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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
HCB BANCSHARES, INC.
TO THE SECRETARY OF STATE OF THE STATE OF OKLAHOMA:
ARTICLE I
NAME
The name of the corporation is HCB Bancshares, Inc. (herein, the
"Corporation").
ARTICLE II
REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Oklahoma is 735 First National Building, Oklahoma City, Oklahoma 73102. The
name of the Corporation's registered agent at such address is CT Corporation
System.
ARTICLE III
POWERS
The nature of the business and the purpose of the Corporation shall be
to engage in any lawful act or activity for which a savings institution holding
company or bank holding company may be organized under the laws of the State of
Oklahoma and applicable federal laws. The Corporation shall have all the
powers of a corporation organized under the Oklahoma General Corporation Act,
provided however, the Corporation shall not have the authority to engage in a
general banking business pursuant to Title 6 of the Oklahoma Statutes.
ARTICLE IV
TERM
The Corporation is to have perpetual existence.
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator are as follows:
Name Mailing Address
---- ---------------
Vida H. Lampkin 237 Jackson Street
Camden, Arkansas 71701-0878
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ARTICLE VI
INITIAL DIRECTORS
The number of directors constituting the initial board of directors of
the Corporation is seven, and the names and mailing addresses of the persons
who are to serve as directors until their successors are elected and qualified,
together with the classes of directorships to which such persons have been
assigned, are:
Name Address Class
---- ------- -----
Roy Wayne Moseley 237 Jackson Street I
Camden, Arkansas 71701
Carl E. Parker, Jr. 237 Jackson Street I
Camden, Arkansas 71701
Vida H. Lampkin 237 Jackson Street II
Camden, Arkansas 71701
Clifford Steelman 237 Jackson Street II
Camden, Arkansas 71701
Cameron D. McKeel 237 Jackson Street III
Camden, Arkansas 71701
Bruce D. Murry 237 Jackson Street III
Camden, Arkansas 71701
Lula Sue Silliman 237 Jackson Street III
Camden, Arkansas 71701
ARTICLE VII
CAPITAL STOCK
The aggregate number of shares of all classes of capital stock which
the Corporation has authority to issue is 25,000,000 of which 20,000,000 are to
be shares of common stock, $.01 par value per share, and of which 5,000,000 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 VII or the rules of a national securities
exchange or association, 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:
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A. Common Stock. Except as provided in this Certificate, 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 holders.
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 of the Corporation.
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.
B. Serial Preferred Stock. Except as provided in this Certificate 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 serial preferred stock in 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 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, 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 powers, 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 funds;
(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 of 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; and
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(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.
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.
ARTICLE VIII
PREEMPTIVE RIGHTS
Holders of the capital stock of the Corporation shall not be entitled
to preemptive rights with respect to any shares or other securities of the
Corporation which may be issued or any securities convertible into any such
shares, including, without limitation, warrants, subscription rights and
options to acquire shares.
ARTICLE IX
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 X
MEETINGS OF SHAREHOLDERS; CUMULATIVE VOTING
A. Notwithstanding any other provision of this Certificate or the
bylaws of the Corporation, no action required to be taken or which 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.
B. Special meetings of the shareholders of the Corporation for any
purpose or purposes may be called at any time by the board of directors of the
Corporation, or by a committee of the board of directors which has been duly
designated by the board of directors and whose powers and authorities, as
provided in a resolution of the board of directors or in the bylaws of the
Corporation, include the power and authority to call such meetings, but such
special meetings may not be called by any other person or persons.
C. There shall be no cumulative voting by shareholders of any class
or series in the election of directors of the Corporation.
D. Meetings of shareholders may be held within or without the State
of Oklahoma, as the bylaws may provide.
