Exhibit 3.1
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CERTIFICATE OF INCORPORATION
OF
DIME COMMUNITY BANCSHARES, INC.
UNDER SECTION 102 OF
THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
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TABLE OF CONTENTS
PAGE
ARTICLE I
NAME
ARTICLE II
REGISTERED OFFICE AND AGENT
ARTICLE III
PURPOSE
ARTICLE IV
CAPITAL STOCK
Section 1. Shares, Classes and Series Authorized 1
Section 2. Designations, Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions Relating to the Capital Stock 2
ARTICLE V
LIMITATION ON BENEFICIAL OWNERSHIP OF STOCK
Section 1. Applicability of Article 3
Section 2. Prohibitions Relating to Beneficial Ownership of Voting Stock 4
Section 3. Excess Shares 4
Section 4. Powers of the Board of Directors 4
Section 5. Severability 5
Section 6. Exclusions 5
ARTICLE VI
BOARD OF DIRECTORS
Section 1. Number of Directors 6
Section 2. Classification of Board 6
Section 3. Vacancies 6
i
Section 4. Removal of Directors 6
Section 5. Directors Elected by Preferred Shareholders 7
Section 6. Evaluation of Acquisition Proposals 7
Section 7. Power to Call Special Meeting of Shareholders 7
ARTICLE VII
ACTION BY SHAREHOLDERS WITHOUT A MEETING
ARTICLE VIII
CERTAIN BUSINESS COMBINATIONS
Section 1. Higher Vote Required for Certain Business Combinations 8
Section 2. When Higher Vote is Not Required 8
Section 3. Definitions 11
Section 4. Powers of the Disinterested Directors 15
Section 5. Effect on Fiduciary Obligations of Interested Shareholders 15
Section 6. Amendment, Repeal, Etc 15
ARTICLE IX
LIMITATION OF DIRECTOR LIABILITY
ARTICLE X
INDEMNIFICATION
Section 1. Actions, Suits or Proceedings Other than by or in the Right
of the Corporation 16
Section 2. Actions or Suits by or in the Right of the Corporation 17
Section 3. Indemnification for Costs, Charges and Expenses of a
Successful Party 18
Section 4. Indemnification for Expenses of a Witness 18
Section 5. Determination of Right to Indemnification 18
Section 6. Advancement of Costs, Charges and Ex-penses 19
Section 7. Procedure for Indemnification 19
Section 8. Settlement 20
Section 9. Other Rights; Continuation of Right to Indemnification;
Individual Contracts 20
Section 10. Savings Clause 20
Section 11. Insurance 20
Section 12. Definitions 21
Section 13. Subsequent Amendment and Subsequent Legislation 22
ii
ARTICLE XI
AMENDMENTS
Section 1. Amendments of Certificate of Incorporation 22
Section 2. Amendments of Bylaws 23
ARTICLE XII
NOTICES
iii
CERTIFICATE OF INCORPORATION
OF
DIME COMMUNITY BANCSHARES, INC.
THE UNDERSIGNED, for the purpose of forming a corporation
pursuant to Section 102 of the General Corporation Law of the State of
Delaware, does hereby certify that this Certificate of Incorporation of
Dime Community Bancshares, Inc. was duly adopted in accordance with the
provisions of Section 102 of the General Corporation Law of the State of
Delaware, and further certifies as follows:
ARTICLE I
NAME
The name of the corporation is Dime Community Bancshares, Inc.
(the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL STOCK
Page 2
SECTION 1. SHARES, CLASSES AND SERIES AUTHORIZED. The total
number of shares of all classes of capital stock which the Corporation
shall have authority to issue is fifty-four million (54,000,000) shares,
of which nine million (9,000,000) shares shall be preferred stock, par
value one cent ($.01) per share (the "Preferred Stock"), and forty-five
million ( 45,000,000) shares shall be common stock, par value one cent
($.01) per share (the "Common Stock"). The Preferred Stock and Common
Stock are sometimes hereinafter collectively referred to as the "Capital
Stock."
SECTION 2. DESIGNATIONS, POWERS, PREFERENCES, RIGHTS,
QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS RELATING TO THE CAPITAL
STOCK. The following is a statement of the designations, powers,
preferences and rights in respect of the classes of the Capital Stock,
and the qualifications, limitations or restrictions thereof, and of the
authority with respect thereto expressly vested in the Board of Directors
of the Corporation (the "Board of Directors"):
(a) PREFERRED STOCK. The Preferred Stock may be issued from
time to time in one or more series, the number of shares and any
designation of each series and the powers, preferences and rights of the
shares of each series, and the qualifications, limitations or
restrictions thereof, to be as stated and expressed in a resolution or
resolutions providing for the issue of such series adopted by the Board
of Directors, subject to the limitations prescribed by law. The Board of
Directors in any such resolution or resolutions is expressly authorized
to state for each such series:
(i) the voting powers, if any, of the holders of stock of such
series in addition to any voting rights affirmatively required by
law;
(ii) the rights of shareholders in respect of dividends,
including, without limitation, the rate or rates per annum and the
time or times at which (or the formula or other method pursuant to
which such rate or rates and such time or times may be determined)
and conditions upon which the holders of stock of such series shall
be entitled to receive dividends and other distributions, and
whether any such dividends shall be cumulative or non-cumulative
and, if cumulative, the terms upon which such dividends shall be
cumulative;
(iii) whether the stock of each such series shall be
redeemable by the Corporation at the option of the Corporation or
the holder thereof, and, if redeemable, the terms and conditions
upon which the stock of such series may be redeemed;
(iv) the amount payable and the rights or preferences to which
the holders of the stock of such series shall be entitled upon any
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation;
(v) the terms, if any, upon which shares of stock of such
series shall be
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convertible into, or exchangeable for, shares of stock of any
other class or classes or of any other series of the same or any other
class or classes, including the price or prices or the rate or rates
of conversion or exchange and the terms of adjustment, if any; and
(vi) any other designations, preferences, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, so far as they are not
inconsistent with the provisions of this Certificate of
Incorporation and to the full extent now or hereafter permitted by
the laws of the State of Delaware.
All shares of the Preferred Stock of any one series shall be
identical to each other in all respects, except that shares of any one
series issued at different times may differ as to the dates from which
dividends thereon, if cumulative, shall be cumulative.
