EXHIBIT 99.1
Charter No. 6109
AMENDED AND RESTATED
CHARTER S
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
SECTION 1. Corporate Title. The full corporate title of the savings bank
is "Fidelity Federal Bank, A Federal Savings Bank".
SECTION 2. Office. The home office of the savings bank shall be located in
Glendale in the County of Los Angeles, State of California.
SECTION 3. Powers. The savings bank is a capital stock savings bank
chartered under Section 5 of the Home Owners' Loan Act and has and may exercise
all the express, implied and incidental powers conferred thereby and by all acts
amendatory thereof and supplemental thereto, subject to the Constitution and
laws of the United States as they are now in effect, or as they may hereafter be
amended, and subject to all lawful and applicable rules, regulations, and orders
of the Office of Thrift Supervision or any successor agency (the "OTS"). In
addition, the savings bank may make any investment and engage in any activity as
may be specifically authorized by action of the OTS, including authorization by
delegating authority, in connection with action approving the issuance of the
charter.
SECTION 4. Duration. The duration of the savings bank is perpetual.
SECTION 5. Capital Stock. The total number of shares of all classes of the
capital stock which the savings bank has authority to issue is one hundred
million (100,000,000), of which (a) seventy-three million (73,000,000) shall be
Class A Common Stock, par value $.01 per share, ("Class A Common Stock"), (b)
fourteen million (14,000,000) shall be Class B Common Stock, par value $.01 per
share ("Class B Common Stock"), (c) three million (3,000,000) shall be Class C
Common Stock, par value $.01 per share ("Class C Common Stock" and, together
with the Class A Common Stock and Class B Common Stock, "Common Stock") and (d)
ten million (10,000,000) shall be serial preferred stock. The shares may be
issued by the savings bank from time to time as approved by its board of
directors without the approval of its stockholders except as otherwise provided
in this Section 5. The consideration for the issuance of the shares shall be
paid in full before their issuance and shall not be less than the stated value
per share. Neither promissory notes nor future services shall constitute
payment or partial payment for the issuance of shares of the savings bank. The
consideration for the shares shall be cash, tangible or intangible property,
labor or services actually performed for the savings bank or any combination of
the foregoing. In the absence of actual fraud in the transaction, the value of
such property, labor or services, as determined by the board of directors of the
savings bank, shall be
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 2
- ------------------------------
conclusive. Upon payment of such consideration such shares shall be deemed to be
fully paid and nonassessable. In the case of a stock dividend, that part of the
surplus of the savings bank which is transferred to stated capital upon the
issuance of shares as a share dividend shall be deemed to be the consideration
for their issuance.
Subject to the rights of any preferred stock outstanding from time to time
and except as otherwise expressly provided in Section 5(A) hereof, nothing
contained in this Section 5 (or in any supplementary sections hereto) shall
entitle the holders of any class or series of capital stock to vote as a
separate class or series or to more than one vote per share; provided, however,
that this restriction on voting separately by class or series shall not apply to
any amendment which would adversely change the specific terms of any class or
series of capital stock as set forth in this Section 5 (or in any supplementary
sections hereto). An amendment which increases the number of authorized shares
of any class or series of capital stock, or substitutes the surviving savings
bank or the entity in a merger or consolidation for the savings bank, shall not
be considered to be such an adverse change.
No shares of capital stock (including shares issuable upon conversion,
exchange or exercise of other securities) shall be issued, directly or
indirectly, to officers, directors or controlling persons of the savings bank
other than as part of a general public offering, unless their issuance or the
plan under which they would be issued has been approved by a majority of the
total number of outstanding shares of Class A Common Stock.
A description of the different classes and series of the savings bank's
capital stock and a statement of the designations, and the relative rights,
preferences and limitations of the shares of each class of and series of capital
stock are as follows:
(A) Common Stock. Except as provided in this Section 5 (or in any
------------
supplementary sections hereto) the holders of the Common Stock shall exclusively
possess all voting power.
(1) Class A Common Stock. The shares of Class A Common Stock, shares of
Class B Common Stock and shares of Class C Common Stock shall be identical in
all respects and shall have equal rights and privileges except as set forth in
this Section 5.
(a) Dividends and Distributions.
(i) Subject to all of the rights of any preferred stock outstanding
from time to time and Sections 5(A)(1)(a)(ii) and (iii) below, such
dividends and distributions as may be determined by the Board of
Directors of the savings bank from time to
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 3
- ------------------------------
time may be declared and paid or made upon the Class A Common Stock out
of any source at the time lawfully available for the payment of
dividends provided that identical dividends or distributions are
declared and paid or made concurrently upon the Class B Common Stock and
Class C Common Stock.
(ii) No dividend may be declared and paid or made in Class A Common
Stock unless the dividend is payable only to holders of Class A Common
Stock and both (1) a dividend payable in Class B Common Stock is
declared and paid or made concurrently in respect of outstanding shares
of Class B Common Stock in the same number of shares of Class B Common
Stock per outstanding share and (2) a dividend payable in Class C Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class C Common Stock in the same number of shares
of Class C Common Stock per outstanding share.
(iii) No distribution of rights to acquire shares of Class A Common
Stock may be made unless such distribution is made only in respect of
Class A Common Stock and a distribution of rights to acquire shares of
Class B Common Stock and Class C Common Stock is made concurrently in
respect of outstanding shares of Class B Common Stock and Class C Common
Stock, respectively, with such rights evidencing the right to acquire
the same number of shares of each class per outstanding share and
including identical terms as the rights distributed to holders of Class
A Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(2)(b) and 5(A)(3)(b) hereof, the Class A Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that the Class A Common Stock shall not be combined or
-------- -------
subdivided unless concurrently therewith there is a proportionate
combination or subdivision of both the Class B Common Stock and the Class C
Common Stock.
(c) Voting. Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A)(2)(c) and 5(A)(3)(c)
hereof, the Class A Common Stock shall have exclusive voting power and shall
have one vote per share. Without limiting the generality of the foregoing:
(i) With respect to the election of directors of the savings bank,
the holders of Class A Common Stock shall (subject to voting rights that
may be granted to
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 4
- ------------------------------
holders of preferred stock outstanding from time to time) be entitled to
elect all directors.
(ii) The holders of the Class A Common Stock shall (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time) be entitled to vote on the removal, with
or without cause, of any director.
(iii) Any vacancy in the office of a director shall (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time) be filled by a vote of the holders of
Class A Common Stock or, in the absence of a stockholder vote, by the
remaining directors.
(2) Class B Common Stock.
(a) Dividends and Distributions.
(i) Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A)(2)(a)(ii)
and (iii) below, such dividends and distributions as may be
determined by the Board of Directors of the savings bank from time
to time may be declared and paid or made upon the Class B Common
Stock out of any source at the time lawfully available for the
payment of dividends provided that identical dividends or
distributions are declared and paid or made concurrently upon the
Class A Common Stock and the Class C Common Stock.
(ii) No dividend may be declared and paid or made in Class B
Common Stock unless the dividend is payable only in respect of Class
B Common Stock and both (1) a dividend payable in Class A Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class A Common Stock in the same number of
shares of Class A Common Stock per outstanding share and ( 2) a
dividend payable in Class C Common Stock is declared and paid or
made concurrently in respect of outstanding shares of Class C Common
Stock in the same number of shares of Class C Common Stock per
outstanding share.
(iii) No distribution of rights to acquire shares of Class B
Common Stock may be made unless such distribution is made only in
respect of Class B Common Stock and a distribution of rights to
acquire shares of Class A
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 5
- ------------------------------
Common Stock and Class C Common Stock is made concurrently in
respect of outstanding shares of Class A Common Stock and Class C
Common Stock, respectively, with such rights evidencing the right to
acquire the same number of shares of each class per outstanding
share and including identical terms as the rights distributed to
holders of Class B Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(1)(b) and 5(A)(3)(b) hereof, the Class B Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that if the Class B Common Stock is combined or
-------- -------
subdivided, a proportionate combination or subdivision of both the Class A
Common Stock and the Class C Common Stock shall be made concurrently
therewith.
(c) Voting. Except as otherwise expressly provided in this paragraph
(c) or as otherwise required by law, the holders of Class B Common Stock
shall have no right to vote on any matters to be voted on by the
stockholders of the savings bank (including, without limitation, any
election or removal of the directors of the savings bank). Notwithstanding
the foregoing, the holders of Class B Common Stock shall have the following
voting rights and one vote per share:
(i) No amendment, modification or waiver of any provision of this
Amended and Restated Charter S, in any such case which would adversely
affect the rights of the Class B Common Stock (including, without
limitation, any increase or decrease in the percentage of shares of
outstanding Class B Common Stock required to approve any such amendment,
modification or waiver) will be effective without the prior affirmative
vote of the holders of a majority of shares of Class B Common Stock at
the time outstanding voting as a separate class.
(ii) The holders of the Class B Common Stock shall be entitled to
vote, (A) together with the holders of the Class A Common Stock, all
such holders of Class A Common Stock and Class B Common Stock voting
together as a single class, on any consolidation or merger of the
savings bank with or into another Person, any merger of another Person
into the savings bank or any sale or conveyance of all or substantially
all of the assets of the savings bank to any Person, in each case if,
and only if, the holders of the Class A Common Stock are entitled to
vote on such matter and (B) together with the holders of Class A Common
Stock and Class C Common Stock, all such holders of Class A Common
Stock, Class B Common stock and Class
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 6
- ------------------------------
C Common Stock voting together as a single class, on any dissolution of
the savings bank.
