Exhibit 3.3
BYLAWS
OF
GREAT WESTERN FINANCIAL CORPORATION
(As Amended Through 3/08/94)
BY-LAWS
of
GREAT WESTERN FINANCIAL CORPORATION
(Formerly Known as Great Western Corporation)
SECTION 1. In addition to its principal
office in the State of Delaware, the Corporation may
also have offices at such other places within or
without the State of Delaware as the Board of
Directors shall from time to time determine.
Amended SECTION 2. The annual meeting of the
9/26/89 stockholders of the Corporation shall be held on the
fourth Tuesday in April in each year (or, if that day
shall be a legal holiday then on the next business
day) at such time and place, within or without the
State of Delaware, as may be specified in the notice
thereof, as shall be fixed by the Board of Directors
(herein called the Board), for the purpose of electing
directors and for the transaction of only such other
business as is properly brought before such meeting in
accordance with these by-laws. If any annual meeting
shall not be held on the day designated or the
directors shall not have been elected thereat or at
any adjournment thereof, thereafter the Board shall
cause a special meeting of the stockholders to be held
as soon as practicable for the election of directors.
At such special meeting the stockholders may elect
directors and transact other business with the same
force and effect as at an annual meeting of the
stockholders duly called and held.
Amended SECTION 3. Special meetings of the
9/26/89 stockholders of the Corporation may be held, within or
without the State of Delaware, upon notice given by or
at the direction of the Board of Directors. Such
notice shall state the time, place and purposes of
meeting.
Amended SECTION 4. In order to be properly brought
9/26/89 before any meeting of the stockholders held pursuant
to Section 2, business (including the election of
directors) must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the
direction of the Board, (b) otherwise properly brought
before the meeting by or at the direction of the
Board, or (c) otherwise properly brought before the
meeting by a stockholder. In addition to any other
applicable requirements, in order for any such
business to be properly brought before the meeting by
a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the
Corporation. In order to be timely, a stockholder's
notice must be delivered to or mailed and received at
the principal executive offices of the Corporation,
not less than 60 days nor more than 90 days prior to
the meeting; provided, however, that in the event
that the meeting is called for a date other than that
specified in the bylaws and less than 75 days' prior
public disclosure of the date of the meeting is given,
notice by the stockholder in order to be timely must
be so received not later than the close of business on
the 15th day following the day on which such public
disclosure of the date of the meeting was made. A
stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring
before the meeting (i) a brief description of the
business desired to be brought before the annual
meeting and the reasons for conducting such business
at the meeting, (ii) the name and record address of
the stockholder proposing such business, (iii) the
class and number of shares of the Corporation which
are beneficially owned by the stockholder, and (iv)
any material interest of the stockholder in such
business.
Notwithstanding anything in the by-laws to the
contrary, no business (including the election of
directors) shall be conducted at the meeting except in
accordance with the procedures set forth in this
Section 4, provided, however, that nothing in this
Section 4 shall be deemed to preclude discussion by
any stockholder of any business properly brought
before the meeting.
In order to be properly brought before any
meeting of the stockholders held pursuant to Section
3 (other than any special meeting held for the purpose
of electing directors pursuant to Section 2), business
must be specified in the notice of meeting (or any
supplement thereto) given by or at the direction of
the Board.
The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that
business was not properly brought before the meeting
in accordance with the provisions of this Section 4,
and if he should so determine, he shall so declare to
the meeting and any such business not properly brought
before the meeting shall not be transacted.
SECTION 5. Notice of the time and place of
every meeting of stockholders and of the business to
be acted on at such meeting shall be mailed by the
Secretary or the officer performing his duties, at
least ten days before the meeting, to each stockholder
of record having voting power and entitled to such
notice at his last known post office address;
provided, however, that if a stockholder be present at
a meeting, or in writing waive notice thereof before
or after the meeting, notice of the meeting to such
stockholder shall be unnecessary.
Amended SECTION 6. The holders of a majority of
6/24/86 the stock of the Corporation having voting power
and present in person or by proxy shall constitute a
3/08/94 quorum, but less than a quorum shall have power to
adjourn any meeting from time to time without notice.
The holders of a majority of the stock present and
entitled to vote at a duly qualified meeting of
stockholders shall have power to act; unless the
matter is one as to which a different vote is
specified by applicable law or regulation (other than
Section 216 of the Delaware General Corporation Law),
in which case the different vote so specified by such
law or regulation shall apply. The foregoing
provisions of this Section 6 each shall be subject to
the voting rights of holders of any Preferred Stock of
the Corporation and any quorum requirements relating
thereto.