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ARTICLE XI
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 or she shall give notice thereof in writing, delivered or mailed
by first class United States mail, postage prepaid, to the Secretary of the
Corporation not less than 30 days nor more than 60 days prior to any such
meeting; provided, however, that if less than 40 days' notice of the meeting is
given to shareholders, such written notice shall be delivered or mailed, as
prescribed, to the Secretary of the Corporation not later than the close of the
tenth 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 (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
and (iii) the number of shares of stock of the Corporation which are
beneficially owned by each such nominee. 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 bring 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 this Certificate to the contrary, no business shall
be conducted at the meeting except in accordance with the procedures set forth
in this Article XI.
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 adjourned, special or annual meeting of the shareholders taking
place thirty 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 XII
DIRECTORS
A. Number; Vacancies. The number of directors of the Corporation
shall be such number, not less than five nor more than 15 (exclusive of
directors, if any, to be elected by holders of preferred stock of the
Corporation, voting separately as a class), as shall be provided from time to
time in or in accordance with the bylaws, provided that no decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director, and provided further that no action shall be taken to
decrease or increase the number of directors from time to time unless at least
two-thirds of the directors then in office shall concur in said action.
Vacancies in the board of directors of the Corporation, however caused, and
newly created directorships shall be filled by a vote of two-thirds 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 and qualified.
B. Classified Board. The board of directors of the Corporation shall
be divided into three classes of directors which shall be designated Class I,
Class II and Class III. The members of each class shall be elected for a term
of three years and until their successors are elected and qualified. 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
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of office of all members of one class expiring each year. When the number of
directors is changed, the board of directors shall determine the class or
classes to which the increased or decreased number of directors shall be
apportioned; provided that the directors in each class shall be as nearly equal
in number as possible; provided, further, that no decrease in the number of
directors shall affect the term of any director then in office. At the first
annual meeting of shareholders, directors of Class I shall be elected to hold
office for a term expiring at the third succeeding annual meeting thereafter.
At the second annual meeting of shareholders, directors of Class II shall be
elected to hold office for a term expiring at the third succeeding annual
meeting thereafter. At the third annual meeting of shareholders, directors of
Class III shall be elected to hold office for a term expiring at the third
succeeding annual meeting thereafter. Thereafter, at each succeeding annual
meeting, directors of each class shall be elected for three year terms.
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 XII. Notwithstanding the foregoing, and except as
otherwise may be required by law, 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 XIII
REMOVAL OF DIRECTORS
Notwithstanding any other provision of this Certificate or the bylaws
of the Corporation, any director or the entire board of directors of the
Corporation may be removed at any time, but only for cause and only by the
affirmative vote of the holders of at least 80% 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. 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 XIII
shall not apply with respect to the director or directors elected by such
holders of preferred stock.
ARTICLE XIV
ACQUISITION OF CAPITAL STOCK
A. Five-Year Prohibition. For a period of five years from the
effective date of the completion of the conversion of Heartland Community Bank,
Camden, Arkansas, from mutual to stock form (which entity shall become a wholly
owned subsidiary of the Corporation upon such conversion), no person shall
directly or indirectly offer to acquire or acquire the beneficial ownership of
more than 10% of any class of equity security of the Corporation, unless such
offer or acquisition shall have been approved in advance by a two-thirds vote
of the Continuing Directors, as defined in Article XV. In addition, for a
period of five years from the completion of the conversion
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of Heartland Community Bank from mutual to stock form (which entity shall
become a wholly owned subsidiary of the Corporation upon such conversion), and
notwithstanding any provision to the contrary in this Certificate or in the
bylaws of the Corporation, where any person directly or indirectly acquires
beneficial ownership of more than 10% of any class of equity security of the
Corporation in violation of this Article XIV, the securities beneficially owned
in excess of 10% shall not be counted as shares entitled to vote, shall not be
voted by any person or counted as voting shares in connection with any matter
submitted to the stockholders for a vote, and shall not be counted as
outstanding for purposes of determining a quorum or the affirmative vote
necessary to approve any matter submitted to the stockholders for a vote.
