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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
October 31, 1995
CHARTER ONE FINANCIAL, INC.
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(Exact name of Registrant as specified in its Charter)
Delaware 0-16311 34-1567092
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) No.)
1215 Superior Avenue, Cleveland, Ohio 44114
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 566-5300
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N/A
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(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On October 31, 1995, Charter One Financial, Inc. ("Charter One")
issued the press release included as Exhibit 99 to this report and incorporated
by reference herein, announcing the consummation of its merger with FirstFed
Michigan Corporation ("FirstFed"), which included the merger of Charter One
Bank, F.S.B. ("Charter One Bank"), a wholly owned subsidiary of Charter One,
with First Federal of Michigan ("First Federal"), a wholly owned subsidiary of
FirstFed. The Merger was consummated pursuant to an Agreement and Plan of
Merger (the "Merger Agreement") dated as of May 30, 1995. Upon the Merger,
each share of common stock, $0.01 par value, of FirstFed (the "FirstFed Common
Stock") was converted into the right to receive 1.2 shares of common stock,
$0.01 par value, of Charter One ("Charter One Common Stock"). The Merger
Agreement was included as Exhibit 2 to Charter One's Current Report on Form 8-K
for the event on May 31, 1995 (as amended), and is incorporated herein by
reference.
In the Merger, the assets and liabilities of FirstFed became part of
Charter One and the assets and liabilities of First Federal became part of
Charter One Bank. Charter One intends to integrate the operations of FirstFed
into its existing operations and continue to maintain the business and physical
assets of FirstFed, subject to the needs of Charter One. Based on the
18,755,926 shares of FirstFed Common Stock outstanding as of October 31, 1995,
Charter One will issue 22,506,201 shares of Charter One Common Stock in
connection with the Merger, for total consideration (based on the $28.375 per
share closing price of Charter One Common Stock on the Nasdaq National Market
on October 31, 1995) of $638.6 million. In addition, Charter One will pay
approximately $26,000 in cash in lieu of fractional shares.
The Consolidated Financial Statements, and the notes thereto, of
FirstFed (No. 0-17829) are contained in FirstFed's Annual Report on Form 10-K
for the year ended December 31, 1994 and its Quarterly Reports on Form 10-Q for
the quarterly periods ended March 31 and June 30, 1995, which were previously
filed with the Securities and Exchange Commission (the "Commission") in a
Registration Statement on Form S-4 (No. 33-61273), declared effective by the
Commission on September 19, 1995.
The foregoing information does not purport to be complete and is
qualified in its entirety by reference to the Exhibits to this Report.
Item 5. Other Events
Special Meeting of Stockholders. On October 27, 1995, Charter One
held a Special Meeting of Stockholders (the "Meeting") to consider and vote
upon the Merger and certain amendments to its Restated Certificate of
Incorporation (the "Charter One Certificate"). The following is a record of
the voting on the matters considered at the Meeting:
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(1) The approval and adoption of the Merger Agreement and the
transactions contemplated thereby.
<TABLE>
<CAPTION>
For Against Abstain Broker Non-Votes
--- ------- ------- ----------------
<S> <C> <C> <C>
18,473,962 105,478 56,794 1,073,008
</TABLE>
(2) The approval and adoption of an amendment to ARTICLE FOURTH of
the Charter One Certificate to increase the number
of authorized shares of Charter One Common Stock and preferred
stock to 180,000,000 and 20,000,000, respectively.
<TABLE>
<CAPTION>
For Against Abstain Broker Non-Votes
--- ------- ------- ----------------
<S> <C> <C> <C>
12,950,353 5,623,203 62,678 1,073,007
</TABLE>
(3) The approval and adoption of an amendment to Article SEVENTH
of the Charter One Certificate to increase the number of
authorized directors from 15 to 16.
<TABLE>
<CAPTION>
For Against Abstain Broker Non-Votes
--- ------- ------- ----------------
<S> <C> <C> <C>
19,156,709 450,445 102,088 0
</TABLE>
(4) The approval and adoption of certain amendments to Articles
FIFTH and SIXTH of the Charter One Certificate,
including raising from 10% to 20% the threshold level of
Charter One common stock ownership that is subject to voting
restrictions.
<TABLE>
<CAPTION>
For Against Abstain Broker Non-Votes
--- ------- ------- ----------------
<S> <C> <C> <C>
17,993,942 507,534 134,757 1,073,008
</TABLE>
In addition to the amendments to the Charter One Certificate described
above, the Board of Directors of Charter One (the "Charter One Board") had
adopted certain amendments to the Bylaws of Charter One which were contingent
upon consummation of the Merger. The amendments to the Bylaws included
provision for the following:
(1) The executive officers of Charter One following the Merger are
as follows: Charles J. Koch - Chairman of the Board,
President and Chief Executive Officer; Richard W. Neu - Senior
Vice President and Treasurer; John D. Koch - Senior Vice
President; Mark D. Grossi - Senior Vice President; and Robert
J. Vana - Chief Corporate Counsel and Secretary.
(2) During the four-year period immediately following the Merger,
the Charter One Board will consist of 16 members, one-half of
whom were selected by the Charter One Board and one-half of
whom were selected by the FirstFed Board.
(3) The non-employee directors of Charter One and FirstFed who did
not become directors of Charter One after the
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Merger are entitled under the Merger Agreement to serve as
directors emeriti of Charter One and to be paid fees at least
as favorable as those provided to directors emeriti of Charter
One as of the effective time of the Merger.
(4) During the four-year period immediately following the Merger
(A) Charles John Koch and Jerome L. Schostak will serve as the
Chairman and Vice Chairman, respectively, of the Charter One
Board; (B) the Charter One Board (and each of the committees
thereof, other than the Executive Committee) will consist of
an equal number of persons serving on or representing the
Charter One Board and the FirstFed Board, respectively, prior
to the Merger; (C) any vacancy on the Charter One Board caused
by the departure of a director who was a director of Charter
One prior to the Merger, or a successor thereto, will be
filled with a person recommended by the remaining directors of
Charter One who were directors of Charter One prior to the
Merger; (D) any vacancy on the Charter One Board caused by the
departure of a director who was a director of FirstFed prior
to the Merger, or a successor thereto, will be filled with a
person recommended by the remaining directors of Charter One
who were directors of FirstFed prior to the Merger; (E) a vote
of two-thirds of the entire Charter One Board will be
necessary to approve (i) any amendment to the Charter One
Certificate or Bylaws, (ii) any merger, acquisition, sale of
substantially all of its assets, or other extraordinary
transaction involving Charter One or Charter One Bank or
another significant financial institution subsidiary or (iii)
the dismissal or replacement of any of the executive officers
of Charter One or Charter One Bank or other significant
financial institution subsidiary of Charter One; (F) subject
to any necessary Office of Thrift Supervision approval, the
members of the Charter One Board will also be the members of
the Charter One Bank Board; and (G) the members of the
Executive Committee of the Charter One Board will be Charles
John Koch (Chairman), Jerome L. Schostak, John D. Koch, Mark
D. Grossi and Richard W. Neu.
(5) The Executive Committee of the Charter One Board shall act by
majority vote to carry out the policies, plans, practices and
directions previously approved by the Board (or by 80% of the
members of such committee) and otherwise to enable Charter One
to conduct its business in the normal and regular course
consistent with then current policies, plans, practices and
directions. All other determinations by the Executive
Committee shall require the affirmative vote of 80% of its
members.
The foregoing information does not purport to be complete and is
qualified in its entirety by reference to the full text of the
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Charter One Certificate and Bylaws, which are attached as Exhibits 4.1 and 4.2,
respectively, to this Report, and incorporated by reference herein.
Repositioning Transactions. During October 1995, Charter One and
FirstFed incurred certain costs to effect the Merger, which included costs
associated with repositioning the combined entity's statement of financial
condition to conform the combined entity's interest rate risk profile with the
pre-Merger interest rate risk profile of Charter One, as well as transaction
costs of the Merger and costs to combine operations. The initial step of the
repositioning resulted in the sale of approximately $697 million of fixed-rate
mortgage-backed securities at an after tax loss of approximately $11 million,
with the net proceeds and other funds used to repay $690 million of reverse
repurchase agreements. In conjunction therewith, interest rate exchange
agreements with a notional value of $750 million and interest rate cap
agreements with a notional value of $800 million were terminated at a net loss,
after tax, of $49 million. Transaction costs of the Merger and costs to
combine operations totaling approximately $20 million, after tax, were also
charged to operations in October. After consideration of the above-mentioned
transactions, which resulted in an aggregate after-tax charge to operations of
approximately $80 million, the combined entity remains well-capitalized based
on regulatory guidelines. Subject to market and operating conditions, it is
anticipated that additional repositioning transactions and other Merger-related
costs could be incurred through December 31, 1995 and that such activities could
result in additional charges to operations of up to $20 million.
The Unaudited Pro Forma Combined Financial Statements of Charter One
and FirstFed were contained in the Joint Proxy Statement/Prospectus filed with
Charter One's Registration Statement on Form S-4 (No. 33-61273), declared
effective by the Commission on September 19, 1995.
Item 7. Financial Statements and Exhibits
(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
The Exhibits listed on the accompanying Exhibit Index are
filed as part of this Report and are incorporated herein by
reference.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
CHARTER ONE FINANCIAL, INC.
Date: November 15, 1995 By: /s/ Charles John Koch
-------------------------------
Charles John Koch
President and Chief Executive
Officer
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EXHIBIT INDEX
2 Agreement and Plan of Merger, dated as of May 30,
1995, by and between Charter One and FirstFed
(previously filed with Charter One's Current Report
on Form 8-K for the event on May 31, 1995 (as
amended), and incorporated herein by reference)
4.1 Second Restated Certificate of Incorporation of
Charter One
4.2 Bylaws of Charter One
99 Press Release of Charter One, dated October 31, 1995
<PAGE> 1
Exhibit 4.1
SECOND RESTATED CERTIFICATE OF INCORPORATION
OF
CHARTER ONE FINANCIAL, INC.
CHARTER ONE FINANCIAL, INC. (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, hereby
certifies as follows:
1. The name of the Corporation is CHARTER ONE FINANCIAL, INC.
The date of filing of its original Certificate of Incorporation with the
Secretary of State was July 21, 1987. The date of filing of its first Restated
Certificate of Incorporation with the Secretary of State was October 1, 1987.
2. This Second Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of the
Corporation by:
A. amending Article FOURTH to increase the number of
authorized shares of common stock and preferred stock;
B. amending Article SEVENTH to increase the number of
authorized directors from 15 to 16; and
C. amending Articles FIFTH and SIXTH to, among other
things, raise from 10% to 20% the threshold level of
common stock ownership that is subject to voting
restrictions.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended to read as herein set forth in full:
FIRST: Corporate Title. The name of the Corporation is
Charter One Financial, Inc. (the "Corporation").
SECOND: Registered Office. The address of the Corporation's
registered office in the State of Delaware is Corporation Trust
Center, No. 1209 Orange Street, City of Wilmington, County of New
Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: Purpose. The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware (the
"Delaware Corporation Law").
