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EXHIBIT 3.i
Page 1
[STATE OF DELAWARE LETTERHEAD]
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED
CERTIFICATE OF "CITFED BANCORP, INC.", FILED IN THIS OFFICE ON THE NINTH DAY OF
OCTOBER, A.D. 1996, AT 12:30 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDED OF DEEDS FOR RECORDING.
[SEAL] Edward J. Freel
---------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
2253073 8100 8140673
DATE:
960293875 10-09-96
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CITFED BANCORP, INC.
CitFed Bancorp, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, hereby
certifies as follows:
1. The name of the corporation is CitFed Bancorp, Inc. CitFed
Bancorp, Inc. was originally incorporated under the same name, and the original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on January 24, 1991.
2. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, this Amended and Restated Certificate of
Incorporation restates and integrates and further amends the provisions of the
Certificate of Incorporation of this corporation.
3. The stockholders of this corporation approved an amendment to
Article Fourth, Paragraph A. of the Certificate of Incorporation to increase
the total number of authorized shares of common stock to twenty million
(20,000,000) shares at the reconvened Annual Meeting of Stockholders of the
corporation held on September 20, 1996, by the requisite votes of the
outstanding shares of common stock, pursuant to notice given in accordance with
the provisions of Section 222 of the General Corporation Law of the State of
Delaware. That the aforesaid amendments were duly adopted in accordance with
the applicable provisions of Sections 222 and 242 of the General Corporation
Law of the State of Delaware.
4. The text of the Amended and Restated Certificate of
Incorporation is hereby restated and further amended to read in its entirety as
follows:
FIRST: The name of the Corporation is CitFed Bancorp, Inc.
(hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of the registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of Delaware.
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FOURTH:
A. The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is twenty-five million
(25,000,000) consisting of:
(a) five million (5,000,000) shares of preferred
stock, par value one cent ($.01) per share (the "Preferred Stock");
and
(b) twenty million (20,000,000) shares of common
stock, par value one cent ($.01) per share (the "Common Stock").
B. 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, and by filing a
certificate pursuant to the applicable law of the State of Delaware (such
certificate being hereinafter referred to as a "Preferred Stock Designation"),
to establish from time to time the number of shares to be included in each such
series, and to fix the designation, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereof. The number of authorized shares of 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
any Preferred Stock Designation.
C. 1. Notwithstanding any other provision of this
Certificate of Incorporation, 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 cast 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
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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 C of
this Article
FOURTH:
(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 be rescinded and
there shall be no successor rule or statutory provision thereto,
pursuant to said Rule 13d-3 as in effect on December 1, 1990;
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 ofSection
A of Article EIGHTH) or upon the exercise of conversion
rights, exchange rights, warrants, or options or otherwise, or
(ii) sole or shared voting
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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
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issuable by this Corporation pursuant to any agreement, or upon the
exercise of conversion rights, warrants or options, or otherwise.
(c) A "person" shall mean any
individual, firm, corporation, or other entity.
(d) The Board of Directors shall have
the power to construe and apply the provisions of this section and to
make all determinations necessary or desirable to implement such
provisions, including but not limited to matters with respect to (1)
the number of shares of Common Stock beneficially owned by any person,
(2) whether a person is an affiliate of another, (3) whether a person
has an agreement, arrangement, or understanding with another as to the
matters referred to in the definition of beneficial ownership, (4) the
application of any other definition or operative provision of the
section to the given facts, or (5) any other matter relating to the
applicability or effect of this section.
3. The Board of Directors shall have the right
to demand that any person who is reasonably believed to beneficially own 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 (1) the record owner(s) of all
shares beneficially owned by such Holder in Excess, and (2) 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.
