Exhibit 3.1
Charter Financial Corp.
Charter
Section 1: Corporate Title. The full corporate title of the MHC
subsidiary holding company is Charter Financial Corporation (the "Company").
Section 2: Domicile. The domicile of the Company shall be located
in the City of West Point, County of Troup, in the State of Geogia.
Section 3: Duration. The duration of the Company is perpetual.
Section 4: Purpose and Powers. The purpose of the Company is to
pursue any or all of the lawful objectives of a federal mutual holding company
chartered under section 10(o) of the Home Owners' Loan Act, 12 U.S.C. 1467a(o),
and to exercise all of the express, implied, and incidental powers conferred
thereby and by all acts amendatory thereof and supplemental thereto, subject to
the Constitution and the laws of the United States as they are now in effect, or
as they may hereafter be amended, and subject to all lawful and applicable
rules, regulations, and orders of the Office of Thrift Supervision ("OTS ").
Section 5: Capital Stock. The total number of shares of all
classes of the capital stock that the Company has the authority to issue is
60,000,000 of which 50,000,000 shares shall be common stock, par value $.01 per
share, and of which 10,000,000 shares shall be serial preferred stock, no par
value per share. The shares may be issued from time to time as authorized by the
Board of Directors without the approval of the shareholders, except as otherwise
provided in this Section 5 or to the extent that such approval is required by
governing law, rule, or regulation. The consideration for the issuance of the
shares shall be paid in full before their issuance and shall not be less than
the par or stated value. Neither promissory notes nor future services shall
constitute payment or part payment for the issuance of shares of the Stock
Holding Company. The consideration for the shares shall be cash, tangible or
intangible property (to the extent direct investment in such property would be
permitted to the Company), labor or services actually performed for the Company,
or any combination of the foregoing. In the absence of actual fraud in the
transaction, the value of such property, labor, or services, as determined by
the Board of Directors of the Company, shall be conclusive. Upon payment of such
consideration, such shares shall be deemed to be fully paid and nonassessable.
In the case of a stock dividend, that part of the retained earnings of the
Company which is transferred to common stock or paid-in capital accounts upon
the issuance of shares as a stock dividend shall be deemed to be the
consideration for their issuance.
Except for shares issued in the initial organization of the Company, no
shares of capital stock (including shares issuable upon conversion, exchange or
exercise of other securities) shall be issued, directly, or indirectly, to
officers, directors, or controlling persons (except for shares issued to the
parent mutual holding company) of the Company other than as part of a general
public offering or as qualifying shares to a director, unless their issuance or
the plan under which they would be issued has been approved by a majority of the
total votes eligible to be cast at a legal meeting.
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Nothing contained in Section 5 (or in any supplementary sections hereto)
shall entitle the holders of any class or series of capital stock to vote as a
separate class or series or to more than one vote per share, and there shall be
no cumulation of votes for the election of directors. Provided, that this
restriction on voting separately by class or series shall not apply:
(i) To any provision which would authorize the holders of
preferred stock, voting as a class or series, to elect some
members of the board of directors, less than a majority
thereof, in the event of default in the payment of dividends
on any class or series of preferred stock;
(ii) To any provision which would require the holders of preferred
stock, voting as a class or series, to approve the merger or
consolidation of the Company with another corporation or the
sale, lease, or conveyance (other than by mortgage or pledge)
of properties or business in exchange for securities of such
other corporation: Provided, that no provision may require
such approval for transactions undertaken with the assistance
or pursuant to the direction of the Office or the Federal
Deposit Insurance Corporation;
(iii) To any amendment which would adversely change the specific
terms of any class or series of capital stock as set forth in
this Section 5 (or in any supplementary sections hereto),
including any amendment which would create or enlarge any
class or series of capital stock ranking prior thereto in
rights and preferences. An amendment which increases the
number of authorized shares of any class or series of capital
stock, or substitutes the surviving savings bank in a merger
or consolidation for the Company, shall not be considered to
be such an adverse change.
A description of the different classes and series if any, of the Company's
capital stock and a statement of the designations, and the relative rights,
preferences and limitations of the shares of each class of and series if any of
capital stock are as follows:
A. Common Stock. Except as provided in this Section 5 (or in any
supplementary sections thereto) the holders of common stock shall exclusively
possess all voting power. Each holder of shares of common stock shall be
entitled to one vote for each share held by such holder.
Whenever there shall have been paid, or declared and set aside for payment,
to the holders of the outstanding shares of any class of stock having preference
over the common stock as to payment of dividends, the full amount of dividends
and of sinking fund, retirement fund or other retirement payments, if any, to
which such holders are respectively entitled in preference to the common stock,
then dividends may be paid on the common stock and on any class or series of
stock entitled to participate therewith as to dividends out of any assets
legally available for the payment of dividends.
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In the event of any liquidation, dissolution, or winding up of the Company,
the holders of the common stock (and the holders of any class or series of stock
entitled to participate with the common stock in the distribution of assets)
shall be entitled to receive, in cash or in kind, the assets of the Company
available for distribution remaining after: (i) payment or provision for payment
of the Company's debts and liabilities; (ii) distributions or provision for
distributions in settlement of its liquidation account; and (iii) distributions
or provisions for distributions to holders of any class or series of stock
having preference over the common stock in the liquidation, dissolution, or
winding up of the Company. Each share of common stock shall have the same rights
and be identical in all respects with all the other shares of common stock.
