Attached files
file | filename |
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S-1 - FORM S-1 - Northfield Bancorp, Inc. | y84957sv1.htm |
EX-4 - EX-4 - Northfield Bancorp, Inc. | y84957exv4.htm |
EX-5 - EX-5 - Northfield Bancorp, Inc. | y84957exv5.htm |
EX-2 - EX-2 - Northfield Bancorp, Inc. | y84957exv2.htm |
EX-8.2 - EX-8.2 - Northfield Bancorp, Inc. | y84957exv8w2.htm |
EX-1.1 - EX-1.1 - Northfield Bancorp, Inc. | y84957exv1w1.htm |
EX-3.2 - EX-3.2 - Northfield Bancorp, Inc. | y84957exv3w2.htm |
EX-8.1 - EX-8.1 - Northfield Bancorp, Inc. | y84957exv8w1.htm |
EX-99.3 - EX-99.3 - Northfield Bancorp, Inc. | y84957exv99w3.htm |
EX-99.4 - EX-99.4 - Northfield Bancorp, Inc. | y84957exv99w4.htm |
EX-99.1 - EX-99.1 - Northfield Bancorp, Inc. | y84957exv99w1.htm |
EX-23.2 - EX-23.2 - Northfield Bancorp, Inc. | y84957exv23w2.htm |
EX-23.3 - EX-23.3 - Northfield Bancorp, Inc. | y84957exv23w3.htm |
EX-99.5 - EX-99.5 - Northfield Bancorp, Inc. | y84957exv99w5.htm |
EX-99.6 - EX-99.6 - Northfield Bancorp, Inc. | y84957exv99w6.htm |
EX-99.2 - EX-99.2 - Northfield Bancorp, Inc. | y84957exv99w2.htm |
Exhibit 3.1
NORTHFIELD BANCORP, INC.
CERTIFICATE OF INCORPORATION
FIRST: The name of the Corporation is Northfield Bancorp, Inc. (hereinafter referred to as
the Corporation).
SECOND: The address of the registered office of the Corporation in the State of Delaware is
2711 Centerville Road, Suite 400, in the City of Wilmington, County of New Castle. The name of the
registered agent at that address is Corporation Service Company.
THIRD: 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 Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the Corporation shall have
authority to issue is One Hundred Seventy Five Million (175,000,000) consisting of:
1.
One Hundred Fifty Million (150,000,000) of Common Stock, par value one cent ($0.01) per
share (the Common Stock); and
2.
Twenty Five Million (25,000,000) shares of Preferred Stock, par value one cent ($0.01) per
share (the Preferred Stock).
B. The Board of Directors is
authorized, subject to any limitations prescribed by law, to
provide for the issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware (such certificate being hereinafter
referred to as a Preferred Stock Designation), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers, preferences, and
rights of the shares of each such series and any qualifications, limitations or restrictions
thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not
below
the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the voting power of all of the then outstanding shares of capital stock of the
Corporation entitled to vote thereon, irrespective of Section 242(b)(2) of the Delaware General
Corporation Law, in addition to any vote required pursuant to the terms of any Preferred Stock
Designation.
C. 1. Notwithstanding any other
provision of this Certificate of Incorporation, in no event
shall any record owner of any outstanding Common Stock which is beneficially owned, directly or
indirectly, by a person who, as of any record date for the determination of stockholders entitled
to vote on any matter, beneficially owns in excess of 10% of the then-outstanding shares of Common
Stock (the Limit), be entitled to vote, or permitted to cast any vote in respect of the shares
held in excess of the Limit, except that such restriction and all restrictions set forth in this
subsection C shall not apply to any tax qualified employee stock benefit plan established by the
Corporation, which shall be able to vote in respect of shares held in excess of the Limit. The
number of votes which may be cast by any record owner by virtue of the provisions hereof in respect
of Common Stock beneficially owned by such person owning
shares in excess of the Limit shall be a
number equal to the total number of votes which a single record owner of all Common Stock owned by
such person would be entitled to cast (taking into account the Limit), multiplied by a fraction,
the numerator of which is the number of shares of such class or series which are both beneficially
owned by such person and owned of record by such record owner and the denominator of which is the
total number of shares of Common Stock beneficially owned by such person owning shares in excess of
the Limit.