FOURTH: A. Authorized Shares. The total number of shares of
all classes of stock which the Corporation shall have authority to
issue is two hundred million (200,000,000), of which one hundred
eighty million (180,000,000) shall be
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common stock, par value $.01 per share, and twenty million
(20,000,000) shall be preferred stock, par value $.01 per share. The
number of authorized shares of preferred stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the stock of the
Corporation entitled to vote generally in the election of directors
without a vote of holders of preferred stock as a class, except to the
extent that any such vote may be required by any resolution providing
for the issuance of series of preferred stock.
B. Common Stock. Except as provided in this Article
FOURTH (or in any resolution adopted by the Board of Directors
pursuant hereto), the holders of the common stock shall exclusively
possess all voting power. Except as provided in Article FIFTH and
Article SIXTH, each holder of shares of common stock shall be entitled
to one vote for each share held by such holder on all matters
submitted to a vote of the common stockholders, including the election
of directors. There shall be no cumulative voting rights in the
election of directors.
C. Preferred Stock. The shares of preferred stock may
be issued from time to time in one or more series. The Board of
Directors is hereby expressly authorized to fix and determine by
resolution or resolutions adopted by a majority of the Board,
including a majority of the Continuing Directors, the number of shares
of each series of preferred stock and the designation thereof; any
voting and other powers, preferences, and relative, participating,
optional or other special rights, including the number of votes, if
any, per share, and such qualifications, limitations or restrictions
on any such powers, preferences and rights as shall be stated in the
resolution or resolutions providing for the issue of the series. The
authority of the Board of Directors with respect to each series of
preferred stock shall, without limitation, include the determination,
in accordance with the Delaware Corporation Law and to the full extent
permitted thereby, of all aspects of any dividend rights, dividend
rates, conversion rights and terms, voting rights including the number
of votes, if any, per share under various conditions, redemption
rights and terms including any sinking fund provisions, redemption
price(s) and terms, and rights in the event of liquidation,
dissolution or distribution of assets. Subject to any limitations or
restrictions stated in the resolution or resolutions of the Board of
Directors originally fixing the number of shares constituting a
series, the Board of Directors may by resolution or resolutions
likewise adopted by a majority of the Board, including a majority of
the Continuing Directors, increase or decrease (but not below the
number of shares of the series then outstanding) the number of shares
of the series subsequent to the issue of shares of that series; and in
case the number of shares of any series shall be so decreased, the
shares constituting the decrease shall resume
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that status which they had prior to the adoption of the resolution
originally fixing the number of shares.
FIFTH: A. Certain Definitions. For purposes of this
Certificate of Incorporation:
(i) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms under Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") as in
effect on the date of the original filing of this Certificate
of Incorporation; provided, however, that the Continuing
Directors of the Corporation, the officers and employees of
the Corporation and its Subsidiaries, the directors of
Subsidiaries of the Corporation, the Corporation and its
Subsidiaries, the employee benefit plans of the Corporation
and its Subsidiaries, entities organized or established by the
Corporation or any Subsidiary thereof pursuant to the terms of
such plans, and trustees and fiduciaries with respect to such
plans acting in such capacity shall not be deemed to be
Affiliates or Associates of each other solely by virtue of
their being directors, officers, employees or Beneficial
Owners of securities of the Corporation or any Subsidiary
thereof or by virtue of such Continuing Directors of the
Corporation, such officers and employees of the Corporation
and its Subsidiaries and such directors of Subsidiaries of the
Corporation being fiduciaries or beneficiaries of an employee
benefit plan of the Corporation or a Subsidiary of the
Corporation.
(ii) A Person shall be considered the "Beneficial
Owner" of any security (whether or not owned of record):
(a) with respect to which such Person or
any Affiliate or Associate of such Person directly or
indirectly has or shares (i) voting power, including the power
to vote or to direct the voting of such securities and/or (ii)
investment power, including the power to dispose of or to
direct the disposition of such security;
(b) which such Person or any Affiliate
or Associate of such Person has (i) the right or obligation to
acquire (whether such right or obligation is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, and/or (ii) the
right to vote pursuant to any agreement, arrangement or
understanding (whether or not in writing and whether or not
such right is exercisable immediately or only after the
passage of time); or
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(c) which is Beneficially Owned within
the meaning of (a) or (b) of this paragraph by any other
Person with which such first-mentioned Person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing), with respect to (x)
acquiring, holding, voting or disposing of such security or
any security convertible into or exchangeable or exercisable
for such security, or (y) acquiring, holding or disposing of
all or substantially all of the assets or businesses of the
Corporation or a Subsidiary of the Corporation.
For the purpose only of determining whether a Person is the
Beneficial Owner of a percentage specified in this Certificate
of Incorporation of the outstanding shares of a class of
security, such shares shall be deemed to include any shares of
such class of security which may be issuable pursuant to any
agreement, arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants, options or
otherwise and which are deemed to be Beneficially Owned by
such Person pursuant to the foregoing provisions of this
paragraph.
(iii) "Beneficially Owned" or "Beneficial
Ownership" with reference to any security shall mean any
security as to which a Person is the Beneficial Owner.
(iv) "Continuing Director" shall mean any member
of the Board of Directors of the Corporation who is not a
Related Person or an Affiliate or Associate of a Related
Person and who was a member of the Board of Directors prior to
the first time that a Person became a Related Person, and any
successor to a director if such successor is designated
(before his or her initial election as a director) as a
Continuing Director by a majority of Continuing Directors who
are then members of the Board of Directors. If the total
number of Continuing Directors, as defined in the preceding
sentence, constitutes less than one-third (1/3) of the members
of the Board of Directors then in office, "Continuing
Director" shall mean any member of the Board of Directors.
(v) "Person" means any individual, corporation,
partnership, bank, association, joint stock company, trust,
syndicate, unincorporated organization or similar company, or
a group of "persons" acting or agreeing to act together for
the purpose of acquiring, holding, voting or disposing of
securities of the Corporation, including any group of
"persons" seeking to combine or pool their voting or other
interests in the securities of the Corporation for a common
purpose, pursuant to any contract, understanding,
relationship, agreement or other arrangement, whether written
or otherwise. Notwithstanding the foregoing, no one or more
Continuing Directors shall be deemed to be a group of persons
acting
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or agreeing to act together for the purpose of voting
securities of the Corporation by virtue of proxies granted to
them by a stockholder of the Corporation. In addition, the
Continuing Directors of the Corporation, the officers and
employees of the Corporation and its Subsidiaries, the
directors of Subsidiaries of the Corporation, the employee
benefit plans of the Corporation and its Subsidiaries,
entities organized or established by the Corporation or any
Subsidiary thereof pursuant to the terms of such plans, and
trustees and fiduciaries with respect to such plans acting in
such capacities shall not be deemed to be a group with respect
to their Beneficial Ownership of Voting Stock of the
Corporation solely by virtue of their being such directors,
officers or employees of the Corporation and its Subsidiaries
or by virtue of such Continuing Directors of the Corporation,
such officers and employees of the Corporation and its
Subsidiaries and such directors of Subsidiaries of the
Corporation being fiduciaries or beneficiaries of any employee
benefit plan of the Corporation or a Subsidiary of the
Corporation.
(vi) "Related Person" shall mean any Person (other
than the Corporation, Subsidiaries of the Corporation,
pension, profit sharing, employee stock ownership or other
employee benefit plans of the Corporation and its
Subsidiaries, entities organized or established by the
Corporation or any Subsidiary of the Corporation pursuant to
the terms of such plans and trustees of or fiduciaries with
respect to such plans acting in such capacity) that purports,
or is deemed, to be the Beneficial Owner of twenty percent
(20%) (but for purposes of Article TENTH such percentage shall
be ten percent (10%)) or more of the issued and outstanding
shares of Voting Stock of the Corporation without giving
effect to the provisions of paragraph A of this Article SIXTH.
Notwithstanding the foregoing, except as used in Article
TENTH, the term "Related Person" shall not include any Person
acquiring Beneficial Ownership of shares of Voting Stock of
the Corporation in excess of twenty percent (20%) of the
issued and outstanding shares of Voting Stock of the
Corporation if (i) the acquisition of Beneficial Ownership of
such shares in excess of twenty percent (20%) of the issued
and outstanding shares of Voting Stock of the Corporation was
approved in advance by a majority of the Continuing Directors,
or (ii) Beneficial Ownership of such excess shares was
acquired at any time directly from the Corporation or a
Subsidiary of the Corporation pursuant to an agreement with
the Corporation or a Subsidiary of the Corporation.
(vii) "Savings Bank" means Charter One Bank,
F.S.B., Cleveland, Ohio.
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(viii) "Subsidiary" means any Person a majority of
the Voting Stock (after giving effect to any securities
convertible into or exchangeable or exercisable for any Voting
Stock) of which is owned by the Corporation or by one or more
Subsidiaries of the Corporation.
(ix) "Voting Stock" of any entity means the then
outstanding shares of the entity entitled to vote generally in
the election of directors, partners or trustees.
B. Determinations by the Continuing Directors. A
majority of the Continuing Directors shall have the power to make all
determinations, which shall be conclusive and binding, with respect to
this Article FIFTH, including, without limitation, (i) the amount of
securities Beneficially Owned by any Person, (ii) whether a Person is
an Affiliate or Associate of another, (iii) whether a Person has an
agreement, arrangement or understanding with another as to the matters
referred to in the definition of Beneficial Ownership, (iv) the
application of any other definition or operative provision of this
Article FIFTH to the given facts, or (v) any other matter relating to
the applicability or effect of this Article FIFTH. The Corporation
may, by bylaw or by resolution approved by the affirmative vote of a
majority of the Continuing Directors, adopt such provisions or
resolutions as are necessary to provide for the enforcement of this
Article FIFTH which shall be final and conclusive. Any construction,
application, or determination made by the Continuing Directors in good
faith pursuant to this Article FIFTH shall be conclusive and binding
upon the Corporation and its stockholders, including any Related
Person. Nothing contained in this Article FIFTH shall be construed to
relieve any Related Person from any fiduciary obligation imposed by
law.
SIXTH: A. Restrictions on Voting Rights. If at anytime
there exists a Related Person, the record holders of Voting Stock of
the Corporation Beneficially Owned by such Related Person shall have
only the voting rights set forth in this Article SIXTH on any matter
requiring their vote or consent. With respect to each vote in excess
of twenty percent (20%) of the voting power of the outstanding shares
of Voting Stock of the Corporation which such record holders would
otherwise be entitled to cast without giving effect to this Article
SIXTH, the record holders in the aggregate shall be entitled to cast
only one hundredth (1/100) of a vote and the aggregate voting power of
such record holders, so limited, for all shares of Voting Stock of the
Corporation Beneficially Owned by the Related Person shall be
allocated proportionately among such record holders. For each such
record holder, this allocation shall be accomplished by multiplying
the aggregate voting power, as so limited, of the outstanding shares
of Voting Stock of the Corporation Beneficially Owned by the Related
Person by a fraction whose numerator is the number of votes
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represented by the shares of Voting Stock of the Corporation owned of
record by such record holder (and which are Beneficially Owned by the
Related Person) and whose denominator is the total number of votes
represented by the shares of Voting Stock of the Corporation
Beneficially Owned by the Related Person. A Person who is a record
owner of shares of Voting Stock of the Corporation that are
Beneficially Owned simultaneously by more than one person shall have,
with respect to such shares, the right to cast the least number of
votes that such Person would be entitled to cast under this Article
SIXTH by virtue of such shares being so Beneficially Owned by any of
such Persons.
