EXHIBIT 3.1
SECOND RESTATED ARTICLES OF INCORPORATION
OF
FLAGSTAR BANCORP, INC.
Pursuant to the provisions of Act 284, Public Acts of 1972, the
undersigned corporation executes the following articles:
Flagstar Bancorp, Inc., a corporation organized and existing under
the laws of the State of Michigan (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Flagstar Bancorp, Inc. The
Corporation was originally incorporated under the name "FSSB Holding
Corporation", and the date of filing of its original Articles of Incorporation
was October 28, 1993. The Corporation filed its Restated Articles of
Incorporation on February 11, 1996.
2. These Second Restated Articles of Incorporation were duly adopted
by the Board of Directors of the Corporation in accordance with Section 642 of
the Michigan Business Corporation Act.
3. These Second Restated Articles of Incorporation only restate and
integrate and do not further amend the provisions of the Restated Articles of
Incorporation of the Corporation as heretofore amended or supplemented, and
there is no material discrepancy between those provisions and the provisions of
these Second Restated Articles of Incorporation.
4. The Articles of Incorporation of the Corporation are hereby
restated to read as follows:
ARTICLE I
NAME
The name of the corporation is Flagstar Bancorp, Inc. (herein the
"Corporation").
ARTICLE II
PURPOSE
The purpose for which the Corporation is formed is to engage in any
activity within the purposes for which corporations may be formed under the
Michigan Business Corporation Act.
ARTICLE III
CAPITAL STOCK
The aggregate number of shares of all classes of capital stock which
the Corporation has authority to issue is 175,000,000, of which 150,000,000 are
to be shares of common stock, $.01 par value per share, and of which 25,000,000
are to be shares of serial preferred stock, $.01 par value per share. The shares
may be issued by the Corporation from time to time as approved by the board of
directors of the Corporation without the approval of the shareholders except as
otherwise provided in this Article III or the rules of a national securities
exchange if applicable. The consideration for the issuance of the shares shall
be paid to or received by the Corporation in full before their issuance and
shall not be less than the par value per share. The consideration for the
issuance of the shares shall be cash, services rendered, personal property
(tangible or intangible), real property, leases of real property or any
combination of the foregoing. In the absence of actual fraud in the transaction,
the judgment of the board of directors as to the value of such consideration
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, the
part of the surplus of the Corporation which is transferred to stated capital
upon the issuance of shares as a stock dividend shall be deemed to be the
consideration for their issuance.
A description of the different classes and series (if any) of the
Corporation's capital stock, and a statement of the relative powers,
designations, preferences and rights of the shares of each class and series (if
any) of capital stock, and the qualifications, limitations or restrictions
thereof, are as follows:
A. Common Stock. Except as otherwise required by law or provided in
these Articles of Incorporation or in the resolutions of the board of directors
creating any class of preferred stock, 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 such holder, except as
otherwise expressly set forth in these Articles of Incorporation.
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 the payment of dividends, the full amount
of dividends and sinking fund or 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, but only when and as
declared by the board of directors.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class having preference
over the common stock in any such event, the full preferential amounts to which
they are respectively entitled, the holders of the common stock and of any class
or series of stock entitled to participate therewith, in whole or in part, as to
distribution of assets shall be entitled, after payment or provision for payment
of all debts and liabilities of the Corporation, to receive the remaining assets
of the Corporation available for distribution, in cash or in kind.
Each share of common stock shall have the same relative powers,
preferences and rights as, and shall be identical in all respects with, all the
other shares of common stock of the Corporation, except as otherwise expressly
set forth in these Articles of Incorporation.
B. Serial Preferred Stock. Except as otherwise provided in these
Articles of Incorporation, the board of directors of the Corporation is
authorized, by resolution or resolutions from time to time adopted, to provide
for the issuance of shares of preferred stock in one or more series and to fix
and state the powers, designations preferences and relative, participating,
optional or other special rights of the shares of each such series, and the
qualifications, limitations or restrictions thereof, including, but not limited
to, determination of any of the following:
(1) the distinctive serial designation for each series and the
number of shares constituting such \series;
(2) the dividend rates or the amount of dividends to be paid on
the shares of such series, if any, whether dividends shall be
cumulative and, if so, from which date or dates, the payment
date or dates for dividends, and the participating or other
special rights, if any, with respect to dividends;
(3) the voting rights, full or limited, if any, of the shares of
such series;
(4) whether the shares of such series shall be redeemable and, if
so, the price or prices at which, and the terms and conditions
upon which such shares may be redeemed;
(5) the amount or amounts payable upon the shares of such series
in the event of voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(6) whether the shares of such series shall be entitled to the
benefits 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 or prices at which such shares may be
redeemed or purchased through the application of such fund;
(7) whether the shares of such series shall be convertible into,
or exchangeable for, shares of any other class or classes or
any other series of the same or any other class or classes of
stock of the Corporation and, if so convertible or
exchangeable, the conversion price or prices, or the rate or
rates 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;
(8) the subscription or purchase price and form of consideration
for which the shares of such series shall be issued;
(9) 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; and
(10) any other designations, preferences, limitations or rights
that are now or hereafter permitted by applicable law and are
not inconsistent with the provisions of these Articles of
Incorporation.
