EXHIBIT 3.1
FEDERAL MHC SUBSIDIARY HOLDING COMPANY CHARTER
ATLANTIC COAST FEDERAL CORPORATION
SECTION 1. CORPORATE TITLE. The full corporate title of the MHC
subsidiary holding company is "Atlantic Coast Federal Corporation."
SECTION 2. DOMICILE. The domicile of the MHC subsidiary holding company
shall be in the City of Waycross, in the State of Georgia.
SECTION 3. DURATION. The duration of the MHC subsidiary holding company
is perpetual.
SECTION 4. PURPOSE AND POWERS. The purpose of the MHC subsidiary holding
company is to pursue any or all of the lawful objectives of a federal mutual
holding company chartered under section 10(o) of the Home Owners' Loan Act, 12
U.S.C. 1467a(o), and to exercise all of the express, implied, and incidental
powers conferred thereby and by all acts amendatory thereof and supplemental
thereto, subject to the Constitution and laws of the United States as they are
now in effect, or as they may hereafter be amended, and subject to all lawful
and applicable rules, regulations, and orders of the Office of Thrift
Supervision ("Office").
SECTION 5. CAPITAL STOCK. The total number of shares of all classes of
the capital stock which the MHC subsidiary holding company has the authority to
issue is 20,000,000, of which 18,000,000 shall be common stock of par value of
$.01 per share, and of which 2,000,000 shall be serial preferred stock of par
value $.01 per share. The shares may be issued from time to time as authorized
by the board of directors without further approval of stockholders, except as
otherwise provided in this Section 5 or to the extent that such approval is
required by governing law, rule or regulation. The consideration for the
issuance of the shares shall be paid in full before their issuance and shall not
be less than the par value. Neither promissory notes nor future services shall
constitute payment or part payment for the issuance of shares of the MHC
subsidiary holding company. The consideration for the shares shall be cash,
tangible or intangible property (to the extent direct investment in such
property would be permitted), labor, or services actually performed for the MHC
subsidiary holding company or any combination of the foregoing. In the absence
of actual fraud in the transaction, the value of such property, labor, or
services, as determined by the board of directors of the MHC subsidiary holding
company, shall be conclusive. Upon payment of such consideration, such shares
shall be deemed to be fully paid and nonassessable. In the case of a stock
dividend, that part of the surplus of the MHC subsidiary holding company which
is transferred to stated capital upon the issuance of shares as a share dividend
shall be deemed to be the consideration for their issuance.
Except for shares issued in connection with the initial organization of
the MHC subsidiary holding company, no shares of capital stock (including shares
issuable upon conversion, exchange, or exercise of other securities) shall be
issued, directly or indirectly, to officers, directors, or controlling persons
(except for shares issued to the parent mutual holding company) of the MHC
subsidiary holding company other than as part of a general public offering or as
qualifying shares to a director, unless their issuance or the plan under which
they would be issued has been approved by a majority of the total votes eligible
to be cast at a legal meeting.
Nothing contained in this Section 5 (or in any supplementary sections
hereto) shall entitle the holders of any class or a series of capital stock to
vote as a separate class or series or to more than one vote per share, and there
shall be no right to cumulate votes in an election of directors: Provided, that
this restriction on voting separately by class or series shall not apply:
(i) To any provision which would authorize the holders of preferred
stock, voting as a class or series, to elect some members of the
board of directors, less than a majority thereof, in the event
of default in the payment of dividends on any class or series of
preferred stock;
(ii) To any provision which would require the holders of preferred
stock, voting as a class or series, to approve the merger or
consolidation of the MHC subsidiary holding company with another
corporation or the sale, lease, or conveyance (other than by
mortgage or pledge) of properties or business in exchange for
securities of a corporation other than the MHC subsidiary
holding company if the preferred stock is exchanged for
securities of such other corporation: PROVIDED, That no
provision may require such approval for transactions undertaken
with the assistance or pursuant to the direction of the Office
or the Federal Deposit Insurance Corporation;
(iii) To any amendment which would adversely change the specific terms
of any class or series of capital stock as set forth in this
Section 5 (or in any supplementary sections hereto), including
any amendment which would create or enlarge any class or series
ranking prior thereto in rights and preferences. An amendment
which increases the number of authorized shares of any class or
series of capital stock, or substitutes the surviving MHC
subsidiary holding company in a merger or consolidation for the
MHC subsidiary holding company, shall not be considered to be
such an adverse change.