B. Exclusion for Employee Benefit Plans, Directors,
Officers, Employees and Certain Proxies. The restriction contained in
this Article SIXTH shall not apply to (i) any underwriter or member of
an underwriting or selling group involving a public sale or resale of
securities of the Corporation or a Subsidiary thereof; provided,
however, that upon completion of the sale or resale of such
securities, no such underwriter or member of such selling group is a
Related Person, or (ii) any proxy granted to one or more Continuing
Directors by a stockholder of the Corporation. In addition, the
Continuing Directors of the Corporation, the officers and employees of
the Corporation and its Subsidiaries, the directors of Subsidiaries of
the Corporation, the employee benefit plans of the Corporation and its
Subsidiaries, entities organized or established by the Corporation or
any Subsidiary thereof pursuant to the terms of such plans and
trustees and fiduciaries with respect to such plans acting in such
capacity shall not be deemed to be a group with respect to their
Beneficial Ownership of Voting Stock of the Corporation solely by
virtue of their being directors, officers or employees of the
Corporation or a Subsidiary thereof or by virtue of the Continuing
Directors of the Corporation, the officers and employees of the
Corporation and its Subsidiaries and the directors of Subsidiaries of
the Corporation being fiduciaries or beneficiaries of an employee
benefit plan of the Corporation or a Subsidiary of the Corporation.
Notwithstanding the foregoing, no director, officer or employee of the
Corporation or any of its Subsidiaries or group of any of them shall
be exempt from the provisions of this Article SIXTH should any such
Person or group become a Related Person.
C. Determinations by the Continuing Directors. A
majority of the Continuing Directors shall have the power to make all
determinations, which shall be conclusive and binding, with respect to
this Article SIXTH, including, without limitation, (i) the amount of
securities Beneficially Owned by any Person, (ii) whether a Person is
an Affiliate or Associate of another, (iii) whether a Person has an
agreement, arrangement or understanding with another as to the matters
referred to in the definition of Beneficial Ownership, (iv) the
application of any other definition or operative
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provisions of this Article SIXTH to the given facts, or (v) any other
matter relating to the applicability or effect of this Article SIXTH.
The Corporation may, by bylaw or by resolution approved by the
affirmative vote of a majority of the Continuing Directors, adopt such
provisions or resolutions as are necessary to provide for the
enforcement of this Article SIXTH which shall be final and conclusive.
Any construction, application, or determination made by the Continuing
Directors in good faith pursuant to this Article SIXTH shall be
conclusive and binding upon the Corporation and its stockholders,
including any Related Person. Nothing contained in this Article SIXTH
shall be construed to relieve any Related Person from any fiduciary
obligation imposed by law.
D. Right of Continuing Directors to Demand Certain
Information From Related Person. A majority of the Continuing
Directors shall have the right to demand that any Person who after
reasonable inquiry is believed to be a Related Person or a holder of
record of shares of Voting Stock of the Corporation or securities
convertible into, or exchangeable or exercisable for, Voting Stock of
the Corporation which is believed to be Beneficially Owned by a
Related Person, furnish the Corporation with accurate and complete
information as to (i) the record owner(s) of all shares or securities
Beneficially Owned by such Person who is so believed to be a Related
Person, (ii) the number of, and class or series of, shares or
securities Beneficially Owned by such Person who is so believed to be
a Related Person and held of record by each such record owner and the
number(s) of the stock certificate(s) or instrument(s) evidencing such
shares or securities, and (iii) any other factual matter relating to
the applicability or effect of this Article SIXTH, as may reasonably
be requested of such Person, and such Person shall furnish such
information within ten days after the receipt of such demand.
E. Quorum. Except as otherwise provided by law or
expressly provided in this Certificate of Incorporation, the presence,
in person or by proxy, of the holders of record of shares of capital
stock of the Corporation entitling the holders thereof to cast a
majority of the votes (after giving effect, if applicable, to the
provisions of Article FIFTH and this Article SIXTH) entitled to be
cast by the holders of shares of capital stock of the Corporation
entitled to vote shall constitute a quorum at all meetings of the
stockholders, and every reference in this Certificate of Incorporation
to a majority or other proportion of capital stock (or the holders
thereof) for purposes of determining any quorum requirement or any
requirement for stockholder consent or approval shall be deemed to
refer to such majority or other proportion of the votes (or the
holders thereof) then entitled to be cast in respect of such capital
stock.
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SEVENTH: A. Board of Directors. The business and affairs
of the Corporation shall be under the direction of a board of
directors (the "Board of Directors"), except as provided in this
Certificate of Incorporation or in the Bylaws as in effect at the time
of the consummation of the conversion of the Savings Bank to a capital
stock savings bank and the Savings Bank concurrently becoming a
subsidiary of the Corporation. The authorized number of directors
shall consist of not less than seven directors nor more than 16
directors. The exact number of directors shall be fixed from time to
time pursuant to a resolution adopted by the affirmative vote of a
majority of the Continuing Directors, in the manner provided by the
Bylaws of the Corporation.
B. Election of Directors. The directors of the
Corporation shall be divided into three classes: the first class, the
second class and the third class. Each director shall serve for a
term ending on the third annual meeting following the annual meeting
at which such director was elected; provided, however, that the
directors first elected to the first class shall serve for a term
ending upon the election of directors at the first annual meeting next
following the end of the fiscal year 1987, and the directors first
elected to the second class shall serve for a term ending upon the
election of directors at the second annual meeting next following the
end of the fiscal year 1988, and the directors first elected to the
third class shall serve for a term ending upon the election of the
directors at the third annual meeting next following the end of the
fiscal year 1989. At each annual election, commencing at the first
annual meeting of stockholders, the successors to the class of
directors whose term expires at that time shall be elected by the
stockholders to hold office for a term of three years to succeed those
directors whose term expires, so that the term of one class of
directors shall expire each year. In the event of any change in the
authorized number of directors, each director then continuing to serve
as such shall nevertheless continue as director of the class of which
he is a member until the expiration of his current term, or his prior
resignation, disqualification, disability or removal.
C. Newly Created Directorships and Vacancies. Any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office, an increase in the
number of authorized directors or other cause shall be filled only by
the affirmative vote of a majority of the Board of Directors,
including a majority of the Continuing Directors, although less than a
quorum, or by the sole remaining director, or, in the event of the
failure of the Board of Directors, or the Continuing Directors or sole
remaining director so to act, or if the Continuing Directors so
determine, by the stockholders at the next election of directors;
provided, however, that if the holders of any class or classes of
stock or series thereof of the Corporation, voting separately, are
entitled to elect one or more
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directors, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a
sole remaining director so elected. Directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at
which the term of the class to which they have been elected expires.
Any increase or decrease in the number of authorized directors may be
allocated to any such class as the majority of the Continuing
Directors selects in its discretion. No decrease in the number of
directors constituting the Board of Directors shall shorten the term
of any incumbent director.
D. Removal. A director may be removed only for cause as
determined by the affirmative vote of the holders of at least a
majority of the shares entitled to vote generally in the election of
directors, which vote may only be taken at the annual meeting or at a
meeting of stockholders called expressly for that purpose. Cause for
removal shall be deemed to exist only if the director whose removal is
proposed has been convicted of a felony by a court of competent
jurisdiction or has been adjudged by a court of competent jurisdiction
to be liable for gross negligence or misconduct in the performance of
such director's duty to the Corporation. At least thirty (30) days
prior to such meeting of stockholders, written notice shall be sent to
the director or directors whose removal will be considered at such
meeting.
EIGHTH: Action by Written Consent. After the consummation of
the conversion of the Savings Bank to a capital stock savings bank and
the Savings Bank concurrently becoming a Subsidiary of the
Corporation, the stockholders of the Corporation shall not be entitled
to take action by written consent in lieu of taking such action at an
annual or special meeting of stockholders.
NINTH: Special Meetings. Special meetings of the
stockholders may only be called by a majority of the Board of
Directors, including a majority of the Continuing Directors.
TENTH: A. Approval of Continuing Directors Required for
Certain Business Combinations. Notwithstanding anything to the
contrary contained in this Certificate of Incorporation, a Business
Combination with or upon a proposal by a Related Person within five
years after the date the Related Person became a Related Person (the
"Determination Date") shall require the approval of ninety percent
(90%) of the holders of the Voting Stock of the Corporation unless
such Business Combination or the acquisition of Beneficial Ownership
of ten percent (10%) or more of the issued and outstanding Voting
Stock of the Corporation was approved prior to the Determination Date
by a vote of a majority of the Continuing
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Directors or such Business Combination meets the conditions of
subparagraph B(ii) of this Article TENTH. Certain defined terms used
in this Article TENTH are as set forth in paragraph C below.
B. Requirements for All Business Combinations with
Related Persons. Notwithstanding anything to the contrary contained
in this Certificate of Incorporation, a Business Combination with or
upon a proposal by a Related Person that does not require the approval
of ninety percent (90%) of the holders of the Voting Stock of the
Corporation pursuant to paragraph A of this Article TENTH shall be
approved only upon the affirmative vote of the holders of at least
seventy-five percent (75%) of the Voting Stock of the Corporation that
is not Beneficially Owned by the Related Person, voting together as a
single class at a meeting called for such purpose no earlier than five
(5) years after the Determination Date (in addition to any affirmative
vote of holders of a class or series of capital stock of the
Corporation required by law or by the provisions of this Certificate
of Incorporation) unless all of the conditions specified in any one of
the following subparagraphs (i), (ii) or (iii) are met:
(i) Approval by directors. The Business
Combination has been approved by a vote of a majority of the
Continuing Directors; or
(ii) Combination with Subsidiary. The Business
Combination is solely between the Corporation and a Subsidiary
of the Corporation and such Business Combination does not have
the direct or indirect effect set forth in subparagraph
C(i)(e) of this Article TENTH; or
(iii) Price and procedural conditions. All of the
following conditions have been met:
(a) The aggregate amount of cash and
fair market value (as of the date of the consummation
of the Business Combination) of consideration other
than cash to be received per share of common stock in
such Business Combination by holders thereof shall be
at least equal to the higher of (x) the highest per
share price, including any brokerage commissions,
transfer taxes and soliciting dealers' fees (with
appropriate adjustments for recapitalizations, stock
splits, reverse stock splits and stock dividends)
paid by the Related Person for any shares of common
stock acquired by it, including those shares acquired
by the Related Person before the Determination Date,
plus interest at the Treasury Rate, compounded
quarterly, from the earliest date on which such
highest per share price was paid through the
consummation date of the Business Combination, less
the aggregate amount of
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any cash dividends paid and the market value of any
dividends paid other than in cash per share of common
stock since such earliest date, up to the amount of
such interest, or (y) the fair market value of the
common stock of the Corporation (as determined by the
Continuing Directors) on the date the Business
Combination is first proposed (the "Announcement
Date").
