Board of Directors or any duly authorized committee of theBoard of Directors may be declared and paid on any securities, including CommonStock and other Junior Stock, from time to time out of any funds legally availablefor such payment, and holders of Designated Preferred Stock shall not beentitled to participate in any such dividends.

 

Section 4.               LiquidationRights.

 

(a)           Voluntaryor Involuntary Liquidation. In the event of any liquidation, dissolution orwinding up of the affairs of the Corporation, whether voluntary or involuntary,holders of Designated Preferred Stock shall be entitled to receive for eachshare of Designated Preferred Stock, out of the assets of the Corporation orproceeds thereof (whether capital or surplus) available for distribution tostockholders of the Corporation, subject to the rights of any creditors of theCorporation, before any distribution of such assets or proceeds is made to orset aside for the holders of Common Stock and any other stock of theCorporation ranking junior to Designated Preferred Stock as to suchdistribution, payment in full in an amount equal to the sum of (i) theLiquidation Amount per share and (ii) the amount of any accrued and unpaiddividends (including, if applicable as provided in Section 3(a) above,dividends on such amount), whether or not declared, to the date of payment(such amounts collectively, the “Liquidation Preference”).

 

(b)           PartialPayment. If in any distribution described in Section 4(a) abovethe assets of the Corporation or proceeds thereof are not sufficient to pay infull the amounts payable with respect to all outstanding shares of DesignatedPreferred Stock and the corresponding amounts payable with respect of any otherstock of the Corporation ranking equally with Designated Preferred Stock as tosuch distribution, holders of Designated Preferred Stock and the holders ofsuch other stock shall share ratably in any such distribution in proportion tothe full respective distributions to which they are entitled.

 

(c)           ResidualDistributions. If the Liquidation Preference has been paid in full to allholders of Designated Preferred Stock and the corresponding amounts payablewith respect of any other stock of the Corporation ranking equally with DesignatedPreferred Stock as to such distribution has been paid in full, the holders ofother stock of the Corporation shall be entitled to receive all remainingassets of the Corporation (or proceeds thereof) according to their respectiverights and preferences.

 

(d)           Merger,Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 4,the merger or consolidation of the Corporation with any other corporation orother entity, including a merger or consolidation in which the holders of DesignatedPreferred Stock receive cash, securities or other property for their shares, orthe sale, lease or exchange (for cash, securities or other property) of all orsubstantially all of the assets of the Corporation, shall not constitute aliquidation, dissolution or winding up of the Corporation.

 

Section 5.               Redemption.

 

(a)           OptionalRedemption. Except as provided below, the Designated Preferred Stock maynot be redeemed prior to the first Dividend Payment Date falling on or afterthe third anniversary of the Original Issue Date. On or after the firstDividend Payment Date falling on or after the third anniversary of the OriginalIssue Date, the Corporation, at its option, subject to the approval of theAppropriate Federal Banking Agency, may redeem, in whole or in part, at anytime and from time to time, out of funds legally available therefor, the sharesof Designated Preferred Stock at the time outstanding, upon notice given asprovided in Section 5(c) 

 

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below, at a redemption price equal to thesum of (i) the Liquidation Amount per share and (ii) except asotherwise provided below, any accrued and unpaid dividends (including, ifapplicable as provided in Section 3(a) above, dividends on suchamount) (regardless of whether any dividends are actually declared) to, butexcluding, the date fixed for redemption.

