EXHIBIT 3
AS OF SEPTEMBER 30, 1998:
CERTIFICATE OF INCORPORATION
OF
HAVEN BANCORP, INC.
FIRST: The name of the Corporation is Haven Bancorp, Inc.
(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle. The name
of the registered agent at that address if The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: A. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is thirty-two million
(32,000,000) consisting of:
1. Two million (2,000,000), shares of Preferred Stock,
par value one cent ($.01) per share (the "Preferred
Stock"); and
2. Thirty million (30,000,000) shares of Common Stock,
par value one cent ($.01) per share (the "Common
Stock").
B. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware (such
certificate being hereinafter referred to as a "Preferred Stock
Designation"), to establish from time to time the number of shares
to be included in each such series, and to fix the designation,
powers, preferences, and rights of the shares of each such series
and any qualifications, limitations or restrictions thereof. The
number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority
of the Common Stock, without a vote of the holders of the Preferred
Stock, or of any series thereof, unless a vote of any such holders
is required pursuant to the terms of any Preferred Stock
Designation.
C. 1. Notwithstanding any other provision of this Certificate of
Incorporation, in no event shall any record owner of any
outstanding Common Stock which is beneficially owned, directly or
indirectly, by a person who, as of any record date for the
determination of stockholders entitled to vote on any matter,
beneficially owns in excess of 10% of the then-outstanding shares
of Common Stock (the "Limit"), be entitled, or permitted to any
vote in respect of the shares held in excess of the Limit. The
number of votes which may be cast by any record owner by virtue of
the provisions hereof in respect of Common Stock beneficially owned
by such person beneficially owning shares in excess of the Limit
shall be a number equal to the total number of votes which a single
record owner of all Common Stock owned by such person would be
entitled to cast, subject to the provisions of this Article FOURTH,
multiplied by a fraction, the numerator of which is the number of
shares of such class or series which are both beneficially owned by
such person and owned of record by such record owner and the
denominator of which is the total number of shares of Common Stock
beneficially owned by such person owning shares in excess of the
Limit.
2. The following definitions shall apply to this Section C of this
Article FOURTH:
(a) "Affiliate" shall have the meaning ascribed to it in Rule 12b-2
of the General Rules and Regulations under the Securities Act of
1934, as in effect on the date of filing of this Certificate of
Incorporation.
(b) "Beneficial ownership" shall be determined pursuant to Rule
13d-3 of the General Rules and Regulations under the Securities
Exchange Act of 1934 (or any successor rule or statutory
provision), or, if said Rule 13d-3 shall be rescinded and there
shall be no successor rule or provision thereto, pursuant to said
Rule 13d-3 as in effect on the date of filing of this Certificate
of Incorporation; provided, however, that a person shall, in any
event, also be deemed the "beneficial owner" of any Common Stock:
(1) which such person or any of its affiliates beneficially owns,
directly or indirectly; or
(2) which such person or any of its affiliates has (i) the right to
acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement
or understanding (but shall not be deemed to be the beneficial
owner of any voting shares solely by reason of an agreement,
contract, or other arrangement with this Corporation to effect any
transaction which is described in any one or more of clauses 1
through 5 of Section A of Article EIGHTH), or upon the exercise of
conversion rights, exchange rights, warrants, or options or
otherwise, or (ii) sole or shared voting or investment power with
respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed
to be the beneficial owner of any voting shares solely by reason of
a revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, with
respect to shares of which neither such person nor any such
Affiliate is otherwise deemed the beneficial owner); or
(3) which are beneficially owned, directly or indirectly, by any
other person with which such first mentioned person or any of its
Affiliates acts as a partnership, limited partnership, syndicate or
other group pursuant to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any
shares of capital stock of this Corporation; and provided further,
however, that (1) no Director or Officer of this Corporation (or
any Affiliate of any such Director or Officer) shall, solely by
reason of any or all of such Directors or Officers acting in their
capacities as such, be deemed, for any purposes hereof, to
beneficially own any Common Stock beneficially owned by any other
such Director or Officer (or any Affiliate thereof), and (2)
neither any employee stock ownership or similar plan of this
Corporation or any subsidiary of this Corporation, nor any trustee
with respect thereto or any Affiliate of such trustee (solely by
reason of such capacity of such trustee), shall be deemed, for any
purposes hereof, to beneficially own any Common Stock held under
any such plan. For purposes of computing the percentage beneficial
ownership of Common Stock of a person, the outstanding Common Stock
shall include shares deemed owned by such person through
application of this subsection but shall not include any other
Common Stock which may be issuable by this Corporation pursuant to
any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise. For all other purposes, the outstanding
Common Stock shall include only Common Stock then outstanding and
shall not include any Common Stock which may be issuable by this
Corporation pursuant to any agreement, or upon the exercise of
conversion rights, warrants or options, or otherwise.