(b) The aggregate amount of cash and
fair market value (as of the date of the consummation
of the Business Combination) of consideration other
than cash to be received per share of any class or
series of preferred stock in such Business
Combination by holders thereof shall be at least
equal to the highest of (x) the highest per share
price, including any brokerage commissions, transfer
taxes and soliciting dealers' fees (with appropriate
adjustments for recapitalizations, reclassifications,
stock splits, reverse stock splits and stock
dividends) paid by the Related Person for any shares
of such class or series of preferred stock acquired
by it, including those shares acquired by the Related
Person before the Determination Date, plus interest
at the Treasury Rate, compounded quarterly, from the
earliest date on which such highest per share price
was paid through the consummation date of the
Business Combination, less the aggregate amount of
any cash dividends paid and the market value of any
dividends paid other than in cash per share of such
class or series of stock since such earliest date, up
to the amount of such interest, (y) the fair market
value of such class or series of preferred stock of
the Corporation (as determined by the Continuing
Directors) on the Announcement Date or the
Determination Date, whichever is higher, and (z) the
highest preferential amount per share of such class
or series of preferred stock to which the holders
thereof would be entitled in the event such shares
were redeemed by the Corporation on the Announcement
Date, or, if such redemption is not authorized by
this Certificate of Incorporation or any resolution
authorizing the issuance of such class or series of
Preferred Stock, in the event of voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation (regardless of whether
the Business Combination to be consummated
constitutes such an event), plus the aggregate amount
of any dividends declared or due as to which such
holders are entitled prior to payment of dividends on
some other class or series of stock (unless the
aggregate amount of such dividends is included in
such preferential amount).
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(c) The consideration to be received by
holders of a particular class or series of
outstanding common or preferred stock shall be in
cash or in the same form as, and upon no less
favorable terms than, the Related Person has
previously paid for shares of such class or series of
stock. If the Related Person has paid for shares of
any class or series of stock with varying forms of
consideration, the form of consideration given for
such series of stock in the Business Combination
shall be either cash or the form of consideration
used to acquire the largest number of shares of such
class or series of stock previously acquired by it.
(d) No Extraordinary Event occurs after
the Related Person has become a Related Person and
prior to the consummation of the Business
Combination, or will occur as a result of or in
connection with the Business Combination.
(e) After the Determination Date and
prior to the consummation date of the Business
Combination, such Related Person has not become the
Beneficial Owner of any additional shares of Voting
Stock of the Corporation except: (i) as part of the
transaction which resulted in such Related Person
becoming a Related Person, (ii) as part of a
transaction approved in advance by a majority of the
Continuing Directors, (iii) by virtue of
proportionate stock splits, stock dividends or other
distributions of stock in respect of stock not
constituting a Business Combination under
subparagraph C(i)(e) of this Article TENTH, or (iv)
through purchase by such Related Person at any price
which, if such price had been paid in an otherwise
permissible Business Combination the Announcement
Date and consummation date of which were the date of
such purchase, would have satisfied the requirements
of subparagraphs B(iii)(a), (b) and (c) of this
Article TENTH.
(f) A proxy or information statement
describing the proposed Business Combination and
complying with the requirements of the Exchange Act
and the General Rules and Regulations thereunder (or
any subsequent provisions replacing such Act, rules
or regulations) is mailed to public stockholders of
the Corporation not less than thirty (30) days prior
to the consummation of such Business Combination
(whether or not such proxy or information statement
is required pursuant to the Exchange Act or
subsequent provisions) and shall contain at the front
thereof in a prominent place the recommendation, if
any, of the Continuing
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Directors as to the advisability or inadvisability of
the Business Combination and of any investment
banking firm selected by a majority of the Continuing
Directors as to the fairness of the Business
Combination from the point of view of the
stockholders of the Corporation other than the
Related Person.
C. Certain Definitions. For purposes of this Certificate of
Incorporation:
(i) "Business Combination" shall mean any of the
following transactions, when entered into by the Corporation
or a Subsidiary of the Corporation with, or upon a proposal
by, a Related Person or any Affiliate or Associate thereof:
(a) the acquisition, merger or
consolidation of the Corporation or any Subsidiary of
the Corporation; or
(b) the sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one or a
series of transactions) of any assets of the
Corporation or any Subsidiary of the Corporation
having an aggregate fair market value of five million
dollars ($5,000,000) or more; or
(c) the issuance or transfer by the
Corporation or any Subsidiary of the Corporation (in
one or a series of transactions) of securities of the
Corporation or that Subsidiary having an aggregate
fair market value of five million dollars
($5,000,000) or more; or
(d) the adoption of a plan or proposal
for the liquidation or dissolution of the Corporation
or any Subsidiary of the Corporation; or
(e) the reclassification of securities
(including a reverse stock split), recapitalization,
consolidation or any other transaction (whether or
not involving a Related Person) which has the direct
or indirect effect of increasing the voting power,
whether or not then exercisable, of a Related Person
in any class or series of capital stock of the
Corporation or any Subsidiary of the Corporation; or
(f) any agreement, contract or other
arrangement providing directly or indirectly for any
of the foregoing or any amendment or repeal of this
Article TENTH.
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(ii) "Extraordinary Event" shall mean, as to any
Business Combination and Related Person, any of the following
events that is not approved by a majority of the Board of
Directors, including a majority of the Continuing Directors:
(a) any failure to declare and pay at
the regular date thereof any full quarterly dividend
(whether or not cumulative) on outstanding preferred
stock; or
(b) any reduction in the annual rate of
dividends paid on the common stock (except as
necessary to reflect any subdivision of the common
stock); or
(c) any failure to increase the annual
rate of dividends paid on the common stock as
necessary to reflect any reclassification (including
any reverse stock split), recapitalization,
reorganization or any similar transaction that has
the effect of reducing the number of outstanding
shares of the common stock; or
(d) the receipt by the Related Person,
after the Determination Date, of a direct or indirect
benefit (except proportionately as a stockholder)
from any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or
other tax advantages provided by the Corporation or
any Subsidiary of the Corporation whether in
anticipation of or in connection with the Business
Combination or otherwise.
(iii) "Treasury Rate" shall mean the per annum
average yield to maturity for actively traded marketable
United States Treasury fixed interest rate securities
(adjusted to constant maturities of five years), as last
published by the Board of Governors of the Federal Reserve
System prior to the date from which such rate is to be paid
or, if not so published, as last published prior to such date
by any Federal Reserve Bank or United States Government
department or agency selected by a majority of the Continuing
Directors.
(iv) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration
other than cash" as used in paragraphs B(iii)(a) and B(iii)(b)
of this Article TENTH shall include the shares of common stock
and/or the shares of any other class of preferred stock
retained by the holders of such shares.
D. Determinations by Continuing Directors. A majority
of the Continuing Directors shall have the power to make all
determinations, which shall be conclusive and binding, with
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respect to this Article TENTH, including, without limitation, the
transactions that are Business Combinations or Extraordinary Events,
the persons who are Related Persons, the time at which a Related
Person became a Related Person, and the fair market value of any
assets, securities or other property, and any other matter relating to
the applicability or effect of this Article TENTH.
E. Related Persons Not Relieved of Fiduciary
Obligations. Nothing contained in this Article TENTH shall be
construed to relieve any Related Person from any fiduciary obligation
imposed by law.
ELEVENTH: Criteria for Evaluating Certain Offers. The Board
of Directors of the Corporation, when evaluating any offer to (i) make
a tender or exchange offer for the common stock of the Corporation,
(ii) merge or consolidate the Corporation or any Subsidiary of the
Corporation with another institution, or (iii) purchase or otherwise
acquire all or substantially all of the properties and assets of the
Corporation, may, in connection with the exercise of its judgment in
determining what is in the best interests of the Corporation and its
stockholders, give due consideration to all relevant factors,
including, without limitation, (u) the social, legal and economic
effects of acceptance of such offer on depositors, borrowers and
employees of the insured institution Subsidiary or Subsidiaries of the
Corporation, and on the communities in which such Subsidiary or
Subsidiaries operate or are located, (x) the effects of acceptance of
such offer on the ability of such Subsidiary or Subsidiaries to
fulfill the objectives of an insured institution under applicable
federal statutes and regulations, (y) the consideration being offered
in relation to (a) the then current market price for the Corporation's
outstanding shares of capital stock, (b) the then current value of the
Corporation in a freely negotiated transaction and (c) the Board of
Directors' estimate of the future value of the Corporation (including
the unrealized value of its properties and assets) as an independent
going concern; and (z) such other factors as the directors deem
relevant.
TWELFTH: Indemnification.
A. Actions, Suits or Proceedings Other than by or in the
Right of the Corporation. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer,
partner, member or trustee of another
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corporation, including, without limitation, any Subsidiary of the
Corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, or by reason
of any action alleged to have been taken or omitted in such capacity,
against costs, charges, expenses (including attorneys' fees and
related disbursements), judgments, fines (including, without
limitation, ERISA excise taxes and penalties) and amounts paid in
settlement actually and reasonably incurred by such person or on such
person's behalf in connection with such action, suit or proceeding and
any appeal therefrom, if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful; provided, however, that, except as provided in
paragraph F hereof with respect to proceedings seeking to enforce
rights of indemnification, the Corporation shall indemnify such person
seeking indemnification with respect to a proceeding (or part thereof)
initiated by such person only if such proceeding or part thereof was
authorized by a majority of the Continuing Directors. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the person did not act in
good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
B. Actions or Suits by or in the Right of the
Corporation. The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the
fact that he or she, or a person of whom he or she is the legal
representative, is or was or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer,
partner, member or trustee of another corporation, including, without
limitation, any Subsidiary of the Corporation, partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and
expenses (including attorneys' fees and related disbursements)
actually and reasonably incurred by such person or on such person's
behalf in connection with the defense or settlement of such action or
suit and any appeal therefrom, if such person acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been
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adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Notwithstanding the provisions of this paragraph B, the Corporation
shall indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person (except
with respect to proceedings seeking to enforce rights to
indemnification pursuant to paragraph F), only if such proceeding (or
part thereof) was authorized by a majority of the Continuing
Directors.
C. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this
Article TWELFTH, to the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any action, suit or proceeding
referred to in paragraphs A and B of this Article TWELFTH, or in
defense of any claim, issue or matter therein, such person shall be
indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by such person or on
such person's behalf in connection therewith.
D. Determination of Right to Indemnification. Any
indemnification under paragraphs A and B of this Article TWELFTH shall
be made by the Corporation as authorized in the specific case upon a
determination (i) by the Board of Directors by a majority vote of a
quorum of the directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, if a majority of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion that
indemnification of the person seeking indemnification is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in paragraphs A and B of this Article TWELFTH.
Should a determination be made by the Corporation hereunder that
indemnification is not proper under the circumstances, a court may
order the Corporation to make indemnification pursuant to paragraphs A
or B of this Article TWELFTH.