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4. Except as otherwise provided by law or
expressly provided in this Section C, the presence, in person or by proxy, of
the holders of record of shares of capital stock of the Corporation entitling
the holders thereof to cast a majority of the votes (after giving effect, if
required, to the provisions of this section) entitled to be cast by the holders
of shares of capital stock of the Corporation entitled to vote shall constitute
a quorum at all meetings of the stockholders, and every reference in this
Certificate of Incorporation to a majority or other proportion of capital stock
(or the holders thereof) for 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 C 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 C 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.
FIFTH: The following provisions are inserted for the management of
the business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
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(a) 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 this Certificate of Incorporation or the By-laws 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) The directors of the Corporation need not be elected
by written ballot unless the By-laws so provide.
(c) Any action required or permitted to be taken by the
stockholders of the Corporation, subject to the rights of holders of
any class or series of Preferred Stock of the Corporation, must be
effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing by
such stockholders.
(d) Special meetings of stockholders of the Corporation
may, subject to the rights of holders of any class or series of
Preferred Stock of the Corporation, be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the total
number of directors which the Corporation would have if there were no
vacancies on the Board of Directors (the "Whole Board").
(e) Stockholders shall not be permitted to cumulate their
votes for the election of directors.
SIXTH:
A. 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 Whole 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
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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, commencing with the first annual meeting, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the conclusion of 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.
B. 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 in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a
majority vote of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have
been elected expires, and until such director's successor shall have been duly
elected and qualified. The disqualification of a director pursuant to Section
F of this Article SIXTH shall not create a vacancy in the Board of Directors.
No decrease in the number of authorized directors constituting the Board of
Directors shall shorten the term of any incumbent director.
C. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner
provided in the By-laws of the Corporation.
D. 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 only
by the affirmative vote of the holders of at least 80% of the 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 FOURTH of this Certificate of Incorporation), voting
together as a single class. Notwithstanding the foregoing, any director who
has at any time been disqualified from office pursuant to Section F of this
Article SIXTH may be removed from office by the affirmative vote of the holders
of at least a majority of the 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
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FOURTH of this Certificate of Incorporation), voting together as a single
class. Notwithstanding the foregoing, any director who has at any time been
disqualified from office pursuant to Section F of this Article SIXTH may be
removed from office by the affirmative vote of the holders of at least a
majority of the 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 FOURTH of this
Certificate of Incorporation), voting together as a single class.
E. No person shall be eligible for election, reelection,
appointment or reappointment to the Board of Directors of the Corporation who:
1. beneficially owns less than 100 shares of
Common Stock; or
2. has not attained at least 25 years of age; or
3. has been convicted of any felony; or
4. is not eligible for whatever reason to serve
on the Board of Directors of a federally chartered
thrift institution; or
5. is at such time adjudicated or otherwise
legally declared an incapacitated person by reason of mental
weakness.
F. Any director who (i) beneficially owns less than 100
shares of Common Stock; or (ii) is convicted of any felony; or (iii) becomes
ineligible for whatever reason to serve on the Board of Directors of a
federally chartered thrift institution; or (iv) is adjudicated or otherwise
legally declared an incapacitated person by reason of mental weakness shall be
disqualified from office immediately without any further action of the Board of
Directors or stockholders of the Corporation. Any director who is disqualified
from office shall thereby have no rights or duties as a director whatsoever;
provided, however, that any disqualified director shall no longer be
disqualified at such time as such director shall no longer meet the
disqualification criteria set forth in the preceding sentence.
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SEVENTH: The Board of Directors is expressly empowered to
adopt, amend or repeal By-laws of the Corporation. Any adoption, amendment or
repeal of the By-laws of the Corporation by the Board of Directors shall
require the approval of a majority of the Whole Board. The stockholders shall
also have power to adopt, amend or repeal the By-laws 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 this Certificate of Incorporation, 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 FOURTH hereof), voting together as a single class, shall
be required to adopt, amend or repeal any provisions of the By-laws of the
Corporation.