2. The following definitions shall apply to this Section C of this Article FOURTH:
(a) | Affiliate shall have the meaning ascribed to it in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on the date of filing of this Certificate of Incorporation. | ||
(b) | Beneficial ownership shall be determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934 (or any successor rule or statutory provision), or, if said Rule 13d-3 shall be rescinded and there shall be no successor rule or statutory provision thereto, pursuant to said Rule 13d-3 as in effect on the date of filing of this Certificate of Incorporation; provided, however, that a person shall, in any event, also be deemed the beneficial owner of any Common Stock: |
(1) | which such person or any of its affiliates beneficially owns, directly or indirectly; or | ||
(2) | which such person or any of its affiliates has (i) 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 shall not be deemed to be the beneficial owner of any voting shares solely by reason of an agreement, contract, or other arrangement with this Corporation to effect any transaction which is described in any one or more of clauses of Section A of Article EIGHTH) or upon the exercise of conversion rights, exchange rights, warrants, or options or otherwise, or (ii) sole or shared voting or investment power with respect thereto pursuant to any agreement, arrangement, understanding, relationship or otherwise (but shall not be deemed to be the beneficial owner of any voting shares solely by reason of a revocable proxy granted for a particular meeting of stockholders, pursuant to a public solicitation of proxies for such meeting, with respect to shares of which neither such person nor any such affiliate is otherwise deemed the beneficial owner); or | ||
(3) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its affiliates acts as a partnership, limited partnership, syndicate or other group pursuant to any agreement, arrangement or |
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understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of this Corporation; |
and provided further, however, that (1) no Director or Officer of this Corporation (or any affiliate of any such Director or Officer) 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 Common Stock beneficially owned by another such Director or Officer (or any affiliate thereof), and (2) neither any employee stock ownership plan or similar plan of this Corporation or any subsidiary of this Corporation, nor any trustee with respect thereto or any affiliate of such trustee (solely by reason of such capacity of such trustee), shall be deemed, for any purposes hereof, to beneficially own any Common Stock held under any such plan. For purposes of computing the percentage beneficial ownership of Common Stock of a person the outstanding Common Stock shall include shares deemed owned by such person through application of this subsection but shall not include any other Common Stock which may be issuable by this Corporation pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise. For all other purposes, the outstanding Common Stock shall include only Common Stock then outstanding and shall not include any Common Stock which may be issuable by this Corporation pursuant to any agreement, or upon the exercise of conversion rights, warrants or options, or otherwise. | |||
(c) | A person shall include an individual, firm, a group acting in concert, a corporation, a partnership, an association, a joint venture, a pool, 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 securities or any other entity. |
3. The Board of Directors shall have the power to construe and apply the provisions of this
section and to make all determinations necessary or desirable to implement such provisions,
including but not limited to matters with respect to (i) the number of shares of Common Stock
beneficially owned by any person, (ii) whether a person is an affiliate of another, (iii) whether a
person has an agreement, arrangement, or understanding with another as to the matters referred to
in the definition of beneficial ownership, (iv) the application of any other definition or
operative provision of the section to the given facts, or (v) any other matter relating to the
applicability or effect of this section.
4. The Board of Directors shall have the right to demand that any person who is reasonably
believed to beneficially own Common Stock in excess of the Limit (or holds of record Common Stock
beneficially owned by any person in excess of the Limit) supply the Corporation with complete
information as to (i) the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares in excess of the Limit, (ii) any other factual matter relating to
the applicability or effect of this section as may reasonably be requested of such person.
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5. Any constructions, applications, or determinations made by the Board of Directors pursuant
to this section 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
stockholders.
6. In the event any provision (or portion thereof) of this section shall be found to be
invalid, prohibited or unenforceable for any reason, the remaining provisions (or portions thereof)
of this section 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 stockholders that such remaining
provision (or portion thereof) of this section remain, to the fullest extent permitted by law,
applicable and enforceable as to all stockholders, including stockholders owning an amount of stock
over the Limit, notwithstanding any such finding.