A description of the different classes and series (if any) of the MHC
subsidiary holding company's capital stock and a statement of the designations,
and the relative rights, preferences, and limitations of the shares of each
class and series (if any) of capital stock are as follows:
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A. COMMON STOCK. Except as provided in this Section 5 (or in any
supplementary sections thereto) the holders of the common stock shall
exclusively possess all voting power. Each holder of shares of common stock
shall be entitled to one vote for each share held by such holder.
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 of sinking fund, retirement fund, or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock and on any class or
series of stock entitled to participate therewith as to dividends out of any
assets legally available for the payment of dividends.
In the event of any liquidation, dissolution, or winding up of the MHC
subsidiary holding company, the holders of the common stock (and the holders of
any class or series of stock entitled to participate with the common stock in
the distribution of assets) shall be entitled to receive, in cash or in kind,
the assets of the MHC subsidiary holding company available for distribution
remaining after: (i) Payment or provision for payment of the MHC subsidiary
holding company's debts and liabilities; (ii) distributions or provision for
distributions in settlement of its liquidation account; and (iii) distributions
or provisions for distributions to holders of any class or series of stock
having preference over the common stock in the liquidation, dissolution, or
winding up of the MHC subsidiary holding company. Each share of common stock
shall have the same relative rights as and be identical in all respects with all
the other shares of common stock.
B. PREFERRED STOCK. The MHC subsidiary holding company may provide
in supplementary sections to its charter for one or more classes of preferred
stock, which shall be separately identified. The shares of any class may be
divided into and issued in series, with each series separately designated so as
to distinguish the shares thereof from the shares of all other series and
classes. The terms of each series shall be set forth in a supplementary section
to the charter. All shares of the same class shall be identical except as to the
following relative rights and preferences, as to which there may be variations
between different series:
(a) The distinctive serial designation and the number of shares
constituting such series;
(b) The dividend rate or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative
and, if so, from which date(s), the payment date(s) for
dividends, and the participating or other special rights, if
any, with respect to dividends;
(c) The voting powers, full or limited, if any, of shares of such
series;
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(d) Whether the shares of such series shall be redeemable and, if
so, the price(s) at which, and the terms and conditions on which
such shares may be redeemed;
(e) The amount(s) payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution, or
winding up of the MHC subsidiary holding company;
(f) Whether the shares of such series shall be entitled to the
benefit of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and if so entitled, the
amount of such fund and the manner of its application, including
the price(s) at which such shares may be redeemed or purchased
through the application of such fund;
(g) Whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes of stock
of the MHC subsidiary holding company and, if so, the conversion
price(s), or the rate(s) of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be
made, and any other terms and conditions of such conversion or
exchange;
(h) The price or other consideration for which the shares of such
series shall be issued; and
(i) Whether the shares of such series which are redeemed or
converted shall have the status of authorized but unissued
shares of serial preferred stock and whether such shares may be
reissued as shares of the same or any other series of serial
preferred stock.
Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in all respects with all the other shares of
the same series.
The board of directors shall have authority to divide, by the adoption
of supplementary charter sections, any authorized class of preferred stock into
series, and, within the limitations set forth in this section and the remainder
of this charter, fix and determine the relative rights and preferences of the
shares of any series so established.
