EXHIBIT 3.3
CharterBank
Charter
Section 1. Corporate Title. The full corporate title of the
association is CharterBank (the "Bank").
Section 2. Office. The home office shall be located in West
Point, Georgia.
Section 3. Duration. The duration of the Bank is perpetual.
Section 4. Purpose and Powers. The purpose of the Bank is to
pursue any or all of the lawful objectives of a Federal savings association
chartered under section 5 of the Home Owners' Loan Act 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
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 (the "Office").
Section 5. Capital Stock. The total number of shares of all classes
of the capital stock that the Bank has the authority to issue is 6,000,000 of
which 5,000,000 shares shall be common stock, par value $.01 per share, and of
which 1,000,000 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 value.
Neither promissory notes nor future services shall constitute payment or part
payment for the issuance of shares of the Bank. 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 Bank), labor, or services actually
performed for the Bank, or any combination of the foregoing. In the absence of
actual fraud in the transaction, the value of such property, labor, or services,
as determined by the board of directors of the Bank, 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 Bank that 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 the shares issued in the initial organization of the Bank
or in connection with the conversion of the Bank from the mutual to stock form
of capitalization, no shares of capital stock (including shares issuable upon
conversion, exchange or exercise of other securities) shall be issued, directly
or indirectly, to officers, directors, or controlling persons of the Bank 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 this Section 5 (or in any supplementary sections
hereto) shall entitle the holders of any class or series of capital stock to
vote as a separate class or series or to more than one vote per share, except as
to the cumulation of votes for the election of directors (unless the charter
otherwise provides that there shall be no such cumulative voting); 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 Bank with another corporation or the sale, lease, or
conveyance (other than by mortgage or pledge) of properties or business in
exchange for securities of a corporation other than the Bank if the preferred
stock is exchanged 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 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 Bank, shall not be considered to be such an
adverse change.
A description of the different classes and series (if any) of the
Bank's capital stock and a statement of the designations, and the relative
rights, preferences, and limitations of the shares of each class of and series
(if any) of capital stock are as follows:
A. Common Stock. Except as provided in this Section 5 (or in any
supplementary sections hereto) the holders of the common stock shall exclusively
possess all voting power. Each holder of shares of common stock shall be
entitled to one vote for each share held by each holder, except as to the
cumulation of votes for the election of directors, unless the charter otherwise
provides that there shall be no such cumulative voting.
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.
In the event of any liquidation, dissolution, or winding up of the
Bank, the holders of the common stock (and the holders of any class or series of
stock entitled to participate with the
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common stock in the distribution of assets) shall be entitled to receive, in
cash or in kind, the assets of the Bank available for distribution remaining
after: (i) Payment or provision for payment of the Bank's debts and liabilities;
(ii) distributions or provision for distributions in settlement of its
liquidation account; and (iii) distributions or provision 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 Bank. Each share of common
stock shall have the same relative rights as and be identical in all respects
with all the other shares of common stock.
B. Preferred Stock. The Bank 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 which 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 on which, such shares
may be redeemed;
(e) The amount(s) payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution, or winding up of the
Bank;
(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 Bank
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 conversion or exchange;
(h) The price or other consideration for which the shares of
such series shall be issued; and
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(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 Bank shall file with the Secretary of 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 Bank shall not be entitled to preemptive rights with respect to any shares
of the Bank which may be issued.
Section 7. Directors. The Bank shall be under the direction of
a board of directors. The authorized number of directors, as stated in the
Bank's bylaws, shall not be fewer than five nor more than fifteen, except when a
greater or lesser number is approved by the Director of the Office, or his or
her delegate.
Section 8. Beneficial Ownership Limitation. Notwithstanding
anything contained in the Bank's charter or bylaws to the contrary, for a period
of five years from the date of this charter no person (other than the holding
company established by the Bank to acquire and hold all of the capital stock of
the Bank to be issued upon its conversion to stock form) 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 Bank. This limitation shall
not apply to First Charter, MHC, a transaction in which the Bank forms a holding
company without change in the respective beneficial ownership interests of its
stockholders 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 stockholders 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 Bank.
(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. Stockholders shall
not be permitted to cumulate their votes for election of directors.
Section 10. Call for Special Meetings. Special meetings of
stockholders relating to changes in control of the Bank or amendments to its
charter shall be called only upon direction of the board of directors.
Section 11. Deposit Accounts. In any situation in which the
priority of the accounts of the Bank is in controversy, all such accounts shall,
to the extent of their withdrawable value, be debts of the Bank having at least
as high a priority as the claims of general creditors of the Bank not having
priority (other than any priority arising or resulting from consensual
subordination) over other general creditors of the Bank.
Section 12. Liquidation Account. Under OTS regulations, the
Bank must establish and maintain a liquidation account for the benefit of its
savings account holders as of _____________. If the Bank undergoes a complete
liquidation, it must comply with OTS regulations with respect to the amount and
priorities on liquidation of each of the savings account holder's interests in
the liquidation account. A savings account holder's interest in the liquidation
account does not entitle the savings account holder to any voting rights.
Section 13. Amendment of Charter. Except as provided in Section
5 hereof, no amendment addition, alteration, change, or repeal of this charter
shall be made, unless such is first proposed by the board of directors of the
Bank, approved by the stockholders by a majority of the total votes eligible to
be cast at a legal meeting unless a higher vote is otherwise required, and
approved or preapproved by the Office.
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CHARTERBANK
Attest:___________________________ By:_________________________________
William Gladden Robert L. Johnson
Secretary of the Bank President and Chief Executive
Officer
OFFICE OF THRIFT SUPERVISION
Attest:___________________________ By:_________________________________
Secretary of the Office of Director of the Office of Thrift
Thrift Supervision Supervision
Effective Date:___________________
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