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As filed with the Securities and Exchange Commission on February 5, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
REGISTRATION STATEMENT ON
FORM S-8
UNDER THE SECURITIES ACT OF 1933
MSB FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Maryland 38-3203510
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
107 North Park Street, Marshall, Michigan 49068
(Address of principal executive offices) (Zip Code)
MSB FINANCIAL, INC.
1997 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Michael S. Sadow, P.C.
John S. Pettibone III, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
7th Floor, East Tower
1100 New York Avenue, NW
Washington, DC 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered(1) per share offering price registration fee
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 67,848 shares(2) (3) $1,090,557.33(3) $303.18(3)
======================================== ==================== =================== ======================== =======================
</TABLE>
- ---------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the Plan, may become subject to the Plan.
(2) The number of shares to which Awards may be made under the Plan has
been adjusted to reflect a 10% stock dividend declared in July 1998.
(3) Pursuant to Rule 457(h), of the 67,848 shares being registered hereby
(i) 46,200 shares are subject to options with an exercise price of
$16.3636 per share ($755,998.32 in the aggregate) and (ii) 21,648
shares are subject to options with an exercise price of $15.4545 per
share ($334,559.01 in the aggregate).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the MSB Financial, Inc. 1997 Stock
Option and Incentive Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the registration
statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously or concurrently filed by MSB Financial,
Inc. (the "Company") with the Commission are hereby incorporated by reference in
this Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998 (File No. 0-24898) filed pursuant to the Securities and Exchange
Act of 1934, as amended (the "Exchange Act");
(b) the quarterly report on Form 10-QSB of the Company for the quarterly
period ended September 30, 1998 (File No. 0-24898); and
(c) the description of the common stock, par value $.01 per share, of the
Company contained in the Form 8-A filed with the Commission on October 3, 1995
(File No. 0-24898) and all amendments thereto or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference into this registration
statement and to be a part thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this registration statement and the prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement and the
prospectus.
The Company shall furnish without charge to each person to whom the
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to the
Secretary, MSB Financial, Inc., 107 North Park Street, Marshall, Michigan 49067,
telephone number (616) 781-5103.
All information appearing in this registration statement and the prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
<PAGE>
Item 4. Description of Securities.
Not applicable
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The articles of incorporation of the Company (the "Articles of
Incorporation") provide generally that a director or officer of the Company (and
other employees and agents of the Company to the extent authorized by the board
and permitted by law) shall be indemnified by the Company to the fullest extent
authorized by the General Corporation Law of Maryland. Maryland law provides
that a director, officer, employee or agent will be indemnified provided that
the act or omission of the person was not material to the matter giving rise to
the proceedings, the person did not actually receive an improper personal
benefit in money, property, or services, or in any criminal proceedings, the
person had no reasonable cause to believe that the act or omission was unlawful.
The Articles of Incorporation and Maryland law also provide that the
indemnification provisions of the Articles of Incorporation and Maryland law are
not exclusive of any other right which a person seeking indemnification may have
or later acquire under any statute, provision of the Articles of Incorporation,
bylaws of the Company, agreement, vote of stockholders or disinterested
directors or otherwise.
These provisions may have the effect of deterring shareholder derivative
actions, since the Company may ultimately be responsible for expenses for both
parties to the action. A similar effect would not be expected for third-party
claims.
In addition, the Articles of Incorporation and Maryland law also provide
that the Company may maintain insurance, at its expense, to protect itself and
any director, officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Company has the power to indemnify such
person against such expense, liability or loss under the General Corporation Law
of Maryland. The Company has purchased insurance that insures directors and
officers against certain liabilities in connection with the performance of their
duties as directors and officers, and that provides for payment to the Company
of costs incurred by it in indemnifying its directors and officers.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and the Registrant has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Marshall, State of Michigan, on
February 3, 1999.
MSB FINANCIAL, INC.,
a Maryland corporation
By: /s/ Charles B. Cook
------------------------------------
Charles B. Cook, President and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles B. Cook, his true and lawful
attorney-in-fact and agent, with full power of substitution and re-substitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming said attorney-in-fact and agent or his substitutes or
substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date as indicated.
/s/ Charles B. Cook
- ---------------------------------------- ---------------------------------
Charles B. Cook, President, Chief Executive Aart VanElst, Chairman of the Board
Officer and Chief Financial Officer
(Principal Executive, Financial and
Accounting Officer)
Date: February 3, 1999 Date:
<PAGE>
/s/ John W. Yakimow /s/ Martin L. Mitchell
- ---------------------------- -----------------------------------
John W. Yakimow, Director Martin L. Mitchell, Director
Date: February 3, 1999 Date: February 3, 1999
/s/ Richard L. Dobbins /s/ J. Thomas Schaeffer
- ---------------------------- -----------------------------------
Richard L. Dobbins, Director J. Thomas Schaeffer, Director
Date: February 3, 1999 Date: February 3, 1999
/s/ Karl F. Loomis
- ----------------------------
Karl F. Loomis, Director
Date: February 3, 1999
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------------
Exhibit 4.1 Articles of Incorporation of MSB Financial, Inc.
Exhibit 4.2 Bylaws of MSB Financial, Inc.
Exhibit 4.3 Form of Stock Certificate of MSB Financial, Inc.
Exhibit 5 Opinion of Silver, Freedman & Taff, L.L.P.
Exhibit 23.1 Consent of Crowe, Chizek and Company LLP
Exhibit 23.2 Consent of Silver, Freedman & Taff, L.L.P.
Exhibit 24 Power of Attorney (contained on signature page)
Exhibit 4.1
ARTICLES OF INCORPORATION
OF
MSB FINANCIAL, INC.
The undersigned, Charles B. Cook, whose address is Park and Kalamazoo
Avenue, N.E., Marshall, Michigan 49068, being at least 18 years of age, acting
as sole incorporator, does hereby form a corporation under the General Laws of
the State of Maryland having the following Charter:
ARTICLE 1. Name. The name of the corporation is MSB Financial, Inc. (herein
the "Corporation").
ARTICLE 2. Principal Office. The address of the principal office of the
Corporation in the State of Maryland is c/o The Corporation Trust Incorporated,
300 East Lombard Street, Baltimore, Maryland 21202.
ARTICLE 3. Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which the corporation may be organized under the
General Corporation Law of the State of Maryland (the "MGCL").
ARTICLE 4. Resident Agent. The name and address of the registered agent of
the Corporation in the State of Maryland is The Corporation Trust Incorporated,
300 East Lombard Street, Baltimore, Maryland 21202. Said resident agent is a
Maryland corporation.
ARTICLE 5. Initial Directors. The number of directors constituting the
initial board of directors of the Corporation is seven, which number may be
increased or decreased pursuant to the Bylaws of the Corporation and ARTICLE 9
of the Charter, but shall never be less than the minimum number permitted by the
MGCL now or hereafter in force. The names of the persons who are to serve as
directors until their successors are elected and qualified, are:
Name Term to Expire in
Charles B. Cook ............................................ 1999
Karl F. Loomis ............................................. 1999
J. Thomas Schaeffer ........................................ 1999
Richard L. Dobbins ......................................... 2000
Martin L. Mitchell ......................................... 2000
Aart VanElst ............................................... 2001
John W. Yakimow ............................................ 2001
ARTICLE 6.
