ARTICLES OF INCORPORATION
OF
EZ BANCORP, INC.
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended,
the undersigned corporation executes the following Articles:
ARTICLE I
The name of the Corporation is eZ Bancorp, Inc.
ARTICLE II
The purpose, or purposes, for which the Corporation is organized is to
engage in the business of a bank holding company to be registered under the Bank
Holding Company Act of 1956, being 12 U.S.C. sections 1841 to 1850 (as amended
from time to time, and including any successor statutes) and, without in any way
being limited by the foregoing specific purpose, to engage in any activity
within the purposes for which corporations may be organized under the Business
Corporation Act of Michigan.
ARTICLE III
The total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue is Ten Million (10,000,000)
shares, of which Nine Million (9,000,000) shares shall be common stock and One
Million (1,000,000) shares shall be series preferred stock.
The authorized shares of common stock are all of one class with equal
voting power, and each share shall be equal to every other share.
The shares of preferred stock may be divided into and issued in one or
more series. The Board of Directors is hereby authorized to cause the preferred
stock to be issued from time to time in one or more series, with such
designations and such relative voting, dividend, liquidation and other rights,
preferences and limitations as shall be stated and expressed in the resolution
or resolutions providing for the issue of such preferred stock adopted by the
Board of Directors. The Board of Directors by vote of a majority of the whole
Board is expressly authorized to adopt such resolutions and issue such stock
from time to time as it may deem desirable.
ARTICLE IV
The address of the registered office and mailing address is 3600
Telegraph Road, Bingham Farms, Michigan 48025. The name of the resident agent is
"The Corporation Company."
ARTICLE V
The name(s) and address(es) of the incorporator(s) is (are) as follows:
Name Residence or Business Address
---- -----------------------------
John W. Abbott 363 Walbridge
East Lansing MI 48823 (Residence)
Richard J. Benson 11990 Schavey Road
Dewitt, MI 48820 (Residence)
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Rick L. Laber 11549 Stone Bluff Drive
Grand Ledge, MI 48837 (Residence)
Jack G. Nimphie 179 Newman Road
Willamston, MI 48895 (Residence)
Sally A. Peters 968 Whittier Drive
East Lansing, MI 48823 (Residence)
C. Wayne Weaver 1137 Norfolk Circle
Grand Ledge, MI 48837 (Residence)
ARTICLE VI
When a compromise or arrangement or a plan of reorganization of the
Corporation is proposed between the Corporation and its creditors, or any class
of them, or between the Corporation and its shareholders or any class of them, a
court of equity jurisdiction within the state, on application of the Corporation
or of a creditor or shareholder thereof, or on application of a receiver
appointed for the Corporation, may order a meeting of the creditors, or class of
creditors, or of the shareholders, or class of shareholders, to be affected by
the proposed compromise, arrangement, or reorganization, to be summoned in such
manner as the court directs. If a majority in number representing three-fourths
in value of the creditors or class of creditors, or of the shareholders or class
of shareholders to be affected by the proposed compromise, arrangement, or
reorganization, agree to a compromise or arrangement or to a reorganization of
the Corporation as a consequence of the compromise or arrangement, the
compromise or arrangement and the reorganization, if sanctioned by the court to
which the application has been made, shall be binding on all the creditors or
class of creditors, or on all the shareholders or class of shareholders, and
also on the Corporation.
ARTICLE VII
No director of the Corporation shall be personally liable to the
Corporation or any of its shareholders for monetary damages for a breach of
fiduciary duty as a director. However, this Article VII shall not eliminate or
limit the liability of a director for any breach of duty, act or omission for
which the elimination or limitation of liability is not permitted by the
Michigan Business Corporation Act, as amended from time to time. No amendment,
alteration, modification, repeal or adoption of any provision in these Articles
of Incorporation inconsistent with this Article VII shall have any effect to
increase the liability of any director of the Corporation with respect to any
act or omission of such director occurring prior to such amendment, alteration,
modification, repeal or adoption.