Each share of each series of serial preferred stock shall have the
same relative powers, preferences and rights as, and shall be identical in all
respects with, all the other shares of the Corporation of the same series,
except as otherwise expressly set forth in these Articles of Incorporation.
ARTICLE IV
PREEMPTIVE RIGHTS
No shareholder of the Corporation shall have, as a matter of right,
the preemptive right to purchase or subscribe for shares of any class, now or
hereafter authorized, or to purchase or subscribe for other securities or
obligations convertible into or exchangeable for such shares or which by
warrants or otherwise entitle the holders thereof to subscribe for or purchase
any such shares.
ARTICLE V
REPURCHASE OF SHARES
The Corporation may from time to time, pursuant to authorization by
the board of directors of the Corporation and without action by the
shareholders, purchase or otherwise acquire shares of any class, bonds,
debentures, notes, scrip, warrants, obligations, evidences of indebtedness, or
other securities of the Corporation in such manner, upon such terms, and in such
amounts as the board of directors shall determine; subject, however, to such
limitations or restrictions, if any, as are contained in the express terms of
any class of shares of the Corporation outstanding at the time of the purchase
or acquisition in question or as are imposed by law.
ARTICLE VI
VOTING FOR DIRECTORS
There shall be no cumulative voting by shareholders of any class or
series in the election of directors of the Corporation.
ARTICLE VII
NOTICE FOR NOMINATIONS AND PROPOSALS
A. Nominations for the election of directors and proposals for any
new business to be taken up at any annual or special meeting of shareholders may
be made by the board of directors of the Corporation or by any shareholder of
the Corporation entitled to vote generally in the election of directors. In
order for a shareholder of the Corporation to make any such nominations and/or
proposals, he shall give notice thereof in writing, delivered or mailed by first
class United States mail, postage prepaid, to the secretary of the Corporation
not fewer than 30 days nor more than 60 days prior to the date of any such
meeting; provided, however, that if notice or public disclosure of the meeting
is effected fewer than 40 days before the date of the meeting, such written
notice shall be delivered or mailed, as prescribed, to the secretary of the
Corporation not later than the close of business on the 10th day following the
day on which notice of the meeting was mailed to shareholders. Each such notice
given by a shareholder with respect to nominations for the election of directors
shall set forth (1) the name, age, business
address and, if known, residence address of each nominee proposed in such
notice; (2) the principal occupation or employment of each such nominee; (3) the
number of shares of stock of the Corporation which are beneficially owned by
each such nominee; (4) such other information as would be required to be
included in a proxy statement soliciting proxies for the election of the
proposed nominee pursuant to Regulation 14A of the Securities Exchange Act of
1934, as amended, including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a director,
if elected; and (5) as to the shareholder giving such notice, (a) his name and
address as they appear on the Corporation's books and (b) the class and number
of shares of the Corporation which are beneficially owned by such shareholder.
In addition, the shareholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation.
B. Each such notice given by a shareholder to the Secretary with
respect to business proposals to be brought before a meeting shall set forth in
writing as to each matter: (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (ii) the name and address, as they appear on the Corporation's books,
of the shareholder proposing such business; (iii) the class and number of shares
of the Corporation which are beneficially owned by the shareholder; and (iv) any
material interest of the shareholder in such business. Notwithstanding anything
in these Articles of Incorporation to the contrary, no new business shall be
conducted at the meeting except in accordance with the procedures set forth in
this Article VII.
C. The chairman of the annual or special meeting of shareholders
may, if the facts warrant, determine and declare to such meeting that a
nomination or proposal was not made in accordance with the foregoing procedure,
and, if he should so determine, he shall so declare to the meeting and the
defective nomination or proposal shall be disregarded and laid over for action
at the next succeeding special or annual meeting of the shareholders taking
place 30 days or more thereafter. This provision shall not require the holding
of any adjourned or special meeting of shareholders for the purpose of
considering such defective nomination or proposal.
ARTICLE VIII
ACTION BY WRITTEN CONSENT OF SHAREHOLDERS
Notwithstanding any other provision of these Articles of
Incorporation or the bylaws of the Corporation, no action required to be taken
or that may be taken at any annual or special meeting of shareholders of the
Corporation may be taken without a meeting, and the power of shareholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied.