EIGHTH:
A. In addition to any affirmative vote required by law
or this Certificate of Incorporation, and except as otherwise expressly
provided in this Section:
1. any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with
(i) any Interested Stockholder (as hereinafter defined) or
(ii) 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
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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;
shall require the affirmative vote of the holders of at least 66 2/3% 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 this
Certificate of Incorporation or any Preferred Stock Designation or in any
agreement with any national securities exchange or quotation system or
otherwise.
The term "Business Combination" as used in this Article EIGHTH shall
mean any transaction which is referred to in any one or more of paragraphs 1
through 5 of Section A of this Article EIGHTH.
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B. The provisions of Section A of this Article EIGHTH
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 this Certificate of Incorporation, 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 (X)
within the two-year period immediately prior
to the first public announcement of the
proposal of the Business Combination (the
"Announcement Date"), or (Y) in the
transaction in which it became an Interested
Stockholder, whichever is higher.
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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 EIGHTH 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 (X)
within the two-year period immediately prior
to the Announcement Date, or (Y) 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
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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 subparagraph B.2 of this Article
EIGHTH 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
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(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. For the purposes of this Article EIGHTH:
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
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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 December 1, 1990; 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
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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
December 1, 1990, 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 Paragraph 2 of this Section C,
the number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of Paragraph 3 of this Section C but
shall not include any other shares of Voting Stock which may be issuable
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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
December 1, 1990.
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 Paragraph 2 of this Section C, 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 of the
National Association of Securities Dealers Automated Quotation ("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
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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 "other consideration to be received"
as used in Subparagraphs (a) and (b) of Paragraph 2 of Section B of this
Article EIGHTH 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. A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine for the purposes of this
Article EIGHTH, 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 EIGHTH.
E. Nothing contained in this Article EIGHTH shall be
construed to relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
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F. Notwithstanding any other provisions of this
Certificate of Incorporation or any provision of law which might otherwise
permit a lesser vote or no vote, but in addition to any affirmative vote of the
holders of any particular class or series of the Voting Stock required by law,
this Certificate of Incorporation or any Preferred Stock Designation, the
affirmative vote of the holders of at least 66 2/3% of the voting power of all
of the then-outstanding shares of the Voting Stock, voting together as a single
class, shall be required to alter, amend or repeal this Article EIGHTH.
NINTH: The Board of Directors of the Corporation, when evaluating any
offer of another Person (as defined in Article EIGHTH 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 EIGHTH 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.
TENTH:
A. Except as set forth in Section B of this Article TENTH, in
addition to any affirmative vote of stockholders required by law or this
Certificate of Incorporation, any direct or indirect purchase or other
acquisition by the Corporation of any Equity Security (as hereinafter defined)
of any class from any Interested Person (as hereinafter defined) shall require
the affirmative vote of the holders of at least 66 2/3% of the Voting Stock of
the Corporation
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that is not beneficially owned (for purposes of this Article TENTH beneficial
ownership shall be determined in accordance with Section C.2(b) of Article
FOURTH hereof) by such Interested Person, 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 this Certificate of Incorporation or any Preferred Stock
Designation or in any agreement with any national securities exchange or
quotation system, or otherwise. Certain defined terms used in this Article
TENTH are as set forth in Section C below.
B. The provisions of Section A of this Article TENTH shall not be
applicable with respect to:
(1) any purchase or other acquisition of securities made
as part of a tender or exchange offer by the Corporation or a
Subsidiary (which term, as used in this Article TENTH, is as defined
in the first clause of Section C.6 of Article EIGHTH hereof) of the
Corporation to purchase securities of the same class made on the same
terms to all holders of such securities and complying with the
applicable requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provision
replacing such Act, rules or regulations);
(2) any purchase or acquisition made pursuant to an open
market purchase program approved by a majority of the Board of
Directors, including a majority of the Disinterested Directors (which
term, as used in this Article TENTH, is as defined in Article EIGHTH
hereof); or
(3) any purchase or acquisition which is approved by a
majority of the Board of Directors, including a majority of the
Disinterested Directors, and which is made at no more than the Market
Price (as hereinafter defined), on the date that the understanding
between the Corporation and the Interested Person is reached with
respect to such purchase (whether or not such purchase is made or a
written agreement relating to such
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purchase is executed on such date), of shares of the class of Equity
Security to be purchased.