B. Preferred Stock. The Company may provide in supplementary sections to
its charter for one or more classes of preferred stock, which shall be
separately identified. The shares of any class may be divided into and issued in
series, with each series separately designated so as to distinguish the shares
thereof from the shares of all other series and classes. The terms of each
series shall be set forth in a supplementary section to the charter. All shares
of the same class shall be identical, except as to the following relative rights
and preferences, as to which there may be variations between different series:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The dividend rate or the amount of dividends to be paid on the shares
of such series, whether dividends shall be cumulative and, if so, from
date(s), the payment date(s) for dividends, and the participating or
other special rights, if any, with respect to dividends;
(c) The voting powers, full or limited, if any, of shares of such series;
(d) Whether the shares of such series shall be redeemable and, if so, the
price(s) at which, and the terms and conditions of which, such shares
may be redeemed;
(e) The amount(s) payable upon the shares of such series in the event of
voluntary or in involuntary liquidation, dissolution, or winding up of
the Company;
(f) Whether the shares of such series shall be entitled to the benefit of
a sinking or retirement fund to be applied to the purchase or
redemption of such shares, and if so entitled, the amount of such fund
and the manner of its application, including the price(s) at which
such shares may be redeemed or purchased through the application of
such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes of stock of the
Company and, if so, the conversion price(s), or the rate(s) of
exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions
of such conversions or exchange;
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(h) The price or other consideration for which the shares of such series
shall be issued; and;
(i) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial
preferred stock and whether such shares may be reissued as shares of
the same or any other series of serial preferred stock.
Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in all respects with all the other shares of
the same series.
The board of directors shall have authority to divide, by the adoption of
supplementary charter sections, any authorized class of preferred stock into
series and, within the limitations set forth in this section and the remainder
of this charter, fix and determine the relative rights and preferences of the
shares of any series so established.
Prior to the issuance of any preferred shares of a series established by a
supplementary charter section adopted by the board of directors, the Company
shall file with the Secretary to the Office a dated copy of that supplementary
section of this charter establishing and designating the series and fixing and
determining the relative rights and preferences thereof.
Section 6: Preemptive Rights. Holders of the capital stock of the
Company shall not be entitled to preemptive rights with respect to any shares of
the Company which may be issued.
Section 7: Directors. The Company shall be under the direction of a
board of directors. The authorized number of directors, shall not be fewer than
five nor more than fifteen except as stated in the Company's bylaws that the
number of directors may be decreased to a number less than five or increased to
a number greater than fifteen with the prior approval of the Director of the OTS
or his or her delegate.
Section 8: Beneficial Ownership Limitation. Notwithstanding anything
contained in the Stock Holding Company's charter or bylaws to the contrary, for
a period of five years from the date of the Bank's reorganization into a Mutual
Holding Company no person, other than the Mutual Holding Company, shall directly
or indirectly offer to acquire or acquire the beneficial ownership of more than
10 percent of any class of an equity security of the Stock Holding Company. This
limitation shall not apply to a transaction in which the Stock Holding Company
forms a holding company without change in the respective beneficial ownership
interests of its shareholders other than pursuant to the exercise of any
dissenter and appraisal rights, the purchase of shares by underwriters in
connection with a public offering, or the purchase of shares by a tax-qualified
employee stock benefit plan which is exempt from the approval requirements under
574.3(c)(l)(vii) of the Office's regulations.
In the event shares are acquired in violation of this Section 8,
all shares beneficially owned by any person in excess of 10% shall be considered
"excess shares" and shall not be counted as shares entitled to vote and shall
not be voted by any person or counted as voting shares in connection with any
matters submitted to the shareholders for a vote.
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For the purposes of this Section 8, the following definitions apply:
(1) The term "person" includes an individual, a group acting in
concert, a corporation, a partnership, an association, 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 the
equity securities of the Stock Holding Company.
(2) The term "offer" includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for, or request or invitation for
tenders of, a security or interest in a security for value.
(3) The term "acquire" includes every type of acquisition, whether
effected by purchase, exchange, operation of law or otherwise.
(4) The term "acting in concert" means (a) knowing participation in a
joint activity or conscious parallel action towards a common goal whether or not
pursuant to an express agreement, or (b) a combination or pooling of voting or
other interests in the securities of an issuer for a common purpose pursuant to
any contract, understanding, relationship, agreement or other arrangements,
whether written or otherwise.
Section 9. Cumulative Voting Limitation. Shareholders shall not be
permitted to cumulate their votes for election of directors.
Section 10. Call for Special Meeting. For a period of five years
from the effective date of the Bank's reorganization into the Mutual Holding
Company, special meetings of shareholders relating to changes in control of the
Stock Holding Company or amendments to its charter shall be called only upon
direction of the Board of Directors.
Section 11: Amendment of Charter. Except as provided in Section 5,
no amendment, addition, alteration, change or repeal of this charter shall be
made, unless such is proposed by the board of directors of the Company, approved
by the shareholders by a majority of votes eligible to be cast at a legal
meeting, unless a higher vote is required, and approved or preapproved by the
OTS.
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Charter Financial Corporation
Attest:_________________ By: _________________________________________
William Gladden Robert L. Johnson
Secretary President and Chief Executive Officer
OFFICE OF THRIFT SUPERVISION
Attest:_________________ By: _________________________________________
Secretary Director
Date:_______________________
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