B. Prohibition After Five Years. If, at any time after five
years from the effective date of the completion of the conversion of Heartland
Community Bank from mutual to stock form (which entity shall become a wholly
owned subsidiary of the Corporation upon such conversion), any person shall
acquire the beneficial ownership of more than 10% of any class of equity
security of the Corporation without the prior approval by a two-thirds vote of
the Continuing Directors, as defined in Article XV hereof, then the record
holders of voting stock of the Corporation beneficially owned by such acquiring
person shall have only the voting rights set forth in this paragraph B on any
matter requiring the vote or consent of shareholders. With respect to each
vote in excess of 10% of the voting power of the outstanding shares of voting
stock of the Corporation which such record holders would otherwise be entitled
to cast without giving effect to this paragraph B, such record holders in the
aggregate shall be entitled to cast only one-hundredth (1/100) of a vote, and
the aggregate voting power of such record holders, so limited, for all shares
of voting stock of the Corporation beneficially owned by such acquiring person
shall be allocated proportionately among such record holders. For each such
record holder, this allocation shall be accomplished by multiplying the
aggregate voting power as so limited, of the outstanding shares of voting stock
of the Corporation beneficially owned by such acquiring person by a fraction
whose numerator is the number of votes represented by the shares of voting
stock of the Corporation owned of record by such record holder (and which are
beneficially owned by the acquiring person) and whose denominator is the total
number of votes represented by the shares of voting stock of the Corporation
that are beneficially owned by such acquiring person. A person who is a record
owner of shares of voting stock of the Corporation that are beneficially owned
simultaneously by more than one person shall have, with respect to such shares,
the right to cast the least number of votes that such person would be entitled
to cast under this paragraph B by virtue of such shares being so beneficially
owned by any of such acquiring persons.
C. Definitions. The term "person" means 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 acting in concert formed for the purpose of
acquiring, holding, or disposing of securities of the Corporation. The term
"acquire" includes every type of acquisition, whether effected by purchase,
exchange, operation of law or otherwise. The term "offer" includes every offer
to buy or otherwise acquire, solicitation of an offer to sell, tender offer
for, or request for invitation for tenders of, a security or interest in a
security for value. The term "acting in concert" includes (a) knowing
participation in a joint activity or conscious parallel action towards a common
goal whether or not pursuant to an express agreement, and (b) a combination or
pooling of voting or other interest in the Corporation's outstanding shares for
a common purpose, pursuant to any contract, understanding, relationship,
agreement or other arrangement, whether written or otherwise. The term
"beneficial ownership" shall have the meaning defined in Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on the date of filing this Certificate.
D. Exclusion for Employee Benefit Plans, Directors, Officer, Employee
and Certain Proxies. The restrictions contained in this Article XIV shall not
apply to (i) any underwriter or member of an underwriting or selling group
involving a public sale or resale of securities of the Corporation or a
subsidiary thereof; provided, however, that upon completion of the sale or
resale of such securities, no such underwriter or member of such selling group
is a beneficial owner of more than 10% of any class of equity security of the
Corporation, (ii) any proxy granted to one or more Continuing Directors, as
defined in Article XV hereof, by a shareholder of the Corporation or (iii) any
employee benefit plans of the Corporation or a subsidiary thereof. In
addition, the Continuing Directors, as defined in Article XV hereof, the
officers and employees of the Corporation and its subsidiaries, the directors
of subsidiaries of the Corporation, the employee benefit plans of the
Corporation and its subsidiaries, entities organized or established by the
Corporation or any subsidiary thereof pursuant to the terms of such plans and
trustees and
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fiduciaries with respect to such plans acting in such capacity shall not be
deemed to be a group with respect to their beneficial ownership of voting stock
of the Corporation solely by virtue of their being directors, officers or
employees of the Corporation or a subsidiary thereof or by virtue of the
Continuing Directors, as defined in Article XV hereof, the officers and
employees of the Corporation and its subsidiaries and the directors of
subsidiaries of the Corporation being fiduciaries or beneficiaries of an
employee benefit plan of the Corporation or a subsidiary of the Corporation.
Notwithstanding the foregoing, no director, officer or employee of the
Corporation or any of its subsidiaries or group of any of them shall be exempt
from the provisions of this Article XIV should any such person or group become
a beneficial owner of more than 10% of any class of equity security of the
Corporation.