ARTICLE VIII
Directors and executive officers of the Corporation shall be
indemnified as of right to the fullest extent now or hereafter permitted by law
in connection with any actual or threatened civil, criminal, administrative or
investigative action, suit or proceeding (whether brought by or in the name of
the Corporation, a subsidiary or otherwise) in which a director or executive
officer is a witness or which is brought against a director or executive officer
in his or her capacity as a director, officer, employee, agent or fiduciary of
the Corporation or of any corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which the director or executive
officer was serving at the request of the Corporation. Persons who are not
directors or executive officers of the Corporation may be similarly indemnified
in respect of such service to the extent authorized at any time by the Board of
Directors of the Corporation. The Corporation may purchase and maintain
insurance to protect itself and any such director, executive officer or other
person against any liability asserted against him or her and incurred by him or
her in respect of such service whether or not the Corporation would have the
power to indemnify him or
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her against such liability by law or under the provisions of this Article. The
provisions of this Article shall be applicable to actions, suits or proceedings,
arising from acts or omissions occurring after the filing of these Articles of
Incorporation with the Corporation, Securities, and Land Development Bureau of
the Michigan Department of Consumer and Industry Services, and to directors,
executive officers and other persons who have ceased to render such service, and
shall inure to the benefit of the heirs, executors and administrators of the
directors, executive officers and other persons referred to in this Article. The
right of indemnity provided pursuant to this Article shall not be exclusive and
the Corporation may provide indemnification to any person, by agreement or
otherwise, on such terms and conditions as the Board of Directors may approve
that are not inconsistent with the Michigan Business Corporation Act (or other
law). Any amendment, alteration, modification, repeal or adoption of any
provision in the Articles of Incorporation inconsistent with this Article VIII
shall not adversely affect any indemnification right or protection of a director
or executive officer of the Corporation existing at the time of such amendment,
alteration, modification, repeal or adoption.
ARTICLE IX
SECTION 1. AUTHORITY AND SIZE OF BOARD. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors. The number of directors of the corporation that shall constitute the
Board of Directors shall be not less than six (6) and not more than ten (10),
and shall be determined from time to time by resolution adopted by the
affirmative vote of:
A. At least eighty percent (80%) of the Board of Directors, and
B. A majority of the Continuing Directors (as hereinafter defined).
SECTION 2. CLASSIFICATION OF BOARD AND FILLING OF VACANCIES. Subject to
applicable law, the directors shall be divided into three (3) classes, each
class to be as nearly equal in number as possible. At each annual meeting of
shareholders, the successors to the class of directors whose term shall then
expire shall be elected to hold office for a term expiring at the third
succeeding annual meeting and until their successors shall be duly elected and
qualified or their resignation or removal. Any vacancies in the Board of
Directors for any reason, and any newly created directorships resulting from any
increase in the number of directors, may be filled only by the Board of
Directors, acting by an affirmative vote of a majority of the Continuing
Directors (as hereinafter defined) and an eighty percent (80%) majority of all
of the directors then in office, although less than a quorum, and any director
so chosen shall hold office until the next election of the class for which the
director was chosen and until his successor shall be duly elected and qualified
or his resignation or removal. No decrease in the number of directors shall
shorten the term of any incumbent director.
SECTION 3. REMOVAL OF DIRECTORS. Notwithstanding any other provisions
of these Articles of Incorporation or the Bylaws of the corporation (and
notwithstanding the fact that some lesser percentage may be specified by law or
by these Articles of Incorporation or the Bylaws of the corporation), any one or
more directors of the corporation may be removed at any time, with or without
cause, but only by either (i) the affirmative vote of a majority of the
Continuing Directors and at least eighty percent (80%) of the Board of Directors
or (ii) the affirmative vote, at a meeting of the shareholders called for that
purpose, of the holders of at least eighty percent (80%) of the voting power of
the then outstanding shares of capital stock of the corporation entitled to vote
generally in the election of directors (the "Voting Stock") voting together as a
single class.
SECTION 4. CERTAIN DEFINITIONS. For the purposes of this Article IX:
A. A "person" shall mean any individual, firm, corporation or
other entity.
B. "Interested Shareholder" shall mean any person, other than the
corporation or any Subsidiary, who or which:
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(i) is the beneficial owner, directly or indirectly, of
ten percent (10%) or more of the voting power of the
outstanding Voting Stock; or
(ii) is an Affiliate of the corporation and at any time
within the two (2) year period immediately prior to the date
in question was the beneficial owner, directly or
indirectly, of ten percent (10%) or more of the voting power
of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to
any shares of Voting Stock which were at any time within the
two (2) year period immediately prior to the date in
question beneficially owned by any Interested Shareholder,
if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right
is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, or (b)
the right to vote pursuant to any agreement, arrangement or
understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purposes of determining whether a person is an
Interested Shareholder pursuant to paragraph B of this Section 4, the
number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of paragraph C of this
Section 4 but shall not include any other shares of Voting Stock which
may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
the date this Article of the Articles of Incorporation is filed with
the Corporation, Securities and Land Development Bureau of the
Michigan Department of Consumer and Industry Services.
F. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in paragraph B of this
Section 4, the term "Subsidiary" shall mean only a corporation of
which a majority of each class of equity security is owned, directly
or indirectly, by the corporation.
G. "Continuing Director" means any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with
the Interested Shareholder and was a member of the Board prior to the
time that the Interested Shareholder became an Interested Shareholder,
and any successor of a Continuing Director who is unaffiliated with
the Interested Shareholder and is recommended to succeed a Continuing
Director by a majority of Continuing Directors then on the Board.
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SECTION 5. POWERS OF CONTINUING DIRECTORS. A majority of the Continuing
Directors of the corporation shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, all facts necessary
to determine compliance with this Article IX, including without limitation (i)
whether a person is an Interested Shareholder, (ii) the number of shares of
Voting Stock beneficially owned by any person and (iii) whether a person is an
Affiliate or Associate of another; and the good faith determination of a
majority of the Continuing Directors on such matters shall be conclusive and
binding for all the purposes of this Article IX.
SECTION 6. NOMINATIONS FOR BOARD. Nominations for the election of
directors may be made by the Board of Directors or by a shareholder entitled to
vote in the election of directors. A shareholder entitled to vote in the
election of directors, however, may make such a nomination only if written
notice of such shareholder's intent to do so has been given, either by personal
delivery or by United States mail, postage prepaid, and received by the
Corporation (a) with respect to an election to be held at an annual meeting of
shareholders, not later than sixty (60) nor more than ninety (90) days prior to
the first anniversary of the preceding year's annual meeting (or, if the date of
the annual meeting is changed by more than twenty (20) days from such
anniversary date, within ten (10) days after the date the Corporation mails or
otherwise gives notice of the date of such meeting), and (b) with respect to an
election to be held at a special meeting of shareholders called for that
purpose, not later than the close of business on the tenth (10th) day following
the date on which notice of the special meeting was first mailed to the
shareholders by the Corporation.
Each shareholder's notice of intent to make a nomination shall set
forth: (i) the name(s) and address(es) of the shareholder who intends to make
the nomination and of the person or persons to be nominated; (ii) a
representation that the shareholder (a) is a holder of record of stock of the
Corporation entitled to vote at such meeting, (b) will continue to hold such
stock through the date on which the meeting is held, and (c) intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (iii) a description of all arrangements or understandings between
the shareholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination is to be made by the
shareholder; (iv) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to Regulation 14A promulgated under Section 14 of the Securities
Exchange Act of 1934, as amended, as now in effect or hereafter modified; and
(v) the consent of each nominee to serve as a director of the Corporation if so
elected. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
qualifications of such proposed nominee to serve as a director.
No person shall be eligible for election as a director unless nominated
(i) by a shareholder in accordance with the foregoing procedure or (ii) by the
Board of Directors.
ARTICLE X
The Board of Directors of the Corporation shall submit for
consideration and vote by the shareholders, at any meetings of the shareholders,
only those proposals that are first brought before the meeting by or at the
direction of the Board of Directors, or by any shareholder entitled to vote at
such meeting (a) who submits to the Corporation a timely Notice of Proposal in
accordance with the requirements of this Article X and the proposal is a proper
subject for action by shareholders under Michigan law, or (b) whose proposal is
included in the Corporation's proxy materials in compliance with all the
requirements set forth in the applicable rules and regulations in the Securities
and Exchange Commission.
Each shareholder's Notice of Proposal shall set forth:
(a) The name and address of the shareholder submitting the
proposal, as they appear on the Corporation's books and records;
(b) A representation that the shareholder (i) is a holder of
record of stock of the Corporation entitled to vote at such meeting,
(ii) will continue to hold such stock through the date on which the
meeting
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is held, and (iii) intends to appear in person or by proxy at the
meeting to submit the proposal for shareholder vote;
(c) A brief description of the proposal desired to be submitted to
the meeting for shareholder vote and the reasons for conducting such
business at the meeting; and
(d) A description of any financial or other interest of such
shareholder in the proposal.
A Notice of Proposal must be given, either by personal delivery or by
United States mail, postage prepaid, and received by the Corporation (a) with
respect to a proposal to be presented at an annual meeting of shareholders, not
later than sixty (60) nor more than ninety (90) days prior to the first
anniversary of the preceding year's annual meeting (or, if the date of the
annual meeting is changed by more than twenty (20) days from such anniversary
date, within ten (10) days after the date the Corporation mails or otherwise
gives notice of the date of such meeting), and (b) with respect to a proposal to
be presented at a special meeting of shareholders, not later than the close of
business on the tenth (10th) day following the date on which notice of the
special meeting was first mailed to the shareholders by the Corporation.