SECTION 7. At every meeting of stockholders
each stockholder entitled to vote thereat shall be
entitled to one vote for each share of stock held by
him and may vote and otherwise act in person or by
proxy; but no proxy shall be voted upon more than one
year after its date unless such proxy provides for a
longer period.
Amended SECTION 8. At least ten days before each
3/21/67 election of directors a complete list of the
stockholders entitled to vote at such election,
arranged in alphabetical order and showing the address
and the number of shares registered in the name of
each stockholder, shall be made and filed either at a
place within the city where the election is to be held
and which place shall be specified in the notice of
the meeting at which such election is to take place,
or if not so specified, at the place where such
meeting is to be held. Such list shall be open to the
examination of any stockholder during ordinary
business hours for a period of at least ten days prior
to such election at the place so filed. Such list
shall be produced and kept at the time and place of
such election and be subject to inspection by any
stockholder.
Amended SECTION 9. Certificates of stock shall be
4/20/71 of such form and device as the Board of Directors
and may elect and shall be signed by the Chairman of the
5/28/91 Board, the President or a Vice President and the
Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary, but in case any such
Certificate is countersigned by a transfer agent,
other than the Corporation or its employee, or by a
registrar, other than the Corporation or its employee,
any other signature on such certificate may be a
facsimile, engraved, stamped or printed.
SECTION 10. The stock of the Corporation shall
be transferable or assignable only on the books of the
Corporation by the holders in person, or by attorney,
on the surrender of the certificates therefor. The
Board of Directors may appoint one or more transfer
agents and registrar of the stock.
Amended SECTION 11. The Board of Directors shall
11/19/68 have the power to close the stock transfer books of
the Corporation for a period not exceeding sixty (60)
days preceding the date of any meeting of
stockholders, or the date for payment of any dividend,
or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital
stock shall go into effect. In lieu of closing the
stock transfer books as aforesaid, the Board of
Directors is hereby authorized to fix in advance, a
date, not exceeding sixty (60) days preceding the date
of any meeting of stockholders or the date for the
payment of any dividend or the date for the allotment
of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, as
a record date for the determination of the
stockholders entitled to notice of and to vote at, any
such meeting, or entitled to receive payment of any
such dividends, or to any such allotment of rights, or
to exercise the rights in respect of any such change,
conversion or exchange of capital stock, and in such
case such stockholders and only such stockholders as
shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at,
such meeting or to receive payment of such dividend,
or to receive such allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation.
Amended SECTION 12. The affairs of the Corporation
9/26/89, shall be managed by a Board consisting of such
5/28/91 number of directors as shall be determined from time
and to time by resolution of a majority of the number of
3/23/93 directors constituting the entire Board of Directors
at such time, and in the absence of such
determination, the number of directors shall be
twelve. The directors shall be divided into three
classes as nearly equal in number as possible and the
members of each class shall be elected for a term of
three years by the stockholders entitled to vote at
such election, and each director so elected shall hold
office until his or her successor is duly elected and
qualified, or until his or her death, or until he or
she shall resign or be removed from office. Any
director or the entire Board of Directors may be
removed, but only for cause, and the vacancies may be
filled in accordance with Article NINTH of the
Corporation's Certificate of Incorporation.
Only persons who are nominated in accordance
with the following procedures shall be eligible
for election as directors at any meeting of
stockholders. Nominations of persons for
election to the Board of Directors of the
Corporation at the annual meeting or any special
meeting called for the purpose of electing
directors may be made at a meeting of
stockholders by or at the direction of the Board
of Directors by any nominating committee or
person appointed by the Board or by any
stockholder of the Corporation entitled to vote
for the election of directors at the meeting who
complies with the notice procedures set forth in
this Section 12.
In addition to any other applicable requirements,
such nominations, other than those made by or at the
direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary
of the Corporation. In order to be timely, a
stockholder's notice shall be delivered to or mailed
and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90
days prior to the meeting; provided, however, that in
the event that the meeting is called for a date other
than that specified in the bylaws and less than 75
days' prior public disclosure of the date of the
meeting is given or made, notice by the stockholder in
order to be timely must be so received not later than
the close of business on the 15th day following the
day on which such public disclosure of the date of the
meeting was made. Such stockholder's notice to the
Secretary shall contain (a) as to each person whom the
stockholder proposes to nominate for election or re-
election as a director, (i) that person's consent to
such nomination, (ii) the name, age, business address
and residence address of the person, (iii) the
principal occupation or employment of the person, and
(iv) the class and number of shares of capital stock
of the Corporation which are beneficially owned by the
person and (b) as to the stockholder giving the notice
(i) the name and record address of the stockholder and
(ii) the class and number of shares of capital stock
of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed
nominee to furnish such other information as may
reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as
director of the Corporation. No person shall be
eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set
forth herein.