(iii) Notwithstanding anything herein to the contrary, until
shares of Class A Common Stock are issued and become outstanding, the
holders of Class B Common Stock shall have all voting power (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time), which voting power shall be exclusive.
(d) Automatic Conversion.
(i) Upon the Transfer (other than by way of a dividend or
distribution by CHC to its stockholders generally) by a holder of
one or more shares of Class B Common Stock (the "Transferred
Shares") and delivery by the transferor to the savings bank of a
certificate in form and substance reasonably satisfactory to the
savings bank to the effect that, to the best of the transferor's
knowledge, immediately after such Transfer, none of the Transferred
Shares will be CHC Shares, or, if any of the Transferred Shares will
be CHC Shares, specifying such shares, then the Transferred Shares,
other than any CHC shares, shall immediately and automatically be
converted into an equal number of shares of Class A Common Stock. As
promptly as practicable after presentation to the savings bank at
its principal office of the certificate or certificates, duly
endorsed to the savings bank or in blank or accompanied by stock
powers duly executed to the savings bank or in blank, representing
the Transferred Shares, together with the certificate of the
transferor thereof referred to above, the savings bank shall issue
and deliver, to or upon the written order of the transferee,
certificates representing the shares, if any, of Class A Common
Stock into which such Transferred Shares are converted. In case any
certificate for shares of Class B Common Stock shall be surrendered
for Transfer of only a part of the shares represented thereby or in
case any of the Transferred Shares shall be CHC Shares, the savings
bank shall deliver, as promptly as practicable after such surrender,
to or upon the written order of the transferor, a certificate or
certificates for the number of shares of Class B Common Stock
represented by such surrendered certificate that have not been
converted into shares of Class A Common Stock.
(ii) Upon the Transfer by way of a dividend or distribution by
CHC to its stockholders generally of one or more shares of Class B
Common Stock
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 7
- ------------------------------
(the "Distributed Shares"), all Distributed Shares constituting
Eligible Distributed Shares shall immediately and automatically be
converted into an equal number of shares of Class A Common Stock. As
promptly as practicable after presentation to the savings bank at
its principal office of the certificate or certificates, duly
endorsed to the savings bank or in blank or accompanied by stock
powers duly executed to the savings bank or in blank, representing
the Distributed Shares, the savings bank shall issue and deliver, to
or upon the written order of the transferee, certificates
representing the shares, if any, of Class A Common Stock into which
such Transferred Shares are converted. In case any certificate for
shares of Class B Common Stock shall be surrendered for Transfer by
way of such dividend or distribution of only a part of the shares
represented thereby or in case any of the Distributed Shares shall
not be Eligible Distributed Shares, the savings bank shall deliver,
as promptly as practicable after such surrender, to or upon the
written order of the transferor (in the case of a Transfer of only
part of such shares) or transferee (in the case of a Transfer of
Distributed Shares that are not Eligible Distributed Shares), a
certificate or certificates for the number of shares of Class B
Common Stock represented by such surrendered certificate that have
not been converted into shares of Class A Common Stock.
(iii) If, at any time, the number of issued and outstanding
shares of Class B Common Stock shall be less than 10% of the
aggregate number of issued and outstanding shares of Common Stock,
all such outstanding shares of Class B Common Stock shall, without
any further action by the holder thereof, immediately and
automatically be converted into an equal number of shares of Class A
Common Stock. Upon any such automatic conversion, as promptly as
practicable after presentation to the savings bank at its principal
office of the certificate or certificates, duly endorsed to the
savings bank or in blank or accompanied by stock powers duly
executed to the savings bank or in blank, representing any shares of
Class B Common Stock, the savings bank shall issue and deliver to or
upon the written order of the registered holder of such shares of
Class B Common Stock, certificates representing the shares of Class
A Common Stock into which such shares of Class B Common Stock are
converted.
(3) Class C Common Stock.
(a) Dividends and Distributions.
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 8
- ------------------------------
(i) Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A) (3) (a)(ii)
and (iii) below, such dividends and distributions as may be
determined by the Board of Directors of the savings bank from time
to time may be declared and paid or made upon the Class C Common
Stock out of any source at the time lawfully available for the
payment of dividends provided that identical dividends or
distributions are declared and paid or made concurrently upon the
Class A Common Stock and the Class B Common Stock.
(ii) No dividend may be declared and paid or made in Class C
Common Stock unless the dividend is payable only in respect of Class
C Common Stock and both (1) a dividend payable in Class A Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class A Common Stock in the same number of
shares of Class A Common Stock per outstanding share and (2) a
dividend payable in Class B Common Stock is declared and paid or
made concurrently in respect of outstanding shares of Class B Common
Stock in the same number of shares of Class B Common Stock per
outstanding share.
(iii) No distribution of rights to acquire shares of Class C
Common Stock may be made unless such distribution is made only in
respect of Class C Common Stock and a distribution of rights to
acquire shares of Class A Common Stock and Class B Common Stock is
made concurrently in respect of outstanding shares of Class A Common
Stock and Class B Common Stock, respectively, with such rights
evidencing the right to acquire the same number of shares of each
class per outstanding share and including identical terms as the
rights distributed to holders of Class C Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(1)(b) and 5(A)(2)(b) hereof, the Class C Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that if the Class C Common Stock is combined or
-------- -------
subdivided, a proportionate combination or subdivision of both the Class A
Common Stock and Class B Common Stock shall be made concurrently therewith.
(c) Voting. Except as otherwise expressly provided in this paragraph
(c) or as otherwise required by law, the holders of Class C Common Stock
shall have no right to
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 9
- ------------------------------
vote on any matters to be voted on by the stockholders of the savings bank
(including, without limitation, any election or removal of the directors of
the savings bank). Notwithstanding the foregoing, (i) no amendment,
modification or waiver of any provision of this Amended and Restated Charter
S, in any such case which would adversely affect the rights of the Class C
Common Stock (including, without limitation, any increase or decrease in the
percentage of shares of outstanding Class C Common Stock required to approve
any such amendment, modification or waiver) will be effective without the
prior affirmative vote of the holders of a majority of shares of Class C
Common Stock at the time outstanding voting as a separate class with each
outstanding share of Class C Common Stock having one vote per share and (ii)
the holders of shares of Class C Common Stock shall be entitled to vote,
together with the holders of Class A Common Stock and Class B Common Stock,
all such holders of Class A Common Stock, Class B Common Stock and Class C
Common Stock voting together as a single class, on any dissolution of the
savings bank.
(d) Conversion Upon Certain Transfers.
(i) In connection with any Transfer of shares of Class C Common
Stock:
a. in a public offering registered with the OTS pursuant to
12 C.F.R. Part 563g (or any successor provision);
b. in a Transfer (otherwise than to the savings bank, the
Parent or a Controlled Subsidiary) in which the transferor shall
make reasonable efforts to prevent the sale to any single person
or group of persons acting in concert of a number of shares of
Class C Common Stock which, if converted into Class A Common
Stock, would represent more than two percent (2%) of the sum of
(1) the outstanding shares of Class A Common Stock and (2) if,
and only if, an interpretation is obtained from the Board of
Governors of the Federal Reserve System or the staff thereof to
the effect that the Class B Common Stock is considered for
Regulation Y purposes the same class as the Class A Common
Stock, the outstanding shares of Class B Common Stock; or
c. after any required federal regulatory approvals have been
obtained, in a single transaction to a third party who acquires
or has acquired at least a majority of the Class A Common Stock
(including
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 10
- ------------------------------
shares of Class A Common Stock issuable on conversion of Class B
Common Stock and Class C Common Stock) without regard to the
Transfer of such Class C Common Stock,
the purchaser or transferee of such Class C Common Stock may
exchange such Class C Common Stock for Class A Common Stock by
presenting to the savings bank the certificates, duly endorsed to
the savings bank or in blank or accompanied by stock powers duly
executed to the savings bank or in blank, representing the shares of
Class C Common Stock, together with a certificate in form and
substance reasonably acceptable to the savings bank evidencing
compliance with Section 5(A)(3)(d)(i). Upon presentment of such
evidence as aforesaid, the savings bank shall deliver as promptly as
practicable to such purchaser or transferee certificates
representing such number of shares of Class A Common Stock as is
equal to the number of shares of Class C Common Stock so presented.
In case any certificate for shares of Class C Common Stock shall be
surrendered for Transfer of only a part of the shares represented
thereby, the savings bank shall deliver, as promptly as practicable
after such surrender, to or upon the written order of the
transferor, a certificate or certificates for the number of shares
of Class C Common Stock represented by such surrendered certificate
that have not been converted into shares of Class A Common Stock.
Notwithstanding the foregoing, in the event of a Regulatory Change,
the effect of which is to permit a holder of Class C Common Stock
which is a Regulated Stockholder to Transfer such shares in a
transaction that would permit the transferee to convert the Class C
Common Stock into Class A Common Stock, then this Section
5(A)(3)(d)(i) shall be deemed modified to permit such conversion
upon such Transfer.