ARTICLE IX
DIRECTORS
A. Number; Vacancies. The number of directors of the Corporation
shall be such number, not less than seven nor more than fifteen (exclusive of
directors, if any, to be elected by holders of preferred stock of the
Corporation, voting separately as a class), as shall be set forth from time to
time in the bylaws. Vacancies in the board of directors of the Corporation,
however caused, and newly created directorships shall be filled by the
affirmative vote of a majority of the
directors then in office, whether or not a quorum, and any director so chosen
shall hold office for a term expiring at the annual meeting of shareholders at
which the term of the class to which the director has been chosen expires and
when the director's successor is elected.
B. Classified Board. The board of directors of the Corporation shall
be divided into two classes, which shall be designated Class I and Class II.
Such classes shall be as nearly equal in number as the then total number of
directors constituting the entire board of directors shall permit, with the
terms of office of all members of one class expiring each year. Subject to the
provisions of this Article IX, should the number of directors not be equally
divisible by two, the excess director shall be assigned to Class I. At each
annual meeting of shareholders, the successors to the class of directors whose
terms expire at such meeting shall be elected to hold office for a term expiring
at the second succeeding annual meeting. Notwithstanding the foregoing, the
director whose term shall expire at any annual meeting shall continue to serve
until such time as his successor shall have been duly elected and shall have
qualified unless his position on the board of directors shall have been
abolished by action taken to reduce the size of the board of directors prior to
said meeting.
Should the number of directors of the Corporation be reduced the
directorship(s) eliminated shall be allocated among classes as appropriate so
that the number of directors in each class is as specified in the immediately
preceding paragraph. The board of directors shall designate, by the name of the
incumbent(s), the position(s) to be abolished. Notwithstanding the foregoing, no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Should the number of directors of the Corporation be
increased, the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as specified in the
immediately preceding paragraph.
Whenever the holders of any one or more series of preferred stock of
the Corporation shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the board of directors shall consist of
said directors so elected in addition to the number of directors fixed as
provided in this Article IX. Notwithstanding the foregoing, and except as
otherwise may be required by law or by the terms and provisions of the preferred
stock of the Corporation, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of shareholders.
ARTICLE X
REMOVAL OF DIRECTORS
Notwithstanding any other provision of these Articles of
Incorporation or the bylaws of the Corporation, any director or the entire board
of directors of the Corporation may be removed at any time by the affirmative
vote of the holders of at least 80 percent of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
(considered for this purpose as one class) cast at a meeting of the shareholders
called for that purpose. If less than the entire board of directors is to be
removed, no one of the directors may be removed if the votes cast against his or
her removal would be sufficient to elect him or her if then cumulatively voted
at any election of the entire board of directors, or, if there are classes of
directors, at an election of the class of directors of which he or she is a
part. Notwithstanding the
foregoing, whenever the holders of any one or more series of preferred stock of
the Corporation shall have the right, voting separately as a class, to elect one
or more directors of the Corporation, the preceding provisions of this Article X
shall not apply with respect to the director or directors elected by such
holders of preferred stock.
ARTICLE XI
INDEMNIFICATION
The Corporation shall, to the fullest extent now or hereafter
permitted by the Michigan Business Corporation Act and other applicable law,
indemnify any director, officer, employee or agent of the Corporation who was or
is a party to or threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, including any action by or in the
right of the Corporation, by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or of a subsidiary of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another corporation
partnership, joint venture, trust or other enterprise, whether for profit or
not, against expenses (including attorneys' fees and disbursements), judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding. At the
discretion of the board of directors, any indemnification hereunder may include
payment by the Corporation of expenses incurred in defending an action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding if all of the following conditions apply: (a) the person furnishes
the Corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct set forth in Sections 561 and 562 of the
Michigan Business Corporation Act, (b) the person furnishes the Corporation a
written undertaking to repay the advance if it is ultimately determined that he
did not meet the applicable standard of conduct, and (c) the board of directors
makes a determination that the facts then known to the board would not preclude
indemnification under the Michigan Business Corporation Act. The indemnification
provided for herein shall continue as to a person who has ceased to be a
director, officer, employee or agent of the Corporation. Any indemnification of
a person who was entitled to indemnification after such person ceased to be a
director, officer, employee or agent of the Corporation shall inure to the
benefit of the heirs, personal representatives and administrators of such
person. The indemnification provided by this Article XI shall not be deemed
exclusive of any other rights to which any person may be entitled under any
contract, bylaw, vote of shareholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding office, except to the extent that such indemnification may be
contrary to law. The Corporation may purchase and maintain insurance to protect
itself and any present or former director, officer, employee or agent or any
person who is or was serving at the request of the Corporation as a director,
officer, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against liability asserted against him and
incurred by him in any such capacity, whether or not the Corporation would have
the power to indemnify such person against liability under the Michigan Business
Corporation Act.