Capital Stock. The total number of shares of capital stock which the
Corporation shall have the authority to issue is six million (6,000,000) shares
consisting of:
1. Two million (2,000,000) shares of preferred stock, par value one cent
($.0L) per share (the "preferred stock"); and
2. four million (4,000,000) shares of common stock, par value one cent
($.0l) per share (the "Common Stock").
<PAGE>
The aggregate par value of all the authorized of capital stock is sixty
thousand dollars ($60,000). Except to the extent required by governing law, rule
or regulation, the shares of capital stock may be issued from time to time by
the Board of Directors without further approval of the stockholders of the
Corporation. The Corporation shall have the authority to purchase its capital
stock out of funds lawfully available therefore which funds shall include,
without limitation, the Corporation's unreserved and unrestricted capital
surplus.
B. Preferred Stock. The Board of Directors is hereby expressly authorized,
subject to any limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of the Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of the Preferred Stock.
C. Common Stock. Except as provided for in the Charter (or any resolution
or resolutions adopted by the Board of Directors pursuant hereto) the exclusive
voting power shall be vested in the Common Stock, the holders thereof being
entitled to one vote for each share of such Common Stock standing in the
holder's name on the books of the Corporation. Subject to any rights and
preferences of any class of stock having preferences over the Common Stock,
holders of Common Stock shall be entitled to such dividends as may be declared
by the Board of Directors out of funds lawfully available therefor. Upon any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock shall be entitled to
receive pro rata the remaining assets of the Corporation after payment or
provision for payment of all debts and liabilities of the Corporation and
payment or provision for payment of any amounts owed to the holders of any class
of stock having preference over the Common Stock on distributions on
liquidation, dissolution or winding up of the Corporation.
D. Restrictions on Voting Rights of the Corporation's Equity Securities.
1. Notwithstanding any other provision of this Charter, in no event shall
any record owner of any outstanding Common Stock which is beneficially owned,
directly or indirectly, by a person who, as of any record date for the
determination of stockholders entitled to vote on any matter, beneficially owns
in excess of 10% of the then-outstanding shares of Common Stock (the "Limit"),
be entitled, or permitted to any vote in respect of the shares held in excess of
the Limit. The number of votes which may be cast by any record owner by virtue
of the provisions hereof in respect of Common Stock beneficially owned by such
person owning shares in excess of the Limit shall be a number equal to the total
number of votes which a single record owner of all Common Stock owned by such
person would be entitled to cast, multiplied by a fraction, the numerator of
which is the number of shares of such class or series beneficially owned by such
person and owned of record by such record owner and the denominator of which is
the total number of shares of Common Stock beneficially owned by such person
owning shares in excess of the Limit.
<PAGE>
2. The following definitions shall apply to this Section D of this Article.
(a) An "affiliate" of a specified person shall mean a person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the person specified.
(b) "Beneficial ownership" shall be determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of 1934 (or
any successor rule or statutory provision), or, if said Rule 13d-3 shall he
rescinded and there shall be no successor rule or statutory provision thereto,
pursuant to said Rule 13d-3 as in effect on August 31, 1994; Provided, however,
that a person shall, in any event, also be deemed the "beneficial owner" of any
Common Stock:
(1) which such person or any of its affiliates beneficially owns, directly
or indirectly; or
(2) which such person or any of its affiliates has (i) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding (but shall not be
deemed to be the beneficial owner of any voting shares solely by reason of an
agreement, contract, or other arrangement with this Corporation to effect any
transaction which is described in any one or more of the clauses of Section A of
ARTICLE 10) or upon the exercise of conversion rights, exchange rights,
warrants, or options or otherwise, or (ii) sole or shared voting or investment
power with respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed to be the
beneficial owner of any voting shares solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, with respect to shares of which
neither such person nor any such affiliate is otherwise deemed the beneficial
owner), or
(3) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its affiliates acts as a
partnership, limited partnership, syndicate or other group pursuant to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of this Corporation;
and provided further, however, that (1) no director or officer of this
Corporation (or any affiliate of any such director or officer) shall, solely by
reason of any or all of such directors or officers acting in their capacities as
such, be deemed, for any purposes hereof, to beneficially own any Common Stock
beneficially owned by any other such director or officer (or any affiliate
thereof), and (2) neither any employee stock ownership or similar plan of this
Corporation or any subsidiary of this Corporation nor any trustee with respect
thereto (or any affiliate of such trustee) shall, solely by reason of such
capacity of such trustee, be deemed, for any purposes hereof, to beneficially
own any Common Stock held under any such plan. For purposes of computing the
percentage beneficial ownership of Common Stock of a person, the outstanding
Common Stock shall include shares deemed owned by such person through
application
<PAGE>
of this subsection but shall not include any other Common Stock which may be
issuable by this Corporation pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise. For all other purposes,
the outstanding Common Stock shall include only Common Stock then outstanding
and shall not include any Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon the exercise of conversion rights, warrants
or options, or otherwise.
(c) A "Person" shall mean any individual, firm, corporation, or other
entity.
(d) The Board of Directors shall have the power to construe and apply the
provisions of this section and to make all determinations necessary or desirable
to implement such provisions, including but not limited to matters with respect
to (1) the number of shares of Common Stock beneficially owned by any person,
(2) whether a person is an affiliate of another, (3) whether a person has an
agreement, arrangement, or understanding with another as to the matters referred
to in the definition of beneficial ownership, (4) the application of any other
definition or operative provision of this Section to the given facts, or (5) any
other matter relating to the applicability or effect of this Section.
3. The Board of Directors shall have the right to demand that any person
who is reasonably believed to beneficially own Common Stock in excess of the
Limit (or holds of record Common Stock beneficially owned by any person in
excess of the Limit) (a "Holder in Excess") supply the Corporation with complete
information as to (a) the record owner(s) of all shares beneficially owned by
such Holder in Excess, and (b) any other factual matter relating to the
applicability or effect of this section as may reasonably be requested of such
Holder in Excess. The Board of Directors shall further have the right to receive
from any Holder in Excess reimbursement for all expenses incurred by the Board
in connection with its investigation of any matters relating to the
applicability or effect of this section on such Holder in Excess, to the extent
such investigation is deemed appropriate by the Board of Directors as a result
of the Holder in Excess refusing to supply the Corporation with the information
described in the previous sentence.
4. Except as otherwise provided by law or expressly provided in this
Section D, 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
one-third of the votes (after giving effect, if required, to the provisions of
this Section) 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 Charter 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.
5. Any constructions, applications, or determinations made by the Board of
Directors, pursuant to this Section in good faith and on the basis of such
information and assistance as was then reasonably available for such purpose,
shall be conclusive and binding upon the Corporation and its stockholders.
<PAGE>
6. In the event any provision (or portion thereof) of this Section D shall
be found to be invalid, prohibited or unenforceable for any reason, the
remaining provisions (or portions thereof) of this Section 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 Section D remain, to
the fullest extent permitted by law, applicable and enforceable as to all
stockholders, including stockholders owning an amount of stock over the Limit,
notwithstanding any such finding.
E. Voting Rights of Certain Control Shares. Notwithstanding any contrary
provision of law, the provisions of Subtitle 7 of Title 3 of the MGCL, now or
hereafter in force, shall not apply to the voting rights of the Common Stock of
the Corporation as to all existing and future holders of Common Stock of the
Corporation.