E. Advance of Costs, Charges and Expenses. Costs,
charges and expenses (including attorneys' fees and related
disbursements) incurred by a person referred to in paragraphs A or B
of this Article TWELFTH in defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding; provided, however,
that, if the Delaware Corporation Law so requires, the payment of such
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expenses incurred by an officer or director of the Corporation in his
or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a
director or officer, including without limitation, service to an
employee benefit plan) in advance of the final disposition of such
action, suit or proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer to repay all
amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the
Corporation as authorized in this Article TWELFTH. A majority of the
Continuing Directors may, upon approval of an indemnified person,
authorize the Corporation's counsel to represent such person, in any
action, suit or proceeding, whether or not the Corporation is a party
to such action, suit or proceeding.
F. Procedure for Indemnification: Right of Claimant to
Bring Suit. Any indemnification under paragraphs A, B and C, or
advance of costs, charges and expenses under paragraph E of this
Article TWELFTH, shall be made promptly, and in any event within 60
days (or in the case of any advance of costs, charges and expenses
under paragraph E, within 20 days), upon the written request of the
person referred to in such paragraphs. The right to indemnification
or advances as granted by this Article TWELFTH shall be enforceable by
the persons referred to in paragraphs A, B, C and E in any court of
competent jurisdiction, if the Corporation denies such request, in
whole or in part, or if no disposition thereof is made within the
applicable time period specified in the preceding sentence hereof.
The costs, charges and expenses incurred by a person referred to in
paragraph A or B of this Article TWELFTH in connection with
successfully establishing his or her right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an
action brought to enforce a claim for the advance of costs, charges
and expenses under paragraph E of this Article TWELFTH where the
required undertaking, if any, has been received by the Corporation)
that the claimant has not met the standard of conduct set forth in
paragraphs A or B of this Article TWELFTH, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant
is proper in the circumstances because the claimant has met the
applicable standard of conduct set forth in paragraphs A or B of this
Article TWELFTH, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors or
its independent legal counsel) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable
standard of conduct.
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G. Other Rights; Continuation of Right to
Indemnification. The indemnification and advancement of expenses
provided by this Article TWELFTH shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement
of expenses may be entitled under any law (common or statutory),
bylaw, agreement, vote of stockholder or disinterested directors or
otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding office or while employed
by or acting as agent for the Corporation, and the indemnification and
advancement of expenses provided by this Article TWELFTH shall
continue as to a person who has ceased to serve in a capacity referred
to in paragraph A or B and shall inure to the benefit of the estate,
heirs, executors and administrators of such person. Nothing contained
in this Article TWELFTH shall be deemed to prohibit, and the
Corporation is specifically authorized to enter into, agreements
between the Corporation and directors, officers, employees or agents
providing indemnification rights and procedures different from those
set forth herein. All rights to indemnification and advancement of
expenses under this Article TWELFTH shall be deemed to be a contract
between the Corporation and each person referred to in paragraph A or
B of this Article TWELFTH who serves or served in such capacity at any
time while this Article TWELFTH is in effect. Any repeal or
modification of this Article TWELFTH or any repeal or modification of
relevant provisions of the Delaware Corporation Law or any other
applicable laws shall not in any way diminish any rights to
indemnification of any person referred to in paragraph A or B of this
Article TWELFTH or the obligations of the Corporation arising
hereunder with respect to any action, suit or proceeding arising out
of, or relating to, any actions, transactions or facts occurring prior
to the final adoption of such modification or repeal.
H. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time
to time by a majority vote of the disinterested directors, indemnify
any employee or agent of the Corporation or any person who is or was
serving or has agreed to serve at the request of the Corporation as an
employee or agent of any corporation, including, without limitation,
any Subsidiary of the Corporation, partnership, joint venture, trust
or other enterprise and pay the expenses incurred by any such person
in defending any proceeding in advance of its final disposition, to
the fullest extent of the provisions of this Article TWELFTH.
I. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was or has agreed to
become a director, officer, employee or agent of the Corporation, or
is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, partner, member, trustee, employee
or agent of another corporation, including, without limitation, any
Subsidiary of
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the Corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
against any liability asserted against such person and incurred by
such person or on his or her behalf in any such capacity, or arising
out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability
under the provisions of this Article TWELFTH.
J. Savings Clause. If this Article TWELFTH or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each person referred to paragraph A or B of this Article
TWELFTH as to any cost, charge and expense (including attorneys' fees
and related disbursements), judgment, fine (including, without
limitation, ERISA excise taxes and penalties) and amount paid in
settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action
by or in the right of the Corporation, to the full extent permitted by
any applicable portion of this Article TWELFTH that shall not have
been invalidated and to the full extent permitted by applicable law.
K. Subsequent Legislation. If the Delaware Corporation
Law is hereafter amended to further expand the indemnification
permitted to persons referred to in paragraphs A and B of this Article
TWELFTH, then the Corporation shall indemnify such persons to the
fullest extent permitted by the Delaware Corporation Law, as so
amended.
THIRTEENTH: A. Prevention of Greenmail. Except as set forth
in paragraph B of this Article THIRTEENTH, in addition to any
affirmative vote of stockholders required by law or this Certificate,
any direct or indirect purchase or other acquisition by the
Corporation of any Equity Security of any class from any Interested
Person shall require the affirmative vote of the holders of at least
seventy-five percent (75%) of the Voting Stock of the Corporation that
is not Beneficially Owned by such Interested Person, voting together
as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or any agreement with any
national securities exchange or quotation system, or otherwise.
Certain defined terms used in this Article THIRTEENTH are as set forth
in paragraph C below.
B. When a Vote is Not Required. The provisions of
paragraph A of this Article THIRTEENTH shall not be applicable with
respect to:
(i) any purchase or other acquisition of
securities made as part of a tender or exchange offer by the
Corporation or a Subsidiary of the Corporation to purchase
securities of the same class made on the same
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terms to all holders of such securities and complying with the
applicable requirements of the Exchange Act and the rules and
regulations thereunder (or any subsequent provisions replacing
such Act, rules or regulations);
(ii) any purchase or acquisition made pursuant to
an open market purchase program approved by a majority of the
Board of Directors, including a majority of the Continuing
Directors; or
(iii) any purchase or acquisition which is approved
by a majority of the Board of Directors, including a majority
of the Continuing Directors, and which is made at no more than
the Market Price, on the date that the understanding between
the Corporation and the Interested Person is reached with
respect to such purchase (whether or not such purchase is made
or a written agreement relating to such purchase is executed
on such date), of shares of the class of Equity Security to be
purchased.
C. Certain Definitions. For the purposes of this
Article THIRTEENTH:
(i) The term Interested Person shall mean any
Person (other than the Corporation, Subsidiaries of the
Corporation, pension, profit sharing, employee stock ownership
or other employee benefit plans of the Corporation and its
Subsidiaries, entities organized or established by the
Corporation or any of its Subsidiaries pursuant to the terms
of such plans and trustees and fiduciaries with respect to any
such plan acting in such capacity) that is the direct or
indirect Beneficial Owner of five percent (5%) or more of the
Voting Stock of the Corporation, and any Affiliate or
Associate of any such person.
(ii) The Market Price of shares of a class of
Equity Security on any day shall mean the highest sale price
of shares of such class of Equity Security on such day, or, if
that day is not a trading day, on the trading day immediately
preceding such day, on the national securities exchange or the
Nasdaq National Market System on which such class of Equity
Security is traded.
(iii) The term Equity Security shall mean any
security described in Section 3(a)(11) of the Exchange Act, as
in effect on the date hereof, which is traded on a national
securities exchange or the Nasdaq National Market System.
(iv) For purposes of this Article THIRTEENTH, all
references to the term Related Person in the definition of
Continuing Director shall be deemed to refer to the term
Interested Person.
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FOURTEENTH: Limitation of Directors' Liability. A director of
this Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as
a director, except: (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware
Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware Corporation
Law is hereafter amended to further eliminate or limit the personal
liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right
or protection of a director of the Corporation existing at the time of
such repeal or modification.
FIFTEENTH: Amendment of Bylaws. The Bylaws of the Corporation
may be adopted, amended or repealed by the affirmative vote of the
holders of shares entitling such holders to cast at least seventy-five
percent (75%) of the total votes eligible to be cast at a meeting duly
called and held, or by a resolution adopted by the Board of Directors,
including a majority of the Continuing Directors.
SIXTEENTH: Amendment of Certificate. The Corporation
reserves the right to amend, alter, change, or repeal any provision
contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by statute. Notwithstanding the foregoing, (i)
the vote of holders of ninety percent (90%) of the shares eligible to
be cast at a meeting duly called and held shall be required to amend
or repeal paragraph A of Article TENTH or adopt provisions
inconsistent therewith; (ii) the vote of holders of at least
seventy-five percent (75%) of the Voting Stock of the Corporation that
is not Beneficially Owned by a Related Person shall be required to
amend, repeal, or adopt any provision inconsistent with any other
paragraph of Article TENTH of this Certificate of Incorporation; (iii)
the affirmative vote of the holders of shares entitling such holders
to cast at least seventy-five percent (75%) (or such greater
proportion as may otherwise be required pursuant to any specific
provision of this Certificate of Incorporation) of the total votes
eligible to be cast at a meeting duly called and held shall be
required to amend, repeal, or adopt Articles or any provisions
inconsistent with Articles FIFTH through SIXTEENTH of this Certificate
of Incorporation and (iv) the vote of holders of at least seventy-five
percent (75%) of the Voting Stock of the Corporation that is not
Beneficially Owned by an Interested Person shall also be required to
amend, repeal, or adopt any
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provision inconsistent with Article THIRTEENTH of this Certificate of
Incorporation.
SEVENTEENTH: A. Savings Clause. In the event any provision
(or portion thereof) of this Certificate of Incorporation shall be
found to be invalid, prohibited or unenforceable for any reason, the
remaining provisions (or portions thereof) of this Certificate of
Incorporation shall remain in full force and effect, and shall be
construed as if such invalid, prohibited or unenforceable provision
had been stricken herefrom or otherwise rendered inapplicable, it
being the intent of this Corporation and its stockholders that each
such remaining provision (or portion thereof) of this Certificate of
Incorporation remain, to the fullest extent permitted by law,
applicable and enforceable as to all stockholders notwithstanding any
such finding.