Subject to any limitations or restrictions stated in the
resolution or resolutions of the Board of Directors originally fixing the
number of shares constituting a series, the Board of Directors may by
resolution or resolutions likewise adopted increase (but not above the
total number of authorized shares of that class) or decrease (but not
below the number of shares of the series then outstanding) the number of
shares of the series subsequent to the issue of shares of that series;
and in case the number of shares of any series shall be so decreased, the
shares constituting the decrease shall resume that status that they had
prior to the adoption of the resolution originally fixing the number of
shares constituting such series.
(b) COMMON STOCK. All shares of Common Stock shall be
identical to each other in every respect. The shares of Common Stock
shall entitle the holders thereof to one vote for each share on all
matters on which shareholders have the right to vote. The holders of
Common Stock shall not be permitted to cumulate their votes for the
election of directors.
Subject to the preferences, privileges and powers with respect
to each class or series of Preferred Stock having any priority over the
Common Stock, and the qualifications, limitations or restrictions
thereof, the holders of the Common Stock shall have and possess all
rights pertaining to the Capital Stock.
ARTICLE V
LIMITATION ON BENEFICIAL OWNERSHIP OF STOCK
SECTION 1. APPLICABILITY OF ARTICLE. The provisions of this
Article V shall become effective upon (i) the consummation of the
conversion of The Dime Savings Bank of Williamsburgh, a savings bank
organized under the laws of the United States (the "Bank"), from a mutual
to a stock savings bank, and (ii) the concurrent acquisition by the
Corporation of all of the outstanding capital stock of the Bank (the
"Effective Date"). All terms used in this Article V and not otherwise
defined herein shall have the meanings ascribed to such terms in Section
3 of Article VIII, below.
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SECTION 2. PROHIBITIONS RELATING TO BENEFICIAL OWNERSHIP OF
VOTING STOCK. No Person (other than the Corporation, any Subsidiary, or
any pension, profit-sharing, stock bonus or other compensation plan
maintained by the Corporation or by a member of a controlled group of
corporations or trades or businesses of which the Corporation is a member
for the benefit of the employees of the Corporation and/or any
Subsidiary, or any trust or custodial arrangement established in
connection with any such plan) shall directly or indirectly acquire or
hold the beneficial ownership of more than ten percent (10%) of the
issued and outstanding Voting Stock of the Corporation. Any Person so
prohibited who directly or indirectly acquires or holds the beneficial
ownership of more than ten percent (10%) of the issued and outstanding
Voting Stock in violation of this Section 2 shall be subject to the
provisions of Sections 3 and 4 of this Article V, below. The Corporation
is authorized to refuse to recognize a transfer or attempted transfer of
any Voting Stock to any Person who beneficially owns, or who the
Corporation believes would become by virtue of such transfer the
beneficial owner of, more than ten percent (10%) of the Voting Stock.
SECTION 3. EXCESS SHARES. If, notwithstanding the foregoing
prohibition, a Person shall, voluntarily or involuntarily, become or
attempt to become the purported beneficial owner (the "Purported Owner")
of shares of Voting Stock in excess of ten percent (10%) of the issued
and outstanding shares of Voting Stock, the number of shares in excess of
ten percent (10%) shall be deemed to be "Excess Shares," and the holder
thereof shall be entitled to cast one hundredth (1/100) of one vote per
share for each Excess Share.
The restrictions set forth in this Article V shall be noted
conspicuously on all certificates evidencing ownership of Voting Stock.
SECTION 4. POWERS OF THE BOARD OF DIRECTORS.
(a) The Board of Directors may, to the extent permitted by
law, from time to time establish, modify, amend or rescind, by Bylaw or
otherwise, regulations and procedures not inconsistent with the express
provisions of this Article V for the orderly application, administration
and implementation of the provisions of this Article V. Such procedures
and regulations shall be kept on file with the Secretary of the
Corporation and with the Transfer Agent, shall be made available for
inspection by the public and, upon request, shall be mailed to any holder
of Voting Stock of the Corporation.
(b) When it appears that a particular Person has become a
Purported Owner of Excess Shares in violation of Section 2 of this
Article V, or of the rules and regulations of the Board of Directors with
respect to this Article V, and that the provisions of this Article V
require application, interpretation, or construction, then a majority of
the directors of the Corporation shall have the power and duty to
interpret all of the terms and provisions of this Article V, and to
determine on the basis of information known to them after reasonable
inquiry all facts necessary to ascertain compliance with this Article V,
including, without limitation, (i) the number of shares of Voting Stock
beneficially owned by any Person or Purported
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Owner, (ii) whether a Person or Purported Owner is an Affiliate or
Associate of, or is acting in concert with, any other Person or Purported
Owner, (iii) whether a Person or Purported Owner has an agreement,
arrangement or understanding with any other Person or Purported Owner as
to the voting or disposition of any shares of the Voting Stock, (iv)
the application of any other definition or operative provision of this
Article V to the given facts, or (v) any other matter relating to the
applicability or effect of this Article V.
The Board of Directors shall have the right to demand that any
Person who is reasonably believed to be a Purported Owner of Excess
Shares (or who holds of record Voting Stock beneficially owned by any
Person reasonably believed to be a Purported Owner in excess of such
limit) supply the Corporation with complete information as to (i) the
record owner(s) of all shares of Voting Stock beneficially owned by such
Person or Purported Owner and (ii) any other factual matter relating to
the applicability or effect of this Article V as may reasonably be
requested of such Person or Purported Owner.
Any applications, interpretations, constructions or any other
determinations made by the Board of Directors pursuant to this Article V,
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 and neither the
Corporation nor any of its shareholders shall have the right to challenge
any such construction, application or determination.
SECTION 5. SEVERABILITY. In the event any provision (or
portion thereof) of this Article V shall be found to be invalid,
prohibited or unenforceable for any reason, the remaining provisions (or
portions thereof) of this Article V shall remain in full force and
effect, and shall be construed as if such invalid, prohibited or
unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its
shareholders that each such remaining provision (or portion thereof) of
this Article V remain, to the fullest extent permitted by law, applicable
and enforceable as to all shareholders, including Purported Owners, if
any, notwithstanding any such finding.
SECTION 6. EXCLUSIONS. This Article V shall not apply to (a)
any offer or sale with a view towards public resale made exclusively by
the Corporation to any underwriter or underwriters acting on behalf of
the Corporation, or to the selling group acting on such underwriter's or
underwriters' behalf, in connection with a public offering of the Common
Stock; or (b) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction or reorganization that does not have the effect,
directly or indirectly, of changing the beneficial ownership interests of
the Corporation's shareholders, other than pursuant to the exercise of
any dissenters' appraisal rights, except as a result of immaterial
changes due to fractional share adjustments, which changes do not exceed,
in the aggregate, one percent (1%) of the issued and outstanding shares
of such class of equity or convertible securities.