F. Majority Vote. Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the total
number of shares of all classes of capital stock or of the total number of
shares of any class of capital stock, such action shall be valid and effective
if authorized by the affirmative vote of the holders of a majority of the total
number of shares of all classes outstanding and entitled to vote thereon, except
as otherwise provide in the Charter.
ARTICLE 7. Preemptive Rights. No holder of the capital stock of the
Corporation or series of stock or of options, warrants or other rights to
purchase shares of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or subscribe for any
unissued capital stock of any class or series, or any unissued bonds,
certificates of indebtedness, debentures or other securities convertible into or
exchangeable for capital stock of any class or series or carrying any right to
purchase stock of any class or series.
ARTICLE 8. Directors.
A. Management of the Corporation. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authority expressly conferred upon them
by Statute or by the Charter or the Bylaws of the Corporation, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation.
B. Number, Class and Terms of Directors; Cumulative Voting. The number of
directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Board. The directors,
other than those who may be elected by the holders of any class or series of
Preferred Stock, shall be divided into three classes, as nearly equal in number
as reasonably possible, with the term of office of the first class to expire at
the conclusion of the first annual meeting of stockholders, the term of office
of the second class to expire at the conclusion of the annual meeting of
stockholders one year thereafter and the term of office of the third class to
expire at the conclusion of the annual meeting of stockholders two years
thereafter, with each director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of stockholders,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified. Stockholders shall
not be permitted to cumulate their votes in the election of directors.
<PAGE>
C. Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies on the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled only by a majority vote of
the directors then in office, though less than a quorum. A director so chosen by
the remaining directors shall hold office until the next succeeding annual
meeting of stockholders, at which time the stockholders shall elect a director
to hold office for the balance of the term then remaining. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
D. Removal. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, but only for cause and then only by the
affirmative vote of the holders of at least 80% of the combined voting power of
all of the then-outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (after giving effect to the
provisions of ARTICLE 6 of the Charter) voting together as a single class.
E. Stockholder Proposals and Nominations of Directors. For any stockholder
proposal to be presented in connection with an annual meeting of stockholders of
the Corporation, including any nomination or proposal relating to the nomination
of a director to be elected to the Board of Directors of the Corporation, the
stockholder must have given timely written notice thereof to the Secretary of
the Corporation in the manner and containing the information required by the
Bylaws of the Corporation. Stockholder proposals to be presented in connection
with a special meeting of stockholders will be presented by the Corporation only
to the extent required by Section 2-502 of the MGCL and the Bylaws of the
Corporation.
ARTICLE 9. Bylaws. The Board of Directors is expressly empowered to adopt,
amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal
of the Bylaws of the Corporation by the Board of Directors shall require the
approval of a majority of the total number of directors which the Corporation
would have if there were no vacancies on the Board of Directors. The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the
Corporation. In addition to any vote of the holders of any class or series of
stock of this Corporation required by law or by the Charter, the affirmative
vote of the holders of at least 80% of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (after giving effect to the provisions of
ARTICLE 6 hereof), voting together as a single class, shall be required to
adopt, amend or repeal any provisions of the Bylaws of the Corporation.
ARTICLE 10. Approval of Certain Business Combinations.
A. Super-majority Voting Requirement; Business Combination Defined. In
addition to any affirmative vote required by law or the Charter, and except as
otherwise expressly provided in this Section:
1. any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
<PAGE>
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, or any Affiliate of any Interested Stockholder, of any
assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereafter defined) equaling or exceeding 25% or more of the combined
assets of the Corporation and its Subsidiaries, or
3. the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or
any Subsidiary to any Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value equaling or exceeding 25% of the
combined assets of the Corporation and its Subsidiaries except pursuant to an
employee benefit plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
5. any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder (a
"Disproportionate Transaction"); provided, however, that no such transaction
shall be deemed a Disproportionate Transaction if the increase in the
proportionate ownership of the Interested Stockholder or Affiliate as a result
of such transaction is no greater than the increase experienced by the other
stockholders generally;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then-outstanding shares of stock of the Corporation entitled
to vote in the election of directors (the "Voting Stock"), 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 by any other provisions of the Charter or any Preferred Stock or in any
agreement with any national securities exchange or quotation system or
otherwise.
The term "Business Combination" as used in this Article shall mean any
transaction which is referred to in any one or more of paragraphs 1 through 5 of
Section A of this Article.
B. Exception to Super-majority Voting Requirement. The provisions of
Section A of this Article shall not be applicable to any particular Business
Combination, and such Business Combination shall require only the affirmative
vote of the majority of the outstanding shares of capital stock entitled to
vote, or such vote as is required by law or by the Charter, if, in the case of
any Business Combination that does not involve any cash or other consideration
being received by the stockholders of the Corporation solely in their capacity
as stockholders of the Corporation, the condition specified in the following
paragraph 1 is met or, in the case of any other Business Combination, all of the
conditions specified in either of the following paragraphs 1 and 2 are met:
<PAGE>
1. The Business Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by the holders of Common Stock in such Business
Combination shall at least be equal to the higher of the following:
(i) (if applicable) the Highest Per Share Price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the Interested
Stockholder or any of its Affiliates for any shares of Common stock acquired by
it (i) within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the "Announcement
Date"), or (ii) in the transaction in which it became an Interested Stockholder,
whichever is higher.
(ii) the Fair Market Value per share of Common Stock on the Announcement
Date or on the date on which the Interested Stockholder became an Interested
Stockholder (such latter date is referred to in this Article as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by holders of shares of any class of outstanding
Voting Stock other than Common Stock shall be at least equal to the highest of
the following (it being intended that the requirements of this subparagraph (b)
shall be required to be met with respect to every such class of outstanding
Voting Stock, whether or not the Interested Stockholder has previously acquired
any shares of a particular class of Voting Stock):
(i) (if applicable) the Highest Per Share Price (as hereinafter defined),
including any brokerage commissions, transfer taxes and soliciting dealers,
fees, paid by the Interested Stockholder for any shares of such class of Voting
Stock acquired by it (i) within the two-year period immediately prior to the
Announcement Date, or (ii) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount per share to which the
holders of shares of such class of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher.
(c) The consideration to be received by holders of a particular class of
outstanding Voting Stock (including Common Stock) shall be in cash or in the
<PAGE>
same form as the Interested Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such class of
Voting Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by the Interested
Stockholder. The price determined in accordance with Section B.2. of this
Article shall be subject to appropriate adjustment in the event of any stock
dividend, stock split, combination of shares or similar event.
(d) After such Interested Stockholder has become an Interested Stockholder
and prior to the consummation of such Business Combination; (i) except as
approved by a majority of the Disinterested Directors, there shall have been no
failure to declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding stock having preference
over the Common Stock as to dividends or liquidation; (ii) there shall have been
(X) no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock), except as
approved by a majority of the Disinterested Directors, and (Y) an increase in
such annual rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure to so increase such annual rate is
approved by a majority of the Disinterested Directors; and (iii) neither such
Interested Stockholder nor any of its Affiliates shall have become the
beneficial owner of any additional shares of Voting Stock except as part of the
transaction which results in such Interested Stockholder becoming an Interested
Stockholder.
(e) After such Interested Stockholder has become an Interested Stockholder,
such Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions).
C. Certain Definitions. For the purposes of this Article:
1. A "Person" shall include an individual, a group acting in concert, a
corporation, a partnership, an association, a joint venture, a pool, a joint
stock company, a trust, an unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of acquiring, holding or
disposing of securities.
