UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended Commission File Number 0-10592
June 30, 1997
TRUSTCO BANK CORP NY
(Exact name of registrant as specified in its charter)
NEW YORK 14-1630287
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
320 STATE STREET, SCHENECTADY, NEW YORK 12305
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (518) 377-3311
Securities registered pursuant to Section 12(b) of
the Act:
Name of exchange on
Title of each class which registered
None None
Securities registered pursuant to Section 12(g) of
the Act:
(Title of class)
Common
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes.(x) No.( )
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Number of Shares Outstanding
Class of Common Stock as of July 24, 1997
--------------------------- ----------------------
$1 Par Value 20,413,279
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TrustCo Bank Corp NY
INDEX
Part I. FINANCIAL INFORMATION PAGE NO.
Item 1. Interim Financial Statements (Unaudited): 1
Consolidated Statements of Income for the
Three Months and Six Months Ended June 30,
1997 and 1996
Consolidated Statements of Financial Condition 2
as of June 30, 1997 and December 31, 1996
Consolidated Statements of Cash Flows for the 3 - 4
Six Months Ended June 30, 1997 and 1996
Notes to Consolidated Interim Financial 5 - 6
Statements
Independent Auditors' Report 7
Item 2. Management's Discussion and Analysis 8 - 17
Part II. OTHER INFORMATION
Item 1. Legal Proceedings -- None
Item 2. Changes in Securities -- None
Item 3. Defaults Upon Senior Securities --None
Item 4. Submissions of Matters to Vote of Security 101
Holders -- Annual Meeting
Item 5. Other Information -- None
- i -
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Reg S-K (Item 601)
Exhibit No. Description Page No.
---------------- --------------------------------------- --------------
3(i)a Amended and Restated Certificate of 21
Incorporation of TrustCo Bank Corp NY,
dated July 27, 1993
3(i)b Certificate of Amendment of the Certificate 33
of Incorporation of TrustCo Bank Corp NY,
dated May 28, 1996
3(i)c Certificate of Amendment of the Certificate 36
of Incorporation of TrustCo Bank Corp NY,
dated May 19, 1997
3(ii)a Amended and Restated By-Laws of TrustCo 41
Bank Corp NY, dated June 9, 1997
3(ii)b Amended and Restated ByLaws of Trustco 53
Bank, N.A., dated June 6, 1997
10(a) TrustCo Bank Corp NY Performance Bonus 66
Plan, dated May 19, 1997
10(b) Performance Bonus Unit Agreement Under 79
TrustCo Bank Corp NY Performance Bonus
Plan
10(c) TrustCo Bank Corp NY Directors 82
Performance Bonus Plan, dated May 19,
1997
10(d) Performance Bonus Unit Agreement Under 94
TrustCo Bank Corp NY Directors
Performance Bonus Plan
10(e) Amendment No. 5 to Employment 97
Agreement between Trustco Bank, National
Association and TrustCo Bank Corp NY and
Robert A. McCormick, effective May 1, 1997
- ii -
10(f) Amendment No. 2 to Employment 99
Agreement among Trustco Bank, National
Association and TrustCo Bank Corp NY and
Robert T. Cushing, Nancy A. McNamara,
Ralph A. Pidgeon and William F. Terry,
effective May 1, 1997
22 Submission of Matters to Vote of Security 101
Holders -- Annual Meeting
(b) Reports on Form 8-K
Filing of Form 8-K on May 20, 1997, of press release announcing quarterly
dividend, payable July 1, 1997, incorporated herein by reference.
Filing of Form 8-K on May 30,1997, regarding May 20, 1997, letter to
shareholders which contained discussion of May 19, 1997, annual meeting of
shareholders, incorporated herein by reference.
Filing of Form 8-K on July 15, 1997, of two press releases detailing second
quarter 1997 results, incorporated herein by reference.
