Exhibit 4.1
ARTICLES OF INCORPORATION
OF
MSB FINANCIAL, INC.
The undersigned, Charles B. Cook, whose address is Park and Kalamazoo
Avenue, N.E., Marshall, Michigan 49068, being at least 18 years of age, acting
as sole incorporator, does hereby form a corporation under the General Laws of
the State of Maryland having the following Charter:
ARTICLE 1. Name. The name of the corporation is MSB Financial, Inc. (herein
the "Corporation").
ARTICLE 2. Principal Office. The address of the principal office of the
Corporation in the State of Maryland is c/o The Corporation Trust Incorporated,
300 East Lombard Street, Baltimore, Maryland 21202.
ARTICLE 3. Purpose. The purpose of the Corporation is to engage in any
lawful act or activity for which the corporation may be organized under the
General Corporation Law of the State of Maryland (the "MGCL").
ARTICLE 4. Resident Agent. The name and address of the registered agent of
the Corporation in the State of Maryland is The Corporation Trust Incorporated,
300 East Lombard Street, Baltimore, Maryland 21202. Said resident agent is a
Maryland corporation.
ARTICLE 5. Initial Directors. The number of directors constituting the
initial board of directors of the Corporation is seven, which number may be
increased or decreased pursuant to the Bylaws of the Corporation and ARTICLE 9
of the Charter, but shall never be less than the minimum number permitted by the
MGCL now or hereafter in force. The names of the persons who are to serve as
directors until their successors are elected and qualified, are:
Name Term to Expire in
Charles B. Cook ............................................ 1999
Karl F. Loomis ............................................. 1999
J. Thomas Schaeffer ........................................ 1999
Richard L. Dobbins ......................................... 2000
Martin L. Mitchell ......................................... 2000
Aart VanElst ............................................... 2001
John W. Yakimow ............................................ 2001
ARTICLE 6.
Capital Stock. The total number of shares of capital stock which the
Corporation shall have the authority to issue is six million (6,000,000) shares
consisting of:
1. Two million (2,000,000) shares of preferred stock, par value one cent
($.0L) per share (the "preferred stock"); and
2. four million (4,000,000) shares of common stock, par value one cent
($.0l) per share (the "Common Stock").
The aggregate par value of all the authorized of capital stock is sixty
thousand dollars ($60,000). Except to the extent required by governing law, rule
or regulation, the shares of capital stock may be issued from time to time by
the Board of Directors without further approval of the stockholders of the
Corporation. The Corporation shall have the authority to purchase its capital
stock out of funds lawfully available therefore which funds shall include,
without limitation, the Corporation's unreserved and unrestricted capital
surplus.
B. Preferred Stock. The Board of Directors is hereby expressly authorized,
subject to any limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of authorized
shares of the Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of the Preferred Stock.
C. Common Stock. Except as provided for in the Charter (or any resolution
or resolutions adopted by the Board of Directors pursuant hereto) the exclusive
voting power shall be vested in the Common Stock, the holders thereof being
entitled to one vote for each share of such Common Stock standing in the
holder's name on the books of the Corporation. Subject to any rights and
preferences of any class of stock having preferences over the Common Stock,
holders of Common Stock shall be entitled to such dividends as may be declared
by the Board of Directors out of funds lawfully available therefor. Upon any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock shall be entitled to
receive pro rata the remaining assets of the Corporation after payment or
provision for payment of all debts and liabilities of the Corporation and
payment or provision for payment of any amounts owed to the holders of any class
of stock having preference over the Common Stock on distributions on
liquidation, dissolution or winding up of the Corporation.
D. Restrictions on Voting Rights of the Corporation's Equity Securities.
1. Notwithstanding any other provision of this Charter, in no event shall
any record owner of any outstanding Common Stock which is beneficially owned,
directly or indirectly, by a person who, as of any record date for the
determination of stockholders entitled to vote on any matter, beneficially owns
in excess of 10% of the then-outstanding shares of Common Stock (the "Limit"),
be entitled, or permitted to any vote in respect of the shares held in excess of
the Limit. The number of votes which may be cast by any record owner by virtue
of the provisions hereof in respect of Common Stock beneficially owned by such
person owning shares in excess of the Limit shall be a number equal to the total
number of votes which a single record owner of all Common Stock owned by such
person would be entitled to cast, multiplied by a fraction, the numerator of
which is the number of shares of such class or series beneficially owned by such
person and owned of record by such record owner and the denominator of which is
the total number of shares of Common Stock beneficially owned by such person
owning shares in excess of the Limit.