Page 6
ARTICLE VI
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS. The number of directors of
the Corporation shall be as determined only by resolution of the Board of
Directors, but shall not be less than five (5) nor more than fifteen
(15).
SECTION 2. CLASSIFICATION OF BOARD. Subject to the rights of
any holders of any series of Preferred Stock that may be issued by the
Corporation pursuant to a resolution or resolutions of the Board of
Directors providing for such issuance and subject to the provisions
hereof, the directors of the Corporation shall be divided into three
classes with respect to term of office, each class to contain, as near as
may be possible, one-third of the entire number of the Board, with the
terms of office of one class expiring each successive year. One class of
directors shall be initially elected for a term expiring at the annual
meeting of shareholders to be held in 1996, another class shall be
initially elected for a term expiring at the annual meeting of
shareholders to be held in 1997, and another class shall be initially
elected for a term expiring at the annual meeting of shareholders to be
held in 1998. At each annual meeting of shareholders, the successors to
the class of directors (other than directors elected by holders of shares
of one or more series of Preferred Stock) whose term expires at that time
shall be elected by the shareholders to serve until the annual meeting of
shareholders held three years next following and until their successors
shall be elected and qualified.
In the event of any intervening changes in the authorized
number of directors (other than directors elected by holders of shares of
one or more series of Preferred Stock), only the Board of Directors shall
designate the class or classes to which the increases or decreases in
directorships shall be apportioned in order more nearly to achieve
equality of number of directors among the classes; PROVIDED, HOWEVER,
that no such apportionment or redesignation shall shorten the term of any
incumbent director.
Unless and to the extent that the Bylaws so provide, elections
of directors need not be by written ballot.
SECTION 3. VACANCIES. Subject to the limitations prescribed
by law and this Certificate of Incorporation, all vacancies in the office
of director, including vacancies created by newly created directorships
resulting from an increase in the number of directors (subject to the
provisions of Article VI, Section 5 hereof relating to directors elected
by holders of one or more series of Preferred Stock), shall be filled
only by a vote of a majority of the directors then holding office,
whether or not a quorum, and any director so elected shall serve for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until his successor
shall be elected and qualified.
SECTION 4. REMOVAL OF DIRECTORS. Any or all of the directors
(subject to the provisions of Article VI, Section 5 hereof relating to
directors elected by holders of shares of
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one or more series of Preferred Stock) may be removed at any time,
but only for cause, and any such removal shall require the vote, in
addition to any vote required by law, of not less than eighty percent
(80%) of the total votes eligible to be cast by the holders of all
outstanding shares of Capital Stock entitled to vote generally in
the election of directors at a meeting of shareholders expressly
called for that purpose. For purposes of this Section 4, conduct
worthy of removal for "cause" shall include (a) conduct as a director
of the Corporation or any subsidiary of the Corporation, which
conduct involves willful material misconduct, breach of fiduciary duty
involving personal pecuniary gain or gross negligence in the performance
of duties, (b) conduct, whether or not as a director of the Corporation
or a subsidiary of the Corporation, which conduct involves dishonesty or
breach of fiduciary duty and is punishable by imprisonment for a term
exceeding one year under state or federal law or (c) removal of such person
from the Board of Directors of the Bank, if such person is so serving,
in accordance with the Federal Stock Charter and Bylaws of the Bank.
SECTION 5. DIRECTORS ELECTED BY PREFERRED SHAREHOLDERS.
Notwithstanding anything set forth in these Bylaws to the contrary, the
qualifications, term of office and provisions governing vacancies,
removal and other matters pertaining to directors elected by holders of
one or more series of Preferred Stock shall be as set forth in a
resolution or resolutions adopted by the Board of Directors setting forth
the designations, preferences and rights relating to any such series of
Preferred Stock pursuant to Article IV, Section 2 hereof.
SECTION 6. EVALUATION OF ACQUISITION PROPOSALS. The Board of
Directors of the Corporation, when evaluating any offer to the
Corporation or to the shareholders of the Corporation from another party
to (a) purchase for cash, or exchange any securities or property for, any
outstanding equity securities of the Corporation, (b) merge or
consolidate the Corporation with another corporation or (c) purchase or
otherwise acquire all or substantially all of the properties and assets
of the Corporation, shall, in connection with the exercise of its
judgment in determining what is in the best interest of the Corporation
and its shareholders, give due consideration to the extent permitted by
law not only to the price or other consideration being offered, but also
to all other relevant factors including, without limitation, the
financial and managerial resources and future prospects of the other
party, the possible effects on the business of the Corporation and its
subsidiaries and on the employees, customers, suppliers and creditors of
the Corporation and its subsidiaries, and the effects on the communities
in which the Corporation's and its subsidiaries' facilities are located.
SECTION 7. POWER TO CALL SPECIAL MEETING OF SHAREHOLDERS.
Special meetings of shareholders, for any purpose, may be called at any
time only by resolution of at least three-fourths of the Directors of the
Corporation then in office or by the Chairman of the Board. At a special
meeting, no business shall be transacted and no corporate action shall be
taken other than that stated in the notice of meeting prescribed by the
Bylaws of the Corporation.
ARTICLE VII
Page 8
ACTION BY SHAREHOLDERS WITHOUT A MEETING
Except as otherwise provided for or fixed pursuant to the
provisions of Article IV of this Certificate of Incorporation relating to
the rights of holders of any series of Preferred Stock, no action that is
required or permitted to be taken by the shareholders of the Corporation
at any annual or special meeting of shareholders may be effected by
written consent of stockholders in lieu of a meeting of shareholders.