(c) A "person" shall mean any individual, firm, corporation, or
other entity.
3. The Board of Directors shall have the power to construe and
apply the provisions of this section and to make all determinations
necessary or desirable to implement such provisions, including but
not limited to matters with respect to (i) the number of shares of
Common Stock beneficially owned by any person, (ii) whether a
person is an affiliate of another, (iii) whether a person has an
agreement, arrangement, or understanding with another as to the
matters referred to in the definition of beneficial ownership, (iv)
the application of any other definition or operative provision of
the section to the given facts, or (v) any other matter relating to
the applicability or effect of this section.
4. The Board of Directors shall have the right to demand that any
person who is reasonably believed to beneficially own Common Stock
in excess of the Limit (or holds of record Common Stock
beneficially owned by any person in excess of the Limit) supply the
Corporation with complete information as to (i) the record owner(s)
of all shares beneficially owned by such person who is reasonably
believed to own shares in excess of the Limit, and (ii) any other
factual matter relating to the applicability or effect of this
section as may reasonably be requested of such person.
5. Except as otherwise provided by law or expressly provided in
this Section C, the presence, in person or by proxy, of the holders
of record of shares of capital stock of the Corporation entitling
the holders thereof to cast a majority of the votes (after giving
effect, if required., to the provisions of this Section C) entitled
to be cast by the holders of shares of capital stock of the
Corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders, and every reference in this
Certificate of Incorporation to a majority or other proportion of
capital stock (or the holders thereof) for purposes of determining
any quorum requirement or any requirement for stockholder consent
or approval shall be deemed to refer to such majority or other
proportion of the votes (or the holders thereof) then entitled to
be cast in respect of such capital stock.
6. Any constructions, applications, or determinations made by the
Board of Directors pursuant to this section in good faith and on
the basis of such information and assistance as was then reasonably
available for such purpose shall be conclusive and binding upon the
Corporation and its stockholders.
7. In the event any provision (or portion thereof) of this Section
C shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions (or portions thereof) of this
Section shall remain in full force and effect, and shall be
construed as if such invalid, prohibited or unenforceable provision
had been stricken herefrom or otherwise rendered inapplicable, it
being the intent of this Corporation and its stockholders that each
such remaining provision (or portion thereof) of this Section C
remain, to the fullest extent permitted by law, applicable and
enforceable as to all stockholders, including stockholders owning
an amount of stock over the Limit, notwithstanding any such
finding.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers of
the Corporation and of its Directors and stockholders:
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition to
the powers and authority expressly conferred upon them by statute
or by this Certificate of Incorporation or the Bylaws of the
Corporation, the Directors are hereby empowered to exercise all
such powers and do all such acts and things as may be exercised or
done by the Corporation.
B. The Directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
D. Special meeting of stockholders of the Corporation may be called
only by the Board of Directors pursuant to a resolution adopted by
a majority of the Whole Board or as otherwise provided in the
Bylaws. The term "Whole Board" shall mean the total number of
authorized directorships (whether or not there exist any vacancies
in previously authorized directorships at the time any such
resolution is presented to the Board for adoption).
SIXTH: A. The number of Directors shall be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the Whole Board. The Directors shall be
divided into three classes, as nearly equal in number as reasonably
possible, with the term of office of the first class to expire at
the first annual meeting of stockholders, the term of office of the
second class to expire at the annual meeting of stockholders one
year thereafter and the term of office of the third class to expire
at the annual meeting of stockholders two years thereafter with
each Director to hold office until his or her successor shall have
been duly elected and qualified. At each annual meeting of
stockholders following such initial classification and election,
Directors elected to succeed those Directors whose terms expire
shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election with
each Director to hold office until his or her successor shall have
been duly elected and qualified.
B. Newly created directorships resulting from any increase in the
authorized number of Directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled
only by a majority vote of the Directors then in office, though
less than a quorum, and Directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been chosen expires.
No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of any incumbent Director.
C. Advance notice of stockholder nominations for the election of
Directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in
the manner provided in the Bylaws of the Corporation.
