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, or his or her delegate.
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
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express agreement, or (b) a combination or pooling of voting or other interests
in the 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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