E. Determinations. A majority of the Continuing Directors, as
defined in Article XV hereof, shall have the power to construe and apply the
provisions of this Article XIV and to make all determinations necessary or
desirable to implement such provisions, including but not limited to matters
with respect to (a) the number of shares beneficially owned by any person, (b)
whether a person has an agreement, arrangement, or understanding with another
as to the matters referred to in the definition of beneficial ownership, (c)
the application of any other definition or operative provision of this Article
XIV to the given facts, or (d) any other matter relating to the applicability
or effect of this Article XIV. Any constructions, applications, or
determinations made by the Continuing Directors, as defined in Article XV
hereof, pursuant to this Article XIV 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 shareholders.
F. Applicability of Sections 1145 through 1155 of Oklahoma General
Corporation Act. In addition to paragraphs A, B, C and D of this Article XIV,
the provisions of Sections 1145 through 1155 of the Oklahoma General
Corporation Act, as in effect on the date of this Certificate of Incorporation
or as hereafter amended, shall apply to the Corporation as of and after January
1, 1997, except to the extent expressly resolved in advance with respect to any
control share acquisition (as defined in Section 1146) by two-thirds of the
Continuing Directors (as hereinafter defined).
ARTICLE XV
APPROVAL OF CERTAIN BUSINESS COMBINATIONS
A. (1) The shareholder vote required to approve Business
Combinations (as hereinafter defined) shall be as set forth in this
paragraph, except to the extent otherwise required by applicable law.
Except as otherwise expressly provided in this Article XV, the
affirmative vote of the holders of (i) at least 80% of the outstanding
shares entitled to vote thereon (and, if any class or series of shares
is entitled to vote thereon separately, the affirmative vote of the
holders of at least 80% of the outstanding shares of each such class
or series), and (ii) at least a majority of the outstanding shares
entitled to vote thereon, not including shares deemed beneficially
owned by a Related Person (as hereinafter defined), shall be required
in order to authorize any of the following:
(a) any merger or consolidation of the
Corporation with or into a Related Person (as hereinafter
defined);
(b) any sale, lease, exchange, transfer or other
disposition, including without limitation, a mortgage, or any
other capital device, of all or any Substantial Part (as
hereinafter defined) of the assets of the Corporation
(including without limitation any voting securities of a
subsidiary) or of a subsidiary, to a Related Person;
(c) any merger or consolidation of a Related
Person with or into the Corporation or a subsidiary of the
Corporation;
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(d) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a
Related Person to the Corporation or a subsidiary of the
Corporation;
(e) the issuance of any securities of the
Corporation or a subsidiary of the Corporation to a Related
Person;
(f) the acquisition by the Corporation or a
subsidiary of the Corporation of any securities of a Related
Person;
(g) any reclassification of the common stock of
the Corporation, or any recapitalization involving the common
stock of the Corporation; and
(h) any agreement, contract or other arrangement
providing for any of the transactions described in this
Article.
(2) Such affirmative vote shall be required notwithstanding
any other provision of this Certificate, any provision of law, or any
agreement with any regulatory agency or national securities exchange
which might otherwise permit a lesser vote or no vote.
(3) The term "Business Combination" as used in paragraph A of
this Article XV shall mean any transaction which is referred to in any
one or more of subparagraphs A(1)(a) through (h) above.
B. For the purposes of paragraph A of this Article XV the following
definitions apply:
(1) The term "Related Person" shall mean and include (a) any
individual, corporation, partnership or other person or entity which
together with its "affiliates" (as that term is defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act
of 1934), "beneficially owns" (as that term is defined in Rule 13d-3
of the General Rules and Regulations under the Securities Exchange Act
of 1934) in the aggregate 10% or more of the outstanding shares of the
common stock of the Corporation; and (b) any "affiliate" (as that term
is defined in Rule 12b-2 under the Securities Exchange Act of 1934) of
any such individual, corporation, partnership or other person or
entity. Without limitation, any shares of the common stock of the
Corporation which any Related Person has the right to acquire pursuant
to any agreement, or upon exercise or conversion rights, warrants or
options, or otherwise, shall be deemed "beneficially owned" by such
Related Person.