(ii) Shares of Class C Common Stock which are not Transferred in
a Transfer satisfying the requirements of Section 5(A)(3)(d)(i)
shall not be convertible into Class A Common Stock by the purchaser
or transferee in such Transfer but such shares of Class C Common
Stock shall be convertible upon any subsequent Transfer that does
satisfy the requirements of such Section.
(4) Reservation of Shares. The savings bank shall at all times reserve and
keep available out of the authorized and unissued shares of Class A Common
Stock, solely for the purpose of effecting the conversion of the outstanding
shares of Class B Common Stock and Class C Common Stock, such number of shares
of Class A Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Class B Common Stock and Class C
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 11
- ------------------------------
Common Stock. If, notwithstanding the foregoing, at any time, the number of
authorized and unissued shares of Class A Common Stock shall not be sufficient
to effect conversion of the then outstanding shares of Class B Common Stock and
Class C Common Stock, the savings bank shall take such corporate action as may
be necessary to increase the number of authorized and unissued shares of Class A
Common Stock to such number as shall be sufficient for such purposes.
(5) Redemptions, etc. The savings bank will not directly or indirectly
redeem, purchase, acquire or take any other action affecting outstanding shares
of capital stock of the savings bank if such action will increase the percentage
of outstanding voting securities owned or controlled by any Regulated
Stockholder and its Affiliates (other than a stockholder which waives in writing
its rights under this Section 5(A)(5)), unless the savings bank gives written
notice (the "Deferral Notice") of such action to each Regulated Stockholder. The
savings bank will defer making any such redemption, purchase or other
acquisition, or taking any other action, for a period of 20 days (the "Deferral
Period") after giving the Deferral Notice in order to allow each Regulated
Stockholder to determine whether it wishes to take any action with respect to
the Common Stock it owns, controls or has the power to vote. The savings bank
will not directly or indirectly redeem, purchase, acquire or take any other
action affecting outstanding shares of Common Stock of the savings bank if such
action will increase over 24.9% the percentage of outstanding Common Stock owned
or controlled by any Regulated Stockholder and its Affiliates (other than a
stockholder which waives in writing its rights under this Section 5(A)(5)). The
provisions of this paragraph (5) shall not apply if, and only so long as, the
Class A Common Stock is listed on a national securities exchange or admitted for
quotation on the Nasdaq National Market or any successor thereto.
(6) Reorganizations, Reclassifications, Mergers, Etc. In the event there
shall be a capital reorganization, reclassification of the stock of the savings
bank, consolidation or merger of the savings bank with or into another Person or
sale or conveyance of all or substantially all of the assets of the savings bank
to any Person, the amount of any cash, securities or other assets, or any
combination thereof, issuable or distributable in respect of each share of
Common Stock of each class shall be identical.
(7) Certain Definitions. For purposes of this Section 5 the following
defined terms shall have the meanings specified.
"Affiliate" shall mean, with respect to any Person, any other Person
---------
that, directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 12
- ------------------------------
"Beneficially Owned", when used in connection with any Person with
------------------
respect to any shares of Common Stock, shall mean shares of which such Person,
together with the Affiliates of such Person, would be deemed to be a beneficial
owner within the meaning of Rule 13d-3 or 13d-5 under the Exchange Act; and the
term "Beneficial Ownership" shall have a meaning correlative to the foregoing.
"CHC" shall mean Citadel Holding Corporation.
---
"CHC Shares" shall mean, with respect to any shares of Class B Common
----------
Stock Transferred, any of such shares that, immediately after such Transfer,
will be Beneficially Owned by CHC or any successor thereto or any Affiliate of
CHC or such successor or Group of which CHC or any such Affiliate or successor
is a member.
"Controlled Subsidiary" means any direct or indirect subsidiary of the
---------------------
Parent.
"Eligible Distributed Shares" shall mean, with respect to any shares of
---------------------------
Class B Common Stock, Beneficial Ownership of which is Transferred by CHC to a
stockholder of CHC by a dividend or distribution made to stockholders of CHC
generally, all or any portion of such shares as to which the Beneficial Owner
(or if there shall be more than one, all Beneficial Owners) immediately after
such distribution of such shares delivers to the savings bank a certificate in
form and substance reasonably satisfactory to the savings bank to the effect
that the shares of Class B Common Stock so distributed, or portion thereof, when
added to all other shares of Class B Common Stock Beneficially Owned immediately
prior to such distribution by such Beneficial Owner or Beneficial Owners and any
shares of Class B Common Stock Beneficially Owned immediately prior to such
distribution by all other members of any Group of which such Beneficial Owner
is, or Beneficial Owners are, members, do not exceed five percent of all
outstanding shares of Common Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
"Group" shall mean any group of Persons formed for the purpose of
-----
acquiring, holding, voting or disposing of securities which would be required
under Section 13(d) of the Exchange Act and the rules and regulations thereunder
(as now in effect and based on present legal interpretations thereof) to file a
statement on Schedule 13D as a "person" within the meaning of Section 13(d)(3)
of the Exchange Act if such group beneficially owned securities of a class
representing more than 5% of all securities of such class then outstanding.
"Parent" means the ultimate Parent of a holder of Class C Common Stock.
------
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 13
- ------------------------------
"Person" shall mean an individual, corporation, partnership, trust,
------
unincorporated organization, government or any agency or political subdivision
thereof or any other entity that may be treated as a person under applicable
law.
"Regulated Stockholder" shall mean any stockholder that is subject to
---------------------
the provisions of Regulation Y as a bank holding company or a subsidiary thereof
or to 12 C.F.R. Part 574 as a savings and loan holding company or a subsidiary
thereof and that holds shares of Common Stock of the savings bank, or shares
issued upon the conversion(s) of such shares.
"Regulatory Change" means, with respect to any Regulated Stockholder,
-----------------
(i) any change on or after the date this Amended and Restated Charter S is
declared effective by the OTS under United States federal laws or regulations
(including the Bank Holding Company Act and Regulation Y thereunder); (ii) the
adoption on or after such date of any interpretation or ruling applying to a
class of Persons including such Regulated Stockholder under any United States
federal laws or regulations by any court or governmental or regulatory authority
charged with the interpretation or administration thereof; or (iii) the
modification on or after such date of any agreement or commitment of any such
governmental or regulatory authority that is applicable to or binding upon such
Regulated Stockholder.
"Regulation Y" shall mean Regulation Y of the Board of Governors of the
------------
Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such
Regulation).
"Transfer" shall mean to transfer, sell, assign, give, place in trust
--------
(voting or otherwise), transfer by operation of law or in any other way dispose
of, directly or indirectly, and whether or not voluntarily, any shares of Class
B Common Stock or Class C Common Stock of the savings bank; provided, however,
that no pledge, lien, security interest or other encumbrance shall be deemed to
be a Transfer unless and until such pledge, lien, security interest or
encumbrance has been foreclosed and any rights of redemption in connection
therewith have expired.
(8) Automatic Removal.
(a) Removal of Class B Common Stock Provisions. At the earliest time when no
shares of Class B Common Stock shall be outstanding, the following provisions of
Section 5 shall be deemed to have no effect and shall be modified as provided
below or deleted and removed from this Amended and Restated Charter to the
extent that such provisions have not already been modified or removed from this
Amended and Restated Charter S; provided, that such modification, deletion and
--------
removal shall not affect the conversion of any shares of Class B
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 14
- ------------------------------
Common Stock into other securities of the savings bank or the validity of any
such securities:
(i) First paragraph, from "(b) fourteen million" through "('Class B
Common Stock')," and "and Class B Common Stock" in clause (c);
(ii) Second paragraph;
(iii) Third paragraph;
(iv) Fourth paragraph;
(v) Section 5(A)(1), ", shares of Class B Common Stock";
(vi) Section 5(A)(1)(a)(i), "Class B Common Stock and";
(vii) Section 5(A)(1)(a)(ii) from "both (1) a dividend payable"
through "Class B Common Stock per outstanding share and (2)";
(viii) Section 5(A)(1)(a)(iii)(a.) from "both (1) such distribution"
through "share of each class and (2)";
(ix) Section 5(A)(1)(a)(iii)(b.), both references to "Class B Common
Stock and" and ", respectively,";
(x) Section 5(A)(1)(b), "both the Class B Common Stock and" in the
first sentence;
(xi) Section 5(A)(1)(c), change "provisions" to "provision" and
"Sections" to "Section", remove "5(A)(2)(c) and";
(xii) Section 5(A)(2) in its entirety;
(xiii) Section 5(A)(3)(a)(i), "and the Class B Common Stock";
(xiv) Section 5(A)(3)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class B Common Stock per outstanding share";
(xv) Section 5(A)(3)(a)(iii), both references to "and Class B Common
Stock" and ", respectively,";
(xvi) Section 5(A)(3)(b), "both", "and the Class B Common Stock",
"and Section 5(A)(2)(b)" and the last letter of "Sections";
(xvii) Section 5(A)(3)(d)(i)(b.), "sum of (1) the" and from "and, if
and only if, the Class B Common Stock" through "Class A Common Stock, Class
B Common Stock";
(xviii) Section 5(A)(3)(d)(i)(c.), "Class B Common Stock and";
(xix) Section 5(A)(4), all references to "Class B and"; and
(xx) Section 5(A)(7), definitions of "Beneficially Owned", "CHC
Shares", "Exchange Act", "Excluded Shares" and "Group" and "Class B Common
Stock or" in the definition of "Transfer".