<PAGE>
2. "Interested Stockholder" shall mean any Person (other than the
Corporation or any holding company or Subsidiary thereof) who or which:
(a) is the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the
then-outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the meaning of the
Securities Act of 1933.
3. A Person shall be a "beneficial owner" of any Voting Stock:
(a) which such Person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as in effect on
August 31, 1994; or
(b) which such Person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only after
the passage of time), pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding (but neither such Person nor any such Affiliate or Associate shall
be deemed to be the beneficial owner of any shares of Voting Stock solely by
reason of a revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, and with respect
to which shares neither such Person nor any such Affiliate or Associate is
otherwise deemed the beneficial owner); or
(c) which are beneficially owned, directly or indirectly within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as in effect on August
31, 1994, by any other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purposes of
acquiring, holding, voting (other than solely by reason of a revocable proxy as
described in Subparagraph (b) of this Paragraph 3) or in disposing of any shares
of Voting Stock;
provided, however, that, in the case of any employee stock ownership or
similar plan of the Corporation or of any Subsidiary in which the beneficiaries
thereof possess the right to vote any shares of Voting Stock held by such plan,
no such plan nor any trustee with respect thereto (nor any Affiliate of such
trustee), solely by reason of such capacity of such trustee, shall be deemed,
for any purposes hereof, to beneficially own any shares of Voting Stock held
under any such plan.
<PAGE>
4. For the purpose of determining whether a Person is an Interested
Stockholder pursuant to Section C.2., the number of shares of Voting Stock
deemed to be outstanding shall include shares deemed owned through application
of this Section C.3. but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on August 31, 1994.
6. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; Provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in this Section C.2., the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned, directly or
indirectly, by the Corporation.
7. "Disinterested Director" means any member of the Board of Directors who
is unaffiliated with the Interested Stockholder and was a member of the Board of
Directors prior to the time that the Interested Stockholder became an Interested
Stockholder, and any director who is thereafter chosen to fill any vacancy on
the Board of Directors or who is elected and who, in either event, is
unaffiliated with the Interested Stockholder, and in connection with his or her
initial assumption of office is recommended for appointment or election by a
majority of Disinterested Directors then on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the highest closing
sales price of the stock during the 30-day period immediately preceding the date
in question of a share of such stock on the Nasdaq System or any system then in
use, or, if such stock is admitted to trading on a principal United States
securities exchange registered under the Securities Exchange Act of 1934, Fair
Market Value shall be the highest sale price reported during the 30-day period
preceding the date in question, or, if no such quotations are available, the
Fair Market Value on the date in question of a share of such stock as determined
by the Board of Directors in good faith, in each case with respect to any class
of stock, appropriately adjusted for any dividend or distribution in shares of
such stock or in combination or reclassification of outstanding shares of such
stock into a smaller number of shares of such stock, and (b) in the case of
property other than cash or stock, the Fair Market Value of such property on the
date in question as determined by the Board of Directors in good faith.
9. Reference to "Highest Per Share Price" shall in each case with respect
to any class of stock reflect an appropriate adjustment for any dividend or
distribution in shares of such stock or any stock split or reclassification of
outstanding shares of such stock into a greater number of shares of such stock
or any combination or reclassification of outstanding shares of such stock into
a smaller number of shares of such stock.
10. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
Sections B.2.(a) and B.2.(b) of this ARTICLE 10 shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
<PAGE>
D. Construction and Interpretation. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine for the
purposes of this Article, on the basis of information known to them after
reasonable inquiry, (a) whether a person is an Interested Stockholder; (b) the
number of shares of Voting Stock beneficially owned by any person; (c) whether a
person is an Affiliate or Associate of another; and (d) whether the assets which
are the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value
equaling or exceeding 25% of the combined assets of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have the further
power to interpret all of the terms and provisions of this Article.
E. Fiduciary Duty. Nothing contained in this Article shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
F. Maryland Business Combination Statute. Notwithstanding any contrary
provision of law, the provisions of Sections 3-601 through 3-604 of the MGCL, as
now and hereafter in force, shall not apply to any business combination (as
defined in Section 3-601(e) of the MGCL, as now and hereafter in force), of the
Corporation.
ARTICLE 11. Evaluation of Certain Offers. The Board of Directors of the
Corporation, when evaluating any offer of another Person (as defined in ARTICLE
10 hereof) to (A) make a tender or exchange offer for any equity security of the
Corporation, (B) merge or consolidate the Corporation with another corporation
or entity, or (C) 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 interest of the Corporation
and its stockholders, give due consideration to all relevant factors, including,
without limitation, the social and economic effect of acceptance of such offer
on the Corporation's present and future customers and employees and those of its
Subsidiaries (as defined in ARTICLE 10 hereof); on the communities in which the
Corporation and its Subsidiaries operate or are located; on the ability of the
Corporation to fulfill its corporate objectives as a financial institution
holding company and on the ability of its subsidiary financial institution to
fulfill the objectives of a federally insured financial institution under
applicable statutes and regulations.
ARTICLE 12. Indemnification, etc. of Directors and Officers.
A. Indemnification. The Corporation shall indemnify (1) its current and
former directors and officers, whether serving the Corporation or at its request
any other entity, to the fullest extent required or permitted by the MGCL now or
hereafter in force (but, in the case of any amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such amendment),
including the advancement of expenses under the procedures and to the fullest
extent permitted by law, and (2) other employees and agents to such extent as
shall be authorized by the Board of Directors and permitted by law; provided,
however, that, except as provided in Section B hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
B. Procedure. If a claim under Section A of this Article is not paid in
full by the Corporation within 60 days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
<PAGE>
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
the indemnitee shall also be entitled to be reimbursed the expense of
prosecuting or defending such suit. It shall be a defense to any action for
advancement of expenses that the Corporation has not received both (i) an
undertaking as required by law to repay such advances in the event it shall
ultimately be determined that the standard of conduct has not been met and (ii)
a written affirmation by the indemnitee of his good faith belief that the
standard of conduct necessary for indemnification by the Corporation has been
met. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the MGCL, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
D. Non-Exclusivity. The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Charter, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the MGCL.
F. Miscellaneous. The Corporation shall not be liable for any payment under
this Article in connection with a claim made by any indemnitee to the extent
such indemnitee has otherwise actually received payment under any insurance
policy, agreement, or otherwise, of the amounts otherwise indemnifiable
hereunder. The rights to indemnification and to the advancement of expenses
conferred in Sections A and B of this Article shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
Any repeal or modification of this Article shall not in any way diminish
any rights to indemnification or advancement of expenses of such director or
officer or the obligations of the Corporation arising hereunder with respect to
events occurring, or claims made, while this Article is in force.
ARTICLE 13. Limitation of Liability. An officer or director of the
Corporation, as such, shall not be liable to the Corporation or its stockholders
for money damages, except (i) to the extent that it is proved that the person
actually received an improper benefit or profit in money, property or services
for the amount of the benefit or profit in money, property or services actually
received; (ii) to the extent that a judgment or other final adjudication adverse
to the person is entered in a proceeding based on a finding in the proceeding
that the person's action, or failure to act, was the result of active and
<PAGE>
deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding; or (iii) to the extent otherwise required by the MGCL. If the
MGCL is amended to further eliminate or limit the personal liability of officers
and directors, then the liability of officers and directors of the Corporation
shall be eliminated or limited to the fullest extent permitted by MGCL, 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 or officer of the Corporation existing at the time of such repeal or
modification.
