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FIRST AMENDMENT TO THE BYLAWS
OF CHARTER ONE FINANCIAL, INC.
Effective as of April 24, 1997, the Charter One Financial, Inc. Bylaws were
amended as follows:
Article III, Section 18(a) is deleted in its entirety, and is replaced with the
following:
The Board of Directors of the Corporation shall be fixed at 15
directors (the "Initial Directors"). For a period of four years following
the Company Merger Effective Time, Charles J. Koch and Jerome L.
Schostack shall serve as the Chairman and Vice Chairman, respectively, of
the Board of Directors of Charter as the Surviving Corporation.
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BYLAWS
OF
CHARTER ONE FINANCIAL, INC.
(A Delaware Corporation)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of Charter One
Financial, Inc. (hereinafter referred to as the "Corporation") within the
State of Delaware is Corporation Trust Center No. 1209 Orange Street, City
of Wilmington, County of New Castle, and the name of the registered agent
at that address in charge thereof is The Corporation Trust Company.
SECTION 2. Other Offices. The Corporation may also have offices at
such other places, either within or without the State of Delaware, as the
Board of Directors may from time to time designate or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
stated in the notice of meeting or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders,
commencing with fiscal year 1988, shall be held on the first Wednesday of
May in each fiscal year, if not a legal holiday, and if a legal holiday,
then on the next succeeding day not a legal holiday, at 2:00 P.M., or at
such other date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of meeting or in a duly
executed waiver thereof. At such annual meeting, the stockholders shall
elect a Board of Directors and transact such other business as may properly
be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of stockholders may only
be called as provided in Article NINTH of the Certificate of Incorporation.
SECTION 4. Notice of Meetings. Except as otherwise expressly required
by statute, written notice of each
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annual and special meeting of stockholders stating the place, date and hour
of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each
stockholder of record entitled to vote thereat not less than ten (10) nor
more than sixty (60) days before the date of the meeting. Notice shall be
given personally or by mail and, if by mail, shall be sent in a postage
prepaid envelope, addressed to the stockholder at his address as it appears
on the records of the Corporation. Notice by mail shall be deemed given at
the time when the same shall be deposited in the United States mail,
postage prepaid. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when such person attends the
meeting in person or by proxy for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened, or who, either before or after
the meeting, shall submit a signed written waiver of notice, in person or
by proxy. Neither the business to be transacted at, nor the purpose of, an
annual or special meeting of stockholders need be specified in any written
waiver of notice.
SECTION 5. Stockholders List. The officer who has charge of the stock
transfer books of the Corporation shall prepare and make, in the time and
manner required by applicable law, a list of stockholders entitled to vote
and shall make such list available for such purposes, at such places, at
such times and to such persons as required by applicable law. The stock
transfer books shall be the only evidence as to the identity of the
stockholders entitled to examine the stock transfer books or to vote in
person or by proxy at any meeting of stockholders.
SECTION 6. Quorum, Adjournments. The holders of a majority of the
voting power of the issued and outstanding stock of the Corporation
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum for the transaction of business at all meetings of
stockholders, except as otherwise provided by statute or by Article SIXTH
of the Certificate of Incorporation. The stockholders entitled to vote and
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal
of enough stockholders entitled to vote to leave less than a quorum then
present and represented. Any stockholders' meeting, annual or special,
whether or not a quorum is present or represented, may be adjourned from
time to time by the vote of the holders of a majority of the stock entitled
to vote thereat, the holders of which are either present in person or
represented by proxy, but
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in the absence of a quorum no other business may be transacted at such
meeting. At any adjourned meeting, at which a quorum should be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified, except for such business
as was duly transacted at any earlier meeting. If the adjournment is for
more than thirty (30) days, or if after adjournment a new record date is
set, a notice of the adjourned meeting shall be given as in the case of an
original meeting to each stockholder of record entitled to vote at the
meeting.
SECTION 7. Organization. At each meeting of stockholders, the Chairman
of the Board or, in his absence or if one shall not have been elected, the
President or such other person as the Board of Directors may have
designated shall call to order any meeting of the stockholders and act as
chairman of the meeting. The Secretary or, in his absence or inability to
act, the person whom the chairman of the meeting shall appoint secretary of
the meeting shall act as secretary of the meeting and keep the minutes
thereof.
SECTION 8. Order of Business. The order of business and the procedure
at all meetings of the stockholders shall be as determined by the chairman
of the meeting, unless otherwise prescribed by law or regulation.