 

Notwithstanding the foregoing, prior to thefirst Dividend Payment Date falling on or after the third anniversary of theOriginal Issue Date, the Corporation, at its option, subject to the approval ofthe Appropriate Federal Banking Agency, may redeem, in whole or in part, at anytime and from time to time, the shares of Designated Preferred Stock at thetime outstanding, upon notice given as provided in Section 5(c) below,at a redemption price equal to the sum of (i) the Liquidation Amount pershare and (ii) except as otherwise provided below, any accrued and unpaiddividends (including, if applicable as provided in Section 3(a) above,dividends on such amount) (regardless of whether any dividends are actuallydeclared) to, but excluding, the date fixed for redemption; *provided* that (x) the Corporation (or any successor byBusiness Combination) has received aggregate gross proceeds of not less thanthe Minimum Amount (plus the “Minimum Amount” as defined in the relevantarticles of amendment for each other outstanding series of preferred stock ofsuch successor that was originally issued to the United States Department ofthe Treasury (the “Successor Preferred Stock”) in connection with theTroubled Asset Relief Program Capital Purchase Program) from one or moreQualified Equity Offerings (including Qualified Equity Offerings of suchsuccessor), and (y) the aggregate redemption price of the DesignatedPreferred Stock (and any Successor Preferred Stock) redeemed pursuant to thisparagraph may not exceed the aggregate net cash proceeds received by theCorporation (or any successor by Business Combination) from such QualifiedEquity Offerings (including Qualified Equity Offerings of such successor).

 

The redemption price for any shares ofDesignated Preferred Stock shall be payable on the redemption date to theholder of such shares against surrender of the certificate(s) evidencingsuch shares to the Corporation or its agent. Any declared but unpaid dividendspayable on a redemption date that occurs subsequent to the Dividend Record Datefor a Dividend Period shall not be paid to the holder entitled to receive theredemption price on the redemption date, but rather shall be paid to the holderof record of the redeemed shares on such Dividend Record Date relating to theDividend Payment Date as provided in Section 3 above.

 

(b)           NoSinking Fund. The Designated Preferred Stock will not be subject to anymandatory redemption, sinking fund or other similar provisions. Holders ofDesignated Preferred Stock will have no right to require redemption orrepurchase of any shares of Designated Preferred Stock.

 

(c)           Noticeof Redemption. Notice of every redemption of shares of Designated PreferredStock shall be given by first class mail, postage prepaid, addressed to theholders of record of the shares to be redeemed at their respective lastaddresses appearing on the books of the Corporation. Such mailing shall be atleast 30 days and not more than 60 days before the date fixed for redemption.Any notice mailed as provided in this Subsection shall be conclusively presumedto have been duly given, whether or not the holder receives such notice, butfailure duly to give such notice by mail, or any defect in such notice or inthe mailing thereof, to any holder of shares of Designated Preferred Stockdesignated for redemption shall not affect the validity of the proceedings forthe redemption of any other shares of Designated Preferred Stock.Notwithstanding the foregoing, if shares of Designated Preferred Stock areissued in book-entry form through The Depository Trust Corporation or any othersimilar facility, notice of redemption may be given to the holders ofDesignated Preferred Stock at such time and in any manner permitted by suchfacility. Each notice of redemption given to a holder shall state: (1) theredemption date; (2) the number of shares of Designated Preferred Stock tobe redeemed and, if less than all the shares held by such holder are to beredeemed, the number of such shares to be redeemed from such holder; (3) theredemption price; and (4) the place or places where certificates for suchshares are to be surrendered for payment of the redemption price.

 

(d)           PartialRedemption. In case of any redemption of part of the shares of DesignatedPreferred Stock at the time outstanding, the shares to be redeemed shall beselected either *pro rata* or in such other manneras the Board of Directors or a duly authorized committee thereof may determineto be fair and equitable. Subject to the provisions hereof, the Board ofDirectors or a duly authorized committee thereof shall have full power andauthority to prescribe the terms and conditions upon which shares of DesignatedPreferred Stock shall be redeemed from time to time. If fewer than all theshares represented by any certificate are redeemed, a new certificate shall beissued representing the unredeemed shares without charge to the holder thereof.