ARTICLE 14. Amendment of the Charter. The Corporation reserves the right to
amend or repeal any provision contained in the Charter in the manner prescribed
by the MGCL and all rights conferred upon stockholders are granted subject to
this reservation; Provided, however, that, notwithstanding any other provision
of the Charter or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any vote of the holders of any class or
series of the stock of this Corporation required by law or by the Charter, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then-outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors (after giving effect to the
provisions of ARTICLE 6), voting together as a single class, shall be required
to amend or repeal this ARTICLE 14, Sections B, D or E of ARTICLE 6, ARTICLE 8,
ARTICLE 9, ARTICLE 10 or ARTICLE 12.
ARTICLE 15. Name and Address of Incorporator. The name and mailing address
of the sole incorporator are as follows:
NAME .......................................... MAILING ADDRESS
Charles B. Cook ......................... Marshall Savings Bank, F.S.B.
Park and Kalamazoo Avenue, N.E
Marshall, Michigan 49068
<PAGE>
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Maryland, do make, file and record
the Charter, do certify that the facts herein stated are true, and, accordingly,
have hereto set my hand this 28th day of October 1998.
/s/ Charles B. Cook
-----------------------------
Charles B. Cook, Incorporator
Exhibit 4.2
MSB FINANCIAL, INC.
BYLAWS
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meeting. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix.
Section 1.02. Special Meetings. Subject to the rights of the holders of any
class or series of preferred stock of the Corporation, special meetings of
stockholders of the Corporation may be called by the President or by the Board
of Directors pursuant to a resolution adopted by a majority of the total number
of directors which the Corporation would have if there were no vacancies on the
Board of Directors (hereinafter the "Whole Board"). Special meetings of the
stockholders shall be called by the Secretary at the request of stockholders
only on the written request of stockholders entitled to cast at least a majority
of all the votes entitled to be cast at the meeting. Such written request will
state the purpose or purposes of the meeting and the matters proposed to be
acted upon at the meeting, and shall be delivered at the home office of the
Corporation addressed to the President or the Secretary. The Secretary shall
inform the stockholders who make the request of the reasonable estimated cost of
preparing and mailing a notice of the meeting and, upon payment of these costs
to the Corporation, notify each stockholder entitled to notice of the meeting.
Section 1.03. Notice of Meetings. Not less than ten nor more than 90 days
before each stockholders' meeting, the Secretary shall give written notice of
the meeting to each stockholder entitled to vote at the meeting and to each
other stockholder entitled to notice of the meeting. The notice shall state the
time and place of the meeting and, if the meeting is a special meeting or notice
of the purpose is required by statute, the purpose of the meeting. Notice is
given to a stockholder when it is personally delivered to the stockholder, left
at the stockholder's usual place of business, or mailed to the stockholder at
his or her address as it appears on the records of the Corporation.
Notwithstanding the foregoing provisions, each person who is entitled to notice
waives notice if such person, before or after the meeting, signs a waiver of the
notice which is filed with the records of the stockholders' meeting, or is
present at the meeting in person or by proxy.
Section 1.04. Adjournment. A meeting of stockholders convened on the date
for which it was called may be adjourned from time to time without further
notice to a date not more than 120 days after the original record date. At any
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
<PAGE>
Section 1.05. Quorum; Voting. At any meeting of the stockholders, the
presence in person or by proxy of stockholders entitled to cast at least
one-third of all the votes entitled to be cast at the meeting constitutes a
quorum for all purposes, unless or except to the extent that the presence of a
larger number may be required by law. Where a separate vote by a class or
classes is required, a majority of the shares of such class or classes, present
in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. A majority of all votes cast at
a meeting at which a quorum is present is sufficient to approve any matter which
properly comes before the meeting.
If a quorum shall fail to attend any meeting, the chairman of the meeting
or the holders of a majority of the shares of stock entitled to vote who are
present, in person or by proxy, may adjourn the meeting to another place, date
or time.
Section 1.06. General Right to Vote; Proxies. Unless the Charter provides
for a greater or lesser number of votes per share or limits or denies voting
rights, each outstanding share of stock, regardless of class, is entitled to one
vote on each matter submitted to a vote at a meeting of stockholders. In all
elections for directors, directors shall be determined by a plurality of the
votes cast, and except as otherwise required by law or as provided in the
Charter, all other matters shall be determined by a majority of the votes cast
at the meeting.
A stockholder may vote the stock the stockholder owns of record either in
person or by proxy. A stockholder may sign a writing authorizing another person
to act as proxy. Signing may be accomplished by the stockholder or the
stockholder's authorized agent signing the writing or causing the stockholder's
signature to be affixed to the writing by any reasonable means, including
facsimile signature. A stockholder may authorize another person to act as proxy
by transmitting, or authorizing the transmission of a telegram, cablegram,
datagram, or other means of electronic transmission to the person authorized to
act as proxy or to a proxy solicitation firm, proxy support service
organization, or other person authorized by the person who will act as proxy to
receive the transmission. Unless a proxy provides otherwise, it is not valid
more than 11 months after its date. A proxy is revocable by a stockholder at any
time without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for so long as it is coupled with an interest. The interest with
which a proxy may be coupled includes an interest in the stock to be voted under
the proxy or another general interest in the Corporation or its asset or
liabilities.
Section 1.07. Conduct of Business.
(a) The chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
(b) Nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving notice provided for in Section 1.09, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in Section 1.09.
Nominations of persons for election to the Board of Directors and the proposal
of business to be considered by the stockholders may be made at a special
meeting of stockholders only pursuant to the Corporation's notice of meeting.
The chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made in
<PAGE>
accordance with the procedures set forth in Section 1.09 and, if any proposed
nomination or business is not in compliance with Section 1.09, to declare that
such defective nomination or proposal be disregarded.
Section 1.08. Conduct of Voting. The Board of Directors shall, in advance
of any meeting of stockholders, appoint one or more persons as inspectors of
election, to act at the meeting or any adjournment thereof and make a written
report thereof, in accordance with applicable law. At all meetings of
stockholders the proxies and ballots shall be received, and all questions
touching the qualification of voters and the validity of proxies, the acceptance
or rejection of votes not otherwise specified by these Bylaws, the Charter or
law, shall be decided or determined by the inspector of elections. All voting,
including on the election of directors but excepting where otherwise required by
law, may be by a voice vote; provided, however, that upon demand therefore by a
stockholder entitled to vote or his or her proxy, a stock vote shall be taken.
Every stock vote shall be taken by ballot, each of which shall state the name of
the stockholder or proxy voting and such other information as may be required
under the procedure established for the meeting. Every vote taken by ballot
shall be counted by an inspector or inspectors appointed by the chairman of the
meeting. No candidate for election as a director at a meeting shall serve as an
inspector at such meeting.