The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective
nomination shall be disregarded.
Amended SECTION 13. Meetings of the Board of
8/16/66 Directors shall be held at the times fixed by
resolutions of the Board or upon call of the Chairman
of the Board or of the President or any five directors
and may be held outside the State of Delaware. The
Secretary or officer performing his duties shall give
reasonable notice (which shall not in any event be
less than five (5) days) of all meetings of directors,
provided that a meeting may be held without notice
immediately after the annual election, and notice need
not be given of regular meetings held at times fixed
by resolution of the Board. Meetings may be held at
any time without notice if all the directors are
present or if those not present waive notice either
before or after the meeting. Notice by mail or
telegraph to the usual business or residence address
of the directors not less than the time above
specified before the meeting shall be sufficient.
One-half of the total number of directors, but not
less than five shall constitute a quorum for the
transaction of business and the act of a majority of
the directors present at any meeting at which a quorum
is present shall be the act of the Board of Directors.
Less than such a quorum shall have power to adjourn
any meeting from time to time without notice.
Amended SECTION 14. (a) Any person who was or is a
7/22/86 party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of this Corporation) by reason of the fact that he is
or was or has agreed to become a director, officer,
employee or agent of this Corporation, or is or was
serving or has agreed to serve at the request of this
Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such
capacity, shall be indemnified by this Corporation
against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection
with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the
best interests of this Corporation, and, with respect
to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by
judgement, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did
not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the
best interests of this Corporation, and, with respect
to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) Any person who was or is a party or is threatened
to be made a party to any threatened, pending or
completed action, suit, proceeding or investigation by
or in the right of this Corporation to procure a
judgement in its favor by reason of the fact that he
is or was or has agreed to become a director, officer,
employee or agent of this Corporation, or is or was
serving or has agreed to serve at the request of this
Corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such
capacity, shall be indemnified by this Corporation
against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of
such action or suit and any appeal therefrom, if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest
of this Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance
of his duty to this Corporation unless and only to the
extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall
determine upon application that, despite the
adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and
resonably entitled to indemnity for such costs,
charges and expenses which the Court of Chancery of
Delaware or such other court shall deem proper.
(c) Notwithstanding the other provisions of this
Section, to the extent that a director, officer,
employee or agent of this Corporation has been
successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in
subsections (a) and (b) of this Section, or in defense
of any claim, issue or matter therein, he shall be
indemnified against all costs, charges and expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b)
of this Section (unless otherwise ordered by a court)
shall be made by this Corporation only as authorized
in the specific case upon a determination that
indemnification of the director, officer, employee or
agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in
subsections (a) and (b) of this Section. Such
determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable,
or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in
a written opinion, or (3) by the stockholders, or (4)
if a Change in Control has occurred and the director,
officer, employee or agent seeking indemnification so
requests, in a written opinion rendered by independent
legal counsel chosen by the person requesting
indemnification and not reasonably objected to by the
Board of Directors. For purposes of subclause (4) of
this subsection (d), "independent legal counsel" shall
mean legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been
retained by or who has performed substantial services
for either this Corporation or the person seeking
indemnification within the past five years. The
Corporation shall pay the fees of the independent
legal counsel. For purposes of this subsection (d),
a "Change in Control" shall be deemed to have occurred
if (i) any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "1934 Act") is or becomes the
beneficial owner (as defined in Rule 13d-3 under the
1934 act), directly or indirectly, of securities of
this Corporation representing 25% or more of the
combined voting power of this Corporation's then
outstanding securities in a transaction not approved
by the Board of Directors sitting immediately prior to
such acquisition, (ii) this Corporation is a party to
a merger, consolidation, sale of assets or other
reorganization, or proxy contest, as a consequence of
which members of the Board of Directors sitting
immediately prior to such transaction or event
constitute less than five-sixths of the Board of
Directors thereafter, or (iii) during the immediately
preceding four years, individuals who at the beginning
of such period constituted the Board of Directors
cease for any reason to constitute at least a majority
thereof, unless the election of each director who was
not a director at the beginning of the period was
approved by a vote of at least two-thirds of the
directors then still in office who were directors at
the beginning of the period.
(e) Costs, charges and expenses (including attorney's
fees) incurred by a person referred to in subsections
(a) and (b) of this Section in defending a civil or
criminal action, suit or proceeding shall be paid
promptly by this Corporation in advance of the final
determination of such action, suit or proceeding;
provided, however, that the payment of such costs,
charges and expenses incurred by a director or officer
in his capacity as a director or officer (and not in
any other capacity in which service was or is rendered
by such person while a director or officer) in advance
of the final disposition of such action, suit or
proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer
to repay all amounts so advanced in the event that it
shall ultimately be determined that such director or
officer is not entitled to be indemnified by this
Corporation as authorized by the Section. Such costs,
charges and expenses incurred by other employees and
agents may be so paid upon such terms and conditions,
if any, as the Board of Directors deems appropriate.