B. Non-enforceability of Provisions if Would Cause
Delisting. No provision (or portion thereof) of this Certificate of
Incorporation shall be enforceable in a manner which would have the
effect of nullifying, restricting or disparately reducing the per
share voting rights of holders of an outstanding class or series of
common stock of the Corporation if (i) the Board of Directors receives
a written opinion of counsel, who shall be selected by a majority of
the Continuing Directors, that the manner of enforcing such provision
(or portion thereof), in the particular case, would prevent the
continuance of (A) listing of the common stock of the Corporation on
each national securities exchange on which the common stock is then
listed and (B) quotation and/or transaction reporting of the common
stock of the Corporation through each interdealer quotation system of
a national securities association on which the common stock is then
authorized for quotation or transaction reporting, (ii) a majority of
the Continuing Directors determines that the delisting of the common
stock from each such exchange and the removal of the common stock from
eligibility for inclusion on each such interdealer quotation system is
likely to have a material adverse effect on the market for the common
stock, and (iii) a certificate, signed by a majority of the Continuing
Directors, certifying that the conditions of clauses (i) and (ii) have
been satisfied is filed with the Secretary of the Corporation. If
such a certificate has been so filed, a copy thereof shall be made
available to each stockholder of record of the Corporation who
delivers a written request therefor to the Secretary of the
Corporation. The first sentence of this paragraph notwithstanding,
the provisions of this Certificate of Incorporation shall remain
applicable and enforceable as to all stockholders in any manner which,
in the written opinion of counsel selected by a majority of the
Continuing Directors, would not prevent the continued listing of
common stock of the Corporation on any national securities exchange on
which the common stock is then listed or quotation and/or transaction
reporting of the common stock of the Corporation through any
interdealer quotation
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system of a national securities association on which the common stock
is then authorized for quotation or transaction reporting.
4. This Second Restated Certificate of Incorporation was duly
adopted by a vote of the stockholders in accordance with Sections 242 and 245
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Charter One Financial, Inc. has caused this Second
Restated Certificate of Incorporation to be signed by Charles John Koch, its
Chairman of the Board, President and Chief Executive Officer, and attested by
Robert J. Vana, its Chief Corporate Counsel and Corporate Secretary, this 30th
day of October, 1995.
CHARTER ONE FINANCIAL, INC.
By: /s/CHARLES JOHN KOCH
----------------------------
Charles John Koch
Chairman of the Board,
President and Chief
Executive Officer
ATTEST:
By: /s/ROBERT J. VANA
----------------------------
Robert J. Vana
Chief Corporate Counsel and
Corporate Secretary
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<PAGE> 1
Exhibit 4.2
BYLAWS
OF
CHARTER ONE FINANCIAL, INC.
(A Delaware Corporation)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of Charter One
Financial, Inc. (hereinafter referred to as the "Corporation") within the State
of Delaware is Corporation Trust Center No. 1209 Orange Street, City of
Wilmington, County of New Castle, and the name of the registered agent at that
address in charge thereof is The Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may also have offices at
such other places, either within or without the State of Delaware, as the Board
of Directors may from time to time designate or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be stated
in the notice of meeting or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders,
commencing with fiscal year 1988, shall be held on the first Wednesday of May
in each fiscal year, if not a legal holiday, and if a legal holiday, then on
the next succeeding day not a legal holiday, at 2:00 P.M., or at such other
date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of meeting or in a duly executed waiver
thereof. At such annual meeting, the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before
the meeting.
SECTION 3. Special Meetings. Special meetings of stockholders may
only be called as provided in Article NINTH of the Certificate of
Incorporation.
SECTION 4. Notice of Meetings. Except as otherwise expressly
required by statute, written notice of each annual and special meeting of
stockholders stating the place, date and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat not less
than ten (10) nor more than sixty (60) days before the date of the meeting.
<PAGE> 2
Notice shall be given personally or by mail and, if by mail, shall be sent in a
postage prepaid envelope, addressed to the stockholder at his address as it
appears on the records of the Corporation. Notice by mail shall be deemed
given at the time when the same shall be deposited in the United States mail,
postage prepaid. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when such person attends the meeting in
person or by proxy for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened, or who, either before or after the meeting, shall
submit a signed written waiver of notice, in person or by proxy. Neither the
business to be transacted at, nor the purpose of, an annual or special meeting
of stockholders need be specified in any written waiver of notice.
SECTION 5. Stockholders List. The officer who has charge of the
stock transfer books of the Corporation shall prepare and make, in the time and
manner required by applicable law, a list of stockholders entitled to vote and
shall make such list available for such purposes, at such places, at such times
and to such persons as required by applicable law. The stock transfer books
shall be the only evidence as to the identity of the stockholders entitled to
examine the stock transfer books or to vote in person or by proxy at any
meeting of stockholders.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum for the transaction of business at all meetings of stockholders, except
as otherwise provided by statute or by Article SIXTH of the Certificate of
Incorporation. The stockholders entitled to vote and present at a duly called
or held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders entitled to
vote to leave less than a quorum then present and represented. Any
stockholders' meeting, annual or special, whether or not a quorum is present or
represented, may be adjourned from time to time by the vote of the holders of a
majority of the stock entitled to vote thereat, the holders of which are either
present in person or represented by proxy, but in the absence of a quorum no
other business may be transacted at such meeting. At any adjourned meeting, at
which a quorum should be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified, except
for such business as was duly transacted at any earlier meeting. If the
adjournment is for more than thirty (30) days, or if after adjournment a new
record date is set, a notice of the adjourned meeting shall be given as in the
case of an original meeting to each stockholder of record entitled to vote at
the meeting.
SECTION 7. Organization. At each meeting of stockholders, the
Chairman of the Board or, in his absence or if one shall not have been elected,
the President or such other person as the Board of Directors may have
designated shall call to order any meeting of
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the stockholders and act as chairman of the meeting. The Secretary or, in his
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting shall act as secretary of the meeting and keep
the minutes thereof.
SECTION 8. Order of Business. The order of business and the
procedure at all meetings of the stockholders shall be as determined by the
chairman of the meeting, unless otherwise prescribed by law or regulation.
SECTION 9. Voting. Except as otherwise provided by statute or the
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of capital
stock of the Corporation standing in his name on the record of stockholders of
the Corporation:
(a) on the date fixed pursuant to the provisions of
Section 7 of Article V of these Bylaws as the record date for the
determination of the stockholders who shall be entitled to notice of
and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then
at the close of business on the day next preceding the day on which
notice thereof shall be given, or, if notice is waived, at the close
of business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders may authorize
another person or persons to act for him by a proxy signed by such stockholder
or his attorney-in-fact, but no proxy shall be voted after three years from its
date, unless the proxy provides for a longer period. Any such proxy shall be
delivered to the secretary of the meeting at or prior to the time designated in
the order of business for so delivering such proxies. When a quorum is present
at any meeting, the vote of the holders of a majority of the voting power of
the issued and outstanding stock of the Corporation entitled to vote thereon
(after giving effect, if applicable, to the provisions of Article SIXTH of the
Certificate of Incorporation), present in person or represented by proxy, shall
decide any question brought before such meeting, unless the question is one
upon which by express provision of statute or of the Certificate of
Incorporation or of these Bylaws, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
On a vote by ballot, each ballot shall be signed by the stockholder voting, or
by his proxy, if there be such proxy, and shall state the number of shares
voted.
SECTION 10. New Business. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be acted
upon as shall have been brought before the annual meeting (a) by, or at the
direction of, the majority of the Board of Directors, including a majority of
the Continuing Directors, or (b) by any stockholder of the Corporation
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<PAGE> 4
who complies with the notice procedures set forth in this Section 10. For a
proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to,
or mailed and received at, the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the
scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than seventy (70) days' notice or prior public disclosure of the date of the
scheduled annual meeting is given or made, notice by the stockholder, to be
timely, must be so delivered or received not later than the close of business
on the tenth (10th) day following the earlier of the day on which such notice
of the date of the scheduled annual meeting was mailed or the day on which such
public disclosure was made. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the proposal desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business and any other stockholder who is the
record or Beneficial Owner of any equity security of the Corporation known by
such stockholder to be supporting such proposal, (c) the class and number of
shares of the Corporation's equity securities which are Beneficially Owned and
owned of record by the stockholder giving the notice on the date of such
stockholder notice and by any other record or Beneficial Owners of the
Corporation's equity securities known by such stockholder to be supporting such
proposal on the date of such stockholder notice, and (d) any financial or other
interest of the stockholder in such proposal.
A majority of the Continuing Directors may reject any stockholder
proposal not timely made in accordance with the terms of this Section 10. If a
majority of the Continuing Directors determines that the information provided
in a stockholder's notice does not satisfy the informational requirements of
this Section 10 in any material respect, the Secretary of the Corporation shall
promptly notify such stockholder of the deficiency in the notice. The
stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within such period of time, not to
exceed five days from the date such deficiency notice is given to the
stockholder, as the majority of the Continuing Directors shall reasonably
determine. If the deficiency is not cured within such period, or if the
majority of the Continuing Directors determines that the additional information
provided by the stockholder, together with information previously provided,
does not satisfy the requirements of this Section 10 in any material respect,
then a majority of the Continuing Directors may reject such stockholder's
proposal. The Secretary of the Corporation shall notify a stockholder in
writing whether his proposal has been made in accordance with the time and
information requirements of this Section 10. Notwithstanding the procedures
set forth in this paragraph, if the majority of the Continuing
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<PAGE> 5
Directors does not make a determination as to the validity of any stockholder
proposal, the presiding officer of the annual meeting shall determine and
declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this Section 10. If the presiding officer
determines that a stockholder proposal was not made in accordance with the
terms of this Section 10, he shall so declare at the annual meeting and any
such proposal shall not be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
SECTION 11. Inspectors. The Board of Directors may, in advance of
any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if
inspectors shall not have been appointed, the chairman of the meeting may,
appoint one or more inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to
the best of his ability. The inspectors shall determine the number of shares
of capital stock of the Corporation outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, the
authenticity, validity and effect of proxies, and shall receive votes or
ballots, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes or ballots, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. If more than one inspector has been appointed,
the decision, act or certificate of a majority of the inspectors is effective
in all respects as the decision, act or certificate of all of the inspectors.
On request of the chairman of the meeting, the inspectors shall make a report
in writing of any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
SECTION 12. Action by Consent. As provided in the Certificate of
Incorporation, the stockholders of the Corporation shall not be entitled to
take action by written consent in lieu of taking such action at an annual or
special meeting of stockholders.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors, except as provided in the Certificate of Incorporation and these
Bylaws. The Board of Directors may exercise all such authority and powers of
the Corporation and do all such lawful acts and things as are not by statute or
the Certificate of Incorporation directed or required to be exercised or done
by the Continuing Directors or the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The
number of directors constituting the initial Board of Directors shall be
sixteen. Thereafter, the number of directors may be fixed, from time to time,
pursuant to a resolution adopted by the affirmative vote of a majority of the
Continuing Directors, as that term is defined in Article FIFTH of the
Certificate of Incorporation. The election of directors, the division of
directors into separate classes and the terms of directors, shall be provided
in Article SEVENTH of the Certificate of Incorporation.
SECTION 3. Nominations of Directors. Nominations of candidates for
election as directors at any annual meeting of stockholder may be made (i) by,
or at the direction of, a majority of the Board of Directors, including a
majority of the Continuing Directors or (ii) by any stockholder of record
entitled to vote at such annual meeting. Only persons nominated in accordance
with procedures set forth in this Section 3 shall be eligible for election as
directors at an annual meeting.