Section 1.09. Stockholder Proposals. For any stockholder proposal to be
presented in connection with an annual meeting of stockholders of the
Corporation (including proposals made under rule 14a-8 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), including any nomination
or proposal relating to the nomination of a director to be elected to the Board
of Directors of the Corporation, the stockholders must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 90 days or more than 120 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than 30 days or delayed by more than 60 days from such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
120th day prior to such annual meeting and not later than the close of business
on the later of the 90th day prior to such annual meeting or the tenth day
following the day on which notice of the date of annual meeting was mailed or
public announcement of the date of such meeting is first made. No adjournment or
postponement of an annual meeting shall commence a new period for the giving of
notice of a stockholder proposal hereunder. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
(b) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and of the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of stock of the Corporation which
are owned beneficially and of record by such stockholders and such beneficial
owner.
Section 1.10. Informal Action by Stockholders. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if there is filed with the records of the stockholders' meetings a
unanimous written consent which sets forth the action and is signed by each
<PAGE>
stockholder entitled to vote on the matter and a written waiver of any right to
dissent signed by each stockholder entitled to notice of the meeting but not
entitled to vote at the meeting.
Section 1.11. List of Stockholders. At each meeting of stockholders, a full,
true and complete list of all stockholders entitled to vote at such meeting,
showing the number and class of shares held by each and certified by the
transfer agent for such class or by the Secretary, shall be furnished by the
Secretary.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. Function of Directors, Number and Term of Office. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. The number of directors shall be as
provided for in the Charter. The Board of Directors shall annually elect a
Chairman of the Board and a President from among its members and shall
designate, when present, either the Chairman of the Board or the President to
preside at its meetings.
The directors, other than those who may be elected by the holders of any
class or series of preferred stock, shall be divided into three classes, as
nearly equal in number as reasonably possible, with the term of office of the
first class to expire at the conclusion of the first annual meeting of
stockholders, the term of office of the second class to expire at the conclusion
of the annual meeting of stockholders one year thereafter and the term of office
of the third class to expire at the conclusion of the annual meeting of
stockholders two years thereafter, with each director to hold office until his
or her successor shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the first annual meeting, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting of stockholders
after their election, with each director to hold office until his or her
successor shall have been duly elected and qualified.
No person 70 years of age shall be eligible for election, reelection,
appointment, or reappointment to the Board of the Corporation. No director shall
serve as such beyond the annual meeting of the Corporation in the year which the
director becomes 70. A director's term will be adjusted, if necessary, to expire
in the year the director turns 70. This age limitation does not apply to
directors who have served on the Board of Directors of Marshall Savings Bank,
F.S.B. since October 1987 or to an Emeritus Director or Advisory Director.
Section 2.02. Vacancies and Newly Created Directorships. A vacancy on the
board of Directors may be filled only in accordance with the provisions of the
Charter. Subject to the rights of the holders of any class of stock separately
entitled to elect one or more directors, a majority of the remaining directors,
whether or nor sufficient to constitute a quorum, may fill a vacancy on the
Board of Directors which results from any cause. A director so chosen by the
remaining directors shall hold office until the next succeeding annual meeting
of stockholders, at which time the stockholders shall elect a director to hold
office for the balance of the term then remaining.
Any director or the entire Board of Directors may be removed only in
accordance with the provisions of the Charter.
<PAGE>
Section 2.03. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required.
Section 2.04. Special Meetings. Special meetings of the Board of Directors
may be called by one-third (1/3) of the directors then in office (rounded up to
the nearest whole number) or by the President and shall be held at such place,
on such date, and at such time as they or he or she shall fix. Notice of the
place, date, and time of each such special meeting shall be given to each
director by whom it is not waived by mailing written notice not less than five
days before the meeting or by telegraphing or telexing or by facsimile or
electronic transmission of the same not less than 24 hours before the meeting.
Unless otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting. No notice of any meeting of the Board of
Directors need be given to any director who attends except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened, or to any
director who, in writing executed and filed with the records of the meeting
either before or after the holding thereof, waives such notice. Any special
meeting of the Board of Directors may adjourn from time to time to reconvene at
the same or some other place, and no notice need be given of any such adjourned
meeting other than by announcement.
Section 2.05. Quorum. At any meeting of the Board of Directors, a majority
of the authorized number of directors then constituting the Board shall
constitute a quorum for all purposes. If a quorum shall fail to attend any
meeting, a majority of those present may adjourn the meeting to another place,
date, or time, without further notice or waiver thereof.
Section 2.06. Participation in Meetings By Conference Telephone. Members of
the Board of Directors, or of any committee thereof, may participate in a
meeting of such Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and such participation shall
constitute presence in person at such meeting.
Section 2.07. Conduct of Business. At any meeting of the Board of
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Action may be taken by the Board of Directors without a meeting
if all members thereof consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
Section 2.08. Powers. The Board of Directors may, except as otherwise required
by law, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting the generality
of the foregoing, the unqualified power:
(i) To declare dividends from time to time in accordance with law;
(ii) To purchase or otherwise acquire any property, rights or privileges on
such terms as it shall determine;
(iii) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
<PAGE>
(iv) To remove any officer of the Corporation with or without cause, and
from time to time to devolve the powers and duties of any officer upon any other
person for the time being;
(v) To confer upon any officer of the Corporation the power to appoint,
remove and suspend subordinate officers, employees and agents;
(vi) To adopt from time to time such stock, option, stock purchase, bonus
or other compensation plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine;
(vii) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and
(viii) To adopt from time to time regulations, not
inconsistent with these Bylaws, for the management of the Corporation's business
and affairs.
Section 2.09. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees (and expenses, if
any) and other compensation for their services as directors, including, without
limitation, their services as members of committees of the Board of Directors.
Section 2.10. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent or abstention shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by certified mail, return receipt requested, to
the Secretary of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to a director who votes in favor
of such action.
<PAGE>
ARTICLE III
COMMITTEES
Section 3.01. Committees of the Board of Directors. The Board of Directors
may appoint from among its members an Executive Committee and other committees
composed of one or more directors and delegate to these committees any of the
powers of the Board of Directors, except the power to authorize dividends on
stock, elect directors, issue stock other than as provided in the next sentence,
recommend to the stockholders any action which requires stockholder approval,
amend these Bylaws, or approve any merger or share exchange which does not
require stockholder approval. If the Board of directors has given general
authorization for the issuance of stock providing for or establishing a method
or procedure for determining the maximum number of shares to be issued, a
committee of the Board of Directors, in accordance with that general
authorization or any stock option or other plan or program adopted by the Board
of Directors, may authorize or fix the terms of stock subject to classification
or reclassification and the terms on which any stock may be issued, including
all terms and conditions required or permitted to be established or authorized
by the Board of Directors. Any committee so designated may exercise the power
and authority of the Board of Directors if the resolution which designated the
committee or a supplemental resolution of the Board of Directors shall so
provide. In the absence or disqualification of any member of any committee in
his or her place, the member or members of the committee present at the meeting
and not disqualified from voting, whether or not he or she or they constitute a
quorum, may by unanimous vote appoint another member of the Board of Directors
to act at the meeting in the place of the absent or disqualified member.
Section 3.02. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings,
one-third (1/3) of the members shall constitute a quorum unless the committee
shall consist of one or two members, in which event one member shall constitute
a quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
Section 3.03. Nominating Committee. The Board of Directors may appoint a
Nominating Committee of the Board, consisting of not less than three members,
one of which shall be the President if, and only so long as, the President
remains in office as a member of the Board of Directors. The Nominating
Committee shall have authority (i) to review any nominations for election to the
Board of Directors made by a stockholder of the Corporation pursuant to Section
1.07 of these Bylaws in order to determine compliance with such Bylaw and (ii)
to recommend to the Board of Directors nominees for election to the Board of
Directors to replace those directors whose terms expire at the annual meeting of
stockholders next ensuing.