2. The following definitions shall apply to this Section D of this Article.
(a) An "affiliate" of a specified person shall mean a person that directly,
or indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the person specified.
(b) "Beneficial ownership" shall be determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of 1934 (or
any successor rule or statutory provision), or, if said Rule 13d-3 shall he
rescinded and there shall be no successor rule or statutory provision thereto,
pursuant to said Rule 13d-3 as in effect on August 31, 1994; Provided, however,
that a person shall, in any event, also be deemed the "beneficial owner" of any
Common Stock:
(1) which such person or any of its affiliates beneficially owns, directly
or indirectly; or
(2) which such person or any of its affiliates has (i) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding (but shall not be
deemed to be the beneficial owner of any voting shares solely by reason of an
agreement, contract, or other arrangement with this Corporation to effect any
transaction which is described in any one or more of the clauses of Section A of
ARTICLE 10) or upon the exercise of conversion rights, exchange rights,
warrants, or options or otherwise, or (ii) sole or shared voting or investment
power with respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed to be the
beneficial owner of any voting shares solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, with respect to shares of which
neither such person nor any such affiliate is otherwise deemed the beneficial
owner), or
(3) which are beneficially owned, directly or indirectly, by any other
person with which such first mentioned person or any of its affiliates acts as a
partnership, limited partnership, syndicate or other group pursuant to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of any shares of capital stock of this Corporation;
and provided further, however, that (1) no director or officer of this
Corporation (or any affiliate of any such director or officer) shall, solely by
reason of any or all of such directors or officers acting in their capacities as
such, be deemed, for any purposes hereof, to beneficially own any Common Stock
beneficially owned by any other such director or officer (or any affiliate
thereof), and (2) neither any employee stock ownership or similar plan of this
Corporation or any subsidiary of this Corporation nor any trustee with respect
thereto (or any affiliate of such trustee) shall, solely by reason of such
capacity of such trustee, be deemed, for any purposes hereof, to beneficially
own any Common Stock held under any such plan. For purposes of computing the
percentage beneficial ownership of Common Stock of a person, the outstanding
Common Stock shall include shares deemed owned by such person through
application
of this subsection but shall not include any other Common Stock which may be
issuable by this Corporation pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise. For all other purposes,
the outstanding Common Stock shall include only Common Stock then outstanding
and shall not include any Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon the exercise of conversion rights, warrants
or options, or otherwise.
(c) A "Person" shall mean any individual, firm, corporation, or other
entity.
(d) The Board of Directors shall have the power to construe and apply the
provisions of this section and to make all determinations necessary or desirable
to implement such provisions, including but not limited to matters with respect
to (1) the number of shares of Common Stock beneficially owned by any person,
(2) whether a person is an affiliate of another, (3) whether a person has an
agreement, arrangement, or understanding with another as to the matters referred
to in the definition of beneficial ownership, (4) the application of any other
definition or operative provision of this Section to the given facts, or (5) any
other matter relating to the applicability or effect of this Section.
3. The Board of Directors shall have the right to demand that any person
who is reasonably believed to beneficially own Common Stock in excess of the
Limit (or holds of record Common Stock beneficially owned by any person in
excess of the Limit) (a "Holder in Excess") supply the Corporation with complete
information as to (a) the record owner(s) of all shares beneficially owned by
such Holder in Excess, and (b) any other factual matter relating to the
applicability or effect of this section as may reasonably be requested of such
Holder in Excess. The Board of Directors shall further have the right to receive
from any Holder in Excess reimbursement for all expenses incurred by the Board
in connection with its investigation of any matters relating to the
applicability or effect of this section on such Holder in Excess, to the extent
such investigation is deemed appropriate by the Board of Directors as a result
of the Holder in Excess refusing to supply the Corporation with the information
described in the previous sentence.