ARTICLE XII
LIMITATION OF DIRECTORS' LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except: (i) for any breach of the director's duty of loyalty
to the Corporation or its shareholders, (ii) for acts or omissions that are not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) for a violation of Section 551(1) of the Michigan Business
Corporation Act, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Michigan Business Corporation Act or other
Michigan law is amended or enacted after the date of filing of these Articles of
Incorporation to further eliminate or limit 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 Michigan Business Corporation Act
or other Michigan law, as so amended. Any repeal or modification of this Section
XII by the shareholders 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.
ARTICLE XIII
COMPROMISE, ARRANGEMENT OR PLAN OF REORGANIZATION
When a compromise or arrangement or a plan of reorganization of the
Corporation is proposed between the Corporation and its creditors or any class
of them or between the Corporation and its shareholders or any class of them, a
court of equity jurisdiction within the State of Michigan, on application of
this Corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the Corporation, may order a meeting of the creditors or
class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 3/4 in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or reorganization, agree to a compromise or arrangement or
reorganization of the Corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if sanctioned
by the court to which the application has been made, shall be binding on all the
creditors or class of creditors, or on all the shareholders or class of
shareholders and also on the Corporation.
ARTICLE XIV
APPLICABILITY OF CHAPTER 7A OF THE
MICHIGAN BUSINESS CORPORATION ACT
The Corporation shall be governed by Chapter 7A of the Michigan
Business Corporation Act, MCL 450.1775 et seq. If the Michigan Business
Corporation Act is amended following the date of filing of the Restated Articles
of Incorporation of the Corporation to repeal Chapter 7A, the Corporation shall
be governed following the date of such repeal by the provisions of Chapter 7A as
in effect on the date of filing of the Restated Articles of Incorporation.
ARTICLE XV
APPLICABILITY OF CHAPTER 7B OF THE
MICHIGAN BUSINESS CORPORATION ACT
The Corporation shall be governed by the provisions of Chapter 7B of
the Michigan Business Corporation Act, MCL 450.1790 et seq. If the Michigan
Business Corporation Act is amended following the date of filing of the Restated
Articles of Incorporation of the Corporation to repeal Chapter 7B, the
Corporation shall be governed following the date of such repeal by the
provisions of Chapter 7B as in effect on the date of filing of the Restated
Articles of Incorporation. The Corporation shall have the authority, to the
extent and under the conditions provided in Section 799(1) and (2) of the
Michigan Business Corporation Act to redeem "control shares" acquired in a
"control share acquisition", as such terms are defined in Chapter 7B.
ARTICLE XVI
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the Corporation is expressly authorized to
adopt, repeal, alter, amend and rescind the bylaws of the Corporation by a vote
of two-thirds of the board of directors. The bylaws also may be adopted,
repealed, altered, amended or rescinded by the shareholders of the Corporation
by the affirmative vote of the holders of at least 80 percent of the outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the shareholders called for that purpose (provided that notice of
such proposed adoption, repeal, alteration, amendment or rescission is included
in the notice of such meeting).
ARTICLE XVII
AMENDMENT OF ARTICLES OF INCORPORATION
The Corporation reserves the right to repeal, alter, amend or
rescind any provision contained in these Articles of Incorporation in the manner
now or hereafter prescribed by law, and all rights conferred on shareholders
herein are granted subject to this reservation. Notwithstanding the foregoing,
the provisions set forth in Articles VI, VII, VIII, IX, X, XI, XIII, XIV, XV,
XVI and this Article XVII may not repealed, altered, amended or rescinded in any
respect unless the same is approved by the affirmative vote of the holders of
not less than 80 percent of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as a single class) cast at a meeting of the shareholders called
for that purpose (provided that notice of such proposed repeal, alteration,
amendment or rescission is included in the notice of such meeting); provided
that such repeal, alteration, amendment or rescission may be made by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as a single class) if the same is first
approved by the vote of the greater of (a) two-thirds of the board of directors
or (b) a majority of the Continuing Directors, as defined below. The term
"Continuing Director" shall mean, for purposes of this Article XVII, any member
of the board of directors of the Corporation who is both (i) unaffiliated with
any person or entity that proposes a business combination between any affiliate
of such person or entity and the Corporation or any direct or indirect
subsidiary thereof and (ii) was a member of the board of directors before such a
business combination was proposed to the Corporation, and any successor of a
Continuing Director who is recommended to succeed a Continuing Director by a
majority of the Continuing Directors then on the board of directors.
IN WITNESS WHEREOF, the Corporation has caused these Restated
Articles of Incorporation to be signed by its President and attested by its
Secretary, this 5th day of August, 2005.
FLAGSTAR BANCORP, INC.
/s/ Mark T. Hammond
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Mark T. Hammond
President
ATTEST:
/s/ Mary Kay Ruedisueli
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Mary Kay Ruedisueli
Secretary