SECTION 9. Voting. Except as otherwise provided by statute or the
Certificate of Incorporation, each stockholder of the Corporation shall be
entitled at each meeting of stockholders to one vote for each share of
capital stock of the Corporation standing in his name on the record of
stockholders of the Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these Bylaws as the record date for the determination of
the stockholders who shall be entitled to notice of and to vote at
such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of
business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders may
authorize another person or persons to act for him by a proxy signed by
such stockholder or his attorney-in-fact, but no proxy shall be voted after
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years from its date, unless the proxy provides for a longer period. Any
such proxy shall be delivered to the secretary of the meeting at or prior
to the time designated in the order of business for so delivering such
proxies. When a quorum is present at any meeting, the vote of the holders
of a majority of the voting power of the issued and outstanding stock of
the Corporation entitled to vote thereon (after giving effect, if
applicable, to the provisions of Article SIXTH of the Certificate of
Incorporation), present in person or represented by proxy, shall decide any
question brought before such meeting, unless the question is one upon which
by express provision of statute or of the Certificate of Incorporation or
of these Bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. On a vote
by ballot, each ballot shall be signed by the stockholder voting, or by his
proxy, if there be such proxy, and shall state the number of shares voted.
SECTION 10. New Business. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be
acted upon as shall have been brought before the annual meeting (a) by, or
at the direction of, the majority of the Board of Directors, including a
majority of the Continuing Directors, or (b) by any stockholder of the
Corporation who complies with the notice procedures set forth in this
Section 10. For a proposal to be properly brought before an annual meeting
by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to, or mailed and received at, the principal
executive offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days prior to the scheduled annual meeting, regardless of
any postponements, deferrals or adjournments of that meeting to a later
date; provided, however, that if less than seventy (70) days' notice or
prior public disclosure of the date of the scheduled annual meeting is
given or made, notice by the stockholder, to be timely, must be so
delivered or received not later than the close of business on the tenth
(10th) day following the earlier of the day on which such notice of the
date of the scheduled annual meeting was mailed or the day on which such
public disclosure was made. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the stockholder proposing such
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business and any other stockholder who is the record or Beneficial Owner of
any equity security of the Corporation known by such stockholder to be
supporting such proposal, (c) the class and number of shares of the
Corporation's equity securities which are Beneficially Owned and owned of
record by the stockholder giving the notice on the date of such stockholder
notice and by any other record or Beneficial Owners of the Corporation's
equity securities known by such stockholder to be supporting such proposal
on the date of such stockholder notice, and (d) any financial or other
interest of the stockholder in such proposal.
A majority of the Continuing Directors may reject any stockholder
proposal not timely made in accordance with the terms of this Section 10.
If a majority of the Continuing Directors determines that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 10 in any material respect, the Secretary of
the Corporation shall promptly notify such stockholder of the deficiency in
the notice. The stockholder shall have an opportunity to cure the
deficiency by providing additional information to the Secretary within such
period of time, not to exceed five days from the date such deficiency
notice is given to the stockholder, as the majority of the Continuing
Directors shall reasonably determine. If the deficiency is not cured within
such period, or if the majority of the Continuing Directors determines that
the additional information provided by the stockholder, together with
information previously provided, does not satisfy the requirements of this
Section 10 in any material respect, then a majority of the Continuing
Directors may reject such stockholder's proposal. The Secretary of the
Corporation shall notify a stockholder in writing whether his proposal has
been made in accordance with the time and information requirements of this
Section 10. Notwithstanding the procedures set forth in this paragraph, if
the majority of the Continuing Directors does not make a determination as
to the validity of any stockholder proposal, the presiding officer of the
annual meeting shall determine and declare at the annual meeting whether
the stockholder proposal was made in accordance with the terms of this
Section 10. If the presiding officer determines that a stockholder proposal
was not made in accordance with the terms of this Section 10, he shall so
declare at the annual meeting and any such proposal shall not be acted upon
at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports,
no new
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business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
SECTION 11. Inspectors. The Board of Directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed
shall fail to appear or act, the chairman of the meeting shall, or if
inspectors shall not have been appointed, the chairman of the meeting may,
appoint one or more inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors shall determine the
number of shares of capital stock of the Corporation outstanding and the
voting power of each, the number of shares represented at the meeting, the
existence of a quorum, the authenticity, validity and effect of proxies,
and shall receive votes or ballots, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate
all votes or ballots, determine the results, and do such acts as are proper
to conduct the election or vote with fairness to all stockholders. If more
than one inspector has been appointed, the decision, act or certificate of
a majority of the inspectors is effective in all respects as the decision,
act or certificate of all of the inspectors. On request of the chairman of
the meeting, the inspectors shall make a report in writing of any
challenge, request or matter determined by them and shall execute a
certificate of any fact found by them. No director or candidate for the
office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
SECTION 12. Action by Consent. As provided in the Certificate of
Incorporation, the stockholders of the Corporation shall not be entitled to
take action by written consent in lieu of taking such action at an annual
or special meeting of stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors,
except as provided in the Certificate of Incorporation and these Bylaws.