(xxi) Upon the consecutive renumbering of each remaining Section,
subsection and paragraph of this Amended and Restated Charter S and after
giving effect to each of the provisions of paragraphs (i) through (xix) of
this Section 5(A)(8)(a), this Section 5(A)(8)(a).
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 15
- ------------------------------
(b) Removal of Class C Common Stock Provisions. At the earliest time when
no shares of Class C Common Stock shall be outstanding, the following provisions
of Section 5 shall be deemed to have no further effect and shall be modified as
provided below or deleted and removed from this Amended and Restated Charter to
the extent that such provisions have not already been modified or removed from
this Amended and Restated Charter S; provided, that such modification, deletion
--------
and removal shall not affect the conversion of any shares of Class C Common
Stock into other securities of the savings bank or the validity of any such
securities:
(i) First paragraph, "), (c) three million (3,000,000) shall be Class
C Common Stock, par value 5.01 per share ('Class C Common Stock"' and "and
Class B Common Stock" in clause (c);
(ii) Section 5(A)(1), "and shares of Class C Common Stock"; and, if
necessary, the word "and" shall be added before "shares of Class B Common
Stock" if such words have not been previously deleted pursuant to
5(A)(8)(a);
(iii) Section 5(A)(1)(a)(i), "and Class C Common Stock";
(iv) Section 5(A)(1)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class C Common Stock per outstanding share";
(v) Section 5(A)(1)(a)(iii)(a.), "both (1)" and from "and (2) a
distribution of rights"' through "and including identical terms";
(vi) Section 5(A)(1)(a)(iii)(b.), both references to "and Class C
Common Stock" and ", respectively,";
(vii) Section 5(A)(1)(b), "both" and "and the Class C Common Stock" in
the first sentence;
(viii) Section 5(A)(1)(c), change "provisions" to "provision" and
"Sections" to "Section", remove "and 5(A)(3)(c)";
(ix) Section 5(A)(2)(a)(i), "and the Class C Common Stock";
(x) Section 5(A)(2)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class C Common Stock per outstanding share";
(xi) Section 5(A)(2)(a)(iii), both references to "and Class C Common
Stock" and ", respectively,";
(xii) Section 5(A)(2)(b), "both" and "and the Class C Common Stock,"
the last letter of "Sections" and "and 5(A)(3)(b)";
(xiii) Section 5(A)(3) in its entirety;
(xiv) Section 5(A)(4), all references to "and Class C Common Stock"
and, if necessary, the word "and" shall be added before "Class B Common
Stock"; and
(xv) Section 5(A)(7), definition of "Regulation Y" and "or Class C
Common Stock" in the definition of "Transfer".
(xvi) Upon the consecutive renumbering of each remaining Section,
subsection and
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 16
- ------------------------------
paragraph of this Amended and Restated Charter and after giving effect to
each of the provisions of paragraphs (i) through (xiv) of this Section
5(A)(8)(b), this Section 5(A)(8)(b).
(c) Removal of Remaining Classification Provisions. At the earliest time
when no shares of either Class B Common Stock or Class C Common Stock shall be
outstanding, the following provisions of Section 5 shall be deemed to have no
further effect and shall be modified as provided below or deleted and removed
from this Amended and Restated Charter to the extent that such provisions have
not already been modified or removed from this Amended and Restated Charter S;
provided, that such modification, deletion and removal shall not affect the
- --------
conversion of any shares of Class B Common Stock or Class C Common Stock into
other securities of the savings bank or the validity of any such securities:
(i) First paragraph, from "and, together with" through "'Common
Stock')";
(ii) Section 5(A)(1), "except as set forth in this Section 5";
(iii) Section 5(A)(1)(a)(i), "and paragraphs (a)(ii) and (iii) below"
and "provided that identical dividends or distributions are declared and
paid or made concurrently upon the";
(iv) Section 5(A)(1)(a)(ii);
(v) Section 5(A)(1)(a)(iii);
(vi) Section 5(A)(1)(b), other than the first sentence thereof;
(vii) Section 5(A)(1)(c), "and the provisions of Sections 5(A)(2)(c)
and 5(A)(3)(c) hereof"
(viii) Section 5(A)(4);
(ix) Section 5(A)(6);
(x) Any references to "Class A Common Stock" appearing anywhere in
this Amended and Restated Charter S shall be changed to read "Common Stock";
and
(xi) Upon the consecutive renumbering of each remaining Section,
subsection and paragraph of this Amended and Restated Charter S and after
giving effect to each of the provisions of Sections 5(A)(8)(a), 5(A)(8)(b)
and 5(A)(8)(c)(i)-(x), this Section 5(A)(8).
(9) Restrictions on Transfer of Common Stock. The Class A Common Stock and
Class C Common Stock sold pursuant to the Form OC may not be Transferred prior
to the date 30 days after the date on which this Amended and Restated Charter S
becomes effective, and the Class B Common Stock may not be Transferred prior to
the date 45 days after the date on which this Amended and Restated Charter S
becomes effective. Until the filing (the "10-K Filing Date") by the savings bank
with the OTS of the savings bank's Annual Report on Form 10-K for its next
fiscal year following the fiscal year ended December 31, 1993, such Class A
Common Stock and
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 17
- ------------------------------
Class C Common Stock may be Transferred only in blocks of 100,000 shares or
more, except as described below. During the period referred to in the
immediately preceding sentence, the savings bank and transfer agent for the
Common Stock will not register any Transfer of Common Stock except where the
transferee provides written certification reasonably acceptable to the savings
bank that the shares of Common Stock are being Transferred only to the
Beneficial Ownership of an Affiliate of the Transferor or an investment account
under the control of the Transferor or an Affiliate of the Transferor. Any
purported Transfer of Common Stock in violation of this Section 5(A)(9) shall be
void, and the savings bank and the transfer agent for the Common Stock will not
register any Transfer of Common Stock in violation of this Section 5(A)(9).
Effective at 12:01 A.M. on the date immediately following the 10-K Filing Date,
this paragraph 9 shall be deemed to have no further effect and to be deleted
from this Amended and Restated Charter S.
(B) Serial Preferred Stock. Subject to the approval of the provisions of any
----------------------
supplementary sections by the OTS, and except as provided in this Section 5, the
board of directors of the savings bank is authorized by resolution or
resolutions from time to time adopted, to provide in supplementary sections
hereto for the issuance of serial preferred stock in series and to fix and state
the voting powers, designation, preferences and relative, participating,
optional or other special rights of the shares of each such series and the
qualifications, limitations and restrictions thereof, including, but not limited
to, determination of any of the following:
(1) The distinctive serial designation and the number of shares
constituting such series;
(2) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
(3) The voting powers, full or limited, if any, of shares of such
series;
(4) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(5) The amount or amounts payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or winding up of
the savings bank;
(6) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or redemption
of such shares, and if so entitled, the amount of such fund and the manner
of its application, including the price or prices at which such shares may
be redeemed or purchased through the application of such fund;
(7) Whether the shares of such series shall be convertible into, or
exchangeable
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 18
- ------------------------------
for, shares of any other class or classes or of any other series of the same
or any other class or classes of stock of the savings bank and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of
such conversion or exchange;
(8) The price or other consideration for which the shares of such series
shall be issued; and
(9) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial preferred
stock and whether such shares may be reissued as shares of the same or any
other series of serial preferred stock.
Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in all respects with all the other
shares of the same series.
Prior to the issuance of any preferred shares of a series established by
a supplementary Charter section adopted by the board of directors, the
savings bank shall file with the OTS a dated copy of that supplementary
section of this Amended and Restated Charter establishing and designating
the series and fixing and determining the relative rights and preferences
thereof.
SECTION 6. Preemptive Rights. Holders of the capital stock of the savings
bank shall not be entitled to preemptive rights with respect to any shares of
the savings bank which may be issued.
SECTION 7. Liquidation Account. Pursuant to the requirements of the Rules
and Regulations for Insurance of Accounts of the Federal Savings and Loan
Insurance Corporation, the savings bank shall establish and maintain a
liquidation account for the benefit of its savings account holders as of
February 28, 1974 and as of June 30, 1981 ("eligible savers"). In the event of a
complete liquidation of the savings bank, it shall comply with such rules and
regulations with respect to the amount and the priorities on liquidation of each
of the savings bank's eligible savers' inchoate interest in the liquidation
account, to the extent it is still in existence. Provided, however, that an
eligible saver's inchoate interest in the liquidation account shall not entitle
such eligible saver to any voting rights at meetings of the savings bank's
stockholders.
SECTION 8. Directors. (A) The savings bank shall be under the direction of a
board of directors. The authorized number of directors shall be such number, not
less than seven or greater than fifteen (except when a greater number is
approved by the OTS), as may be fixed from time to time by the board of
directors pursuant to a resolution adopted by a majority of the entire board of
directors. (B) The directors shall be divided into three classes as nearly equal
in number as possible. The members of each class shall be elected for a term of
three years and until their
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 19
- ------------------------------
successors are elected and qualified. One class shall be elected by ballot
annually. (C) The right to cumulate votes in the election of directors shall not
exist with respect to the savings bank.