4. Except as otherwise provided by law or expressly provided in this
Section D, the presence, in person or by proxy, of the holders of record of
shares of capital stock of the Corporation entitling the holders thereof to cast
one-third of the votes (after giving effect, if required, to the provisions of
this Section) entitled to be cast by the holders of shares of capital stock of
the Corporation entitled to vote shall constitute a quorum at all meetings of
the stockholders, and every reference in this Charter to a majority or other
proportion of capital stock (or the holders thereof) for purposes of determining
any quorum requirement or any requirement for stockholder consent or approval
shall be deemed to refer to such majority or other proportion of the votes (or
the holders thereof) then entitled to be cast in respect of such capital stock.
5. Any constructions, applications, or determinations made by the Board of
Directors, pursuant to this Section in good faith and on the basis of such
information and assistance as was then reasonably available for such purpose,
shall be conclusive and binding upon the Corporation and its stockholders.
6. In the event any provision (or portion thereof) of this Section D shall
be found to be invalid, prohibited or unenforceable for any reason, the
remaining provisions (or portions thereof) of this Section shall remain in full
force and effect, and shall be construed as if such invalid, prohibited or
unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders that
each such remaining provision (or portion thereof) of this Section D remain, to
the fullest extent permitted by law, applicable and enforceable as to all
stockholders, including stockholders owning an amount of stock over the Limit,
notwithstanding any such finding.
E. Voting Rights of Certain Control Shares. Notwithstanding any contrary
provision of law, the provisions of Subtitle 7 of Title 3 of the MGCL, now or
hereafter in force, shall not apply to the voting rights of the Common Stock of
the Corporation as to all existing and future holders of Common Stock of the
Corporation.
F. Majority Vote. Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the total
number of shares of all classes of capital stock or of the total number of
shares of any class of capital stock, such action shall be valid and effective
if authorized by the affirmative vote of the holders of a majority of the total
number of shares of all classes outstanding and entitled to vote thereon, except
as otherwise provide in the Charter.
ARTICLE 7. Preemptive Rights. No holder of the capital stock of the
Corporation or series of stock or of options, warrants or other rights to
purchase shares of any class or series of stock or of other securities of the
Corporation shall have any preemptive right to purchase or subscribe for any
unissued capital stock of any class or series, or any unissued bonds,
certificates of indebtedness, debentures or other securities convertible into or
exchangeable for capital stock of any class or series or carrying any right to
purchase stock of any class or series.
ARTICLE 8. Directors.
A. Management of the Corporation. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authority expressly conferred upon them
by Statute or by the Charter or the Bylaws of the Corporation, the directors are
hereby empowered to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation.
B. Number, Class and Terms of Directors; Cumulative Voting. The number of
directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Board. The directors,
other than those who may be elected by the holders of any class or series of
Preferred Stock, shall be divided into three classes, as nearly equal in number
as reasonably possible, with the term of office of the first class to expire at
the conclusion of the first annual meeting of stockholders, the term of office
of the second class to expire at the conclusion of the annual meeting of
stockholders one year thereafter and the term of office of the third class to
expire at the conclusion of the annual meeting of stockholders two years
thereafter, with each director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of stockholders,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until his
or her successor shall have been duly elected and qualified. Stockholders shall
not be permitted to cumulate their votes in the election of directors.
C. Vacancies. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies on the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled only by a majority vote of
the directors then in office, though less than a quorum. A director so chosen by
the remaining directors shall hold office until the next succeeding annual
meeting of stockholders, at which time the stockholders shall elect a director
to hold office for the balance of the term then remaining. No decrease in the
number of directors constituting the Board of Directors shall shorten the term
of any incumbent director.
D. Removal. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, but only for cause and then only by the
affirmative vote of the holders of at least 80% of the combined voting power of
all of the then-outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (after giving effect to the
provisions of ARTICLE 6 of the Charter) voting together as a single class.