The Board of Directors may exercise all such authority and powers of the
Corporation and do all such lawful acts and things as are not by statute or
the Certificate of
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Incorporation directed or required to be exercised or done by the
Continuing Directors or the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. The
number of directors constituting the initial Board of Directors shall be
sixteen. Thereafter, the number of directors may be fixed, from time to
time, pursuant to a resolution adopted by the affirmative vote of a
majority of the Continuing Directors, as that term is defined in Article
FIFTH of the Certificate of Incorporation. The election of directors, the
division of directors into separate classes and the terms of directors,
shall be provided in Article SEVENTH of the Certificate of Incorporation.
SECTION 3. Nominations of Directors. Nominations of candidates for
election as directors at any annual meeting of stockholder may be made (i)
by, or at the direction of, a majority of the Board of Directors, including
a majority of the Continuing Directors or (ii) by any stockholder of record
entitled to vote at such annual meeting. Only persons nominated in
accordance with procedures set forth in this Section 3 shall be eligible
for election as directors at an annual meeting.
Nominations, other than those made by, or at the direction of, a
majority of the Board of Directors, including a majority of the Continuing
Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. To be timely,
a stockholder's notice shall be delivered to, or mailed and received at,
the principal executive offices of the Corporation not less than sixty (60)
days nor more than ninety (90) days prior to the date of the date of the
scheduled annual meeting, regardless of postponements, deferrals, or
adjournments of that meeting to a later date; provided, however, that if
less than seventy (70) days' notice or prior public disclosure of the date
of the scheduled annual meeting is given or made, notice by the stockholder
to be timely must be so delivered or received not later than the close of
business on the tenth (10th) day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the
day on which such public disclosure was made. Such stockholder's notice
shall set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (a) the name, age, business address and
residence address of such person, (b) the principal occupation or
employment of such person, (c) the class and number of shares of the
Corporation's equity securities which are Beneficially Owned by such person
on the date of such stockholder notice and (d) any other information
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relating to such person that would be required to be disclosed pursuant to
Regulation 13D under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in connection with the acquisition of shares, and pursuant
to Regulation 14A under the Exchange Act, in connection with the
solicitation of proxies with respect to nominees for election as directors,
regardless of whether such person is subject to the provisions of such
regulations, including, but not limited to, information required to be
disclosed by Items 4(b) and 6 of Schedule A of Regulation 14A and
information which would be required to be filed on Schedule B of Regulation
14A with the Securities and Exchange Commission (as such Items and
Schedules are in effect on the date hereof and such additional information
required by those provisions or successor provisions adopted after the date
hereof); and (ii) as to the stockholder giving the notice (a) the name and
address, as they appear on the Corporation's books, of such stockholder and
any other stockholder who is a record or Beneficial Owner of any equity
securities of the Corporation and who is known by such stockholder to be
supporting such nominee(s) and (b) the class and number of shares of the
Corporation's equity securities which are Beneficially Owned and owned of
record by such stockholder on the date of such stockholder notice and the
number of shares of the Corporation's equity securities Beneficially Owned
and owned of record by any Person known by such stockholder to be
supporting such nominee(s) on the date of such stockholder notice. At the
request of a majority of the Board of Directors, including a majority of
the Continuing Directors, any person nominated by, or at the direction of,
the Board of Directors for election as a director at an annual meeting
shall furnish to the Secretary of the Corporation that information required
to be set forth in a stockholder's notice of nomination which pertains to
the nominee. Ballots bearing the names of all the persons who have been
nominated for election as directors at an annual meeting in accordance with
the procedures set forth in this Section 3 shall be provided for use at the
annual meeting.