 

(e)           Effectivenessof Redemption. If notice of redemption has been duly given and if on orbefore the redemption date specified in the notice all funds necessary for theredemption have been deposited by the Corporation, in trust for the *pro rata* benefit of the holders of the shares called forredemption, with a bank or trust company doing business in the Borough ofManhattan, The City of New York, and having a capital and surplus of at least$500 million and selected by the Board of Directors, so as to be and continueto be available solely therefor, then, notwithstanding that any certificate forany share so called for redemption has not been surrendered for cancellation,on and after the redemption date dividends shall cease to accrue on all sharesso called for redemption, all shares so called for redemption shall no longer bedeemed outstanding and all rights with respect to such shares shall forthwithon such redemption date cease and terminate, except only the right of theholders thereof to receive the amount payable on such redemption from such bankor trust company, without interest. Any funds unclaimed at the end of threeyears from the redemption date shall, to the extent permitted by law, bereleased to the Corporation, after which time the holders of the shares socalled for redemption shall look only to the Corporation for payment of theredemption price of such shares.

 

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(f)            Statusof Redeemed Shares. Shares of Designated Preferred Stock that are redeemed,repurchased or otherwise acquired by the Corporation shall revert to authorizedbut unissued shares of Preferred Stock (*provided* thatany such cancelled shares of Designated Preferred Stock may be reissued only asshares of any series of Preferred Stock other than Designated Preferred Stock).

 

Section 6.               Conversion.Holders of Designated Preferred Stock shares shall have no right to exchange orconvert such shares into any other securities.

 

Section 7.               VotingRights.

 

(a)           General.The holders of Designated Preferred Stock shall not have any voting rightsexcept as set forth below or as otherwise from time to time required by law.

 

(b)           PreferredStock Directors. Whenever, at any time or times, dividends payable on theshares of Designated Preferred Stock have not been paid for an aggregate of sixquarterly Dividend Periods or more, whether or not consecutive, the authorizednumber of directors of the Corporation shall automatically be increased by twoand the holders of the Designated Preferred Stock shall have the right, withholders of shares of any one or more other classes or series of Voting ParityStock outstanding at the time, voting together as a class, to elect twodirectors (hereinafter the “Preferred Directors” and each a “PreferredDirector”) to fill such newly created directorships at the Corporation’snext annual meeting of stockholders (or at a special meeting called for thatpurpose prior to such next annual meeting) and at each subsequent annualmeeting of stockholders until all accrued and unpaid dividends for all pastDividend Periods, including the latest completed Dividend Period (including, ifapplicable as provided in Section 3(a) above, dividends on suchamount), on all outstanding shares of Designated Preferred Stock have beendeclared and paid in full at which time such right shall terminate with respectto the Designated Preferred Stock, except as herein or by law expresslyprovided, subject to revesting in the event of each and every subsequentdefault of the character above mentioned; *provided* thatit shall be a qualification for election for any Preferred Director that theelection of such Preferred Director shall not cause the Corporation to violateany corporate governance requirements of any securities exchange or othertrading facility on which securities of the Corporation may then be listed ortraded that listed or traded companies must have a majority of independentdirectors. Upon any termination of the right of the holders of shares ofDesignated Preferred Stock and Voting Parity Stock as a class to vote fordirectors as provided above, the Preferred Directors shall cease to be qualifiedas directors, the term of office of all Preferred Directors then in officeshall terminate immediately and the authorized number of directors shall bereduced by the number of Preferred Directors elected pursuant hereto. AnyPreferred Director may be removed at any time, with or without cause, and anyvacancy created thereby may be filled, only by the affirmative vote of theholders a majority of the shares of Designated Preferred Stock at the timeoutstanding voting separately as a class together with the holders of shares ofVoting Parity Stock, to the extent the voting rights of such holders describedabove are then exercisable. If the office of any Preferred Director becomesvacant for any reason other than removal from office as aforesaid, the remainingPreferred Director may choose a successor who shall hold office for theunexpired term in respect of which such vacancy occurred.