E. Stockholder Proposals and Nominations of Directors. For any stockholder
proposal to be presented in connection with an annual meeting of stockholders of
the Corporation, including any nomination or proposal relating to the nomination
of a director to be elected to the Board of Directors of the Corporation, the
stockholder must have given timely written notice thereof to the Secretary of
the Corporation in the manner and containing the information required by the
Bylaws of the Corporation. Stockholder proposals to be presented in connection
with a special meeting of stockholders will be presented by the Corporation only
to the extent required by Section 2-502 of the MGCL and the Bylaws of the
Corporation.
ARTICLE 9. Bylaws. The Board of Directors is expressly empowered to adopt,
amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal
of the Bylaws of the Corporation by the Board of Directors shall require the
approval of a majority of the total number of directors which the Corporation
would have if there were no vacancies on the Board of Directors. The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the
Corporation. In addition to any vote of the holders of any class or series of
stock of this Corporation required by law or by the Charter, the affirmative
vote of the holders of at least 80% of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote
generally in the election of directors (after giving effect to the provisions of
ARTICLE 6 hereof), voting together as a single class, shall be required to
adopt, amend or repeal any provisions of the Bylaws of the Corporation.
ARTICLE 10. Approval of Certain Business Combinations.
A. Super-majority Voting Requirement; Business Combination Defined. In
addition to any affirmative vote required by law or the Charter, and except as
otherwise expressly provided in this Section:
1. any merger or consolidation of the Corporation or any Subsidiary (as
hereinafter defined) with (a) any Interested Stockholder (as hereinafter
defined) or (b) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be, an
Affiliate (as hereinafter defined) of an Interested Stockholder; or
2. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, or any Affiliate of any Interested Stockholder, of any
assets of the Corporation or any Subsidiary having an aggregate Fair Market
Value (as hereafter defined) equaling or exceeding 25% or more of the combined
assets of the Corporation and its Subsidiaries, or
3. the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or
any Subsidiary to any Interested Stockholder or any Affiliate of any Interested
Stockholder in exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value equaling or exceeding 25% of the
combined assets of the Corporation and its Subsidiaries except pursuant to an
employee benefit plan of the Corporation or any Subsidiary thereof; or
4. the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation proposed by or on behalf of any Interested Stockholder or any
Affiliate of any Interested Stockholder; or
5. any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder (a
"Disproportionate Transaction"); provided, however, that no such transaction
shall be deemed a Disproportionate Transaction if the increase in the
proportionate ownership of the Interested Stockholder or Affiliate as a result
of such transaction is no greater than the increase experienced by the other
stockholders generally;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then-outstanding shares of stock of the Corporation entitled
to vote in the election of directors (the "Voting Stock"), voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or by any other provisions of the Charter or any Preferred Stock or in any
agreement with any national securities exchange or quotation system or
otherwise.
The term "Business Combination" as used in this Article shall mean any
transaction which is referred to in any one or more of paragraphs 1 through 5 of
Section A of this Article.
B. Exception to Super-majority Voting Requirement. The provisions of
Section A of this Article shall not be applicable to any particular Business
Combination, and such Business Combination shall require only the affirmative
vote of the majority of the outstanding shares of capital stock entitled to
vote, or such vote as is required by law or by the Charter, if, in the case of
any Business Combination that does not involve any cash or other consideration
being received by the stockholders of the Corporation solely in their capacity
as stockholders of the Corporation, the condition specified in the following
paragraph 1 is met or, in the case of any other Business Combination, all of the
conditions specified in either of the following paragraphs 1 and 2 are met:
1. The Business Combination shall have been approved by a majority of the
Disinterested Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by the holders of Common Stock in such Business
Combination shall at least be equal to the higher of the following:
(i) (if applicable) the Highest Per Share Price, including any brokerage
commissions, transfer taxes and soliciting dealers' fees, paid by the Interested
Stockholder or any of its Affiliates for any shares of Common stock acquired by
it (i) within the two-year period immediately prior to the first public
announcement of the proposal of the Business Combination (the "Announcement
Date"), or (ii) in the transaction in which it became an Interested Stockholder,
whichever is higher.