SECTION 9. Amendment of Charter. Except as provided in Section 5, no
amendment, addition, alteration, change, or repeal of this charter shall be
made, unless such is first proposed by the board of directors of the savings
bank, then preliminarily approved by the OTS, which preliminary approval may be
granted by the OTS pursuant to regulations specifying preapproved charter
amendments, and thereafter approved by the stockholders by a majority of the
total votes eligible to be cast at a legal meeting. Any amendment, addition,
alteration, change, or repeal so acted upon shall be effective upon filing with
the OTS in accordance with regulatory procedures or on such other date as the
OTS may specify in its preliminary approval.
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By___________________________
Richard M. Greenwood
Chief Executive Officer
Attest:
__________________________
_____________________________
Date: _____________________ Corporate Secretary
Office of Thrift Supervision
OFFICE OF THRIFT SUPERVISION
Declared effective 10/20/94 By___________________________
Acting Director
CERTIFICATE OF RESOLUTIONS ADOPTING THE FIRST
SUPPLEMENTAL SECTION TO SECTION 5(B) OF THE
AMENDED AND RESTATED CHARTER S
OF
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
Richard M. Greenwood certifies that:
1. He is the president of FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
(the "Bank").
2. The authorized number of shares of serial preferred stock is
10,000,000, none of which has been issued.
3. The Board of Directors of the Bank has duly adopted the following
resolution:
WHEREAS, the Amended and Restated Charter S of the Bank (the "Amended
Charter") authorizes the preferred stock of the Bank to be issued in series and
authorizes the Board of Directors to determine the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and to fix the number of shares and designation of any
such series, now therefore it is
RESOLVED, that the Board of Directors does hereby establish a series of
Preferred Stock as follows:
THE FIRST SUPPLEMENTAL SECTION TO SECTION 5(B)
OF THE AMENDED AND RESTATED CHARTER S OF
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
Section 1. Designation and Rank. The series created and provided for
--------------------
hereby is designated as the 12% Noncumulative Exchangeable Perpetual Preferred
Stock, Series A (the "Series A Preferred Stock"). Each share of the Series A
Preferred Stock shall be identical in all respects with each other share of the
Series A Preferred Stock. Shares of the Series A Preferred Stock shall have a
liquidation preference of $25 per share (the "Stated Value"). The Series A
Preferred Stock shall rank prior to the Bank's Common Stock and to all other
classes and series of equity securities of the Bank now or hereafter authorized,
issued or outstanding (the Common Stock and such other classes and series of
equity securities collectively may be referred to herein as the "Junior Stock"),
other than any classes or series of equity securities of the Bank ranking on a
parity with (the "Parity Stock") or senior to (the "Senior Stock") the Series A
Preferred Stock as to
dividend rights or rights upon liquidation, winding up or dissolution of the
Bank. The Series A Preferred Stock shall be junior to all outstanding debt of
the Bank, including, without limitation, deposits of the Bank. The Series A
Preferred Stock shall be subject to creation of Senior Stock, Parity Stock and
Junior Stock to the extent not prohibited by the Amended Charter, subject to the
approval of the holders of the outstanding shares of Series A Preferred Stock to
the extent required pursuant to Section 9 hereof.
Section 2. Number. The number of authorized shares of the Series A
------
Preferred Stock shall initially consist of 2,070,000 shares. The number of such
authorized shares of Series A Preferred Stock shall be automatically reduced
(but not below 1,800,000 shares) to the extent that the over-allotment option
granted by the Bank pursuant to the Underwriting Agreement dated November 8,
1995 between the Bank and Friedman, Billings, Ramsey & Co. Inc. is not
exercised, such reduction to become effective upon expiration of such over-
allotment option pursuant to its terms. The number of authorized shares of the
Series A Preferred Stock may be increased by the further resolution duly adopted
by the Board of Directors of the Bank or a duly authorized committee thereof.
The number of authorized shares of the Series A Preferred Stock shall not at any
time be decreased below the aggregate number of such shares then outstanding.
Section 3. Dividends.
---------
(a) The holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds at the
time legally available therefor, noncumulative dividends at the rate of $3.00
per annum per share (subject to reduction as provided in Section 6(a) hereof),
and no more. Such dividends shall accrue without interest (including any
interest, sum of money in lieu of interest or other property paid on account of
any dividend payment or payments which may be in arrears) from the date of
original issuance and shall be payable in cash quarterly in arrears on February
15, May 15, August 15 and November 15 of each year commencing February 15, 1996
(the "Dividend Payment Dates") (except that if any such date is not a Business
Day, then such dividend shall be payable on the next Business Day following such
Dividend Date, provided that, for the purposes of computing such dividend
--------
payment, no interest or sum in lieu of interest shall accrue from such Dividend
Payment Date to the next Business Day following such Dividend Payment Date) to
holders of record as they appear in the securities register of the Bank at the
close of business on January 30, April 30, July 30 or
-2-
October 30, as the case may be, next preceding each Dividend Payment Date (each,
a "Record Date"). For purposes hereof, the term Business Day shall mean any day
(except a Saturday or Sunday or any day on which banking institutions are
authorized or required to close in Los Angeles, California or New York, New
York). The amount of dividends payable per share of Series A Preferred Stock for
each quarterly dividend period shall be computed by dividing the annual dividend
amount by four. The amount of dividends payable for the initial dividend period
and any period shorter than a full quarterly dividend period shall be computed
on the basis of a 360-day year of twelve 30-day months. Dividends paid on shares
of Series A Preferred Stock in an amount less than the total amount of such
dividends at the time payable on such shares shall be allocated pro rata among
all such shares at the time outstanding.
No dividends or other distributions, other than dividends payable
solely in shares of Common Stock or other Junior Stock shall be declared, paid
or set apart for payment on, and no purchase, redemption or other acquisition
shall be made by the Bank of, any shares of Common Stock or other Junior Stock
(or any payment made in respect of or made available to a sinking fund for the
redemption of any shares of such Junior Stock) unless and until all unpaid
dividends on the Series A Preferred Stock shall have been paid or declared and
set apart for payment for the current quarterly dividend period.
If at any time any dividend on any Senior Stock shall be in default,
in whole or in part, then (except to the extent allowed by the terms of such
Senior Stock) no dividend shall be paid or declared and set apart for payment on
the Series A Preferred Stock unless and until all accrued and unpaid dividends
with respect to such Senior Stock, including the full dividends for the then-
current dividend period, shall have been paid or declared and set apart for
payment, without interest. No shares of Parity Stock shall be issued unless the
dividend payment dates for such shares are the same dates, and only the same
dates, as the Dividend Payment Dates. No full dividends shall be paid or
declared and set apart for payment on any class or series of Parity Stock for
any period unless full dividends have been, or contemporaneously are, paid or
declared and set apart for such payment on the Series A Preferred Stock for
payment at the same time. No full dividends shall be paid or declared and set
apart for any period unless full dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Parity Stock for the dividend
period terminating on the date of payment of such full dividends. When
dividends are not paid in full upon the Series A Preferred Stock and the Parity
Stock, all the
-3-
dividends paid or declared and set aside for payment upon shares of Series A
Preferred Stock and the Parity Stock shall be paid or declared and set aside for
payment pro rata so that the amount of dividends paid or declared and set aside
for payment per share on the Series A Preferred Stock and the Parity Stock shall
in all cases bear to each other the same ratio that accrued and unpaid dividends
per shares on the shares of Series A Preferred Stock and the Parity Stock bear
to each other.
(b) The Bank shall not permit any subsidiary to purchase or otherwise
acquire for consideration any shares of stock of the Bank unless the Bank could,
under paragraph (a) of this Section 3, purchase or otherwise acquire such shares
at such time and in such manner.
(c) Any reference to "distribution" contained in this Section 3 shall
not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Bank whether voluntary or
involuntary.
Section 4. Redemption.
----------
(a) Optional Redemption. The Series A Preferred Stock is perpetual
-------------------
and is not redeemable prior to November 15, 2005. The Series A Preferred Stock
is (subject to applicable regulatory limitations, including restrictions on
capital distributions) redeemable by the Bank at its option at any time, and
from time to time, on or after November 15, 2005, in whole or in part, at the
redemption prices set forth below in cash, plus an amount in cash equal to
accrued but unpaid dividends for the then-current dividend period up to, but
excluding, the date fixed for redemption (the "Redemption Date") without the
accumulation of unpaid dividends for prior dividend periods (subject to the
right of the holder of record on the record date for the payment of a dividend
to receive the dividend due on the corresponding Dividend Payment Date, or the
next Business Day thereafter, as the case may be):
If redeemed during the
12-month period Redemption
beginning November 15, Price
- ------------------------- ----------
2005 $27.50
2006 27.00
2007 26.50
2008 26.00
2009 25.50
2010 and thereafter 25.00
-4-
The applicable amount payable upon redemption as provided in the immediately
preceding sentence is hereinafter referred to as the "Redemption Price."
The aggregate Redemption Price payable to each holder of record of
shares of Series A Preferred Stock to be redeemed will be rounded to the nearest
cent ($0.01).
If fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the shares to be redeemed shall be selected pro rata
or by lot or by such other method as the Board of Directors of the Bank, in its
sole discretion, determines to be equitable.