Nominations, other than those made by, or at the direction of, a
majority of the Board of Directors, including a majority of the Continuing
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Section 3. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation not less than sixty (60) days
nor more than ninety (90) days prior to the date of the date of the scheduled
annual meeting, regardless of postponements, deferrals, or adjournments of that
meeting to a later date; provided, however, that if less than seventy (70)
days' notice or prior public disclosure of the date of the scheduled annual
meeting is given or made, notice by the stockholder to be timely must be so
delivered or received not later than the close of business on the tenth (10th)
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. Such stockholder's notice shall set forth (i) as to each person whom
the stockholder proposes to nominate for election as a director (a) the name,
age, business address and residence address of such person, (b) the principal
occupation or employment of such person, (c) the class and number of shares of
the Corporation's equity securities which are Beneficially Owned by such person
on the date of such stockholder notice and (d) any
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other information relating to such person that would be required to be
disclosed pursuant to Regulation 13D under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), in connection with the acquisition of shares,
and pursuant to Regulation 14A under the Exchange Act, in connection with the
solicitation of proxies with respect to nominees for election as directors,
regardless of whether such person is subject to the provisions of such
regulations, including, but not limited to, information required to be
disclosed by Items 4(b) and 6 of Schedule A of Regulation 14A and information
which would be required to be filed on Schedule B of Regulation 14A with the
Securities and Exchange Commission (as such Items and Schedules are in effect
on the date hereof and such additional information required by those provisions
or successor provisions adopted after the date hereof); and (ii) as to the
stockholder giving the notice (a) the name and address, as they appear on the
Corporation's books, of such stockholder and any other stockholder who is a
record or Beneficial Owner of any equity securities of the Corporation and who
is known by such stockholder to be supporting such nominee(s) and (b) the class
and number of shares of the Corporation's equity securities which are
Beneficially Owned and owned of record by such stockholder on the date of such
stockholder notice and the number of shares of the Corporation's equity
securities Beneficially Owned and owned of record by any Person known by such
stockholder to be supporting such nominee(s) on the date of such stockholder
notice. At the request of a majority of the Board of Directors, including a
majority of the Continuing Directors, any person nominated by, or at the
direction of, the Board of Directors for election as a director at an annual
meeting shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. Ballots bearing the names of all the persons who have been
nominated for election as directors at an annual meeting in accordance with the
procedures set forth in this Section 3 shall be provided for use at the annual
meeting.
A majority of the Continuing Directors may reject any nomination by a
stockholder not timely made in accordance with the requirements of this Section
3. If a majority of the Continuing Directors determines that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 3 in any material respect, the Secretary of the
Corporation shall promptly notify such stockholder of the deficiency in the
notice. The stockholder shall have an opportunity to cure the deficiency by
providing additional information to the Secretary within such period of time,
not to exceed five (5) days, from the date such deficiency notice is given to
the stockholder, as a majority of the Continuing Directors shall reasonably
determine. If the deficiency is not cured within such period, or if a majority
of the Continuing Directors reasonably determines that the additional
information provided by the stockholder, together with the information
previously provided, does not satisfy the requirements of this Section 3 in any
material respect, then a majority of the Continuing Directors may reject such
stockholder's nomination. The Secretary of the Corporation
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shall notify a stockholder in writing whether his nomination has been made in
accordance with the time and informational requirements of this Section 3.
Notwithstanding the procedure set forth in this Section 3, if the majority of
the Continuing Directors does not make a determination as to the validity of
any nominations by a stockholder, the presiding officer of the annual meeting
shall determine and declare at the annual meeting whether a nomination was not
made in accordance with the terms of this Section 3. If the presiding officer
determines that a nomination was not made in accordance with the terms of this
Section 3, he shall so declare at the annual meeting and the defective
nomination shall be disregarded.
SECTION 4. Place of Meetings. Meetings of the Board of Directors
shall be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 5. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of the
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may
be held at such other time or place, within or without the State of Delaware,
as shall be specified in a notice thereof given as hereinafter provided in
Section 8 of this ARTICLE III.
SECTION 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise
be held on that day shall be held at the same hour on the next succeeding
business day. Notice of regular meetings of the Board of Directors need not be
given except as otherwise required by statute or these Bylaws.
SECTION 7. Special Meetings. Special meetings of the Board of
Directors may be called by (i) the Chairman of the Board, (ii) the President or
(iii) by the Secretary on the written request of a majority of the members of
the Board of Directors, including a majority of the Continuing Directors.
SECTION 8. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 8, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these Bylaws, such notice need not sate the
purpose or purposes of such meeting. Notice of each such meeting shall be
mailed, postage prepaid, to each director, addressed to him at his residence or
usual place of business, by first class mail, at least four (4) days before the
time of the meeting, or shall be sent
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addressed to him at such place by telegraph, cable, telex, telecopier or other
similar means, or be delivered to him personally or be given to him by
telephone or other similar means, at least twelve (12) hours before the time of
the meeting. Notice of any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of notice or
who shall attend such meeting, except when he shall attend for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened.
SECTION 9. Quorum and Manner of Acting. At all meetings of the Board
of Directors, one-third (1/3) of the total number of directors, including at
least a majority of the Continuing Directors then in office shall be necessary
and sufficient to constitute a quorum for the transaction of business, and,
except as otherwise expressly required by statute or the Certificate of
Incorporation or these Bylaws, the act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum at any meeting of the Board of
Directors, a majority of the directors present thereat may adjourn such meeting
to another time and place. Notice of the time and place of any such adjourned
meeting shall be given to all of the directors unless such time and place were
announced at the meeting at which the adjournment was taken, in which case such
notice shall only be given to the directors who were not present thereat. At
any adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called. The directors shall act only as a Board and the individual directors
shall have no power as such.
SECTION 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified therein, immediately
upon its tender. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 11. Newly Created Directorships and Vacancies. Any vacancies
on the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office, an increase in the number of authorized
directors, or other cause shall be filled as provided in Article SEVENTH of the
Certificate of Incorporation.
SECTION 12. Removal of Directors. A director may be removed only as
provided in Article SEVENTH of the Certificate of Incorporation.
SECTION 13. Compensation. Each director shall receive such fees and
other compensation, along with reimbursement of expenses incurred on behalf of
the Corporation or in connection with attendance at meetings, as the Board of
Directors may from time to
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time determine. No such payment of fees or other compensation shall preclude
any director from serving the Corporation in any other capacity and receiving
fees and compensation for such services.
SECTION 14. Committees. Unless restricted by the Certificate of
Incorporation, the Board of Directors may, by resolution passed by a majority
of the entire Board of Directors, including a majority of the Continuing
Directors, designate one or more committees, including an executive committee,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Except to the extent restricted by statute or the
Certificate of Incorporation, each such committee, to the extent provided in
the resolution creating it, shall have and may exercise all the powers and
authority of the Board of Director and may authorize the seal of the
Corporation to be affixed to all papers which require it. Each such committee
shall serve at the pleasure of the Board of Directors and have such name as may
be determined from time to time by resolution adopted by the Board of
Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors. Members of either standing or
special committees shall receive such fees and other compensation, along with
reimbursement of expenses incurred on behalf of the Corporation or in
connection with attendance of meetings, as the Board of Directors may from time
to time determine. No such payment of fees or compensation shall preclude any
member of a committee from serving the corporation in any other capacity and
receiving fees and compensation for such services.
SECTION 15. Action by Consent. Any action required or permitted to
be taken by the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board of Directors or such
committee, as the case may be.
SECTION 16. Telephonic Meeting. Any one or more members of the Board
of Directors or any committee of the Board of Directors may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
SECTION 17. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors at which action is taken
shall be presumed to have assented to the action taken unless his dissent or
abstention shall be entered in the minutes of the meeting or unless he shall
file a written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such
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dissent by registered mail to the Secretary of the Corporation within five days
after the date a copy of the minutes of the meeting is received. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 18. Directors, Executive Officers and Committees. In
accordance with Section 6.4 of the Agreement and Plan of Merger by and between
the Corporation and FirstFed Michigan Corporation, dated May 30, 1995 (the
"Agreement"), the following provisions shall govern directors, executive
officers and committees to the exclusion of any provision in these bylaws to
the contrary. Terms capitalized but not otherwise defined in this Section
shall have the meaning given to them in the Agreement.
(a) At the Company Merger Effective Time, the Board of
Directors of Charter as the Surviving Corporation shall be fixed at either 16
directors, if the shareholders of Charter at the Charter Stockholders Meeting
approve the amendment to Article Seventh of Charter's Restated Certificate of
Incorporation increasing the maximum number of directors to 16 persons by the
requisite vote, or 14 directors, if such amendment is not approved by the
requisite vote, (the "Initial Directors"), one-half of whom in either case shall
be selected by the Board of Directors of Charter and one-half of whom shall be
selected by the Board of Directors of FirstFed, in each case prior to the
Company Merger Effective Time. As soon as practicable, the Boards of Directors
of Charter and FirstFed shall each select those persons it is to select who are
to serve on the Board of Directors of Charter as the Surviving Corporation.
Thereafter, Charter and FirstFed shall agree as to the class and term for each
of the persons so selected as a director (it being the intention that to the
greatest extent practicable, the Charter and FirstFed directors shall serve in
equal number in each of the Surviving Corporation's three classes of directors).
Charter and its Board of Directors shall take all necessary corporate action
prior to the Company Merger Effective Time to effectuate this agreement of the
parties including the election of the designated persons as directors of
Charter as the Surviving Corporation, effective at the Company Merger Effective
Time, for the agreed upon classes and terms. For a period of four years
following the Company Merger Effective Time, Charles J. Koch and Jerome L.
Schostak shall serve as the Chairman and Vice Chairman, respectively, of the
Board of Directors of Charter as the Surviving Corporation.
(b) It is the intention of Charter and FirstFed, and
their respective Boards of Directors, that until at least the fourth
anniversary of the Company Merger Effective Time, the Board of Directors of
Charter as the Surviving Corporation (and each of the committees thereof other
than the Executive Committee) shall consist of an equal number of persons
serving on or representing the Boards of Directors of Charter and FirstFed,
respectively, prior to the Company Merger Effective Time. In this regard, if
any Initial Director (or successor thereto) does not continue to serve as a
director of the Surviving Corporation for any reason whatsoever during such
four year period (a "Departing Director"),
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his/her successor will be the person recommended (i) in the case of a Departing
Director who either was a director of Charter prior to the Company Merger
Effective Time or was a successor to such a director, by the remaining
directors of Charter as the Surviving Corporation who prior to the Company
Merger Effective Time served as directors of Charter and, if applicable, any
successors to those Charter directors or (ii) in the case of a Departing
Director who either was a director of FirstFed prior to the Company Merger
Effective Time or was a successor to such a director, by the remaining
directors of Charter as the Surviving Corporation who prior to the Company
Merger Effective Time served as directors of FirstFed and, if applicable, any
successors to those FirstFed directors. Charter and the Surviving Corporation
shall take all necessary corporate action, whether prior or subsequent to the
Company Merger Effective Time, to effectuate this agreement of the parties and,
after the Company Merger Effective Time, Charter's Board of Directors (or
committee thereof) will nominate, support the solicitation of proxies in favor
of, and otherwise actively use its best efforts to secure the election of
directors on a basis consistent with the foregoing.