A majority of the Continuing Directors may reject any nomination by a
stockholder not timely made in accordance with the requirements of this
Section 3. If a majority of the Continuing Directors determines that the
information provided in a stockholder's notice does not satisfy the
informational requirements of this Section 3 in any material respect, the
Secretary of the Corporation shall promptly notify such stockholder of the
deficiency in the notice. The stockholder shall have an opportunity to cure
the deficiency by providing additional information to the Secretary within
such period of time, not to exceed five (5) days, from the date such
deficiency notice is given to
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the stockholder, as a majority of the Continuing Directors shall reasonably
determine. If the deficiency is not cured within such period, or if a
majority of the Continuing Directors reasonably determines that the
additional information provided by the stockholder, together with the
information previously provided, does not satisfy the requirements of this
Section 3 in any material respect, then a majority of the Continuing
Directors may reject such stockholder's nomination. The Secretary of the
Corporation shall notify a stockholder in writing whether his nomination
has been made in accordance with the time and informational requirements of
this Section 3. Notwithstanding the procedure set forth in this Section 3,
if the majority of the Continuing Directors does not make a determination
as to the validity of any nominations by a stockholder, the presiding
officer of the annual meeting shall determine and declare at the annual
meeting whether a nomination was not made in accordance with the terms of
this Section 3. If the presiding officer determines that a nomination was
not made in accordance with the terms of this Section 3, he shall so
declare at the annual meeting and the defective nomination shall be
disregarded.
SECTION 4. Place of Meetings. Meetings of the Board of Directors shall
be held at such place or places, within or without the State of Delaware,
as the Board of Directors may from time to time determine or as shall be
specified in the notice of any such meeting.
SECTION 5. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of
the other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual
meeting shall be held. Notice of such meeting need not be given. In the
event such annual meeting is not so held, the annual meeting of the Board
of Directors may be held at such other time or place, within or without the
State of Delaware, as shall be specified in a notice thereof given as
hereinafter provided in Section 8 of this ARTICLE III.
SECTION 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors
may fix. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by statute or
these Bylaws.
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SECTION 7. Special Meetings. Special meetings of the Board of
Directors may be called by (i) the Chairman of the Board, (ii) the
President or (iii) by the Secretary on the written request of a majority of
the members of the Board of Directors, including a majority of the
Continuing Directors.
SECTION 8. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 8, in which notice shall be stated the time and place of the
meeting. Except as otherwise required by these Bylaws, such notice need not
state the purpose or purposes of such meeting. Notice of each such meeting
shall be mailed, postage prepaid, to each director, addressed to him at his
residence or usual place of business, by first class mail, at least four
(4) days before the time of the meeting, or shall be sent addressed to him
at such place by telegraph, cable, telex, telecopier or other similar
means, or be delivered to him personally or be given to him by telephone or
other similar means, at least twelve (12) hours before the time of the
meeting. Notice of any such meeting need not be given to any director who
shall, either before or after the meeting, submit a signed waiver of notice
or who shall attend such meeting, except when he shall attend for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 9. Quorum and Manner of Acting. At all meetings of the Board
of Directors, one-third (1/3) of the total number of directors, including
at least a majority of the Continuing Directors then in office shall be
necessary and sufficient to constitute a quorum for the transaction of
business, and, except as otherwise expressly required by statute or the
Certificate of Incorporation or these Bylaws, the act of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum at any meeting of
the Board of Directors, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of the time and
place of any such adjourned meeting shall be given to all of the directors
unless such time and place were announced at the meeting at which the
adjournment was taken, in which case such notice shall only be given to the
directors who were not present thereat. At any adjourned meeting at which a
quorum is present, any business may be transacted which might have been
transacted at the meeting as originally
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called. The directors shall act only as a Board and the individual
directors shall have no power as such.
SECTION 10. Resignations. Any director of the Corporation may resign
at any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if
the time when it shall become effective shall not be specified therein,
immediately upon its tender. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. Newly Created Directorships and Vacancies. Any vacancies
on the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office, an increase in the number of
authorized directors, or other cause shall be filled as provided in Article
SEVENTH of the Certificate of Incorporation.
SECTION 12. Removal of Directors. A director may be removed only as
provided in Article SEVENTH of the Certificate of Incorporation.