(ii) the Fair Market Value per share of Common Stock on the Announcement
Date or on the date on which the Interested Stockholder became an Interested
Stockholder (such latter date is referred to in this Article as the
"Determination Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of consideration other than
cash to be received per share by holders of shares of any class of outstanding
Voting Stock other than Common Stock shall be at least equal to the highest of
the following (it being intended that the requirements of this subparagraph (b)
shall be required to be met with respect to every such class of outstanding
Voting Stock, whether or not the Interested Stockholder has previously acquired
any shares of a particular class of Voting Stock):
(i) (if applicable) the Highest Per Share Price (as hereinafter defined),
including any brokerage commissions, transfer taxes and soliciting dealers,
fees, paid by the Interested Stockholder for any shares of such class of Voting
Stock acquired by it (i) within the two-year period immediately prior to the
Announcement Date, or (ii) in the transaction in which it became an Interested
Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount per share to which the
holders of shares of such class of Voting Stock are entitled in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation; and
(iii) the Fair Market Value per share of such class of Voting Stock on the
Announcement Date or on the Determination Date, whichever is higher.
(c) The consideration to be received by holders of a particular class of
outstanding Voting Stock (including Common Stock) shall be in cash or in the
same form as the Interested Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such class of
Voting Stock shall be either cash or the form used to acquire the largest number
of shares of such class of Voting Stock previously acquired by the Interested
Stockholder. The price determined in accordance with Section B.2. of this
Article shall be subject to appropriate adjustment in the event of any stock
dividend, stock split, combination of shares or similar event.
(d) After such Interested Stockholder has become an Interested Stockholder
and prior to the consummation of such Business Combination; (i) except as
approved by a majority of the Disinterested Directors, there shall have been no
failure to declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on any outstanding stock having preference
over the Common Stock as to dividends or liquidation; (ii) there shall have been
(X) no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock), except as
approved by a majority of the Disinterested Directors, and (Y) an increase in
such annual rate of dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure to so increase such annual rate is
approved by a majority of the Disinterested Directors; and (iii) neither such
Interested Stockholder nor any of its Affiliates shall have become the
beneficial owner of any additional shares of Voting Stock except as part of the
transaction which results in such Interested Stockholder becoming an Interested
Stockholder.
(e) After such Interested Stockholder has become an Interested Stockholder,
such Interested Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions).
C. Certain Definitions. For the purposes of this Article:
1. A "Person" shall include an individual, a group acting in concert, a
corporation, a partnership, an association, a joint venture, a pool, a joint
stock company, a trust, an unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of acquiring, holding or
disposing of securities.
2. "Interested Stockholder" shall mean any Person (other than the
Corporation or any holding company or Subsidiary thereof) who or which:
(a) is the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the
then-outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the meaning of the
Securities Act of 1933.
3. A Person shall be a "beneficial owner" of any Voting Stock:
(a) which such Person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns, directly or indirectly within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as in effect on
August 31, 1994; or
(b) which such Person or any of its Affiliates or Associates has (i) the
right to acquire (whether such right is exercisable immediately or only after
the passage of time), pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or
understanding (but neither such Person nor any such Affiliate or Associate shall
be deemed to be the beneficial owner of any shares of Voting Stock solely by
reason of a revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation of proxies for such meeting, and with respect
to which shares neither such Person nor any such Affiliate or Associate is
otherwise deemed the beneficial owner); or
(c) which are beneficially owned, directly or indirectly within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as in effect on August
31, 1994, by any other Person with which such Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purposes of
acquiring, holding, voting (other than solely by reason of a revocable proxy as
described in Subparagraph (b) of this Paragraph 3) or in disposing of any shares
of Voting Stock;
provided, however, that, in the case of any employee stock ownership or
similar plan of the Corporation or of any Subsidiary in which the beneficiaries
thereof possess the right to vote any shares of Voting Stock held by such plan,
no such plan nor any trustee with respect thereto (nor any Affiliate of such
trustee), solely by reason of such capacity of such trustee, shall be deemed,
for any purposes hereof, to beneficially own any shares of Voting Stock held
under any such plan.