C. For the purposes of this Article TENTH:
(i) The term Interested Person shall mean any Person
(other than the Corporation, Subsidiaries of the Corporation, pension,
profit sharing, employee stock ownership or other employee benefit
plans of the Corporation and its Subsidiaries, entities organized or
established by the Corporation or any of its Subsidiaries pursuant to
the terms of such plans and trustees and fiduciaries with respect to
any such plan acting in such capacity) that is the direct or indirect
beneficial owner of 5% or more of the Voting Stock of the Corporation,
and any Affiliate or Associate of any such person.
(ii) The Market Price of shares of a class of Equity
Security on any day shall mean the highest sale price of shares of
such class of Equity Security on such day, or, if that day is not a
tradingday, on the trading day immediately preceding such day, on the
national securities exchange or the NASDAQ System or any other system
then in use on which such class of Equity Security is traded.
(iii) The term Equity Security shall mean any security
described in Section 3(a)(11) of the Securities Exchange Act of 1934,
as in effect on December 1, 1990, which is traded on a national
securities exchange or the NASDAQ System or any other system then in
use.
(iv) For purposes of this Article TENTH, all references to
the term Interested Stockholder in the definition of Disinterested
Director shall be deemed to refer to the term Interested Person.
ELEVENTH:
A. Each person who was or is made a party or is threatened to be
made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a
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director or an officer of the Corporation or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such 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), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith; provided, however, that, except as provided in Section C
hereof with respect to proceedings to enforce rights toindemnification,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. The right to indemnification conferred in Section A of this
Article shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the
Delaware General Corporation Law requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which
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there is no further right to appeal (hereinafter a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise. 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, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article is not paid in
full by the Corporation within sixty 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 twenty 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, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall also be entitled to be paid the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not
met any applicable standard for indemnification set forth in the Delaware
General Corporation Law. 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 Delaware
General Corporation Law, 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
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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. 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 Certificate of Incorporation, By-laws, agreement, vote of
stockholders or disinterested directors or otherwise.
E. 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 Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Corporation or any
person who is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, including, without
limitation, any Subsidiary (as defined in Article EIGHTH herein) of the
Corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, to the fullest extent of the
provisions of this Article with respect to the indemnification and advancement
of expenses of directors and officers of the Corporation.
TWELFTH: A director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
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stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended 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 Delaware
General Corporation Law, 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 of the Corporation existing at the time of such repeal
or modification.
THIRTEENTH: No amendment, addition, alteration, change, or repeal
of any provision of this Certificate of Incorporation shall be made, unless
such is first proposed by the Board of Directors of the Corporation, upon the
affirmative vote of at least two-thirds of the directors then in office at a
duly constituted meeting of the Board of Directors called expressly for such
purposes, and thereafter approved by the stockholders by a majority of the
total votes eligible to be cast at a duly constituted meeting of stockholders
called expressly for such purposes; provided, however, that, notwithstanding
any other provision of this Certificate of Incorporation 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 this Certificate of Incorporation, 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 FOURTH), voting together as a single class, shall be
required to amend or repeal this Article THIRTEENTH, clauses C.1, 2 and 3 of
Article FOURTH, clauses (c) or (d) of Article FIFTH, Article SIXTH, Article
SEVENTH, Article EIGHTH, Article TENTH or Article ELEVENTH.
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IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been signed by Jerry L. Kirby, its authorized officer this
4TH day of October, 1996
CITFED BANCORP, INC.
By: Jerry L. Kirby
---------------------------------------
Jerry L. Kirby, Chairman of the Board,
President and Chief Executive Officer
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