ARTICLE VIII
CERTAIN BUSINESS COMBINATIONS
SECTION 1. HIGHER VOTE REQUIRED FOR CERTAIN BUSINESS
COMBINATIONS. In addition to any affirmative vote required by law, by
this Certificate of Incorporation, or by the provisions of any series of
Preferred Stock that may at the time be outstanding, and except as
otherwise expressly provided for in Section 2 of this Article VIII, any
Business Combination, as hereinafter defined, shall require the
affirmative vote of not less than eighty percent (80%) (to the extent
permitted by law, but in no event less than two-thirds) of the total
number of votes eligible to be cast by the holders of all outstanding
shares of Voting Stock, voting together as a single class (it being
understood that for purposes of this Article VIII each share of the
Voting Stock shall have the number of votes granted to it pursuant to
Article IV and Article V of this Certificate of Incorporation or in any
resolution or resolutions of the Board of Directors for issuance of
shares of Preferred Stock), together (to the extent permitted by law)
with the affirmative vote of at least fifty percent (50%) of the total
number of votes eligible to be cast by the holders of all outstanding
shares of the Voting Stock not beneficially owned by the Interested
Shareholder involved or any Affiliate or Associate thereof, voting
together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
SECTION 2. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions
of Section 1 of this Article VIII shall not be applicable to any
particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law or any other
provision of this Certificate of Incorporation, if the Business
Combination shall have been approved by a majority of the Disinterested
Directors then in office or if all of the conditions specified in the
following subsections (a) through (g) are met:
(a) The aggregate amount of the cash and the Fair Market Value
as of the Consummation Date of consideration other than cash to be
received per share by holders of Common Stock in such Business
Combination shall be at least equal to the higher of the following:
(i) (if applicable) the highest per share price (including any
brokerage
Page 9
commissions, transfer taxes, soliciting dealers' fees,
dealer-management compensation, and other expenses, including, but
not limited to, costs of newspaper advertisements, printing expenses
and attorneys' fees) paid by the Interested Shareholder for any
shares of Common Stock acquired by it (A) within the two year period
immediately prior to the Announcement Date, or (B) in the
transaction in which it became an Interested Shareholder, whichever
is higher, plus interest compounded annually from the Determination
Date through the Consummation Date at the prime rate of interest of
Citibank, N.A. (or other major bank headquartered in New York City
selected by a majority of the Disinterested Directors then in
office) from time to time in effect in New York City, less the
aggregate amount of any cash dividends paid and the Fair Market
Value of any dividends paid, other than in cash, per share of Common
Stock from the Determination Date through the Consummation Date in
an amount up to but not exceeding the amount of such interest
payable per share of Common Stock; or
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value
as of the Consummation Date of consideration other than cash to be
received per share by holders of shares of any class or series of
outstanding Voting Stock, other than Common Stock, in such Business
Combination shall be at least equal to the highest of the following (such
requirement being applicable to each such class or series of outstanding
Voting Stock, whether or not the Interested Shareholder has previously
acquired any shares of such class or series of Voting Stock):
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes, soliciting dealers' fees,
dealer-management compensation, and other expenses, including, but
not limited to, costs of newspaper advertisements, printing expenses
and attorneys' fees) paid by the Interested Shareholder for any
shares of such class or series of Voting Stock acquired by it (A)
within the two year period immediately prior to the Announcement
Date, or (B) in the transaction in which it became an Interested
Shareholder, whichever is higher, plus interest compounded annually
from the Determination Date through the Consummation Date at the
prime rate of interest of Citibank, N.A. (or other major bank
headquartered in New York City selected by a majority of the
Disinterested Directors then in office) from time to time in effect
in New York City, less the aggregate amount of any cash dividends
paid, and the Fair Market Value of any dividends paid other than in
cash, per share of such class or series of Voting Stock from the
Determination Date through the Consummation Date in an amount up to
but not exceeding the amount of such interest payable per share of
such class or series of Voting Stock;
(ii) (if applicable) the highest preferential amount per share
to which the holders of shares of such class or series of Voting
Stock are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation; or
Page 10
(iii) the Fair Market Value per share of such class or series
of Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(c) The consideration to be received by holders of any
particular class or series of outstanding Voting Stock (including Common
Stock) in such Business Combination shall be in cash or in the same form
as the Interested Shareholder has previously paid for shares of such
class or series of Voting Stock. If the Interested Shareholder has paid
for shares of any class or series of Voting Stock with varying forms of
consideration, the form of consideration for such class or series of
Voting Stock in such Business Combination shall be either cash or the
form used to acquire the largest number of shares of such class or series
of Voting Stock previously acquired by it.
(d) The holders of all outstanding shares of Voting Stock not
beneficially owned by the Interested Shareholder immediately prior to the
Consummation Date shall be entitled to receive in such Business
Combination cash or other consideration for their shares in compliance
with subsections (a), (b) and (c) of this Section 2.
(e) After the Determination Date and prior to the Consummation
Date:
(i) except as approved by a majority of the Disinterested
Directors then in office, there shall have been no failure to
declare and pay, or set aside for payment, at the regular date
therefor any full quarterly dividends (whether or not cumulative) on
any outstanding Preferred Stock;
(ii) there shall have been (A) no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to
reflect any subdivision of the Common Stock), except as approved by
a majority of the Disinterested Directors then in office, and (B) an
increase in such annual rate of dividends as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has
the effect of reducing the number of outstanding shares of the
Common Stock, unless the failure so to increase such annual rate is
approved by a majority of the Disinterested Directors then in
office; and
(iii) such Interested Shareholder shall not have become the
beneficial owner of any additional shares of Voting Stock except (a)
as part of the transaction that results in such Interested
Shareholder becoming an Interested Shareholder, (b) as the result of
a stock dividend paid by the Corporation or (c) upon the exercise or
conversion of securities of the Corporation issued pro rata to all
holders of Common Stock which are exercisable for or convertible
into shares of Voting Stock.
(f) After the Determination Date, the Interested Shareholder
shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax credits or other
tax advantages provided by or through the Corporation or an Affiliate of
the Corporation,
Page 11
whether in anticipation of or in connection with such Business
Combination or otherwise.
(g) A proxy or information statement describing the proposed
Business Combination in accordance with the requirements of the
Securities Exchange Act of 1934, as amended, whether or not the
Corporation is then subject to such requirements, and the rules and
regulations thereunder (or any subsequent provisions replacing such Act,
rules or regulations) shall be mailed to shareholders of the Corporation
at least thirty (30) days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
The first page of such proxy or information statement shall prominently
display the recommendation, if any, that a majority of the Disinterested
Directors then in office may choose to make to the holders of Voting
Stock regarding the proposed Business Combination. Such proxy or
information statement shall also contain, if a majority of the
Disinterested Directors then in office so requests, an opinion of a
reputable investment banking firm (which firm shall be engaged solely on
behalf of the shareholders of the Corporation other than the Interested
Shareholder and shall be selected by a majority of the Disinterested
Directors then in office, furnished with all information it reasonably
requests, and paid a reasonable fee for its services by the Corporation
upon the Corporation's receipt of such opinion) as to the fairness (or
lack of fairness) of the terms of the proposed Business Combination from
the point of view of the holders of Voting Stock other than the
Interested Shareholder.
SECTION 3. DEFINITIONS. For purposes of this Article VIII,
the following terms shall have the following meanings:
(a) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, as in
effect on the date of filing by the Secretary of State of the State of
Delaware of this Certificate of Incorporation, whether or not the
Corporation was then subject to such rule.