(2) The term "Substantial Part" shall mean more than 25
percent of the total assets of the Corporation, as of the end of its
most recent fiscal year ending prior to the time the determination is
made.
(3) The term "Continuing Director" shall mean any member of
the board of directors of the Corporation who is unaffiliated with the
Related Person and was a member of the board prior to the time that
the Related Person became a Related Person, and any successor of a
Continuing Director who is unaffiliated with the Related Person and is
recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the board.
(4) The term "Continuing Director Quorum" shall mean
two-thirds of the Continuing Directors capable of exercising the
powers conferred on them.
C. In addition to Sections A and B of this Article XV, the
provisions of Section 1090.3 of the Oklahoma General Corporation Act, as in
effect on the date of this Certificate of Incorporation or as hereafter
amended, shall apply to the Corporation, except to the extent otherwise
required by applicable law.
D. The provisions of paragraphs A, B and C shall not be applicable to
any particular transaction or arrangement, and such transaction or arrangement
shall require only such affirmative vote as is required by any other provision
of this Certificate, any provision of law or any agreement with any regulatory
agency or national securities
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exchange, if the transaction or arrangement shall have been approved by
two-thirds of the Continuing Directors (as hereinafter defined); provided,
however, that such approval shall only be effective if obtained at a meeting at
which a Continuing Director Quorum (as hereinafter defined) is present.
ARTICLE XVI
EVALUATION OF BUSINESS COMBINATIONS
In connection with the exercise of its judgment in determining what is
in the best interests of the Corporation and of the shareholders, when
evaluating a Business Combination (as defined in Article XV) or a tender or
exchange offer, or similar transaction or arrangement, the board of directors
of the Corporation may, in addition to considering the adequacy of the amount
to be paid in connection with any such transaction, consider all of the
following factors and any other factors which it deems relevant; (i) the social
and economic effects of the transaction on the Corporation and its
subsidiaries, employees, depositors, loan and other customers, creditors and
other elements of the communities in which the Corporation and its subsidiaries
operate or are located; (ii) the business and financial condition and earnings
prospects of the acquiring person or entity, including, but not limited to,
debt service and other existing financial obligations, financial obligations to
be incurred in connection with the acquisition and other likely financial
obligations of the acquiring person or entity and the possible effect of such
conditions upon the Corporation and its subsidiaries and the other elements of
the communities in which the Corporation and its subsidiaries operate or are
located; and (iii) the competence, experience, and integrity of the acquiring
person or entity and its or their management.
ARTICLE XVII
INDEMNIFICATION
A. Persons. The Corporation shall indemnify the persons named below
as provided in this Article XVII and to the full extent permitted under
applicable law:
(1) any person who is or was a director, officer, employee,
or agent of the Corporation; and
(2) any person who serves or served at the Corporation's
request as a director, officer, employee, agent, partner or trustee of
another corporation, partnership, joint venture, trust or other
enterprise.
B. Extent. In case of a threatened, pending or completed suit,
action, proceeding or other matter (whether civil, criminal, administrative or
investigative) (together hereafter referred to as a suit) against a person
named in paragraph A by reason of his holding a position named in paragraph A,
the Corporation shall indemnify him if he satisfies the standard in paragraph
C, for all amounts actually and reasonably incurred by him in connection with
the defense or settlement of the suit, including, but not limited to (i)
expenses (including attorneys' fees), (ii) amounts paid in settlement, (iii)
judgments and (iv) fines.
C. Standard. In case of a suit, a person named in paragraph A shall
be indemnified only if:
(1) he is successful on the merits or otherwise; or
(2) he acted in good faith in the transaction which is the
subject of the suit and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, including,
but not limited to, the taking of any and all actions in connection
with the Corporation's response to any tender offer or any offer or
proposal of another party to engage in a Business Combination (as
defined in Article XV) not approved by the board of directors. The
termination of a suit by judgment, order, settlement, or conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person failed to satisfy the
standard of this subparagraph E(2).