4. For the purpose of determining whether a Person is an Interested
Stockholder pursuant to Section C.2., the number of shares of Voting Stock
deemed to be outstanding shall include shares deemed owned through application
of this Section C.3. but shall not include any other shares of Voting Stock
which may be issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or otherwise.
5. "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on August 31, 1994.
6. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the Corporation; Provided,
however, that for the purposes of the definition of Interested Stockholder set
forth in this Section C.2., the term "Subsidiary" shall mean only a corporation
of which a majority of each class of equity security is owned, directly or
indirectly, by the Corporation.
7. "Disinterested Director" means any member of the Board of Directors who
is unaffiliated with the Interested Stockholder and was a member of the Board of
Directors prior to the time that the Interested Stockholder became an Interested
Stockholder, and any director who is thereafter chosen to fill any vacancy on
the Board of Directors or who is elected and who, in either event, is
unaffiliated with the Interested Stockholder, and in connection with his or her
initial assumption of office is recommended for appointment or election by a
majority of Disinterested Directors then on the Board of Directors.
8. "Fair Market Value" means: (a) in the case of stock, the highest closing
sales price of the stock during the 30-day period immediately preceding the date
in question of a share of such stock on the Nasdaq System or any system then in
use, or, if such stock is admitted to trading on a principal United States
securities exchange registered under the Securities Exchange Act of 1934, Fair
Market Value shall be the highest sale price reported during the 30-day period
preceding the date in question, or, if no such quotations are available, the
Fair Market Value on the date in question of a share of such stock as determined
by the Board of Directors in good faith, in each case with respect to any class
of stock, appropriately adjusted for any dividend or distribution in shares of
such stock or in combination or reclassification of outstanding shares of such
stock into a smaller number of shares of such stock, and (b) in the case of
property other than cash or stock, the Fair Market Value of such property on the
date in question as determined by the Board of Directors in good faith.
9. Reference to "Highest Per Share Price" shall in each case with respect
to any class of stock reflect an appropriate adjustment for any dividend or
distribution in shares of such stock or any stock split or reclassification of
outstanding shares of such stock into a greater number of shares of such stock
or any combination or reclassification of outstanding shares of such stock into
a smaller number of shares of such stock.
10. In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used in
Sections B.2.(a) and B.2.(b) of this ARTICLE 10 shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
D. Construction and Interpretation. A majority of the Disinterested
Directors of the Corporation shall have the power and duty to determine for the
purposes of this Article, on the basis of information known to them after
reasonable inquiry, (a) whether a person is an Interested Stockholder; (b) the
number of shares of Voting Stock beneficially owned by any person; (c) whether a
person is an Affiliate or Associate of another; and (d) whether the assets which
are the subject of any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair Market Value
equaling or exceeding 25% of the combined assets of the Corporation and its
Subsidiaries. A majority of the Disinterested Directors shall have the further
power to interpret all of the terms and provisions of this Article.
E. Fiduciary Duty. Nothing contained in this Article shall be construed to
relieve any Interested Stockholder from any fiduciary obligation imposed by law.
F. Maryland Business Combination Statute. Notwithstanding any contrary
provision of law, the provisions of Sections 3-601 through 3-604 of the MGCL, as
now and hereafter in force, shall not apply to any business combination (as
defined in Section 3-601(e) of the MGCL, as now and hereafter in force), of the
Corporation.
ARTICLE 11. Evaluation of Certain Offers. The Board of Directors of the
Corporation, when evaluating any offer of another Person (as defined in ARTICLE
10 hereof) to (A) make a tender or exchange offer for any equity security of the
Corporation, (B) merge or consolidate the Corporation with another corporation
or entity, or (C) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, may, in connection with the exercise
of its judgment in determining what is in the best interest of the Corporation
and its stockholders, give due consideration to all relevant factors, including,
without limitation, the social and economic effect of acceptance of such offer
on the Corporation's present and future customers and employees and those of its
Subsidiaries (as defined in ARTICLE 10 hereof); on the communities in which the
Corporation and its Subsidiaries operate or are located; on the ability of the
Corporation to fulfill its corporate objectives as a financial institution
holding company and on the ability of its subsidiary financial institution to
fulfill the objectives of a federally insured financial institution under
applicable statutes and regulations.