 

(c)           Class VotingRights as to Particular Matters. So long as any shares of DesignatedPreferred Stock are outstanding, in addition to any other vote or consent ofstockholders required by law or by the Charter, the vote or consent of theholders of at least 66 2/3% of the shares of Designated Preferred Stock at thetime outstanding, voting as a separate class, given in person or by proxy,either in writing without a meeting or by vote at any meeting called for thepurpose, shall be necessary for effecting or validating:

 

(i)            Authorizationof Senior Stock. Any amendment or alteration of the Articles of Amendmentfor the Designated Preferred Stock or the Charter to authorize or create orincrease the authorized amount of, or any issuance of, any shares of, or anysecurities convertible into or exchangeable or exercisable for shares of, anyclass or series of capital stock of the Corporation ranking senior toDesignated Preferred Stock with respect to either or both the payment ofdividends and/or the distribution of assets on any liquidation, dissolution orwinding up of the Corporation;

 

(ii)           Amendmentof Designated Preferred Stock. Any amendment, alteration or repeal of anyprovision of the Articles of Amendment for the Designated Preferred Stock orthe Charter (including, unless no vote on such merger or consolidation isrequired by Section 7(c)(iii) below, any amendment, alteration orrepeal by means of a merger, consolidation or otherwise) so as to adverselyaffect the rights, preferences, privileges or voting powers of the DesignatedPreferred Stock; or

 

(iii)          ShareExchanges, Reclassifications, Mergers and Consolidations. Any consummationof a binding share exchange or reclassification involving the DesignatedPreferred Stock, or of a merger or consolidation of the Corporation withanother corporation or other entity, unless in each case (x) the shares ofDesignated Preferred Stock remain outstanding or, in the case of any suchmerger or consolidation with respect to which the Corporation is not thesurviving or resulting entity, are converted into or exchanged for preferencesecurities of the surviving or resulting entity or its ultimate parent, and (y) suchshares remaining outstanding or such preference securities, as the case may be,have such rights, preferences, privileges and voting powers, and limitationsand restrictions thereof, taken as a whole, as are not materially lessfavorable to 

 

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the holders thereof than the rights,preferences, privileges and voting powers, and limitations and restrictionsthereof, of Designated Preferred Stock immediately prior to such consummation,taken as a whole;

 

*provided, however*,that for all purposes of this Section 7(c), any increase in the amount ofthe authorized Preferred Stock, including any increase in the authorized amountof Designated Preferred Stock necessary to satisfy preemptive or similar rightsgranted by the Corporation to other persons prior to the Signing Date, or thecreation and issuance, or an increase in the authorized or issued amount,whether pursuant to preemptive or similar rights or otherwise, of any otherseries of Preferred Stock, or any securities convertible into or exchangeableor exercisable for any other series of Preferred Stock, ranking equally withand/or junior to Designated Preferred Stock with respect to the payment ofdividends (whether such dividends are cumulative or non-cumulative) and the distributionof assets upon liquidation, dissolution or winding up of the Corporation willnot be deemed to adversely affect the rights, preferences, privileges or votingpowers, and shall not require the affirmative vote or consent of, the holdersof outstanding shares of the Designated Preferred Stock.

 

(d)           Changesafter Provision for Redemption. No vote or consent of the holders ofDesignated Preferred Stock shall be required pursuant to Section 7(c) aboveif, at or prior to the time when any such vote or consent would otherwise berequired pursuant to such Section, all outstanding shares of the DesignatedPreferred Stock shall have been redeemed, or shall have been called forredemption upon proper notice and sufficient funds shall have been deposited intrust for such redemption, in each case pursuant to Section 5 above.