SECTION 13. Compensation. Each director shall receive such fees and
other compensation, along with reimbursement of expenses incurred on behalf
of the Corporation or in connection with attendance at meetings, as the
Board of Directors may from time to time determine. No such payment of fees
or other compensation shall preclude any director from serving the
Corporation in any other capacity and receiving fees and compensation for
such services.
SECTION 14. Committees. Unless restricted by the Certificate of
Incorporation, the Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, including a majority of the
Continuing Directors, designate one or more committees, including an
executive committee, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Except to
the extent restricted by statute or the Certificate of Incorporation, each
such committee, to the extent provided in the resolution creating it, shall
have and may exercise all the powers and authority of the Board of Director
and may authorize the seal of the Corporation to be affixed to all papers
which require it. Each such committee shall serve at the pleasure of the
Board of Directors and have such name as may be determined from time
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to time by resolution adopted by the Board of Directors. Each committee
shall keep regular minutes of its meetings and report the same to the Board
of Directors. Members of either standing or special committees shall
receive such fees and other compensation, along with reimbursement of
expenses incurred on behalf of the Corporation or in connection with
attendance of meetings, as the Board of Directors may from time to time
determine. No such payment of fees or compensation shall preclude any
member of a committee from serving the corporation in any other capacity
and receiving fees and compensation for such services.
SECTION 15. Action by Consent. Any action required or permitted to be
taken by the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of the proceedings of the Board of
Directors or such committee, as the case may be.
SECTION 16. Telephonic Meeting. Any one or more members of the Board
of Directors or any committee of the Board of Directors may participate in
a meeting of the Board of Directors or such committee by means of a
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation
by such means shall constitute presence in person at a meeting.
SECTION 17. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors at which action is taken
shall be presumed to have assented to the action taken unless his dissent
or abstention shall be entered in the minutes of the meeting or unless he
shall file a written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the Secretary of the Corporation within
five days after the date a copy of the minutes of the meeting is received.
Such right to dissent shall not apply to a director who voted in favor of
such action.
SECTION 18. Directors, Executive Officers and Committees. In
accordance with Section 6.4 of the Agreement and Plan of Merger by and
between the Corporation and FirstFed Michigan Corporation, dated May 30,
1995 (the "Agreement"), the following provisions shall govern directors,
executive officers and committees to the exclusion of any provision in
these bylaws to the contrary.
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Terms capitalized but not otherwise defined in this Section shall have the
meaning given to them in the Agreement.
(a) At the Company Merger Effective Time, the Board of Directors of
Charter as the Surviving Corporation shall be fixed at either 16 directors,
if the shareholders of Charter at the Charter Stockholders Meeting approve
the amendment to Article Seventh of Charter's Restated Certificate of
Incorporation increasing the maximum number of directors to 16 persons by
the requisite vote, or 14 directors, if such amendment is not approved by
the requisite vote, (the "Initial Directors"), one-half of whom in either
case shall be selected by the Board of Directors of Charter and one-half of
whom shall be selected by the Board of Directors of FirstFed, in each case
prior to the Company Merger Effective Time. As soon as practicable, the
Boards of Directors of Charter and FirstFed shall each select those persons
it is to select who are to serve on the Board of Directors of Charter as
the Surviving Corporation. Thereafter, Charter and FirstFed shall agree as
to the class and term for each of the persons so selected as a director (it
being the intention that to the greatest extent practicable, the Charter
and FirstFed directors shall serve in equal number in each of the Surviving
Corporation's three classes of directors). Charter and its Board of
Directors shall take all necessary corporate action prior to the Company
Merger Effective Time to effectuate this agreement of the parties including
the election of the designated persons as directors of Charter as the
Surviving Corporation, effective at the Company Merger Effective Time, for
the agreed upon classes and terms. For a period of four years following the
Company Merger Effective Time, Charles J. Koch and Jerome L. Schostak shall
serve as the Chairman and Vice Chairman, respectively, of the Board of
Directors of Charter as the Surviving Corporation.
