EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
ESSEX BANCORP, INC.
Pursuant to Section 242 of the General Corporation Law of Delaware,
Essex Bancorp, Inc. (the "Corporation"), a corporation organized and existing
under the provisions of the General Corporation Law of the State of Delaware,
certifies as follows:
1. The Corporation's Certificate of Incorporation (the "Certificate of
Incorporation") was initially filed in the Office of the Secretary of State of
Delaware on June 21, 1994.
2. The following amendments to the Certificate of Incorporation were
duly adopted in accordance with Section 242 of the General Corporation Law of
Delaware:
Article IV of the Certificate of Incorporation of Essex Bancorp, Inc.
is hereby amended and restated in its entirety as follows:
ARTICLE IV
A. The Corporation shall have authority to issue thirty million
(30,000,000) shares of all classes of stock, consisting of:
1. Ten million (10,000,000) shares of preferred stock, par
value one cent ($.01) per share (the "Preferred Stock"); and
2. Twenty million (20,000,000) shares of common stock, par
value one cent ($.01) per share (the "Common Stock").
B. The Board of Directors of the Corporation 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 (each 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. (a) Except as otherwise provided in Article IV(C)(1)(b), for a
period of three (3) years from the effective date of the Corporation's merger
with Essex Financial Partners, L.P., no record owner of any outstanding Common
Stock which is beneficially owned, directly or indirectly, as of any record date
for the determination of stockholders entitled to vote on any matter, by a
person who beneficially owns in excess of ten percent (10%) of the
then-outstanding shares of Common Stock (the "Limit"), shall be entitled or
permitted to any vote in respect of any shares of Common Stock beneficially
owned in excess of the Limit. The number of votes which may be cast by any
record owner by virtue of the provisions hereof in respect of Common Stock
beneficially owned by such person owning in excess of the Limit shall be a
number equal to the total number of shares of Common Stock constituting the
Limit multiplied by a fraction, the numerator of which is the number of shares
of Common Stock which are both owned of record by such record owner and
beneficially owned by such person owning shares in excess of the Limit and the
denominator of which is the total number of shares of Common Stock beneficially
owned by the person owning shares in excess of the Limit.
(b) A majority of the Whole Board, as that term is described
in Article V(D), may approve a transaction that results in a person becoming a
beneficial owner of shares of Common Stock in excess of the Limit prior to the
consummation of such transaction, and in such event, the voting limitation
provisions of Article IV(C)(1)(a) shall be inapplicable to such a person.
2. The following definitions shall apply to this Article
IV(C):
(a) "Affiliate" shall have the meaning ascribed to
that term in Rule 12b-2 of the General Rules and Regulations
under the Securities Act of 1934, as in effect on the date of
filing 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 Rule 13d-3 is rescinded
and there is no successor rule or statutory provision thereto,
"beneficial ownership" shall be determined pursuant to Rule
13d-3 as in effect on the date of filing this Certificate of
Incorporation; except that a person shall, in any event, also
be deemed the "beneficial owner" of any Common Stock:
(i) that such person or any of his or its
Affiliates beneficially owns, directly or indirectly;
or
(ii) that such person or any of his or 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 such a person 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
clause or clauses of Article VIII(A)) 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 such a
person shall not be deemed to be the beneficial owner
of any shares of Common Stock solely by reason of a
revocable proxy granted for a particular meeting of
stockholders, pursuant to a public solicitation of
proxies for such meeting, with respect to shares of
Common Stock of which neither such person nor any
such Affiliate is otherwise deemed the beneficial
owner); or
(iii) that are beneficially owned, directly
or indirectly, by any other person with which such
first mentioned person or any of his or 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 (x) no director or officer of this
Corporation (or any Affiliate of any such director or officer), solely by reason
of any or all of such directors or officers acting in their capacities as such,
shall be deemed, for any purposes hereof, to beneficially own any shares of
Common Stock beneficially owned by any other such director or officer (or any
Affiliate thereof) and (y) neither any employee stock ownership or similar plan
of this Corporation or any subsidiary of this Corporation, not any trustee (or
Affiliate thereof) with respect to such plan, solely by reason of the 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.
(d) The Board of Directors shall have the power to
construe and apply the provisions of this section and to make
all determinations necessary or desirable to implement such
provisions, including, but not limited to, matters with
respect to (1) the number of shares of Common Stock
beneficially owned by any person, (2) whether a person is an
Affiliate of another, (3) whether a person has an agreement,
arrangement or understanding with another as to the matters
referred to in the definition of beneficial ownership, (4) the
application of any other definition or operative provision of
the section to the given facts, or (5) any other matter
relating to the applicability or effect of this section.
3. The Board of Directors shall have the right to demand that
any person who is reasonably believed to beneficially own shares of Common Stock
in excess of the Limit (or holds of record Common Stock beneficially owned by
any other person and such other person beneficially owns shares of Common Stock
in excess of the Limit) supply the Corporation with complete information as to
(1) the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares of Common Stock in excess of the Limit, and
(2) any other factual matter relating to the applicability or effect of this
Article IV(C) as may reasonably be requested of such person.
4. Except as otherwise provided by law or expressly provided
in this Article IV(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) 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 purpose of determining any quorum requirement or any requirement
for stockholder approval shall be deemed to refer to such majority or other
proportion of the votes (or the holders thereof) then entitled to be cast in
respect of such capital stock.
5. Any constructions, applications, or determinations made by
the Board of Directors, pursuant to this Article IV(C), 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.
6. In the event any provision (or portion thereof) of this
Article IV(C) shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions (or portions thereof) of this Article IV(C)
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
Article IV(C) remain, to the fullest extent permitted by law, applicable and
enforceable as to all stockholders, including stockholders that beneficially own
shares of Common Stock in excess of the Limit, notwithstanding any such finding.
WITNESS, Essex Bancorp, Inc. has caused this Certificate of Amendment
to its Certificate of Incorporation to be signed by Gene D. Ross, its President,
this 5th day of November, 1998.
ESSEX BANCORP, INC.
By: /s/Gene D. Ross
--------------------------
Gene D. Ross
President