 

(e)           Proceduresfor Voting and Consents. The rules and procedures for calling andconducting any meeting of the holders of Designated Preferred Stock (including,without limitation, the fixing of a record date in connection therewith), thesolicitation and use of proxies at such a meeting, the obtaining of writtenconsents and any other aspect or matter with regard to such a meeting or suchconsents shall be governed by any rules of the Board of Directors or anyduly authorized committee of the Board of Directors, in its discretion, mayadopt from time to time, which rules and procedures shall conform to therequirements of the Charter, the Bylaws, and applicable law and the rules ofany national securities exchange or other trading facility on which DesignatedPreferred Stock is listed or traded at the time.

 

Section 8.               RecordHolders. To the fullest extent permitted by applicable law, the Corporationand the transfer agent for Designated Preferred Stock may deem and treat therecord holder of any share of Designated Preferred Stock as the true and lawfulowner thereof for all purposes, and neither the Corporation nor such transferagent shall be affected by any notice to the contrary.

 

Section 9.               Notices.All notices or communications in respect of Designated Preferred Stock shall besufficiently given if given in writing and delivered in person or by firstclass mail, postage prepaid, or if given in such other manner as may bepermitted in this Articles of Amendment, in the Charter or Bylaws or byapplicable law. Notwithstanding the foregoing, if shares of DesignatedPreferred Stock are issued in book-entry form through The Depository TrustCorporation or any similar facility, such notices may be given to the holdersof Designated Preferred Stock in any manner permitted by such facility.

 

Section 10.             NoPreemptive Rights. No share of Designated Preferred Stock shall have anyrights of preemption whatsoever as to any securities of the Corporation, or anywarrants, rights or options issued or granted with respect thereto, regardlessof how such securities, or such warrants, rights or options, may be designated,issued or granted.

 

Section 11.             ReplacementCertificates. The Corporation shall replace any mutilated certificate atthe holder’s expense upon surrender of that certificate to the Corporation. TheCorporation shall replace certificates that become destroyed, stolen or lost atthe holder’s expense upon delivery to the Corporation of reasonablysatisfactory evidence that the certificate has been destroyed, stolen or lost,together with any indemnity that may be reasonably required by the Corporation.

 

Section 12.             OtherRights. The shares of Designated Preferred Stock shall not have any rights,preferences, privileges or voting powers or relative, participating, optionalor other special rights, or qualifications, limitations or restrictionsthereof, other than as set forth herein or in the Charter or as provided byapplicable law.

 

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** **

**ARTICLES OF AMENDMENT TO THE CHARTER OFTENNESSEE COMMERCE BANCORP, INC.**

** **

Pursuant to the provisions of Section 48-20-101and 48-20-103 of the Tennessee Business Corporation Act, Tennessee CommerceBancorp, Inc., a Tennessee corporation (the “Corporation”), adopts thefollowing Articles of Amendment to its Charter:

 

(1)                                  Thename of the Corporation is TENNESSEE COMMERCE BANCORP, INC.

 

(2)                                  Thefirst paragraph of Article 2 of the Charter is deleted in its entirety andthe following inserted in lieu thereof:

 

Stock.    Themaximum number of shares which the Corporation shall have authority to issue is20,000,000 shares of common stock having $0.50 par value per share, that haveunlimited voting rights and that are entitled to receive the net assets of theCorporation upon dissolution. There shall be no preemptive rights for holdersof common stock.

 

(3)                                  Theamendment was duly adopted at a meeting of the shareholders of the Corporationon July 30, 2009.

 

(4)                                  Exceptas otherwise set forth above, all other provisions of the Corporation’s Chartershall remain in full force and effect.

 

(5)                                  Theamendment will become effective upon its filing with the Tennessee Secretary ofState.

 

Dated: August 5, 2009
|   |   | **TENNESSEE COMMERCE BANCORP,  INC.**                     |
|--------|--------|-----------------------------------------------------------|
|   |   | ** **                                                |
|   |   | ** **                                                |
|   | By:    | /s/ Arthur F. Helf                                        |
|   | Name:  | Arthur F. Helf                                            |
|   | Title: | Chairman of the  Board & Chief Executive Officer |

 

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