D. Subject to the rights of holders of any series of Preferred
Stock then outstanding, any Directors, or the entire Board of
Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least
80 percent of the voting power of all of the then-outstanding
shares of capital stock of the Corporation entitled to vote
generally in the election of Directors (after giving effect to the
provisions of Article FOURTH of this Certificate of Incorporation
("Article FOURTH")), voting together as a single class.
SEVENTH: The Board of Directors is expressly empowered to adopt,
amend or repeal Bylaws of the Corporation. Any adoption, amendment
or repeal of the Bylaws of the corporation by the Board of
Directors shall require the approval of a majority of the Whole
Board. The stockholders shall also have power to adopt, amend or
repeal the Bylaws of the Corporation; provided, however, that, in
addition to any vote of the holders of any class or series of stock
of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 80
percent of the voting power of all of the then-outstanding shares
of the capital stock of the Corporation entitled to vote generally
in the election of Directors (after giving effect to the provisions
of Article FOURTH), voting together as a single class, shall be
required to adopt, amend or repeal any provisions of the Bylaws of
the Corporation.
EIGHTH: A. In addition to any affirmative vote required by law or
this Certificate of Incorporation, and except as otherwise
expressly provided in this Section A:
1. any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other corporation
(whether or not itself an Interested Stockholder) which is, or
after such merger or consolidation would be, an Affiliate (as
hereinafter defined) of an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder, or any Affiliate of any Interested
Stockholder, of any assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value (as hereinafter defined)
equaling or exceeding 25% or more of the combined assets of the
Corporation and its Subsidiaries; or
3. the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities
of the Corporation or any Subsidiary to any Interested Stockholder
or any Affiliate of any Interested Stockholder in exchange for
cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value (as hereinafter defined)
equaling or exceeding 25% of the combined Fair Market Value of the
outstanding common stock of the Corporation and its Subsidiaries,
except for any issuance or transfer pursuant to an employee benefit
plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
interested Stockholder or any Affiliate of any Interested
Stockholder; or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Stockholder or any Affiliate of
any Interested Stockholder; shall require the affirmative vote of
the holders of at least 80% of the voting power of the
then-outstanding shares of stock of the Corporation entitled to
vote in the election of Directors (the "Voting Stock") (after
giving effect to the provisions of Article FOURTH), voting together
as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a
lesser percentage may be specified, by law or by any other
provisions of this Certificate of Incorporation or any Preferred
Stock Designation in any agreement with any national securities
exchange or otherwise.
The term "Business Combination" as used in this Article EIGHTH
shall mean any transaction which is referred to in any one or more
of paragraphs 1 through 5 of Section A of this Article EIGHTH.
B. The provisions of Section A of this Article EIGHTH shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only the affirmative vote of the
majority of the outstanding shares of capital stock entitled to
vote after giving effect to the provisions of Article FOURTH, or
such vote (if any), as is required by law or by this Certificate of
Incorporation, if, in the case of any Business Combination that
does not involve any cash or other consideration being received by
the stockholders of the Corporation solely in their capacity as
stockholders of the Corporation, the condition specified in the
following paragraph 1 is met or, in the case of any other Business
Combination, all of the conditions specified in either of the
following paragraphs 1 or 2 are met:
1. The Business Combination shall have been approved by a majority
of the Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by the
holders of Common Stock in such Business Combination shall at least
be equal to the higher of the following
(1) (if applicable) the Highest Per Share Price (as hereinafter
defined), including any brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested Stockholder or any
of its Affiliates for any shares of Common Stock acquired by it (i)
within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the
"Announcement Date"), or (ii) in the transaction in which it became
an Interested Stockholder, whichever is higher.
(2) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date is
referred to in this Article EIGHTH as the "Determination Date"),
whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders
of shares of any class of outstanding Voting Stock other than
Common Stock shall be at least equal to the highest of the
following (it being intended that the requirements of this
subparagraph (b) shall be required to be met with respect to every
such class of outstanding Voting Stock, whether or not the
Interested Stockholder has previously acquired any shares of a
particular class of Voting Stock):
(1) (if applicable) the Highest Per Share Price (as hereinafter
defined), including any brokerage commissions, transfer taxes and
soliciting dealers' fees, paid by the Interested Stockholder for
any shares of such class of Voting Stock acquired by it (i) within
the two-year period immediately prior to the Announcement Date, or
(ii) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(2) (if applicable) the highest preferential amount per share to
which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; and
(3) the Fair Market Value per share of such class of Voting Stock
on the Announcement Date or on the Determination Date, whichever is
higher.