ARTICLE 12. Indemnification, etc. of Directors and Officers.
A. Indemnification. The Corporation shall indemnify (1) its current and
former directors and officers, whether serving the Corporation or at its request
any other entity, to the fullest extent required or permitted by the MGCL now or
hereafter in force (but, in the case of any amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such amendment),
including the advancement of expenses under the procedures and to the fullest
extent permitted by law, and (2) other employees and agents to such extent as
shall be authorized by the Board of Directors and permitted by law; provided,
however, that, except as provided in Section B hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
B. Procedure. If a claim under Section A of this Article is not paid in
full by the Corporation within 60 days after a written claim has been received
by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
the indemnitee shall also be entitled to be reimbursed the expense of
prosecuting or defending such suit. It shall be a defense to any action for
advancement of expenses that the Corporation has not received both (i) an
undertaking as required by law to repay such advances in the event it shall
ultimately be determined that the standard of conduct has not been met and (ii)
a written affirmation by the indemnitee of his good faith belief that the
standard of conduct necessary for indemnification by the Corporation has been
met. Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the MGCL, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
D. Non-Exclusivity. The rights to indemnification and to the advancement of
expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the
Corporation's Charter, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the MGCL.
F. Miscellaneous. The Corporation shall not be liable for any payment under
this Article in connection with a claim made by any indemnitee to the extent
such indemnitee has otherwise actually received payment under any insurance
policy, agreement, or otherwise, of the amounts otherwise indemnifiable
hereunder. The rights to indemnification and to the advancement of expenses
conferred in Sections A and B of this Article shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors and
administrators.
Any repeal or modification of this Article shall not in any way diminish
any rights to indemnification or advancement of expenses of such director or
officer or the obligations of the Corporation arising hereunder with respect to
events occurring, or claims made, while this Article is in force.
ARTICLE 13. Limitation of Liability. An officer or director of the
Corporation, as such, shall not be liable to the Corporation or its stockholders
for money damages, except (i) to the extent that it is proved that the person
actually received an improper benefit or profit in money, property or services
for the amount of the benefit or profit in money, property or services actually
received; (ii) to the extent that a judgment or other final adjudication adverse
to the person is entered in a proceeding based on a finding in the proceeding
that the person's action, or failure to act, was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated
in the proceeding; or (iii) to the extent otherwise required by the MGCL. If the
MGCL is amended to further eliminate or limit the personal liability of officers
and directors, then the liability of officers and directors of the Corporation
shall be eliminated or limited to the fullest extent permitted by MGCL, as so
amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director or officer of the Corporation existing at the time of such repeal or
modification.
ARTICLE 14. Amendment of the Charter. The Corporation reserves the right to
amend or repeal any provision contained in the Charter in the manner prescribed
by the MGCL and all rights conferred upon stockholders are granted subject to
this reservation; Provided, however, that, notwithstanding any other provision
of the Charter or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any vote of the holders of any class or
series of the stock of this Corporation required by law or by the Charter, the
affirmative vote of the holders of at least 80% of the voting power of all of
the then-outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of directors (after giving effect to the
provisions of ARTICLE 6), voting together as a single class, shall be required
to amend or repeal this ARTICLE 14, Sections B, D or E of ARTICLE 6, ARTICLE 8,
ARTICLE 9, ARTICLE 10 or ARTICLE 12.
ARTICLE 15. Name and Address of Incorporator. The name and mailing address
of the sole incorporator are as follows:
NAME .......................................... MAILING ADDRESS
Charles B. Cook ......................... Marshall Savings Bank, F.S.B.
Park and Kalamazoo Avenue, N.E
Marshall, Michigan 49068
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Maryland, do make, file and record
the Charter, do certify that the facts herein stated are true, and, accordingly,
have hereto set my hand this 28th day of October 1998.
/s/ Charles B. Cook
-----------------------------
Charles B. Cook, Incorporator