(b) "Announcement Date" shall mean the date of the first
public announcement of the proposal of the Business Combination.
(c) A Person shall be deemed the "beneficial owner," or to
have "beneficial ownership," of any shares of Voting Stock that:
(i) such Person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(ii) such Person or any or its Affiliates or Associates,
directly or indirectly, has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (but a
Person shall not be deemed to be the beneficial owner of any Voting
Stock solely by reason of an agreement, arrangement or understanding
with the Corporation to effect a
Page 12
Business Combination) or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (B) the
right to vote, or to direct the vote of, pursuant to any agreement,
arrangement or understanding; or
(iii) is beneficially owned, directly or indirectly, by any
other Person with which such first mentioned Person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Voting Stock;
PROVIDED, HOWEVER, that no director or officer of the Corporation (nor
any Affiliate or Associate of any such director or officer) (y) shall,
solely by reason of any or all of such directors or officers acting in
their capacities as such, be deemed, for any purposes hereof, to
beneficially own any Voting Stock of the Corporation beneficially owned
by any other such director or officer (or any Affiliate or Associate
thereof) or (z) shall be deemed to beneficially own any Voting Stock of
the Corporation owned by any pension, profit-sharing, stock bonus or
other compensation plan maintained by the Corporation or by a member of a
controlled group of corporations or trades or businesses of which the
corporation is a member for the benefit of employees of the Corporation
and/or any Subsidiary, or any trust or custodial arrangement established
in connection with any such plan, not specifically allocated to such
Person's personal account.
(d) The term "Business Combination" shall mean any transaction
that is referred to in any one or more of the following paragraphs (i)
through (vi):
(i) any merger or consolidation of the Corporation or any
Subsidiary (other than a merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware) with (A) any
Interested Shareholder, or (B) any other entity (whether or not such
other entity is itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate or Associate of
any Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions)
to or with any Interested Shareholder or any Affiliate or Associate
of any Interested Shareholder of any assets of the Corporation or
any Subsidiary having an aggregate Fair Market Value equal to five
percent (5%) or more of the total assets of the Corporation or the
Subsidiary in question, as of the end of its most recent fiscal year
ending prior to the time the determination is being made; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder other than (A) on a pro rata basis to all holders of
Voting Stock, (B) in connection with the exercise or conversion of
securities issued pro rata that are exer-cisable for, or convertible
into, securities of the Corporation or any Subsidiary of the
Page 13
Corporation or (C) the issuance or transfer of such securities
having an aggregate Fair Market Value equal to less than one percent
(1%) of the aggregate Fair Market Value of all of the outstanding
Capital Stock; or
(iv) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or
any other transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of equity or convertible
securities of the Corporation or any Subsidiary that is directly or
indirectly owned by any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder, except as a result of
immaterial changes due to fractional share adjustments, which
changes do not exceed, in the aggregate, 1% of the issued and
outstanding shares of such class or series of equity or convertible
securities; or
(vi) the acquisition by the Corporation or a Subsidiary of any
securities of an Interested Shareholder or its Affiliates or
Associates.
(e) "Consummation Date" shall mean the date of the
consummation of the Business Combination.
(f) "Determination Date" shall mean the date on which the
Interested Shareholder became an Interested Shareholder.
(g) "Disinterested Director" shall mean any member of the
Board of Directors of the Corporation who is not an Affiliate or
Associate of, or otherwise affiliated with, the Interested Shareholder
and who either was a member of the Board of Directors prior to the
Determination Date, or was recommended for election by a majority of the
Disinterested Directors in office at the time such director was nominated
for election. If there is no Interested Shareholder, each member of the
Board of Directors shall be a Disinterested Director.
(h) "Fair Market Value" shall mean (i) in the case of stock,
the highest closing price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange listed stocks, or, if such stock is not quoted on
the Composite Tape, the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934, as
amended, on which such stock is listed, or, if such stock is not listed
on any such exchange, the highest closing bid quotation with respect to a
share of such stock during the 30-day period preceding the date in
question on the Nasdaq
Page 14
Stock Market or any system then in use, or if no such quotation is
available, the fair market value on the date in question of a
share of such stock as determined in good faith by a majority of the
Disinterested Directors then in office, in each case with respect to any
class of stock, appropriately adjusted for any dividend or distribution in
shares of such stock or any stock split or reclassification of
outstanding shares of such stock into a greater number of shares of
such stock or any combination or reclassification of outstanding shares
of such stock into a smaller number of shares of such stock; and (ii) in
the case of property other than cash or stock, the fair market value of
such property on the date in question as determined in good faith by a
majority of the Disinterested Directors then in office.
(i) References to "highest per share price" shall in each case
with respect to any class of stock reflect an appropriate adjustment for
any dividend or distribution in shares of such stock or any stock split
or reclassification of outstanding shares of such stock into a greater
number of shares of such stock or any combination or reclassification of
outstanding shares of such stock into a smaller number of shares of such
stock.
(j) "Interested Shareholder" shall mean any Person (other than
the Corporation, any Subsidiary, or any pension, profit-sharing, stock
bonus or other compensation or employee benefit plan maintained by the
Corporation or by a member of a controlled group of corporations or
trades or businesses of which the corporation is a member for the benefit
of employees of the Corporation and/or any Subsidiary, or any trust or
custodial arrangement established in connection with any such plan) who
or which:
(i) is the beneficial owner of ten percent (10%) or more of
the Voting Stock; or
(ii) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the date in
question was the beneficial owner of ten percent (10%) or more of
the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
shares of Voting Stock that were at any time within the two-year
period immediately prior to the date in question beneficially owned
by any other Interested Shareholder, if such assignment or
succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the
meaning of the Securities Act of 1933, as amended, and not executed
on any exchange or in the over-the-counter market through a
registered broker or dealer.
In determining whether a Person is an Interested Shareholder pursuant to
this subsection (j), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
subsection (c) of this Section 3 but shall not include any other shares
of Voting Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(k) "Person" shall mean any corporation, partnership, trust,
unincorporated
Page 15
organization or association, syndicate, any other entity or a natural
person, together with any Affiliate or Associate of such person or any
other person acting in concert with such person.
(l) "Subsidiary" shall mean any corporation or entity of which
a majority of any class or series of equity securities is owned, directly
or indirectly, by the Corporation; PROVIDED, HOWEVER, that for the
purposes of the definition of Interested Shareholder set forth in
subsection (j) of this Section 3, the term "Subsidiary" shall mean only a
corporation or entity of which a majority of each class or series of
outstanding voting securities is owned, directly or indirectly, by the
Corporation.