(b) It is the intention of Charter and FirstFed, and their respective
Boards of Directors, that until at least the fourth anniversary of the
Company Merger Effective Time, the Board of Directors of Charter as the
Surviving Corporation (and each of the committees thereof other than the
Executive Committee) shall consist of an equal number of persons serving on
or representing the Boards of Directors of Charter and FirstFed,
respectively, prior to the Company Merger Effective Time. In this regard,
if any Initial Director (or successor thereto) does not continue to serve
as a director of the Surviving Corporation for any reason whatsoever during
such four year period (a "Departing Director"), his/her successor will be
the person recommended (i) in the case of a Departing Director who either
was a director of Charter prior to the
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Company Merger Effective Time or was a successor to such a director, by the
remaining directors of Charter as the Surviving Corporation who prior to
the Company Merger Effective Time served as directors of Charter and, if
applicable, any successors to those Charter directors or (ii) in the case
of a Departing Director who either was a director of FirstFed prior to the
Company Merger Effective Time or was a successor to such a director, by the
remaining directors of Charter as the Surviving Corporation who prior to
the Company Merger Effective Time served as directors of FirstFed and, if
applicable, any successors to those FirstFed directors. Charter and the
Surviving Corporation shall take all necessary corporate action, whether
prior or subsequent to the Company Merger Effective Time, to effectuate
this agreement of the parties and, after the Company Merger Effective Time,
Charter's Board of Directors (or committee thereof) will nominate, support
the solicitation of proxies in favor of, and otherwise actively use its
best efforts to secure the election of directors on a basis consistent with
the foregoing.
(c) For a period of four years following the Company Merger Effective
Time, a vote of two-thirds of the entire Board of Directors of the
Surviving Corporation shall be necessary to approve (i) any amendment to
the Restated Certificate of Incorporation or Bylaws of the Surviving
Corporation, (ii) any merger, acquisition, sale of substantially all of its
assets or other extraordinary corporate transaction involving the Surviving
Corporation, Charter Bank or any other significant financial institution
subsidiary of Charter as the Surviving Corporation or (iii) the dismissal
or replacement of any of the executive officers of Charter as the Surviving
Corporation or Charter Bank or other significant financial institution
subsidiary. Charter and the Surviving Corporation shall take all necessary
corporate action, whether prior or subsequent to the Company Merger
Effective Time, to effectuate this agreement of the parties.
Notwithstanding anything to the contrary herein, amendment to the Restated
Certificate of Incorporation or Bylaws of Charter or the Surviving
Corporation specifically provided for or contemplated in this Agreement
shall require the vote of directors as set forth in Charter's Restated
Certificate of Incorporation or Bylaws.
(d) After the Company Merger Effective Time, those persons who served
as directors of either Charter or FirstFed prior to the Company Merger
Effective Time and who do not become the Initial Directors shall serve
(unless such person determines not to serve) as directors emeriti of
Charter as the Surviving Corporation with benefits at
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least as favorable as those currently provided to directors emeriti of
Charter.
(e) For a period of four years following the Company Merger Effective
Time, regularly scheduled meetings of the Board of Directors of Charter as
the Surviving Corporation shall be held such that there shall be equal
numbers of meetings during any such year at sites as selected by the
Initial Directors who were previously directors of Charter (including their
successors) and at sites as selected by the Initial Directors who were
previously directors of FirstFed (including their successors). Charter and
the Surviving Corporation shall take all necessary corporate action,
whether prior or subsequent to the Company Merger Effective Time, to
effectuate this agreement of the parties.
(f) The fees and benefits to be received by the directors of Charter
as the Surviving Corporation shall be no less favorable than those
currently provided for directors of either Charter or FirstFed, whichever
is greater. In addition, the Initial Vice Chairman of the Board of Charter
as the Surviving Corporation shall receive compensation in an amount equal
to one hundred fifteen percent (115%) of the compensation he is currently
receiving as Chairman of FirstFed's executive committees.
(g) The Executive Officers of the Surviving Corporation following the
Company Merger Effective Time shall be: Charles J. Koch - Chairman of the
Board, President and Chief Executive Officer; Richard W. Neu - Senior Vice
President and Treasurer; John D. Koch - Senior Vice President; Mark D.
Grossi - Senior Vice President; and Robert J. Vana - Chief Corporate
Counsel and Secretary.
(h) For a period of at least four years following the Company Merger
Effective Time, the Board of Directors of Charter as the Surviving
Corporation shall have a five person Executive Committee and such other
committees as the Board shall establish in accordance with Section 141 of
the DGCL, Charter's Certificate of Incorporation and the Bylaws. The five
members of the Executive Committee effective at the Company Merger
Effective Time shall be Messrs. Charles J. Koch (who shall be the Chairman
of the Executive Committee), Jerome L. Schostak, John D. Koch, Mark D.