(c) For a period of four years following the Company
Merger Effective Time, a vote of two-thirds of the entire Board of Directors of
the Surviving Corporation shall be necessary to approve (i) any amendment to
the Restated Certificate of Incorporation or Bylaws of the Surviving
Corporation, (ii) any merger, acquisition, sale of substantially all of its
assets or other extraordinary corporate transaction involving the Surviving
Corporation, Charter Bank or any other significant financial institution
subsidiary of Charter as the Surviving Corporation or (iii) the dismissal or
replacement of any of the executive officers of Charter as the Surviving
Corporation or Charter Bank or other significant financial institution
subsidiary. Charter and the Surviving Corporation shall take all necessary
corporate action, whether prior or subsequent to the Company Merger Effective
Time, to effectuate this agreement of the parties. Notwithstanding anything to
the contrary herein, amendment to the Restated Certificate of Incorporation or
Bylaws of Charter or the Surviving Corporation specifically provided for or
contemplated in this Agreement shall require the vote of directors as set forth
in Charter's Restated Certificate of Incorporation or Bylaws.
(d) After the Company Merger Effective Time, those
persons who served as directors of either Charter or FirstFed prior to the
Company Merger Effective Time and who do not become the Initial Directors shall
serve (unless such person determines not to serve) as directors emeriti of
Charter as the Surviving Corporation with benefits at least as favorable as
those currently provided to directors emeriti of Charter.
(e) For a period of four years following the Company
Merger Effective Time, regularly scheduled meetings of the Board of Directors
of Charter as the Surviving Corporation shall be held such that there shall be
equal numbers of meetings during any such year at sites as selected by the
Initial Directors who were
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previously directors of Charter (including their successors) and at sites as
selected by the Initial Directors who were previously directors of FirstFed
(including their successors). Charter and the Surviving Corporation shall take
all necessary corporate action, whether prior or subsequent to the Company
Merger Effective Time, to effectuate this agreement of the parties.
(f) The fees and benefits to be received by the directors
of Charter as the Surviving Corporation shall be no less favorable than those
currently provided for directors of either Charter or FirstFed, whichever is
greater. In addition, the Initial Vice Chairman of the Board of Charter as the
Surviving Corporation shall receive compensation in an amount equal to one
hundred fifteen percent (115%) of the compensation he is currently receiving as
Chairman of FirstFed's executive committees.
(g) The Executive Officers of the Surviving Corporation
following the Company Merger Effective Time shall be: Charles J. Koch -
Chairman of the Board, President and Chief Executive Officer; Richard W. Neu -
Senior Vice President and Treasurer; John D. Koch - Senior Vice President; Mark
D. Grossi - Senior Vice President; and Robert J. Vana - Chief Corporate Counsel
and Secretary.
(h) For a period of at least four years following the Company
Merger Effective Time, the Board of Directors of Charter as the Surviving
Corporation shall have a five person Executive Committee and such other
committees as the Board shall establish in accordance with Section 141 of the
DGCL, Charter's Certificate of Incorporation and the Bylaws. The five members
of the Executive Committee effective at the Company Merger Effective Time shall
be Messrs. Charles J. Koch (who shall be the Chairman of the Executive
Committee), Jerome L. Schostak, John D. Koch, Mark D. Grossi and Richard W. Neu
and they shall each serve for a period of four years from the Company Merger
Effective Time. The Executive Committee shall not have such power or authority
as is specifically excluded to it pursuant to Section 141 of the DGCL. The
Executive Committee shall act by majority vote to carry out the policies,
plans, practices and directions previously approved by the Board of Directors
(or those approved by eighty percent (80%) of the members of the Executive
Committee) and to otherwise enable Charter, as the Surviving Corporation, to
conduct its business in the normal and regular course consistent with Charter's
then current policies, plans, practices and directions. All other
determinations by the Executive Committee shall require the affirmative vote of
eighty percent (80%) of its members. Prior to the Company Merger Effective
Time, Charter and FirstFed shall reasonably agree as to the initial members of
each other committee of the Board of Directors of Charter as the Surviving
Corporation. Each of such committees (other than the Executive Committee)
shall have an even number of members, and at the Company Merger Effective Time
and for four years thereafter, one-half of the members of each such other
committee shall consist of directors who served as directors of Charter prior
to the Company Merger Effective Time (or their successors) and the other half
shall consist of directors who
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served as directors of FirstFed prior to the Company Merger Effective Time (or
their successors).
(i) Notwithstanding anything to the contrary, none of the
persons who serve as directors of FirstFed shall be subject to an age
restriction relating to service as a director of the Corporation.
(j) This section shall expire on the fourth anniversary of
the Company Merger Effective Time.
ARTICLE IV
OFFICERS
SECTION 1. Number and Qualifications. The officers of the
Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board held after each annual meeting of stockholders, or as soon
thereafter as possible, and shall include the President, one or more Vice
Presidents, the Secretary and the Treasurer. If the Board of Directors wishes,
it may also elect as an officer of the Corporation a Chairman of the Board and
may elect other officers (including one or more Assistant Treasurers and one or
more Assistant Secretaries) as may be necessary or desirable for the business
of the Corporation. Any two or more offices may be held by the same person,
and no officer except the Chairman of the Board and the President need be a
director. Each officer shall hold office until his successor shall have been
duly elected and qualified, or until his death, resignation or removal, as
hereinafter provided in these Bylaws. A vacancy in any office because of
death, resignation, removal, disqualification or otherwise, shall be filled
only by a majority vote of the Board of Directors for the unexpired portion of
the term.
SECTION 2. Resignations. Any officer of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified therein, immediately
upon receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting thereof, but such removal, other than for cause (as defined in any
contract between the officer and the Corporation), shall be without prejudice
to the contract rights, if any, of the person so removed.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, may be the chief
executive officer of the Corporation and, if present, shall preside at each
meeting of the Board of Directors or the stockholders. He shall advise and
counsel with the President, and in his absence with other executives of the
Corporation, and shall
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perform such other duties as may from time to time be assigned to him by the
Board of Directors.
SECTION 5. The President. The President may be the chief executive
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at
each meeting of the Board of Directors or the stockholders. He shall perform
all duties incident to the office of President and chief executive officer and
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. Vice President. Each Vice President shall perform all
such duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his absence
or in the event of his inability or refusal to act, the Vice President, or if
there shall be more than one, the Vice Presidents in the order determined by
the Board of Directors (or if there be no such determination, then the Vice
Presidents in the order of their election), shall perform the duties of the
President, and, when so acting, shall have the powers of and be subject to the
restrictions placed upon the President in respect of the performance of such
duties.
SECTION 7. Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for,
all the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit
of the Corporation in such depositaries as may be designated by the
Board of Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and
payable to the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise
the investments of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board
of Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office
of Treasurer and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books
provided for the purpose, the minutes of all meetings of the
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Board of Directors, the committees of the Board of Directors and the
stockholders;
(b) see that all notices are duly given in accordance
with the provisions of these Bylaws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all certificates for
shares of the Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and affix
and attest the seal to all other documents to be executed on behalf of
the Corporation under its seal;
(d) see that the books, reports, statements, certificates
and other documents and records required by law to be kept and filed
are properly kept and filed; and
(e) in general, perform all duties incident to the office
of Secretary and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as from time to
time may be assigned by the Board of Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined by
the Board of Directors (or if there be no such determination, then in the order
of their election), shall, in the absence of the Secretary or in the event of
his inability or refusal to act, perform the duties and exercise the powers of
the Secretary and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 11. Officers' Bonds or Other Security. If required by the
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and with
such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he is also a
director of the Corporation.
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ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of the Corporation by, the Chairman of the Board or the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned
by him in the Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restriction of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation
Law of the State of Delaware, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen, or
destroyed certificate or certificates, or his legal representative, to give the
Corporation a bond in such sum as it may direct sufficient to indemnify it
against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it
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shall be the duty of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its records; provided, however, that the Corporation shall be entitled to
recognize and enforce any lawful restriction on transfer, including, without
limitation, the restrictions on transfer set forth in Article FIFTH of the
Certificate of Incorporation. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to do
so. Persons whose stock is pledged shall be entitled to vote, unless in the
transfer by the pledgor on the books of the Corporation he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee, or his
proxy, may represent such stock and vote thereon.
SECTION 5. Transfer Agents and Registrars. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Bylaws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, a majority of the Board of
Directors, including a majority of the Continuing Directors, may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 8. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
shall be entitled to hold liable for calls and assessments a person registered
on its records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
of stock on the party of any other person, whether or not its shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
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ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of stock of
the Corporation, unless otherwise provided by statute or the Certificate of
Incorporation.
SECTION 2. Seal. The seal of the Corporation shall be in such form
as shall be approved by the Board of Directors.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the Board of
Directors. The Corporation shall be subject to an annual audit as of the end
of its fiscal year by independent public accountants appointed by and
responsible to the Board of Directors. The appointment of such accountants
shall be subject to annual ratification by the stockholders.
SECTION 4. Checks, Notes, Drafts, Etc. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer, officers,
person or persons as from time to time may be designated by the Board of
Directors or by an officer or officers authorized by the Board of Directors to
make such designation.
SECTION 5. Execution of Contracts, Deeds, Etc. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments,
and such authority may be general or confined to specific instances.
SECTION 6. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board or
the President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Corporation may be entitled to cast as a
stockholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman of the Board or the President
may instruct the person or persons so appointed as to the manner of casting
such votes or giving such consent. The Chairman of the Board or the President
may, or may instruct the attorneys or agents appointed to, execute or cause to
be executed in the name and on behalf of the Corporation and under its seal or
otherwise, such written proxies, consents, waivers or other instruments as may
be necessary or proper in the circumstances.
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ARTICLE VII
DEFINITIONS
Capitalized terms in these Bylaws, not otherwise defined in these
Bylaws, have the meanings assigned to them in the Certificate of Incorporation.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended or repealed or new bylaws adopted as
provided in Article FIFTEENTH of the Certificate of Incorporation.
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Exhibit 99
[CHARTER ONE FINANCIAL, INC. LOGO]
1215 Superior Avenue
NEWS RELEASE
Cleveland, Ohio 44114
(216) 566-5300
For Immediate Release
Contact: William Dupuy Ellen L. Batkie
(216) 566-5311 (313) 965-5909
Charter One & FirstFed Michigan Corporation Complete Merger
CLEVELAND, Ohio, October 31, 1995 - Charter One Financial, Inc.
(Nasdaq-NNM:COFI) and FirstFed Michigan Corporation (Nasdaq-NNM:FFOM) announced
today that the merger of the two thrift holding companies has been completed.
At the close of trading today, each share of FirstFed Michigan Corporation
common stock will be exchanged for 1.2 shares of Charter One common stock,
traded under the symbol COFI.
Headquartered in Cleveland, the combined company, which continues
under the name Charter One Financial, Inc., has total assets of approximately
$13 billion and operates 157 offices in Ohio and Michigan. The 94 offices in
Ohio operate under the name Charter One Bank, F.S.B. while the 63 offices in
Michigan are under the First Federal of Michigan name.