(b) Notice, etc. (i) Notice of every redemption of shares of Series
------------
A Preferred Stock pursuant to this Section 4 shall be mailed by first class
mail, postage prepaid, addressed to the holders of record of the shares to be
redeemed at their respective last addresses as they shall appear on the stock
register of the Bank. Such mailing shall be at least 45 days and not more than
60 days prior to the Redemption Date. Each such notice of redemption shall
specify the Redemption Date, the Redemption Price, the place or places of
payment and that payment will be made upon the later of the Redemption Date or
presentation and surrender of the shares of Series A Preferred Stock. Any
notice which is mailed as herein provided shall be conclusively presumed to have
been duly given, whether or not the holder of the Series A Preferred Stock
receives such notice; and failure to give such notice by mail, or any defect in
such notice, to the holders of any shares designed for redemption shall not
affect the validity of the proceedings for the redemption of any other shares of
Series A Preferred Stock.
(ii) If such notice of redemption shall have been duly given and if on
or before the Redemption Date specified therein the funds necessary for such
redemption shall have been deposited by the Bank with the bank or trust company
hereinafter referred to in trust for the pro rata benefit of the holders of the
shares called for redemption, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after the Redemption Date, all shares so called for
redemption shall no longer be deemed to be outstanding, dividends shall cease to
accrue thereon and all rights with respect to such shares shall forthwith cease
and terminate, except only the right of the holders thereof to receive from such
bank or trust company at any time on and after the Redemption Date the funds so
deposited, without interest. The aforesaid bank or trust company shall be
organized and in good standing under the laws of the United States of America or
of any State, shall have capital,
-5-
surplus and undivided profits aggregating at least $50,000,000 according to its
last published statement of financial condition, and shall be identified in the
notice of redemption. Any interest accrued on such funds shall be paid to the
Bank from time to time. Any funds so set aside or deposited, as the case may be,
and unclaimed at the end of three years from such Redemption Date shall, to the
extent permitted by law, be released or repaid to the Bank, after which
repayment the holders of the shares so called for redemption shall look only to
the Bank for payment thereof.
(c) Status of Redeemed Shares. Shares of the Series A Preferred
-------------------------
Stock which have been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock of the Bank, without
designation as to series, until such shares are once more designated as part of
a particular series by or on behalf of the Board of Directors.
Section 5. No Sinking Fund. The shares of Series A Preferred Stock,
---------------
shall not be subject to mandatory redemption or the operation of any purchase,
retirement, or sinking fund.
Section 6. Exchange.
--------
(a) If the Bank forms or is acquired by a holding company (the
"Holding Company"), the Holding Company may elect to make the Series A Preferred
Stock exchangeable at the option of the holders thereof on any date following a
date to be fixed by the Holding Company (the "Exchange Date"), for senior notes
of the Holding Company (the "Senior Notes") to be issued under an Indenture (the
"Indenture") between the Holding Company and such party as may reasonably be
selected by the Board of Directors to then act as trustee under the Indenture
(the "Trustee"), which shall be in substantially the form filed as an exhibit to
the Bank's Form OC (OTS Docket No. 5770) as filed with the OTS and as amended as
of November 8, 1995, completed as set forth therein and with such changes as may
be required by law or usage. Holders of the outstanding shares of Series A
Preferred Stock will be entitled to receive $1,000 principal amount of the
Senior Notes in exchange for each 40 shares of Series A Preferred Stock held by
them at the time of exchange. Dividends on the Series A Preferred Stock will be
payable following the Exchange Date at a reduced annual rate of $2.50 per share.
The Holding Company shall send to each holder of the Series A Preferred Stock
notice of the Exchange Date not less than 30 days nor more than 60 days prior to
the Exchange Date at the address of such holder shown on the books of the Bank.
Such notice shall state:
-6-
(i) the Exchange Date, (ii) that shares of Series A Preferred Stock will be
exchanged for Senior Notes without any further action on the part of the holder
unless such holder returns an enclosed election form stating that none of such
holder's shares of Series A Preferred Stock is to be exchanged for Senior Notes,
(iii) the place where shares of Series A Preferred Stock are to be surrendered
for exchange and (iv) the arrangements for the delivery of new securities
representing the Senior Notes.
(b) After the occurrence of the Exchange Date, any holder of shares of
Series A Preferred Stock desiring to exchange such shares for Senior Notes shall
surrender the certificate or certificates for such shares of Series A Preferred
Stock at the office of the transfer agent for the Series A Preferred Stock (the
"Transfer Agent"), which certificate or certificates, if the Bank shall so
require, shall be duly endorsed to the Bank or in blank, or accompanied by
proper instruments of transfer to the Bank or in blank, accompanied by
irrevocable written notice to the Bank and the Holding Company that the holder
elects so to exchange such shares of Series A Preferred Stock and specifying the
name or names in which a certificate or certificates for Senior Notes are to be
issued. Any such election by a holder of shares of Series A Preferred Stock may
be made with respect to all, but not less than all, of the shares of Series A
Preferred Stock held by such holder or, if the number of such shares is not a
multiple of 40, the nearest multiple of 40 shares that is less than the
aggregate number of shares held by such holder.
The Bank covenants that, as soon as practicable after such deposit of
certificates for Series A Preferred Stock accompanied by the written notice of
exchange and compliance with any other conditions herein contained, there shall
be delivered at such office of such Transfer Agent to the person for whose
account such shares of Series A Preferred Stock were so surrendered, or his
nominee or nominees, certificates for the principal amount of Senior Notes to
which he shall be entitled as aforesaid. Subject to the following provisions of
this paragraph, such exchange shall be deemed to have been made as of the date
of such surrender of the shares of Series A Preferred Stock to be exchanged, and
the person or persons entitled to received the Senior Notes deliverable upon
exchange of such Series A Preferred Stock shall be treated for all purposes as
the holder or holders of such Senior Notes on such date.
(c) In the case of any shares of Series A Preferred Stock which is
surrendered for exchange after any record date established by the Board of
Directors with respect to the payment of a dividend on the Series A
-7-
Preferred Stock and on or prior to the opening of business on the next
succeeding Dividend Payment Date (or, if such Dividend Payment Date is not a
Business Day, before the close of business on the next Business Day following
such Dividend Payment Date), the dividend due on such date shall be payable on
such date to the holder of record of such shares as of such preceding record
date notwithstanding such exchange. Shares of Series A Preferred Stock
surrendered for exchange during the period from the close of business on any
record date established by the Board of Directors with respect to the payment of
a dividend on the Series A Preferred Stock immediately preceding any Dividend
Payment Date to the opening of business on such Dividend Payment Date (or, if
such Dividend Payment Date is not a Business Day, before the opening of business
on the next Business Day following such Dividend Payment Date), except in the
case of shares called for redemption on a Redemption Date within such period,
shall be accompanied by payment in New York Clearing House funds or other funds
acceptable to the Bank in an amount equal to the dividend payable on such
Dividend Payment Date on the shares of Series A Preferred Stock being
surrendered for exchange. The dividend with respect to a share of Series A
Preferred Stock called for redemption on a Redemption Date during the period
from the close of business on any record date established by the Board of
Directors with respect to the payment of a dividend on the Series A Preferred
Stock next preceding any Dividend Payment Date to the opening of business on
such Dividend Payment Date (or, if such Dividend Payment Date is not a Business
Day, before the opening of business on the next Business Day following such
Dividend Payment Date) shall be payable on such Dividend Payment Date (or, if
such Dividend Payment Date is not a Business Day, before the opening of business
on the next Business Day following such Dividend Payment Date) to the holder of
record of such share on such record date notwithstanding the exchange of such
share of Series A Preferred Stock after such record date and prior to the
opening of business on such Dividend Payment Date (or, if such Dividend Payment
Date is not a Business Day, before the opening of business on the next Business
Day following such Dividend Payment Date) and the holder exchanging such shares
of Series A Preferred Stock need not include a payment in an amount equal to
such dividend upon surrender of such shares for exchange. Except as provided in
this paragraph, no payment or adjustment shall be made upon any exchange on
account of any dividends on shares of Series A Preferred Stock surrendered for
exchange.
(d) Exchange of shares of Series A Preferred Stock for Senior Notes
may be effected only in lots of 40 shares, and in no event shall the Holding
Company be
-8-
obligated to issue a certificate representing less than $1,000 in principal
amount of Senior Notes.
(e) Series A Preferred Stock shall not be exchangeable for the Senior
Notes unless all dividends accrued on the Series A Preferred Stock for the
dividend period in which the Exchange Date is to occur (and, if the Exchange
Date is not a Dividend Payment Date, for the prior dividend period) have been
paid or set aside for payment. No such exchange of Senior Notes for shares of
Series A Preferred Stock shall be made unless (A) at the time of the exchange,
the Holding Company meets the definitional characteristics specified in the
Indenture; (B) the Senior Notes have been registered under the Securities Act of
1933, as amended, unless an exemption from registration is available; (C) the
Indenture shall have been executed and delivered by the Holding Company and the
Trustee; (D) immediately following the exchange, no default or event of default
will exist under the Indenture; and (E) the Trustee has received an opinion (in
the form specified in the Indenture) to the effect that the Senior Notes will,
when issued in accordance with the terms of the Indenture, be legal, valid,
binding and enforceable obligations of the Holding Company in accordance with
their terms and that all necessary corporate and governmental approvals,
including without limitation any securities registrations, for the issuance of
the Senior Notes have been obtained.