Grossi and Richard W. Neu and they shall each serve for a period of four
years from the Company Merger Effective Time. The Executive Committee shall
not have such power or authority as is specifically excluded to it pursuant
to Section 141 of the DGCL. The Executive Committee shall act by majority
vote to carry out the policies, plans, practices and directions previously
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approved by the Board of Directors (or those approved by eighty percent
(80%) of the members of the Executive Committee) and to otherwise enable
Charter, as the Surviving Corporation, to conduct its business in the
normal and regular course consistent with Charter's then current policies,
plans, practices and directions. All other determinations by the Executive
Committee shall require the affirmative vote of eighty percent (80%) of its
members. Prior to the Company Merger Effective Time, Charter and FirstFed
shall reasonably agree as to the initial members of each other committee of
the Board of Directors of Charter as the Surviving Corporation. Each of
such committees (other than the Executive Committee) shall have an even
number of members, and at the Company Merger Effective Time and for four
years thereafter, one-half of the members of each such other committee
shall consist of directors who served as directors of Charter prior to the
Company Merger Effective Time (or their successors) and the other half
shall consist of directors who served as directors of FirstFed prior to the
Company Merger Effective Time (or their successors).
(i) Notwithstanding anything to the contrary, none of the persons who
serve as directors of FirstFed shall be subject to an age restriction
relating to service as a director of the Corporation.
(j) This section shall expire on the fourth anniversary of the Company
Merger Effective Time.
ARTICLE IV
OFFICERS
SECTION 1. Number and Qualifications. The officers of the Corporation
shall be elected annually by the Board of Directors at the first meeting of
the Board held after each annual meeting of stockholders, or as soon
thereafter as possible, and shall include the President, one or more Vice
Presidents, the Secretary and the Treasurer. If the Board of Directors
wishes, it may also elect as an officer of the Corporation a Chairman of
the Board and may elect other officers (including one or more Assistant
Treasurers and one or more Assistant Secretaries) as may be necessary or
desirable for the business of the Corporation. Any two or more offices may
be held by the same person, and no officer except the Chairman of the Board
and the President need be a director. Each officer shall hold office until
his successor shall have been duly elected and qualified, or until his
death, resignation or removal, as hereinafter provided in these Bylaws. A
vacancy in any office because of death, resignation, removal,
disqualification or
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otherwise, shall be filled only by a majority vote of the Board of
Directors for the unexpired portion of the term.
SECTION 2. Resignations. Any officer of the Corporation may resign at
any time by giving written notice of his resignation to the Corporation.
Any such resignation shall take effect at the time specified therein or, if
the time when it shall become effective shall not be specified therein,
immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it
effective.
SECTION 3. Removal. Any officer of the Corporation may be removed,
either with or without cause, at any time, by the Board of Directors at any
meeting thereof, but such removal, other than for cause (as defined in any
contract between the officer and the Corporation), shall be without
prejudice to the contract rights, if any, of the person so removed.
SECTION 4. Chairman of the Board. The Chairman of the Board, if one
shall have been elected, shall be a member of the Board, may be the chief
executive officer of the Corporation and, if present, shall preside at each
meeting of the Board of Directors or the stockholders. He shall advise and
counsel with the President, and in his absence with other executives of the
Corporation, and shall perform such other duties as may from time to time
be assigned to him by the Board of Directors.
SECTION 5. The President. The President may be the chief executive
officer of the Corporation. He shall, in the absence of the Chairman of the
Board or if a Chairman of the Board shall not have been elected, preside at
each meeting of the Board of Directors or the stockholders. He shall
perform all duties incident to the office of President and chief executive
officer and such other duties as may from time to time be assigned to him
by the Board of Directors.
SECTION 6. Vice President. Each Vice President shall perform all such
duties as from time to time may be assigned to him by the Board of
Directors or the President. At the request of the President or in his
absence or in the event of his inability or refusal to act, the Vice
President, or if there shall be more than one, the Vice Presidents in the
order determined by the Board of Directors (or if there be no such
determination, then the Vice Presidents in the order of their election),
shall perform the duties of the President, and, when so acting, shall have
the powers of and be subject to the restrictions
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placed upon the President in respect of the performance of such duties.