The secretary of the Corporation shall notify a shareholder in writing
whether his or her Notice of Proposal has been made in accordance with all the
requirements of this Article X. The chairman of the meeting may refuse to
acknowledge the proposal of any shareholder not made in compliance with all such
requirements.
ARTICLE XI
Except as otherwise required by law, any action required or permitted
to be taken by any stockholders of the corporation must be effected at a duly
called annual or special meeting of such stockholders and may not be effected by
any consent in writing by such stockholders. Except as may be otherwise required
by law, special meetings of stockholders of the corporation may be called only
by the Board of Directors or the Chairman of the Board.
ARTICLE XII
Notwithstanding anything contained in these Articles of Incorporation
to the contrary, the affirmative vote of at least 80% of the outstanding shares
of voting stock of the corporation, voting as a single class, shall be required
to amend or repeal Article IX, Article X, Article XI, or Article XII of these
Articles of Incorporation or to adopt any provision inconsistent therewith,
unless, such amendment or repeal or inconsistent provision has been recommended
for approval by at least 80% of all directors then holding office and by a
majority of the Continuing Directors. The term "Continuing Directors" is defined
in Article IX.
ARTICLE XIII
SECTION 1. MATTERS TO BE EVALUATED. The Board of Directors of this
corporation shall not approve, adopt or recommend any offer of any person or
entity, other than the corporation, to make a tender or exchange offer for any
capital stock of the corporation, to merge or consolidate the corporation with
any other entity or to purchase or otherwise acquire all or substantially all of
the assets or business of the corporation unless and until the Board of
Directors shall have first evaluated the offer and determined that the offer
would be in compliance with all applicable laws and that the offer is in the
best interests of the corporation and its shareholders. In connection with its
evaluation as to compliance with laws, the Board of Directors may seek and rely
upon an opinion of legal counsel independent from the offeror and it may test
such compliance with laws in any state or federal court or before any state or
federal administrative agency which may have appropriate jurisdiction. In
connection with its evaluation as to the best interests of the corporation and
its shareholders, the Board of Directors shall consider all factors which it
deems relevant, including without limitation: (i) the adequacy and fairness of
the consideration to be received by the corporation and/or its shareholders
under the offer considering historical trading prices of the corporation's
stock, the price that might be achieved in a negotiated sale of the corporation
as a whole, premiums over trading prices which
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have been proposed or offered with respect to the securities of other companies
in the past in connection with similar offers and the future prospects for this
corporation and its business; (ii) the potential social and economic impact of
the offer and its consummation on this corporation, and its subsidiaries and
their respective employees, depositors and other customers and vendors; (iii)
the potential social and economic impact of the offer and its consummation on
the communities in which the corporation and any subsidiaries operate or are
located; (iv) the business and financial condition and earnings prospects of the
proposed acquiror or acquirors; and (v) the competence, experience and integrity
of the proposed acquiror or acquirors and its or their management.
SECTION 2. AMENDMENT, REPEAL, ETC. Notwithstanding any other provision
of these Articles of Incorporation or the Bylaws of the corporation to the
contrary (and notwithstanding the fact that a lesser percentage may be specified
by law, these Articles of Incorporation or the Bylaws of the corporation), the
affirmative vote of the holders of eighty percent (80%) or more of the
outstanding shares of capital stock entitled to vote for the election of
directors, voting together as a single class, shall be required to amend or
repeal this Article XIII, or adopt any provision inconsistent with this Article
XIII; provided, however, that this Article XIII shall be of no force or effect
if the proposed amendment, repeal or other action has been recommended for
approval by at least eighty percent (80%) of all directors then holding office.
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I, (We), the incorporator(s) sign my (our) name(s) this 7th day of
November, 2000.
/s/ Jack G. Nimphie /s/ Rick L. Laber
-------------------------------- ------------------------------------
Jack G. Nimphie Rick L. Laber
/s/ C. Wayne Weaver /s/ John W. Abbott
-------------------------------- ------------------------------------
C. Wayne Weaver John W. Abbott
/s/ Sally A. Peters /s/ Richard L. Benson
-------------------------------- ------------------------------------
Sally A. Peters Richard L. Benson
Name of person or organization Preparer's name and business telephone
remitting fees: number:
EBC Development, LLC Rick L. Laber
(517) 622-5595
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