Prior to the issuance of any preferred shares of a series established by
a supplementary charter section adopted by the board of directors, the MHC
subsidiary holding company shall file with the Secretary to the Office a dated
copy of that supplementary section of this charter established and designating
the series and fixing and determining the relative rights and preferences
thereof.
SECTION 6. PREEMPTIVE RIGHTS. Holders of the capital stock of the MHC
subsidiary holding company shall not be entitled to preemptive rights with
respect to any shares of the MHC subsidiary holding company which may be issued.
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SECTION 7. DIRECTORS. The MHC subsidiary holding company shall be under
the direction of a board of directors. The authorized number of directors, as
stated in the MHC subsidiary holding company's bylaws, shall not be fewer than
five nor more than fifteen except when a greater number is approved by the
Director of the Office.
SECTION 8. CERTAIN PROVISIONS APPLICABLE FOR FIVE YEARS. Notwithstanding
anything contained in the MHC subsidiary holding company's charter or bylaws to
the contrary, for a period of five years from completion of the MHC subsidiary
holding company's stock offering, the following provisions shall apply:
A. BENEFICIAL OWNERSHIP LIMITATION. No person other than Atlantic
Coast Federal, MHC, the holding company of the MHC subsidiary holding company,
shall directly or indirectly offer to acquire or acquire the beneficial
ownership of more than 10% of any class of an equity security of the MHC
subsidiary holding company. This limitation shall not apply to a transaction in
which the MHC subsidiary holding company forms a holding company without change
in the respective beneficial ownership interests of its stockholders other than
pursuant to the exercise of any dissenter and appraisal rights, the purchase of
shares by underwriters in connection with a public offering, or the purchase of
shares by a tax-qualified employee stock benefit plan which is exempt from the
approval requirements under ss. 574.3(c)(1)(vi) of the Office's regulations.
In the event shares are acquired in violation of this Section 8, all
shares beneficially owned by any person in excess of 10% shall be considered
"excess shares" and shall not be counted as shares entitled to vote and shall
not be voted by any person or counted as voting shares in connection with any
matters submitted to the stockholders for a vote.
For purposes of this Section 8, the following definitions apply:
(1) The term "person" includes an individual, a group acting in
concert, a corporation, a partnership, an association, a joint stock company, a
trust, an unincorporated organization or similar company, a syndicate or any
other group formed for the purpose of acquiring, holding or disposing of the
equity securities of the MHC subsidiary holding company.
(2) The term "offer" includes every offer to buy or otherwise
acquire, solicitation of an offer to sell, tender offer for, or request or
invitation for tenders of, a security or interest in a security for value.
(3) The term "acquire" includes every type of acquisition, whether
effected by purchase, exchange, operation of law or otherwise.
(4) The term "acting in concert" means (a) knowing participation in
a joint activity or conscious parallel action towards a common goal whether or
not pursuant to an express agreement, or (b) a combination or pooling of voting
or other interests in the
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securities of an issuer for a common purpose pursuant to any contract,
understanding, relationship, agreement or other arrangements, whether written or
otherwise.
B. Call for special meetings. Special meetings of stockholders
relating to changes in control of the MHC subsidiary holding company or
amendments to its charter shall be called only upon direction of the board of
directors.
SECTION 9. AMENDMENT OF CHARTER. Except as provided in Section 5, no
amendment, addition, alteration, change or repeal of this charter shall be made,
unless such is proposed by the board of directors of the MHC subsidiary holding
company, approved by the shareholders by a majority of the votes eligible to be
cast at a legal meeting, unless a higher vote is otherwise required, and
approved or preapproved by the Office.
ATLANTIC COAST FEDERAL CORPORATION
Attest: ___________________________ By: _______________________________
_____________, Secretary Robert J. Larison,Jr. President
and Chief Executive Officer
DIRECTOR OF THE OFFICE OF THRIFT SUPERVISION
Attest: ___________________________ By: _______________________________
Secretary of the Office of Director of the Office of
Thrift Supervision Thrift Supervision
Effective Date:__________________________
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