SECTION 7. Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for, all the
funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the
Corporation in such depositaries as may be designated by the Board of
Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 8. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board of Directors,
the committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law;
(c) be custodian of the records and the seal of the Corporation
and affix and attest the seal to all certificates for shares of the
Corporation (unless the seal of the Corporation on such certificates
shall be a facsimile, as hereinafter provided) and affix and
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attest the seal to all other documents to be executed on behalf of the
Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him by the Board of Directors.
SECTION 9. The Assistant Treasurer. The Assistant Treasurer, or if
there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the
Treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Treasurer and shall perform such
other duties as from time to time may be assigned by the Board of
Directors.
SECTION 10. The Assistant Secretary. The Assistant Secretary, or if
there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors (or if there be no such determination, then in
the order of their election), shall, in the absence of the Secretary or in
the event of his inability or refusal to act, perform the duties and
exercise the powers of the Secretary and shall perform such other duties as
from time to time may be assigned by the Board of Directors.
SECTION 11. Officers' Bonds or Other Security. If required by the
Board of Directors, any officer of the Corporation shall give a bond or
other security for the faithful performance of his duties, in such amount
and with such surety as the Board of Directors may require.
SECTION 12. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors. An officer of the Corporation shall not be
prevented from receiving compensation by reason of the fact that he is also
a director of the Corporation.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate
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signed by, or in the name of the Corporation by, the Chairman of the Board
or the President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation. If the
Corporation shall be authorized to issue more than one class of stock or
more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restriction
of such preferences and/or rights shall be set forth in full or summarized
on the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, provided that, except as otherwise
provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the Corporation shall issue to
represent such class or series of stock, a statement that the Corporation
will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights.
SECTION 2. Facsimile Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been
lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to give the Corporation a bond in such sum as it may direct
sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
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SECTION 4. Transfers of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its records; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful
restriction on transfer, including, without limitation, the restrictions on
transfer set forth in Article FIFTH of the Certificate of Incorporation.
Whenever any transfer of stock shall be made for collateral security, and
not absolutely, it shall be so expressed in the entry of transfer if, when
the certificates are presented to the Corporation for transfer, both the
transferor and the transferee request the Corporation to do so. Persons
whose stock is pledged shall be entitled to vote, unless in the transfer by
the pledgor on the books of the Corporation he has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent such stock and vote thereon.
SECTION 5. Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
SECTION 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Bylaws, as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the Corporation.
SECTION 7. Fixing the Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, a majority
of the Board of Directors, including a majority of the Continuing
Directors, may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
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SECTION 8. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as
the owner of shares of stock to receive dividends and to vote as such
owner, shall be entitled to hold liable for calls and assessments a person
registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such
share or shares of stock on the party of any other person, whether or not
its shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. Dividends. Subject to the provisions of statute and the
Certificate of Incorporation, dividends upon the shares of capital stock of
the Corporation may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property or in shares of
stock of the Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
SECTION 2. Seal. The seal of the Corporation shall be in such form as
shall be approved by the Board of Directors.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed, and once fixed, may thereafter be changed, by resolution of the
Board of Directors. The Corporation shall be subject to an annual audit as
of the end of its fiscal year by independent public accountants appointed
by and responsible to the Board of Directors. The appointment of such
accountants shall be subject to annual ratification by the stockholders.
SECTION 4. Checks, Notes, Drafts, Etc. All checks, notes, drafts or
other orders for the payment of money of the Corporation shall be signed,
endorsed or accepted in the name of the Corporation by such officer,
officers, person or persons as from time to time may be designated by the
Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.
SECTION 5. Execution of Contracts, Deeds, Etc. The Board of Directors
may authorize any officer or officers, agent or agents, in the name and on
behalf of the Corporation to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other
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obligations or instruments, and such authority may be general or confined
to specific instances.
SECTION 6. Voting of Stock in Other Corporations. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board
or the President, from time to time, may (or may appoint one or more
attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a stockholder or otherwise in any other corporation,
any of whose shares or securities may be held by the Corporation, at
meetings of the holders of the shares or other securities of such other
corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board or the President may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent. The Chairman of the Board or the President may, or may instruct
the attorneys or agents appointed to, execute or cause to be executed in
the name and on behalf of the Corporation and under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be
necessary or proper in the circumstances.
ARTICLE VII
DEFINITIONS
Capitalized terms in these Bylaws, not otherwise defined in these
Bylaws, have the meanings assigned to them in the Certificate of
Incorporation.
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended or repealed or new bylaws adopted as
provided in Article FIFTEENTH of the Certificate of Incorporation.
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