(m) "Voting Stock" shall mean all of the outstanding shares of
Capital Stock entitled to vote generally in the election of directors.
SECTION 4. POWERS OF THE DISINTERESTED DIRECTORS. When it
appears that a particular Person may be an Interested Shareholder and
that the provisions of this Article VIII need to be applied or
interpreted, then a majority of the directors of the Corporation who
would qualify as Disinterested Directors shall have the power and duty to
interpret all of the terms and provisions of this Article VIII, and to
determine on the basis of information known to them after reasonable
inquiry of all facts necessary to ascertain compliance with this Article
VIII, including, without limitation, (a) whether a Person is an
Interested Shareholder, (b) the number of shares of Voting Stock
beneficially owned by any Person, (c) whether a Person is an Affiliate or
Associate of another, (d) the Fair Market Value of (i) the assets that
are the subject of any Business Combination, (ii) the securities to be
issued or transferred by the Corporation or any Subsidiary in any
Business Combination, (iii) the consideration other than cash to be
received by holders of shares of any class or series of Common Stock or
Voting Stock other than Common Stock in any Business Combination, (iv)
the outstanding Capital Stock, or (v) any other item the Fair Market
Value of which requires determination pursuant to this Article VIII, and
(e) whether all of the applicable conditions set forth in Section 2 of
this Article VIII have been met with respect to any Business Combination.
Any constructions, applications, or determinations made by the
Board of Directors or the Disinterested Directors pursuant to this
Article VIII, 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, and
neither the Corporation nor any of its shareholders shall have the right
to challenge any such construction, application or determination.
SECTION 5. EFFECT ON FIDUCIARY OBLIGATIONS OF INTERESTED
SHAREHOLDERS. Nothing contained in this Article VIII shall be construed
to relieve any Interested Shareholder from any fiduciary obligations
imposed by law.
SECTION 6. AMENDMENT, REPEAL, ETC. Notwithstanding any other
provisions of this Certificate of Incorporation or the Bylaws (and
notwithstanding the fact that a lesser per-centage may be specified
by law, this Certificate of Incorporation or the Bylaws of the
Page 16
Corporation), in addition to any affirmative vote required by applicable
law and any voting rights granted to or held by holders of Preferred
Stock, any amendment, alteration, repeal or rescission of any
provision of this Article VIII must also be approved by either (i) a
majority of the Disinterested Directors, or (ii) the affirmative vote
of not less than eighty percent (80%) of the total number of votes eligible
to be cast by the holders of all outstanding shares of the Voting
Stock, voting together as a single class, together with the affirmative
vote of not less than fifty percent (50%) of the total number of votes
eligible to be cast by the holders of all outstanding shares of the
Voting Stock not beneficially owned by any Interested Shareholder or
Affiliate or Associate thereof, voting together as a single class.
ARTICLE IX
LIMITATION OF DIRECTOR 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 to the extent such exemption from
liability or limitation thereof is expressly prohibited by the General
Corporation Law of the State of Delaware as the same exists or may
hereafter be amended.
Any amendment, termination or repeal of this Article IX or any
provisions hereof shall not adversely affect or diminish in any way any
right or protection of a director of the Corporation existing with
respect to any act or omission occurring prior to the time of the final
adoption of such amendment, termination or repeal.
In addition to any requirements of law or of any other
provisions of this Certificate of Incorporation, the affirmative vote of
the holders of not less than eighty percent (80%) of the total number of
votes eligible to be cast by the holders of all outstanding shares of
Capital Stock entitled to vote thereon shall be required to amend, alter,
rescind or repeal any provision of this Article IX.
ARTICLE X
INDEMNIFICATION
SECTION 1. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN
THE RIGHT OF THE CORPORATION. To the fullest extent permitted by the
General Corporation Law of the State of Delaware, the Corporation shall
indemnify any person who is or was or has agreed to become a director or
officer of the Corporation who was or is made a party to or is threatened
to be made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of
the fact that he or she is or was or has agreed to become a director or
officer of the Corporation, or by reason of any action alleged to have
been taken or omitted
Page 17
in such capacity, and the Corporation may indemnify any other person who
is or was or has agreed to become an employee or agent of the
Corporation who was or is made a party to or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact that he
or she is or was or has agreed to become an employee or agent of the
Corporation, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her behalf
in connection with such action, suit or proceeding and any appeal therefrom,
if he or she acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any
action, suit or proceeding 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 did not act in good faith and in
a manner which he or she reasonably believed to be in, or not opposed to,
the best interests of the Corporation and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful. Notwithstanding anything contained in this
Article X, the Corporation shall not be obligated to indemnify any director
or officer in connection with an action, suit or proceeding, or part thereof,
initiated by such person against the Corporation unless such action, suit
or proceeding, or part thereof, was authorized or consented to by the Board
of Directors.
SECTION 2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE
CORPORATION. To the fullest extent permitted by the General Corporation
Law of the State of Delaware, the Corporation shall indemnify any person
who is or was or has agreed to become a director or officer of the
Corporation who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was or has agreed to become a director or officer of
the Corporation, or by reason of any action alleged to have been taken or
omitted in such capacity, and the Corporation may indemnify any other
person who is or was or has agreed to become an employee or agent of the
Corporation who was or is made a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was or has agreed to become an employee or
agent of the Corporation, or by reason of any action alleged to have been
taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or
her or on his or her behalf in connection with the defense or settlement
of such action or suit and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the Corporation, except no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such
liability but in view of all the
Page 18
circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such costs, charges and expenses which the Court of
Chancery or such other court shall deem proper. Notwithstanding anything
contained in this Article X, the Corporation shall not be obligated to
indemnify any director or officer in connection with an action or suit, or
part thereof, initiated by such person against the Corporation unless such
action or suit, or part thereof, was authorized or consented to by the
Board of Directors.
SECTION 3. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF
A SUCCESSFUL PARTY. To the extent that a director, officer, employee or
agent of the Corporation has been successful, on the merits or otherwise
(including, without limitation, the dismissal of an action without
prejudice), in defense of any action, suit or proceeding referred to in
Section 1 or 2 of this Article X, or in defense of any claim, issue or
matter therein, such person shall be indemnified against all costs,
charges and expenses (including attorneys' fees) actually and reasonably
incurred by such person or on such person's behalf in connection
therewith.