(f) The indemnification provided by this Section shall
not be deemed exclusive of any other rights to which
a person seeking indemnification may be entitled under
any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to
action in another capacity while holding office or
while employed by or acting as agent for this
Corporation, it being the policy of this Corporation
that indemnification of the persons specified in
subsections (a) and (b) of this Section shall be made
to the full extent permitted by applicable law. The
indemnification provided by this Section shall
continue as to a person who has ceased to be a
director, officer, employee or agent, and shall inure
to the benefit of the estate, heirs, executors and
administrators of such person. All rights to
indemnification under this Section shall be deemed to
be a contract between this Corporation and each
director, officer, employee or agent of this
Corporation who serves or served in such capacity at
any time while this Section is in effect. Any repeal
or modification of this Section or any repeal or
modification of relevant provisions of the Delaware
General Corporation Law or any other applicable law
shall not in any way diminish any rights to
indemnification of such director, officer, employee or
agent or the obligation of this Corporation arising
hereunder.
(g) If this Section or any portion hereof shall be
invalidated on any ground by any court of competent
jurisdiction, then this Corporation shall nevertheless
indemnify each director, officer, employee and agent
of this Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal,
administrative or investigative, including, without
limitation, any action by or in the right of this
Corporation, to the full extent permitted by any
applicable portion of this Section that shall not have
been invalidated and to the full extent permitted by
applicable law.
Amended SECTION 15. The Board of Directors, as
4/21/81 soon as may be after the election of directors in each
and each year, shall appoint one of their number Chairman
3/23/93 Chairman of the Board and one of their number
President of the Company, and may also appoint one or
more Executive Vice-Presidents, Senior Vice-
Presidents, First Vice Presidents and Vice-Presidents,
a Secretary and a Treasurer. The Board of Directors
may from time to time appoint one of their number as
Vice-Chairman and may appoint such other officers as
they deem appropriate. Any person may hold more than
one office, except that same person may not hold more
than one of the offices of President and Secretary.
SECTION 16. The term of office of all
officers shall be until the next election of directors
and until their respective successors are chosen and
qualified, or until they shall die or resign but any
officer may be removed from office at any time by the
Board of Directors. Vacancies in any office may be
filled by the Board at any meeting.
SECTION 17. The officers of the Company shall
have such powers and duties as usually pertain to
their offices, except as modified by the Board of
Directors, and shall also have such powers and duties
as may from time to time be conferred upon them by the
Board of Directors.
SECTION 18. The Board of Directors is
authorized to select such depositaries as it shall
deem proper for the funds of the Corporation. All
checks and drafts against such deposited funds shall
be signed and countersigned by persons to be specified
by the Board of Directors.
SECTION 19. The President, or any Vice-
President, shall have authority to execute and deliver
all contracts or undertakings of the Corporation.
SECTION 20. The corporation seal of the
Corporation shall be in such form as the Board of
Directors shall prescribe.
SECTION 21. The fiscal year of the Corporation
shall be the calendar year.
SECTION 22. Either the Board of Directors or
the stockholders may alter or amend these By-Laws at
any meeting duly held as above provided, the notice of
which includes notice of the proposed alteration or
amendment.
Amended SECTION 23. The Board of Directors may
12/19/72 from time to time appoint such number of Directors
Emeritus as shall be determined by the Board to be
appropriate, who shall serve until the next directors'
meeting after the annual election. Directors Emeritus
shall be selected from individuals who have previously
served as Great Western Financial Corporation
directors and have not reached their 77th birthday,
and may serve more than one term. The unanimous vote
of all directors present at a meeting shall be
required to elect a Director Emeritus, such vote to be
taken by secret written ballot. Such Directors
Emeritus may attend the meetings of the Board of
Directors in an advisory capacity, with the privilege
of participating in all discussions at such meetings,
but without the power to vote. Notices of all
meetings sent to directors shall also be sent to
Directors Emeritus. Directors Emeritus shall be paid
such fees for attendance at meetings of the Board of
Directors as shall from time to time be determined by
the Board.
Added SECTION 24. The Board of Directors may
6/24/86 impose restrictions on transfer of securities of
the Corporation pursuant to the Rights
Agreement, dated as of June 24, 1986, by and
between the Corporation and Morgan Guaranty
Trust Company of New York, as and to the extent
required by such Rights Agreement, as amended
from time to time.