(c) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be
in cash or in the same form as the Interested Stockholder has
previously paid for shares of such class of Voting Stock. If the
Interested Stockholder has paid for shares of any class of Voting
Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such
class of Voting Stock shall be either cash or the form used to
acquire the largest number of shares of such class of Voting Stock
previously acquired by the Interested Stockholder. The price
determined in accordance with subparagraph B.2 of this Article
EIGHTH shall be subject to appropriate adjustment in the event of
any stock dividend, stock split, combination of shares or similar
event.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (1) except as approved by a majority of the
Disinterested Directors (as hereinafter defined), there shall have
been no failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) on any
outstanding stock having preference over the Common Stock as to
dividends or liquidation; (2) there shall have been (i) no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common
Stock), except as approved by a majority of the Disinterested
Directors, and (ii) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding shares of the Common Stock, unless the failure to so
increase such annual rate is approved by a majority of the
Disinterested Directors, and (3) neither such Interested
Stockholder or any of its Affiliates shall have become the
beneficial owner of any additional shares of Voting Stock except as
part of the transaction which results in such Interested
Stockholder becoming an Interested Stockholder.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received
the benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided, directly or indirectly, by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, and
the rules or regulations thereunder) shall be mailed to
stockholders of the Corporation at least 30 days prior to the
consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to
such Act or subsequent provisions).
C. For the purposes of this Article EIGHTH:
1. A "Person" shall include an individual, a group acting in
concert, a corporation, a partnership, an association, a joint
venture, a pool, a joint stock company, a trust, an unincorporated
organization or similar company, a syndicate or any other group
formed for the purpose of acquiring, holding or disposing of
securities or any other entity.
2. "Interested Stockholder" shall mean any person (other than the
Corporation or any Holding Company or Subsidiary thereof) who or
which:
(a) is the beneficial owner, directly or indirectly, of more than
10% of the outstanding Voting Stock; or
(1)
(b) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 10% or more of the
voting power of the then outstanding voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the
Securities Act of 1933.
3. For purposes of this Article EIGHTH, "beneficial ownership"
shall be determined in the manner provided in Section C of Article
FOURTH hereof.
4. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect
on the date of filing of this Certificate of Incorporation.
5. "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the
definition of Interested Stockholder set forth in Paragraph 2 of
this Section C, the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
6. "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and
was a member of the Board of Directors prior to the time that the
Interested Stockholder became an Interested Stockholder, and any
Director who is thereafter chosen to fill any vacancy of the Board
of Directors or who is elected and who, in either event, is
unaffiliated with the Interested Stockholder and in connection with
his or her initial assumption of office is recommended for
appointment or election by a majority of Disinterested Directors
then on the Board of Directors.
7. "Fair Market Value" means:
(a) in the case of stock, the highest closing sales price of the
stock during the 30-day period immediately preceding the date in
question of a share of such stock on the National Association of
Securities Dealers Automated Quotation System/National Market
System or any system then in use, or, if such stock is admitted to
trading on a principal United States securities exchange registered
under the Securities Exchange Act of 1934, Fair Market Value shall
be the highest sale price reported during the 30-day period
preceding the date in question, or, if no such quotations are
available, the Fair Market Value on the date in question of a share
of such stock as determined by the Board of Directors in good
faith, in each case with respect to any class of stock,
appropriately adjusted for any dividend or distribution in shares
of such stock or any stock split or reclassification of outstanding
shares of such stock into a greater number of shares of such stock
or any combination or reclassification of outstanding shares of
such stock into a smaller number of shares of such stock, and
(b) in the case of property other than cash or stock, the Fair
Market Value of such property on the date in question as determined
by the Board of Directors in good faith.
8. Reference to "Highest Per Share Price" shall in each case with
respect to any class of stock reflect an appropriate adjustment for
any dividend or distribution in shares of such stock or any stock
split or reclassification of outstanding shares of such stock into
a greater number of shares of such stock or any combination or
reclassification of outstanding shares of such stock into a smaller
number of shares of such stock.
9. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to
be received" as used in Subparagraphs (a) and (b) of Paragraph 2 of
Section B of this Article EIGHTH shall include the shares of Common
Stock and/or the shares of any other class of outstanding Voting
Stock retained by the holders of such shares.
D. A majority of the Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article
EIGHTH, on the basis of information known to them after reasonable
inquiry: (a) whether a person is an Interested Stockholder; (b) the
number of shares of Voting Stock beneficially owned by any person;
(c) whether a person is an Affiliate or Associate of another; and
(d) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has an aggregate Fair Market
Value equaling or exceeding 25% of the combined Fair Market Value
of the common stock of the Corporation and its Subsidiaries. A
majority of the Directors shall have the further power to interpret
all of the terms and provisions of this Article EIGHTH.