SECTION 4. INDEMNIFICATION FOR EXPENSES OF A WITNESS. To the
extent that any person who is or was or has agreed to become a director
or officer of the Corporation is made a witness to any action, suit or
proceeding to which he or she is not a party by reason of the fact that
he or she was, is or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, at the written request of the
Corporation, such person shall be indemnified against all costs, charges
and expenses actually and reasonably incurred by such person or on such
person's behalf in connection therewith.
To the extent that any person who is or was or has agreed to
become an employee or agent of the Corporation is made a witness to any
action, suit or proceeding to which he or she is not a party by reason of
the fact that he or she was, is or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, at the written
request of the Corporation, such person may be indemnified against all
costs, charges and expenses actually and reasonably incurred by such
person or on such person's behalf in connection therewith.
SECTION 5. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Section 1 or 2 of this Article X (unless ordered by
a court) shall be made, if at all, by the Corporation only as authorized
in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper under the circumstances
because he or she has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article X. Any indemnification under Section 4 of
this Article X (unless ordered by a court) shall be made, if at all, by
the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper under the circumstances. Such determinations shall be
made by (a) a majority vote of directors who were not parties to such
action, suit or proceeding even though less than a quorum of the Board of
Directors, or (b) if there are no such directors, or if such directors so
direct, by
Page 19
independent counsel in a written opinion or (c) by the shareholders of the
Corporation. To obtain indemnification under this Article X, any person
referred to in Section 1, 2, 3 or 4 of this Article X shall submit to the
Corporation a written request, including therewith such documents as
are reasonably available to such person and are reasonably necessary
to determine whether and to what extent such person is entitled to
indemnification.
SECTION 6. ADVANCEMENT OF COSTS, CHARGES AND EXPENSES. Costs,
charges and expenses (including attorneys' fees) incurred by or on behalf
of a director or officer in defending a civil or criminal action, suit or
proceeding referred to in Section 1 or 2 of this Article X shall be paid
by the Corporation in advance of the final disposition of such action,
suit or proceeding; PROVIDED, HOWEVER, that the payment of such costs,
charges and expenses incurred by or on behalf of a director or officer in
advance of the final disposition of such action, suit or proceeding shall
be made only upon receipt of a written undertaking by or on behalf of the
director or officer to repay all amounts so advanced in the event that it
shall ultimately be determined that such director or officer is not
entitled to be indemnified by the Corporation as authorized in this
Article X or by law. No security shall be required for such undertaking
and such undertaking shall be accepted without reference to the
recipient's financial ability to make repayment. The majority of the
directors who were not parties to such action, suit or proceeding may,
upon approval of such director or officer of the Corporation, authorize
the Corporation's counsel to represent such person, in any action, suit
or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
SECTION 7. PROCEDURE FOR INDEMNIFICATION. Any indemnification
under Section 1, 2, 3 or 4 of this Article X or advancement of costs,
charges and expenses under Section 6 of this Article X shall be made
promptly, and in any event within sixty (60) days (except indemnification
to be determined by shareholders which will be determined at the next
annual meeting of shareholders), upon the written request of the director
or officer. The right to indemnification or advancement of expenses as
granted by this Article X shall be enforceable by the director, officer,
employee or agent in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no
disposition of such request is made within sixty (60) days of the
request. Such person's costs, charges and expenses incurred in
connection with successfully establishing his or her right to
indemnification or advancement, to the extent successful, in any such
action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a
claim for the advancement of costs, charges and expenses under Section 6
of this Article X where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met the standard
of conduct set forth in Section 1 or 2 of this Article X, but the burden
of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its directors, its independent legal
counsel and its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in Section 1 or 2 of this Article X, nor
the fact that there has been an actual determination by the Corporation
(including its directors, its independent legal counsel and its
shareholders) that the claimant has not met such applicable standard of
conduct, shall be a de-
Page 20
fense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
SECTION 8. SETTLEMENT. The Corporation shall not be obligated
to reimburse the costs, charges and expenses of any settlement to which
it has not agreed. If in any action, suit or proceeding (including any
appeal) within the scope of Section 1 or 2 of this Article X, the person
to be indemnified shall have unreasonably failed to enter into a
settlement thereof offered or assented to by the opposing party or
parties in such action, suit or proceeding, then, notwithstanding any
other provision of this Article X, the indemnification obligation of the
Corporation to such person in connection with such action, suit or
proceeding shall not exceed the total of the amount at which settlement
could have been made and the expenses incurred by or on behalf of such
person prior to the time such settlement could reasonably have been
effected.
SECTION 9. OTHER RIGHTS; CONTINUATION OF RIGHT TO
INDEMNIFICATION; INDIVIDUAL CONTRACTS. The indemnification and
advancement of costs, charges and expenses provided by or granted
pursuant to this Article X shall not be deemed exclusive of any other
rights to which those persons seeking indemnification or advancement of
costs, charges and expenses may be entitled under law (common or
statutory) or any Bylaw, agreement, policy of indemnification insurance
or vote of shareholders or directors or otherwise, both as to action in
his or her official capacity and as to action in any other capacity while
holding office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the legatees, heirs, distributees, executors and administrators of such
person. Nothing contained in this Article X shall be deemed to prohibit
the Corporation from entering into, and the Corporation is specifically
authorized to enter into, agreements with directors, officers, employees
and agents providing indemnification rights and procedures different from
those set forth herein. All rights to indemnification under this Article
X shall be deemed to be a contract between the Corporation and each
director, officer, employee or agent of the Corporation who serves or
served in such capacity at any time while this Article X is in effect.
SECTION 10. SAVINGS CLAUSE. If this Article X or any portion
shall be invalidated on any ground by any court of competent
jurisdiction, the Corporation shall nevertheless indemnify each director
or officer, and may indemnify each employee or agent, of the Corporation
as to any costs, charges, 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 X that shall not have been invalidated and to the full
extent permitted by applicable law.
SECTION 11. INSURANCE. The Corporation may purchase and
maintain insurance, at its expense, to protect itself and any person who
is or was a director, officer, employee or agent of the Corporation
against any costs, charges or expenses, liability or loss incurred by
such person in any such capacity, or arising out of his status as such,
whether or
Page 21
not the Corporation would have the power to indemnify such person against
such costs, charges or expenses, liability or loss under the Certificate
of Incorporation or applicable law; PROVIDED, HOWEVER, that such insurance
is available on acceptable terms as determined by a vote of a majority
of the Board. To the extent that any director, officer, employee or agent
is reimbursed by an insurance company under an indemnification insurance
policy for any costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement to the fullest extent
permitted by any applicable portion of this Article X, the Bylaws, any
agreement, the policy of indemnification insurance or otherwise, the
Corporation shall not be obligated to reimburse the person to be
indemnified in connection with such proceeding.