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D. Determination That Standard Has Been Met. A determination that
the standard of paragraph C has been satisfied may be made by a court. Or, the
determination may be made by:
(1) the board of directors by a majority vote of a quorum
consisting of directors of the Corporation who were not parties to the
action, suit or proceeding; or
(2) independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum)
in a written opinion; or
(3) the shareholders of the Corporation.
E. Proration. Anyone making a determination under paragraph D may
determine that a person has met the standard as to some matters but not as to
others, and may reasonably prorate amounts to be indemnified.
F. Advance Payment. The Corporation shall pay in advance any
expenses (including attorneys' fees) which may become subject to
indemnification under paragraphs A through E if:
(1) the board of directors authorizes the specific payment;
and
(2) the person receiving the payment undertakes in writing to
repay the same if it is ultimately determined that he is not entitled
to indemnification by the Corporation under paragraphs A through E.
G. Nonexclusive. The indemnification and advance payment of expenses
provided by paragraphs A through F shall not be exclusive of any other rights
to which a person may be entitled by law, bylaw, agreement or vote of
shareholders or disinterested directors, or otherwise.
H. Continuation. The indemnification provided by this Article XVII
shall be deemed to be a contract between the Corporation and the persons
entitled to indemnification thereunder, and any repeal or modification of this
Article XVII shall not affect any rights or obligations then existing with
respect to any state of facts then or theretofore existing or any action, suit
or proceeding theretofore or thereafter brought based in whole or in part upon
any such state of facts. The indemnification and advance payment provided by
paragraphs A through F shall continue as to a person who has ceased to hold a
position named in paragraph A and shall inure to his heirs, executors and
administrators.
I. Insurance. The Corporation may purchase and maintain insurance on
behalf of any person who holds or who has held any position named in paragraph
A, against any liability incurred by him in any such position, or arising out
of his status as such, whether or not the Corporation would have power to
indemnify him against such liability under paragraphs A through F.
J. Savings Clause. If this Article XVII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation or person who serves or served at the Corporation's
request as a director, officer, employee, agent, partner or trustee of another
corporation, partnership, joint venture, trust or other enterprise as to costs,
charges, and expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement with respect to any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, including an action
by or in the right of the Corporation to the full extent permitted by any
applicable portion of this Article XVII that shall not have been invalidated
and to the full extent permitted by applicable law.
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ARTICLE XVIII
LIMITATIONS ON 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) under Section 1053 or of the Oklahoma General
Corporation Act; or (iv) for any transaction from which the director derived an
improper personal benefit. If the Oklahoma General Corporation Act is amended
after the date of filing of this Certificate to permit further elimination or
limitation of 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 Oklahoma General Corporation Act, as so amended.
Any repeal or modification of the foregoing paragraph 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 XIX
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 a majority of the board of directors. Notwithstanding any other provision
of this Certificate or the bylaws of the Corporation (and notwithstanding the
fact that some lesser percentage may be specified by law), the bylaws shall not
be adopted, repealed, altered, amended or rescinded by the shareholders of the
Corporation except by the affirmative vote of the holders of not less than 80%
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), or, as set forth above,
by the board of directors.
ARTICLE XX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to repeal, alter, amend or rescind
any provision contained in this Certificate 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 X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX and this
Article XX may not be 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% 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 adoption, repeal, alteration, amendment
or rescission is included in the notice of such meeting), except, with the
prior approval of a majority of the Continuing Directors, as defined in Article
XV, the provisions set forth in Article XIV may be repealed, altered, amended
or rescinded with the approval of 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 cast at a meeting of the
shareholders called for that purpose.
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THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Oklahoma General Corporation
Act, does make this Certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly has
hereunto set my hand this 19th day of December 1996.
/s/ Vida H. Lampkin
---------------------------------
Vida H. Lampkin
Incorporator
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