E. Nothing contained in the Article EIGHTH shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
F. Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote
of the holders of any particular class or series of the Voting
Stock required by law, this Certificate of Incorporation or any
Preferred Stock Designation, the affirmative vote of the holders of
at least 80 percent of the voting power of all of the
then-outstanding shares of the Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal this
Article EIGHTH.
NINTH: The Board of Directors of the Corporation, when evaluating
any offer of another Person (as defined in Article EIGHTH hereof)
to (A) make a tender or exchange offer for any equity security of
the Corporation, (B) merge or consolidate the Corporation with
another corporation or entity or (C) purchase or otherwise acquire
all or substantially all of the properties and assets of the
Corporation, may, in connection with the exercise of its judgment
in determining what is in the best interest of the Corporation and
its stockholders, give due consideration to all relevant factors,
including, without limitation, those factors that Directors of any
subsidiary of the Corporation may consider in evaluating any action
that may result in a change or potential change in the control of
the subsidiary, and the social and economic effect of acceptance of
such offer: on the Corporation's present and future customers and
employees and those of its Subsidiaries (as defined in Article
EIGHTH hereof); on the communities in which the Corporation and its
Subsidiaries operate or are located; on the ability of the
Corporation to fulfill its corporate objective as a savings and
loan holding company under applicable laws and regulations; and on
the ability of its subsidiary savings bank to fulfill the
objectives of a stock form savings bank under applicable statutes
and regulations.
TENTH: A. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit
or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact
that he or she is or was a Director or an Officer of the
Corporation or is or was serving at the request of the Corporation
as a Director, Officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a Director,
Officer, employee or agent or in any other capacity while serving
as a Director, Officer, employee or agent, shall be indemnified and
held harmless by the Corporation to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the
Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided
in Section C hereof with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such
indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the
Corporation.
B. The right to indemnification conferred in Section A of this
Article TENTH shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of
expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director or Officer (and not
in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, services to an employee
benefit plan) shall be made only upon delivery to the Corporation
of an undertaking (hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Section or otherwise. The
rights to indemnification and to the advancement of expenses
conferred in Sections A and B of this Article TENTH shall be
contract rights and such rights shall continue as to an indemnitee
who has ceased to be a Director, Officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
C. If a claim under Section A or B of this Article TENTH is not
paid in full by the Corporation within sixty days after a written
claim has been received by the Corporation, except in the case of
a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall be entitled to be paid also the expenses of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in
any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that,
the indemnitee has not met any applicable standard for
indemnification set forth in the Delaware General Corporation Law.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard
of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article
TENTH or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses
conferred in this Article TENTH shall not be exclusive of any other
right which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or Disinterested Directors or
otherwise.
E. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, Officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article
TENTH with respect to the indemnification and advancement of
expenses of Directors and Officers of the Corporation.
ELEVENTH: A Director of this Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except for liability
(i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the
Director derived an improper personal benefit. If the Delaware
General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of
Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any
right or protection of a Director of the Corporation existing at
the time of such repeal or modification.
TWELFTH: The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware and all
rights conferred upon stockholders are granted subject to this
reservation; provided, however,. that, notwithstanding any other
provision of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in
addition to any vote of the holders of any class or series of the
stock of this Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least 80
percent of the voting power of all of the then-outstanding shares
of the capital stock of the Corporation entitled to vote generally
in the election of Directors (after giving effect to the provisions
of Article FOURTH), voting together as a single class, shall be
required to amend or repeal this Article TWELFTH, Section C of
Article FOURTH, Sections C or D of Article FIFTH, Article SIXTH,
Article SEVENTH, Article EIGHTH or Article TENTH.
THIRTEENTH: The name and mailing address of the sole incorporator
are as follows:
Name Mailing Address
Siobain Perkins Morris, Nichols, Arsht & Tunnel
1201 North Market Street
P.O. Box 1347
Wilmington, Delaware 19899-1347
I, THE UNDERSIGNED, being the incorporator, for the purpose of
forming a corporation under the laws of the State of Delaware, do
make, file and record this Certificate of Incorporation, do certify
that the facts herein stated are true, and accordingly, have hereto
set my hand this 24th day of March, 1993.
/s/ Siobain M . Perkins
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Siobain M. Perkins