D. Except as otherwise provided by law or expressly provided in this section, the presence, in
person or by proxy, of the holders of record of shares of capital stock of the Corporation
entitling the holders thereof to cast a majority of the votes (after giving effect, if required, to
the provisions of this section) entitled to be cast by the holders of shares of capital stock of
the Corporation entitled to vote shall constitute a quorum at all meetings of the stockholders, and
every reference in this Certificate of Incorporation to a proportion of capital stock (or the
holders thereof) for purposes of determining any quorum requirement or any requirement for
stockholder consent or approval shall be deemed to refer to such proportion of the votes (or the
holders thereof) then entitled to be cast in respect of such capital stock, after giving effect to
the provisions of this section.
E. Subject to the provisions of law and the rights of the holders of the Preferred Stock and
any other class or series of stock having a preference as to dividends over the Common Stock then
outstanding, (1) dividends may be paid on the Common Stock at such times and in such amounts as the
Board of Directors may determine, and (2) upon the dissolution, liquidation or winding up of the
Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets
of the Corporation available for distribution to its stockholders ratably in proportion to the
number of shares held by them, respectively, after: payment or provision for payment of the
Corporations debts and liabilities and distributions or provision for distributions in settlement
of the Liquidation Account established by the Corporation, as described in F below.
F. Under regulations of the Office of Thrift Supervision, the Corporation must establish and
maintain a liquidation account (the Liquidation Account) for the benefit of certain Eligible
Account Holders and Supplemental Eligible Account Holders as defined in the Plan of Conversion and
Reorganization of Northfield Bancorp, MHC dated June 4, 2010, as may be amended (the Plan of
Conversion). In the event of a complete liquidation involving (i) the Corporation or (ii)
Northfield Bank, a federally chartered savings bank that will be a wholly-owned subsidiary of the
Corporation, the Corporation must comply with the regulations of the Office of Thrift Supervision
and the provisions of the Plan of Conversion with respect to the amount and priorities of each
Eligible Account Holders and Supplemental Eligible Account Holders interests in the Liquidation
Account. The interest of an
Eligible Account Holder or
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Supplemental Eligible Account Holder in the Liquidation Account
does not entitle such account holders to voting rights.
FIFTH: The following provisions are inserted for the management of the business and the
conduct of the affairs of the Corporation, and for further definition, limitation and regulation of
the powers of the Corporation and of its Directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors. In addition to the powers and authority expressly conferred upon them by
statute or by this Certificate of Incorporation or the Bylaws of the Corporation, the Directors are
hereby empowered to exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation.
B. The Directors of the Corporation need not be elected by written ballot unless the Bylaws so
provide. Stockholders may not cumulate their votes for election of directors.
C. Subject to the rights of any class or series of Preferred Stock of the Corporation, any
action required or permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and may be effected by
the unanimous consent in writing by such stockholders.
D. Special meetings of stockholders of the Corporation may be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of authorized
directorships (whether or not there exist any vacancies in previously authorized directorships at
the time any such resolution is presented to the Board for adoption) (the Whole Board).
SIXTH:
A. The number of Directors shall initially be nine and shall thereafter be fixed from time to
time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board. The Directors, other than any who may be elected
by the holders of a series of Preferred Stock pursuant to a Preferred Stock Designation, shall
be divided into three classes, with the term of office of the first class to expire at the first
annual meeting of stockholders, the term of office of the second class to expire at the annual
meeting of stockholders one year thereafter and the term of office of the third class to expire at
the annual meeting of stockholders two years thereafter. At each annual meeting of stockholders
following such initial classification and election, Directors elected to succeed those Directors
whose terms expire shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election. Directors shall be elected by a plurality of the
votes cast.
B. Subject to the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized number of Directors or
any vacancies in the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and Directors so chosen shall
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hold
office for
a term expiring at the annual meeting of stockholders at which the term of office of the class to
which they have been chosen expires. No decrease in the number of Directors constituting the Board
of Directors shall shorten the term of any incumbent Director.
C. Advance notice of stockholder nominations for the election of Directors and of business to
be brought by stockholders before any meeting of the stockholders of the Corporation shall be given
in the manner provided in the Bylaws of the Corporation.
D. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any
Director, or the entire Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least a majority of the voting power of
all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally
in the election of Directors (after giving effect to the provisions of Article FOURTH of this
Certificate of Incorporation (Article FOURTH)), voting together as a single class.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws
of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation by the
Board of Directors shall require the approval of a majority of the Whole Board. The stockholders
shall also have power to adopt, amend or repeal the Bylaws of the Corporation; provided, however,
that, in addition to any vote of the holders of any class or series of stock of the Corporation
required by law or by this Certificate of Incorporation (including any Preferred Stock
Designation), the affirmative vote of the holders of at least 80% of the voting power of all of the
then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the
election of
Directors (after giving effect to the provisions of Article FOURTH), voting together as a
single class, shall be required to adopt, amend or repeal any provisions of the Bylaws of the
Corporation.
EIGHTH: The Board of Directors of the Corporation, when evaluating any offer of another
Person (as defined in Article FOURTH hereof) to (A) make a tender or exchange offer for any equity
security of the Corporation, (B) merge or consolidate the Corporation with another corporation or
entity or (c) purchase or otherwise acquire all or substantially all of the properties and assets
of the Corporation, may, in connection with the exercise of its judgment in determining what is in
the best interest of the Corporation and its stockholders, give due consideration to all relevant
factors, including, without limitation, the social and economic effect of acceptance of such offer
on the Corporations present and future customers and employees and those of its subsidiaries; on
the communities in which the Corporation and its Subsidiaries operate or are located; on the
ability of the Corporation to fulfill its corporate objectives as a savings bank holding company
and on the ability of its subsidiary savings bank to fulfill the objectives of a stock savings bank
under applicable statutes and regulations.
NINTH:
A. Each person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a proceeding), by reason of the fact that he or she is or was a
Director or an Officer of the Corporation or is or was serving at the request of the Corporation as
a
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Director, Officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan (hereinafter
an indemnitee), whether the basis of such proceeding is alleged action in an official capacity as
a Director, Officer, employee or agent or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all expense, liability and loss
(including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section C hereof with respect to proceedings to enforce rights
to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by
such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation.
B. The right to indemnification conferred in Section A of this Article NINTH shall include the
right to be paid by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an advancement of expenses); provided, however,
that, if the Delaware General Corporation Law requires an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director of Officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a final adjudication) that such indemnitee is not entitled
to be indemnified for such expenses under this Section or otherwise. The rights to indemnification
and to the advancement of expenses conferred in Sections A and B of this Article NINTH shall be
contract rights and such rights shall continue as to an indemnitee who has ceased to be a Director,
Officer, employee or agent and shall inure to the benefit of the indemnitees heirs, executors and
administrators.
C. If a claim under Section A or B of this Article NINTH is not paid in full by the
Corporation within sixty days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee also shall be entitled to be paid the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither
the failure of the Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
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suit that
indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met the applicable standard of
conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article NINTH or otherwise shall be on
the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred in this Article
NINTH shall not be exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporations Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and any Director,
Officer, employee or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification and to the advancement of expenses to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article NINTH with respect to the
indemnification and advancement of expenses of Directors and Officers of the Corporation.
TENTH: A Director of this Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a Director, except for
liability (i) for any breach of the Directors duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the Director derived an improper personal benefit. If the
Delaware General Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of Directors, then the liability of a Director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation
shall not adversely affect any right or protection of a Director of the Corporation existing at the
time of such repeal or modification.
ELEVENTH: The Corporation reserves the right to amend or repeal any provision contained in
this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to this reservation;
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provided, however,
that, notwithstanding any other provision of this Certificate of Incorporation or any provision of
law which might otherwise permit a lesser vote or no vote, but in addition to any vote of the
holders of any class or series of the stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders of at least 85% of the voting
power of all of the then-outstanding shares of the capital stock of the Corporation entitled to
vote generally in the election of Directors (after giving effect to the provisions of Article
FOURTH), voting together as a single class, shall be required to amend or repeal this Article
ELEVENTH, Section C of Article FOURTH, Sections C or D of Article FIFTH, Article SIXTH, or Article
SEVENTH.
TWELFTH: The name and mailing address of the sole incorporator are as follows:
Name | Mailing Address | |
Edward A. Quint | 5335 Wisconsin Avenue, N.W. | |
Suite 780 | ||
Washington, D.C. 20015 |
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I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a corporation under the
laws of the State of Delaware, do make, file and record this Certificate of Incorporation, do
certify that the facts herein stated are true, and accordingly, have hereto set my hand this 4th
day of June, 2010.
/s/ Edward A. Quint
Edward A. Quint
|
||||
Incorporator |
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