(f) From and after the date of any such exchange, the rights of the
holders of Series A Preferred Stock so exchanged as stockholders of the Bank
shall cease (except as set forth above), and the person or persons entitled to
receive the Senior Notes issuable upon such exchange shall be treated as the
holder or holders of such Senior Notes.
Section 7. Repurchase.
----------
(a) Right to Require Repurchase. In the event that a Change of
---------------------------
Control (as hereinafter defined) shall occur, then each holder of Series A
Preferred Stock shall have the right, at such holder's option, to require the
Bank to repurchase, and upon the exercise of such right the Bank shall
repurchase, all or a specified number of such holder's Series A Preferred Stock
on the date (the "Repurchase Date") that is 25 days after the date of the Bank
Notice (as defined below) for cash at a purchase price equal to 110% of the
Stated Value of such shares of Series A Preferred Stock to be repurchased (the
"Repurchase Price"), plus dividends accrued and unpaid for the then current
quarterly dividend period (without accumulation of accrued and unpaid dividends
for prior periods) to the Repurchase Date, unless the Repurchase Date shall
occur prior to the opening of business
-9-
on a Divided Payment Date and after the close of business on the corresponding
Record Date.
(b) Notices; Method of Exercising Repurchase Right, Etc.
----------------------------------------------------
(1) Unless the Redemption Date shall have occurred in connection with
the Bank's call for redemption of all of the shares of Series A Preferred Stock,
on or before the 45th day after the occurrence of a Change of Control, the Bank
shall mail to all holders of shares of Series A Preferred Stock a notice (the
"Bank Notice") of the occurrence of the Change of Control and of the repurchase
right set forth herein arising as a result thereof. The Bank shall also cause a
copy of such notice of a repurchase right, or a summary of the information
contained therein, to be published in a newspaper of general circulation in The
City of New York.
Each notice of a repurchase right shall state:
(a) the Repurchase Date,
(b) the date by which the repurchase right must be exercised,
(c) the Repurchase Price, and
(d) a description of the procedure which a holder of shares of Series
A Preferred Stock must follow to exercise a repurchase right.
No failure of the Bank to give the foregoing notices or defect therein
shall limit the right of any holder of shares of Series A Preferred Stock to
exercise a repurchase right or affect the validity of the proceedings for the
repurchase of such shares.
If any of the foregoing provisions are inconsistent with applicable
law, such law shall govern.
(2) To exercise a repurchase right, a holder of shares of Series A
Preferred Stock shall deliver to the Bank on or before the 15th day after the
date of the Bank Notice (i) written notice of such holder's exercise of such
right, which notice shall set forth the name of such holder, the number of
shares of Series A Preferred Stock to be repurchased and a statement that an
election to exercise the repurchase right is being made thereby, and (ii) the
shares of Series A Preferred Stock with respect to which the repurchase right is
being exercised, duly endorsed for
-10-
transfer to the Bank. Such written notice shall be irrevocable.
(3) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Bank shall pay or cause to be paid the Repurchase
Price in cash to the holder on the Repurchase Date, plus dividends accrued and
unpaid for the then current quarterly dividend period (without accumulation of
accrued and unpaid dividends for prior periods) to the Repurchase Date;
provided, however, that in the event the Repurchase Date shall occur prior to
- -------- -------
the opening of business on a Dividend Payment Date and after the close of
business on the corresponding Record Date, the dividend payable on such Dividend
Payment Date shall be payable to the holder of such shares registered as such on
the relevant Record Date and no accrued and unpaid dividends shall be payable
upon repurchase of such shares. The aggregate Repurchase Price payable to such
holder will be rounded to the nearest cent ($0.01) with respect to the shares of
Series A Preferred Stock as to which the repurchase right has been exercised.
(c) Status of Repurchased Shares. Shares of the Series A Preferred
----------------------------
Stock which have been repurchased shall, after such repurchase, have the status
of authorized but unissued shares of Preferred Stock of the Bank, without
designation as to series, until such shares are once more designated as part of
a particular series by or on behalf of the Board of Directors.
(d) Certain Definitions.
-------------------
For purposes of this Section 7,
(1) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, as in effect on the date of the original execution of this
Certificate of Designations, promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended;
(2) the term "Person" shall include any syndicate or group which
would be deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, as in effect on the date of the original
execution of this Certificate of Designations, other than the Bank, any
subsidiary of the Bank or any employee benefit plan of the Bank; and
(3) a "Change of Control" will be deemed to have occurred at such
time as:
-11-
(i) any Person is or becomes the beneficial owner, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Bank entitling
such Person to exercise 50% or more of the total voting power of all shares
of capital stock of the Bank entitled to vote generally in the election of
directors; or
(ii) there occurs any consolidation of the Bank with, or merger
of the Bank into, any other Person, any merger of another Person into the
Bank, or any sale or transfer of all or substantially all of the assets of
the Bank to another Person (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of any class of the Bank's capital stock);
provided, however, that no Change of Control shall be deemed to have occurred
- -------- -------
under paragraphs (i) or (ii) above unless and until the transaction that would
result in the Change of Control has been approved by the Board of Directors of
the Bank and such transaction, and the exercise by the holders of the Preferred
Stock of their right to require repurchase of the Series A Preferred Stock
hereunder with respect thereto, has been approved by the Office of Thrift
Supervision (together with any successor agency, the "OTS") after receipt by the
OTS of written notice thereof from the Bank given no later than the business day
immediately following the day on which the Board of Directors of the Bank
approves the transaction. In the event the OTS does not approve the exercise of
such repurchase right within 30 days after the date the OTS receives such notice
from the Bank, one or more holders of shares of the Series A Preferred Stock may
request from the OTS a reconsideration of such determination (pursuant to
applicable procedures of the OTS with respect thereto) within 60 days (or such
longer period as may be required or permitted by the OTS) of such failure to
approve such exercise. In the event the OTS disapproves the repurchase of the
Series A Preferred Stock hereunder and does not approve such repurchase upon any
such subsequent request for reconsideration, the right of the holders to require
such repurchase shall irrevocably terminate with respect to such Change of
Control, but the right of the holders of the Series A Preferred Stock to require
such repurchase, on the terms and subject to the conditions contained herein
(including, without limitation, the requirements contained herein for OTS
approval), in the event of any subsequent Change of Control shall not be
affected thereby.
-12-
Section 8. Liquidation Rights.
------------------
(a) Liquidation Preference. In the event of any voluntary or
----------------------
involuntary liquidation, dissolution or winding up of the affairs of the Bank,
the holders of outstanding shares of the Series A Preferred Stock shall be
entitled, before any payment or distribution shall be made on stock of the Bank
ranking junior to the Series A Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Bank, to be paid in full an amount equal to the
Stated Value per share, plus an amount equal to all accrued but unpaid dividends
for the then-current dividend period (without accumulation of accrued and unpaid
dividends for prior dividend periods), and no more; provided, however, that such
-------- -------
rights shall accrue to the holders of Series A Preferred Stock only in the event
that the Bank's payments with respect to the liquidation preferences of the
holders of the Senior Stock and the rights of the Parity Stock are fully met.
After payment of the full amount of such liquidation distribution, the holders
of the Series A Preferred Stock shall not be entitled to any further
participation in any distribution of assets of the Bank.
(b) Insufficient Assets. (i) If, upon any voluntary or involuntary
-------------------
liquidation, dissolution or winding up of the Bank, the assets of the Bank, or
proceeds thereof, distributable among the holders of the shares of the Series A
Preferred Stock and any other stock of the Bank ranking, as to liquidation,
dissolution or winding up, on a parity with the Series A Preferred Stock
(collectively, "Liquidation Parity Stock"), shall be insufficient to pay in full
the preferential amount set forth in subparagraph (a) above and liquidating
payments on all Liquidation Parity Stock, then assets of the Bank remaining
after the distribution to holders of any Senior Stock then outstanding of the
full amounts to which they may be entitled, or the proceeds thereof, shall be
distributed among the holders of the Series A Preferred Stock and all such
Liquidation Parity Stock ratably in accordance with the respective amount which
would be payable on such shares of Series A Preferred Stock and any such
Liquidation Parity Stock if all amounts payable thereon were paid in full
(which, in the case of such other stock, may include accumulated dividends).
(ii) In the event of any such liquidation, dissolution or winding up
of the Bank, whether voluntary or involuntary, unless and until payment in full
is made to the holders of all outstanding shares of the Series A Preferred Stock
of the liquidation, distribution to which they are entitled pursuant to
subparagraph (a) above, no dividend or other distribution shall be made to the
holders of any stock of the Bank ranking junior to the Series A Preferred Stock
-13-
as to rights upon liquidation dissolution or winding-up of the Bank and no
purchase, redemption or other acquisition for any consideration by the Bank
shall be made in respect of any Junior Stock, other than any such dividend or
distribution consisting solely of, or purchase, redemption or acquisition for
consideration consisting solely of, shares of Junior Stock.
(c) Definition. Neither the consolidation nor the merger of the Bank
----------
into or with another corporation or corporations shall be deemed to be a
liquidation, dissolution or winding up of the Bank within the meaning of this
Section 8.
Section 9. Voting Rights.
-------------
(a) No Vote Except as Provided. Except as otherwise expressly
--------------------------
provided herein or required by law, no holder of shares of Series A Preferred
Stock shall have or possess any right to notice of shareholders' meetings or any
vote (whether at such a meeting or in writing without a meeting) with respect to
any shares of Series A Preferred Stock held by such holder on any matter.