SECTION 12. DEFINITIONS. For purposes of this Article X, the
following terms shall have the following meanings:
(a) "The Corporation" shall include any constituent
corporation or entity (including any constituent of a constituent)
absorbed by way of an acquisition, consolidation, merger or otherwise,
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employee or agent so that
any person who is or was a director, officer, employee or agent of such
constituent corporation or entity, or is or was serving at the written
request of such constituent corporation or entity as a director or
officer of another corporation, entity, partnership, joint venture, trust
or other enterprise, shall stand in the same position under the
provisions of this Article X with respect to the resulting or surviving
corporation or entity as he would have with respect to such constituent
corporation or entity if its separate existence had continued;
(b) "Other enterprises" shall include employee benefit plans,
including, but not limited to, any employee benefit plan of the
Corporation;
(c) "Director or officer" of the Corporation shall include any
director, officer, partner or trustee who is or was or has agreed to
serve at the request of the Corporation as a director, officer, partner
or trustee of another corporation, partnership, joint venture, trust or
other enterprise;
(d) "Serving at the request of the Corporation" shall include
any service that imposes duties on, or involves services by a director,
officer, employee or agent of the Corporation with respect to an employee
benefit plan, its participants or beneficiaries, including acting as a
fiduciary thereof;
(e) "Fines" shall include any penalties and any excise or
similar taxes assessed on a person with respect to an employee benefit
plan;
(f) To the fullest extent permitted by law, person shall be
deemed to have acted in "good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful," if his
or her action is based on the records or books of account of the
Corporation or another enterprise, or on infor-
Page 22
mation supplied to him or her by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice
of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or
another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation
or another enterprise; and
(g) A person shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation," as referred to in
Sections 1 and 2 of this Article X if such person acted in good faith and
in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan.
SECTION 13. SUBSEQUENT AMENDMENT AND SUBSEQUENT LEGISLATION.
Neither the amendment, termination or repeal of this Article X or of
relevant provisions of the General Corporation Law of the State of
Delaware or any other applicable laws, nor the adoption of any provision
of this Certificate of Incorporation or the Bylaws of the Corporation or
of any statute inconsistent with this Article X shall eliminate, affect
or diminish in any way the rights of any director, officer, employee or
agent of the Corporation to indemnification under the provisions of this
Article X with respect to any action, suit or proceeding arising out of,
or relating to, any actions, transactions or facts occurring prior to the
final adoption of such amendment, termination or repeal.
If the General Corporation Law of the State of Delaware is
amended to expand further the indemnification permitted to directors and
officers of the Corporation, then the Corporation shall indemnify such
persons to the fullest extent permitted by the General Corporation Law of
the State of Delaware, as so amended.
ARTICLE XI
AMENDMENTS
SECTION 1. AMENDMENTS OF CERTIFICATE OF INCORPORATION. In
addition to any affirmative vote required by applicable law and any
voting rights granted to or held by holders of any Series of Preferred
Stock, any alteration, amendment, repeal or rescission (collectively, any
"Change") of any provision of this Certificate of Incorporation must be
approved by a majority of the directors of the Corporation then in office
and by the affirmative vote of the holders of a majority (or such greater
proportion as may otherwise be required pursuant to any specific
provision of this Certificate of Incorporation) of the total votes
eligible to be cast by the holders of all outstanding shares of Capital
Stock entitled to vote thereon; PROVIDED, HOWEVER, that if any such
Change relates to Section 13 of Article X or Articles V, VI, VII or XI of
this Certificate of Incorporation, such Change must also be approved
either (i) by not less than a majority of the authorized number of
directors and, if one or more Interested Shareholders (as defined in
Article VIII hereof) exist, by not less than a majority of the
Disinterested Directors (as defined in Article VIII hereof), or (ii) by
the affirmative vote of the holders of not less than two-thirds of the
total votes eligible to be cast by the holders of all out-
Page 23
standing shares of Capital Stock entitled to vote thereon and, if the
Change is proposed by or on behalf of an Interested Shareholder or a
director who is an Affiliate or Associate (as such terms are defined in
Article VIII hereof) of an Interested Shareholder, by the affirmative
vote of the holders of not less than a majority of the total votes
eligible to be cast by holders of all outstanding shares of
Capital Stock entitled to vote thereon not beneficially owned by an
Interested Shareholder or an Affiliate or Associate thereof.
Subject to the foregoing, the Corporation reserves the right to amend
this Certificate of Incorporation from time to time in any and as many
respects as may be desired and as may be lawfully contained in an
original certificate of incorporation filed at the time of making such
amendment.
Except as may otherwise be provided in this Certificate of
Incorporation, the Corporation reserves the right at any time, and from
time to time, to amend, alter, change or repeal any provision contained
in this Certificate of Incorporation, and to add or insert herein any
other provisions authorized by the laws of the State of Delaware at the
time in force, in the manner now or hereafter prescribed by law, and all
rights, preferences and privileges of any nature conferred upon
shareholders, directors or any other persons whomsoever by and pursuant
to this Certificate of Incorporation in its present form or as hereafter
amended are granted subject to the rights reserved in this Section 1.
SECTION 2. AMENDMENTS 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 make, alter, amend, rescind or
repeal from time to time any of the Bylaws of the Corporation in
accordance with the terms thereof; PROVIDED, HOWEVER, that any Bylaw made
by the Board may be altered, amended, rescinded, or repealed in
accordance with the terms thereof by the holders of shares of Capital
Stock entitled to vote thereon at any annual meeting or at any special
meeting called for that purpose. Notwithstanding the foregoing, any
provision of the Bylaws that contains a supermajority voting requirement
shall only be altered, amended, rescinded, or repealed by a vote of the
Board or holders of shares of Capital Stock entitled to vote thereon that
is not less than the supermajority specified in such provision.
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ARTICLE XII
NOTICES
The name and mailing address of the incorporator of this
Corporation is:
The Dime Savings Bank of Williamsburgh
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
The Dime Savings Bank of Williamsburgh caused this Certificate
of Incorporation to be signed by Xxxxxxx X. Xxxxxxxxx, President of The
Dime Savings Bank of Williamsburgh, and attested to by Xxxxxxx X. Xxxxxx,
Secretary of The Dime Savings Bank of Williamsburgh, this 11th day of
December, 1995.
THE DIME SAVINGS BANK OF WILLIAMSBURGH
By: /S/ XXXXXXX X. XXXXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
/S/ XXXXXXX X. XXXXXX
-------------------------------
Xxxxxxx X. Xxxxxx
Secretary