<PAGE>
ARTICLE IV
OFFICERS
Section 4.01. Generally.
(a) The Board of Directors as soon as may be practicable after the annual
meeting of stockholders shall choose a President, a Secretary and a Treasurer
and from time to time may choose such other officers as it may deem proper. The
President shall be chosen from among the directors. Any number of offices may be
held by the same person, except no person may serve concurrently as both
President and Vice President of the Corporation.
(b) The term of office of all officers shall be until the next annual
election of officers and until their respective successors are chosen, but any
officer may be removed from office at any time by the affirmative vote of a
majority of the authorized number of directors then constituting the Board of
Directors.
(c) All officers chosen by the Board of Directors shall each have such
powers and duties as generally pertain to their respective offices, subject to
the specific provisions of this ARTICLE IV. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board of
Directors or by any committee thereof.
Section 4.02. President. The President shall be the chief executive officer
and, subject to the control of the Board of Directors, shall have general power
over the management and oversight of the administration and operation of the
Corporation's business and general supervisory power and authority over its
policies and affairs. The President shall see that all orders and resolutions of
the Board of Directors and of any committee thereof are carried into effect.
Each meeting of the stockholders and of the Board of Directors shall be
presided over by such officer as has been designated by the Board of Directors
or, in his or her absence, by such officer or other person as is chosen at the
meeting. The Secretary or, in his or her absence, the General Counsel of the
Corporation or such officer as has been designated by the Board of Directors or,
in his or her absence, such officer or other person as is chosen by the person
presiding, shall act as secretary of each such meeting.
Section 4.03. Vice President. The Vice President or Vice Presidents, if
any, shall perform the duties of the President in the President's absence or
during his or her disability to act. In addition, the Vice Presidents shall
perform the duties and exercise the powers usually incident to their respective
offices and/or such other duties and powers as may be properly assigned to them
from time to time by the Board of Directors, the Chairman of the Board or the
President.
Section 4.04. Secretary. The Secretary or an Assistant Secretary shall
issue notices of meetings, shall keep their minutes, shall have charge of the
seal and the corporate books, shall perform such other duties and exercise such
other powers as are usually incident to such offices and/or such other duties
and powers as are properly assigned thereto by the Board of Directors, the
Chairman of the Board or the President.
Section 4.05. Treasurer. The Treasurer shall have charge of all monies and
securities of the Corporation, other than monies and securities of any division
of the Corporation which has a treasurer or financial officer appointed by the
Board of Directors, and shall keep regular books of account. The funds of the
<PAGE>
Corporation shall be deposited in the name of the Corporation by the Treasurer
with such banks or trust companies or other entities as the Board of Directors
from time to time shall designate. The Treasurer shall sign or countersign such
instruments as require his or her signature, shall perform all such duties and
have all such powers as are usually incident to such office and/or such other
duties and powers as are properly assigned to him or her by the Board of
Directors, the Chairman of the Board or the President, and may be required to
give bond, payable by the Corporation, for the faithful performance of his
duties in such sum and with such surety as may be required by the Board of
Directors.
Section 4.06. Assistant Secretaries and Other officers. The Board of
Directors may appoint one or more assistant secretaries and one or more
assistants to the Treasurer, or one appointee to both such positions, which
officers shall have such powers and shall perform such duties as are provided in
these Bylaws or as may be assigned to them by the Board of Directors, the
Chairman of the Board or the President.
Section 4.07. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President, or any
officer of the Corporation authorized by the President, shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other Corporation.
ARTICLE V
STOCK
Section 5.01. Certificates of Stock. Each stockholder shall be entitled to
a certificate signed by, or in the name of the Corporation by, the President or
a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of shares owned by
him or her. Any or all of the signatures on the certificate may be by facsimile.
Section 5.02. Transfers of Stock. Transfers of stock shall be made only
upon the transfer books of the Corporation kept at an office of the Corporation
or by transfer agents designated to transfer shares of the stock of the
Corporation. Except where a certificate is issued in accordance with Section
5.06, an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefore.
Section 5.03. Record Dates or Closing of Transfer Books. The Board of
Directors may set a record date or direct that the stock transfer books be
closed for a stated period for the purpose of making any proper determination
with respect to stockholders, including which stockholders are entitled to
notice of a meeting, vote at a meeting, receive a dividend, or be allotted other
rights. The record date may not be prior to the close of business on the day the
record date is fixed nor, subject to Section 1.04, more than 90 days before the
date on which the action requiring the determination will be taken; the transfer
books may not be closed for a period longer than 20 days; and, in the case of a
meeting of stockholders, the record date or the closing of the transfer books
shall be at least ten days before the date of the meeting.
<PAGE>
Section 5.04. Stock Ledger. The Corporation shall maintain a stock ledger
which contains the name and address of each stockholder and the number of shares
of stock of each class which the stockholder holds. The stock ledger may be in
written form or in any other form which can be converted within a reasonable
time into written form for visual inspection. The original or a duplicate of the
stock ledger shall be kept at the offices of a transfer agent for the particular
class of stock or, if none, at the principal executive offices of the
Corporation.
Section 5.05. Certification of Beneficial Owners. The Board of Directors
may adopt by resolution a procedure by which a stockholder of the Corporation
may certify in writing to the Corporation that any shares of stock registered in
the name of the stockholder are held for the account of a specified person other
than the stockholder. The resolution shall set forth the class of stockholders
who may certify; the purpose for which the certification may be made; the form
of certification and the information to be contained in it; if the certification
is with respect to a record date or closing of the stock transfer books, the
time after the record date or closing of the stock transfer books within which
the certification must be received by the Corporation; and any other provisions
with respect to the procedure which the Board of Directors considers necessary
or desirable. On receipt of a certification which complies with the procedure
adopted by the Board of Directors in accordance with this Section, the person
specified in the certification is, for the purpose set forth in the
certification, the holder of record of the specified stock in place of the
stockholder who makes the certification.
Section 5.06. Lost Stock Certificates. The Board of Directors of the
Corporation may determine the conditions for issuing a new stock certificate in
place of one which is alleged to have been lost, stolen, or destroyed, or the
Board of Directors may delegate such power to any officer or officers of the
Corporation. In their discretion, the Board of Directors or such officer or
officers may require the owner of the certificate to give a bond, with
sufficient surety, to indemnify the Corporation against any loss or claim
arising as a result of the issuance of a new certificate. In their discretion,
the Board of Directors or such officer or officers may refuse to issue such new
certificate save upon the order of some court having jurisdiction in the
premises.
Section 5.07. Regulations. The issue, transfer, conversion and registration
of certificates of stock shall be governed by such other regulations as the
Board of Directors may establish.
ARTICLE VI
FINANCE
Section 6.01. Checks, Drafts, Etc. All checks, drafts and orders for the
payment of money, notes and other evidences of indebtedness, issued in the name
of the Corporation, shall, unless otherwise provided by resolution of the Board
of Directors, be signed by the Chairman of the Board, the President, a
Vice-President, an Assistant Vice-President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary.