(b) Election of Directors. (i) If the Bank fails to pay full
---------------------
quarterly dividends on the Series A Preferred Stock for each of two consecutive
dividend periods, the holders of the Series A Preferred Stock shall have the
exclusive right (voting separately as a class together with the holders of any
Parity Stock upon which like voting rights have been conferred and are then
exercisable) to elect two directors (subject to compliance with any requirement
for regulatory approval of, or non-objection to, persons to serve as directors
of the Bank) for newly created directorships of the Board of Directors, each
director to be in addition to the number of directors constituting the Board of
Directors immediately prior to the vesting of such right (the remaining
directors to be elected by the other class or classes of stock entitled to vote
therefor), at each meeting of shareholders duly held for the purpose of electing
directors. At any time when the right to elect such directors is vested (but
has not yet terminated), the Bank may call a special meeting of the holders of
the Series A Preferred Stock to fill such directorships, and upon the written
request of the holders of not less than 20% of such stock made in accordance
with the terms of the Series A Preferred Stock, the Bank is obligated to do so.
The right of the holders of the Series A Preferred Stock to elect directors
shall continue until dividends on the Series A Preferred Stock have been paid
for two consecutive dividend periods, at which time such voting rights of the
holders of the Series A Preferred
-14-
Stock shall, without further action, terminate, subject to revesting in the
event of each and every subsequent failure of the Bank to pay such dividends for
two consecutive dividend periods as described above.
(ii) The term of office of all directors elected by the holders of the
Series A Preferred Stock in office at any time when the aforesaid voting right
is vested in such holders shall terminate upon the election of their successors
at any meeting of shareholders for the purpose of electing directors; provided,
--------
however, that, without further action and unless otherwise required by law, any
- -------
directors who shall have been elected by the holders of the Series A Preferred
Stock as provided herein may be removed at any time, either with or without
cause, by the affirmative vote of the holders of record of a majority of the
outstanding shares of the Series A Preferred Stock (voting separately as a class
together with the holders of any Parity Stock upon which like voting rights have
been conferred and are then exercisable) at a duly held shareholders' meeting.
Upon termination of the aforesaid voting right in accordance with the foregoing
provisions, the term of office of all directors elected by the holders of the
Series A Preferred Stock pursuant thereto then in office shall, without further
action, terminate unless otherwise required by law. Upon such termination the
number of directors constituting the Board of Directors shall, without further
action, be reduced by two, subject always to the increase of the number of
directors pursuant to the foregoing provisions in case of the future vesting of
the right of such holders of the Series A Preferred Stock to elect directors as
provided above.
(iii) Unless otherwise required by law, in the case of any vacancy
occurring in the directorships so created, the remaining director who shall have
been elected to such a directorship may appoint a successor to hold office for
the unexpired term of the director whose place shall be vacant, and if all
directors so elected by the holders of the Series A Preferred Stock shall cease
to serve as directors before their term shall expire, the holders of the Series
A Preferred Stock then outstanding may, at a meeting of such holders duly held
(voting separately as a class together with the holders of any Parity Stock upon
which like voting rights have been conferred and are then exercisable) elect
successors to hold office for the unexpired terms of the directors whose places
shall be vacant.
(iv) The directors elected by the holders of the Series A Preferred
Stock in accordance with the foregoing provisions shall be entitled to one vote
per director on any
-15-
matter on which the directors not so elected are so entitled.
(c) Certain Actions. So long as any shares of the Series A Preferred
---------------
Stock shall remain outstanding, the affirmative vote of the holders of at least
66 2/3% of the votes of the shares of the Series A Preferred Stock at the time
outstanding, acting as a separate series, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
(i) The authorization, creation, issuance or sale of any shares of any
class or series of capital stock of the Bank which shall rank senior to the
Series A Preferred Stock as to dividends or upon liquidation, dissolution or
winding-up or which possesses rights to vote separately as one class with the
Series A Preferred Stock on the basis of more than one vote for each $25 of
liquidation preference thereof (excluding any liquidation preference for accrued
but unpaid dividends), or to issue or authorize any obligation or security
convertible into, or evidencing a right to purchase, such a security;
(ii) Any amendment, alteration or repeal of any of the provisions of
the Amended Charter in any manner which adversely affects the powers,
preferences, voting power, dividend rights or other rights or privileges of the
Series A Preferred Stock; provided, however, that no vote of the holders of the
-------- -------
Series A Preferred Stock will be required for any of the following, which are
deemed not to adversely affect the powers, preferences, voting power, dividend
rights or other rights or privileges of the Series A Preferred Stock: (A) an
amendment of the Amended Charter which increases the number of shares of
preferred stock which the Bank is authorized to issue, (B) the creation or
issuance of Parity Stock or stock ranking junior to the Series A Preferred Stock
as to dividends and as to rights upon liquidation, winding up and dissolution of
the Bank and (C) a merger or consolidation of the Bank with or into any other
entity or a sale, transfer or lease of all or any part of the assets of the Bank
to any other entity.
(d) One Vote per Share. In connection with any matter on which the
------------------
holders of the Series A Preferred Stock are entitled to vote as one class or
otherwise pursuant to law or the provisions of the Amended Charter, including,
without limitation, the election of directors as set forth above, each holder of
Series A Preferred Stock shall be entitled to one vote for each share of the
Series A Preferred Stock held by such holder.
-16-
Section 10. Exclusion of Other Rights. Except as may otherwise be
-------------------------
required by law, the shares of Series A Preferred Stock shall not have any
preferences or relative, participating, optional or other special rights, other
than those specifically set forth in this resolution (as such resolution may be
amended from time to time) and in the Amended Charter of the Bank, as amended.
Without limitation of the foregoing, the shares of Series A Preferred Stock
shall have no preemptive or subscription rights.
Section 11. Headings of Subdivisions. The headings of the various
------------------------
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
Section 12. Severability of Provisions. If any right, preference or
--------------------------
limitation of the Series A Preferred Stock set forth in this resolution (as such
resolution may be amended from time to time) is invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
rights, preferences and limitations set forth in this resolution (as so amended)
which can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect,
and no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
-17-
FIDELITY FEDERAL BANK,
a Federal Savings Bank
Dated: November 8, 1995 By:___________________________
Name: Richard M. Greenwood
Title: President
Attest:
Dated: November 8, 1995 By:___________________________
Name: Godfrey B. Evans
Title: Secretary
OFFICE OF THRIFT SUPERVISION
Declared effective _____________ By:___________________________
Name:
Title: Acting Director
By:___________________________
Name:
Title: Corporate Secretary
-18-
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CHARTER S OF
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
Fidelity Federal Bank, A Federal Savings Bank (the "Bank"), hereby
certifies as follows:
FIRST. The Board of Directors of the Bank has duly adopted resolutions
approving the amendment of the Amended and Restated Charter S of the Bank as
follows:
Section 5 of the Amended and Restated Charter S of the Bank is hereby
amended as follows:
(1) In the first sentence of such Section 5, (a) the phrase "one
hundred million (100,000,000)" shall be deleted and in its place shall be
inserted the phrase "one hundred five million, five hundred thousand
(105,500,000)" and (b) the phrase "seventy-three million (73,000,000)"
shall be deleted and in its place shall be inserted the phrase "seventy-
eight million, five hundred thousand (78,500,000)".
(2) The following shall be inserted at the end of the first paragraph
of such Section 5:
"Upon the amendment of this Section 5 to include this sentence, each
four (4) outstanding shares of Class A Common Stock are combined,
reconstituted and converted into one (1) new share of Class A Common
Stock, and each four (4) outstanding shares of Class C Common Stock of
the Bank are combined, reconstituted and converted into one (1) new
share of Class C Common Stock (together, the "Reverse Stock Split").
Following the Reverse Stock Split, each certificate for one or more
shares of Class A Common Stock or Class C Common Stock as of the close
of business on the date this amendment becomes effective (the
"Effective Date") shall represent (a) the whole number of shares of
Class A Common Stock or Class C Common Stock, as the case may be,
obtained by multiplying .25 by the number of shares of Class A Common
Stock or Class C Common Stock represented by such certificate
immediately prior to the Effective Date and (b) a right to receive
cash in exchange for any fractional share of Class A Common Stock or
Class C Common Stock, as the case may be, that such stockholder would
otherwise be entitled to receive, in an amount equal to the fractional
share which such stockholder would otherwise be entitled to receive
multiplied by an amount equal to the last reported sale price on the
National Association of Securities Dealers, Inc. OTC Bulletin Board
(the "OTCBB") of one share of Class A Common Stock on the Effective
Date, or if no sales of the Class A Common Stock occur on the
Effective Date as reported on the OTCBB, the first day immediately
preceding the Effective Date on which a sale of the Class A Common
Stock was reported on the OTCBB, appropriately adjusted for the
Reverse Stock Split."
SECOND. The foregoing amendment has been duly adopted by the stockholders
of the Bank by a majority of the total votes eligible to be cast at a legal
meeting.
IN WITNESS WHEREOF, the Bank has caused this certificate to be signed by
Richard M. Greenwood, its President, and attested by Godfrey B. Evans, its
Secretary, on the 13th day of February, 1996.
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By
--------------------------
Attest:
---------------------
-2-