Section 6.02. Annual Statement of Affairs. The President or chief
accounting officer shall prepare annually a full and correct statement of the
affairs of the Corporation, to include a balance sheet and a financial statement
of operations for the preceding fiscal year. The statement of affairs shall be
submitted at the annual meeting of the stockholders and, within 20 days after
the meeting, placed on file at the Corporation's principal office.
<PAGE>
Section 6.03. Fiscal Year. The fiscal year of the Corporation shall be the
12 calendar month period ending on June 30th in each year.
Section 6.04. Dividends. If declared by the Board of Directors at any
meeting thereof, the Corporation may pay dividends on its shares in cash,
property, or in shares of the capital stock of the Corporation, unless such
dividend is contrary to law or to a restriction contained in the Charter.
Section 6.05. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by the Board of Directors. Such authority may be general or confined
to specific instances.
Section 6.06. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in any of
its duly authorized depositories as the Board of Directors may select.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Facsimile Signatures. In addition to the provisions for use
of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 7.02. Corporate Seal. The Board of Directors may provide a suitable
seal, containing the name of the Corporation, which seal shall be in the charge
of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by an Assistant Secretary or Assistant Treasurer.
Section 7.03. Reliance upon Books, Reports and Records. Each director, each
member of any committee designated by the Board of Directors, and each officer
and agent of the Corporation shall, in the performance of his or her duties, be
fully protected in relying in good faith upon the books of account or other
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or employees, or
committees of the Board of Directors so designated, or by any advisor,
accountant, appraiser or other experts or consultants selected by the Board of
Directors or officers of the Corporation, regardless of whether such expert or
consultant may also be a director.
Section 7.04. Notices. Except as otherwise specifically provided herein or
required by law, all notices required to be given to any stockholder, director,
officer, employee or agent shall be in writing and may in every instance be
effectively given by hand delivery to the recipient thereof, by depositing such
notice in the mail, postage paid, by sending such notice by prepaid telegram or
mailgram or by sending such notice by facsimile machine or other electronic
transmission. Any such notice shall be addressed to such stockholder, director,
officer, employee or agent at his or her last known address as the same appears
on the books of the Corporation. The time when such notice is received, if hand
delivered or dispatched, if delivered through the mail, by telegram or mailgram
or by facsimile machine or other electronic transmission, shall be the time of
the giving of the notice.
<PAGE>
Section 7.05. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
Section 7.06. Time Periods. In applying any provision of these Bylaws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded and the day of the event shall be included.
ARTICLE VIII
AMENDMENTS
The Bylaws of the Corporation may be adopted, amended or repealed as
provided in ARTICLE 9 of the Charter.
Exhibit 4.3
NUMBER
COMMON STOCK
CUSIP 553519 10 9
MSB FINANCIAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE OF
MSB FINANCIAL, INC. (the "Corporation"), a Maryland corporation. The shares
represented by this certificate are transferable only on the stock transfer
books of the Corporation by the holder of record hereof, or by his duly
authorized attorney or legal representative, upon the surrender of this
certificate properly endorsed. This certificate is not valid until countersigned
and registered by the Transfer Agent and Registrar. This security is not a
deposit or account and is not federally insured or guaranteed.
IN WITNESS WHEREOF, the Corporation has caused this certificate to bear the
facsimile signatures of its duly authorized officers and to be sealed with the
facsimile of its corporate seal.
DATED
- ----------------------------------- -----------------------
Secretary President
[Seal]
<PAGE>
The shares represented by this certificate are issued subject to all the
provisions of the articles of incorporation and bylaws of MSB Financial, Inc.
(the "Corporation") as from time to time amended (copies of which are on file at
the principal executive offices of the Corporation).
The Corporation's articles of incorporation provide that no "person" (as
defined in the certificate of incorporation) who "beneficially owns" (as defined
in the certificate of incorporation) in excess of 10% of the outstanding shares
of the Corporation shall be entitled to vote any shares held in excess of such
limit. This provision of the articles of incorporation shall not apply to an
acquisition of securities of the Corporation by an employee stock purchase plan
or other employee benefit plan of the Corporation or any of its subsidiaries.
The Corporation's articles of incorporation also include a provision the
general effect of which is to require the affirmative vote of the holders of 80%
of the outstanding voting shares of the Corporation to approve certain business
combinations (as defined in the articles of incorporation) between the
Corporation and a 10% or more Stockholder. However, only the affirmative vote of
a majority of the outstanding shares or such vote as is otherwise required by
law (rather than the 80% voting requirement) is applicable to the particular
transaction if it is approved by a majority of the "disinterested directors" (as
defined in the articles of incorporation) or, alternatively, the transaction
satisfies certain minimum price and procedural requirements.
The Corporation will furnish to any stockholder upon request and without
charge a full statement of the powers, designations, preferences and relative
participating, optional or other special rights of each authorized class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights, to the extent that the same have been fixed, and
of the authority of the board of directors to designate the same with respect to
other series. Such request may be made to the Corporation or to its transfer
agent and registrar.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
UNIF GIFT MIN ACT Custodian
-------- ---------
(Cust) (Minor)
Under Uniform Gift to Minors
Act - ____________
(State)
TEN COM - as tenants in common UNIF TRANS MIN ACT Custodian
------- --------
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of Under Uniform Transfers to Minors
survivorship and not as tenants Act - ____________
in common (State)
Additional abbreviations may also be used thoughnot in the above list.
For Value Received, hereby sell, assign and transfer unto
------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
- ------------------------------
- ------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- ------------------------------
- ------------------------------Shares
of Common Stock represented by the within certificate, and do hereby
irrevocably constitute and appoint
- ------------------------------Attorney
to transfer the said shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated --------------------
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NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE
OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Exhibit 5
[SFT Letterhead]
February 4, 1999
Board of Directors
MSB Financial, Inc.
107 North Park Street
Marshall, Michigan 49068
Gentlemen:
We have acted as counsel to MSB Financial, Inc., a Maryland corporation
(the "Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 under
the Securities Act of 1933 (the "Registration Statement") relating to 67,848
shares of the Corporation's Common Stock, par value $.01 per share (the "Common
Stock"), to be offered pursuant to MSB Financial, Inc.'s 1997 Stock Option and
Incentive Plan (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan and agreements thereto,
the Corporation's Articles of Incorporation, Bylaws, resolutions of its Board of
Directors and such other documents and corporate records as we deem appropriate
for the purpose of giving this opinion.
Based upon the foregoing, it is our opinion that the Common Stock covered
by the Registration Statement will be, when and if issued, sold and paid for as
contemplated by the Plan, legally issued and non-assessable shares of Common
Stock of the Corporation.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
Exhibit 23.1
Consent of Independent Auditors
We hereby consent to the incorporation by reference and use of our report,
dated July 23, 1998, on the consolidated financial statements of MSB Financial,
Inc. which appears on page 16 of the MSB Financial, Inc. 1998 Annual Report to
Shareholders and is incorporated by reference in the MSB Financial, Inc. Annual
Report on Form 10-KSB for the year ended June 30, 1998, in this registration
statement on Form S-8 for the MSB Financial, Inc. 1997 Stock Option and
Incentive Plan.
/S/ Crowe, Chizek and Company LLP
Grand Rapids, Michigan
February 3, 1999
Exhibit 23.2
February 4, 1999
Board of Directors
MSB Financial, Inc.
107 North Park Street
Marshall, Michigan 49068
Gentlemen:
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement on Form S-8. In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