- iii -
TRUSTCO BANK CORP NY
Consolidated Statements of Income (Unaudited)
(Dollars in Thousands)
3 Months Ended 6 Months Ended
June 30 June 30
1997 1996 1997 1996
------- ------- ------- -------
Interest income:
Interest and fees on loans.......................... 27,088 26,726 53,900 53,673
Interest on U. S. Treasuries and agencies........... 7,579 8,713 15,025 17,150
Interest on states and political
subdivisions....................................... 1,324 983 2,614 1,883
Interest on mortgage-backed securities.............. 2,189 1,112 3,778 2,434
Other............................................... 428 576 864 1,177
Interest on federal funds sold...................... 4,255 3,712 8,577 7,013
------- ------- ------- -------
Total interest income............................ 42,863 41,822 84,758 83,330
------- ------- ------- -------
Interest expense:
Interest on deposits:
Interest-bearing checking.......................... 899 902 1,784 1,793
Savings............................................ 5,664 5,737 11,251 11,433
Money market deposit accounts...................... 435 500 877 1,012
Certificates of deposit of $100,000 or more........ 1,415 1,214 2,737 2,495
Other time......................................... 11,591 10,840 22,926 22,104
Interest on short-term borrowings................... 1,373 1,097 2,690 1,830
------- ------- ------- -------
Total interest expense............................ 21,377 20,290 42,265 40,667
------- ------- ------- -------
Net interest income............................... 21,486 21,532 42,493 42,663
Provision for loan losses............................ 1,185 854 2,395 3,964
------- ------- ------- -------
Net interest income after provision
for loan losses.................................. 20,301 20,678 40,098 38,699
------- ------- ------- -------
Noninterest income:
Trust department income............................. 1,698 1,416 3,270 2,788
Fees for other services to customers................ 1,878 1,762 3,682 3,455
Net gain/(loss) on securities available for sale.... (295) (2,630) (790) (3,051)
Other............................................... 528 477 1,183 960
------- ------- ------- -------
Total noninterest income........................... 3,809 1,025 7,345 4,152
------- ------- ------- -------
Noninterest expenses:
Salaries and employee benefits...................... 5,782 5,276 11,497 10,618
Net occupancy expense............................... 1,217 991 2,302 2,230
Equipment expense................................... 1,294 819 2,051 1,659
FDIC insurance expense.............................. 62 1 123 2
Professional services............................... 950 876 2,068 1,663
Other real estate expenses.......................... 106 149 295 365
Other............................................... 2,176 2,563 4,455 4,584
------- ------- ------- -------
Total noninterest expenses........................ 11,587 10,675 22,791 21,121
------- ------- ------- -------
Income before taxes.............................. 12,523 11,028 24,652 21,730
Applicable income taxes............................. 4,670 4,115 9,206 8,132
------- ------- ------- -------
Net income...................................... $7,853 6,913 15,446 13,598
======== ======= ======== ========
* Earnings per Common Share:
Net income...................................... $0.37 0.33 0.73 0.65
======= ======= ======= =======
Average equivalent shares outstanding (000s omitted) 21,120 20,931 21,138 20,937
======= ======= ======= =======
- 1 -
TRUSTCO BANK CORP NY
Consolidated Statements of Financial Condition
(Dollars in Thousands)
06/30/97 12/31/96
(Unaudited)
Assets: --------- ---------
Cash and due from banks............................ 41,329 45,779
Federal funds sold................................. 290,000 310,000
--------- ---------
Total cash and cash equivalents.................. 331,329 355,779
Securities available for sale:
U. S. Treasuries and agencies..................... 391,359 406,933
States and political subdivisions................. 101,406 96,918
Mortgage-backed securities........................ 137,448 76,493
Other............................................. 40,596 38,326
--------- ---------
Total securities available for sale.............. 670,809 618,670
--------- ---------
Loans:
Commercial........................................ 203,585 223,116
Residential mortgage loans........................ 844,509 803,128
Home equity line of credit........................ 178,426 183,832
Installment loans................................. 30,817 33,259
--------- ---------
Total loans......................................1,257,337 1,243,335
Less: --------- ---------
Allowance for loan losses......................... 52,286 51,561
Unearned income................................... 1,393 1,453
--------- ---------
Net loans.........................................1,203,658 1,190,321
Bank premises and equipment........................ 22,712 23,098
Real estate owned.................................. 8,806 6,518
Other assets....................................... 64,583 67,394
--------- ---------
Total assets....................................2,301,897 2,261,780
========= =========
Liabilities:
Deposits:
Demand............................................ 125,206 123,553
Interest-bearing checking......................... 230,228 236,264
Savings accounts.................................. 662,342 661,915
Money market deposit accounts..................... 59,337 61,131
Certificates of deposit (in denominations of
$100,000 or more)................................ 98,159 89,793
Other time........................................ 804,586 780,490
--------- ---------
Total deposits...................................1,979,858 1,953,146
Short-term borrowings.............................. 115,245 111,662
Accrued expenses and other liabilities............. 37,901 34,572
--------- ---------
Total liabilities................................2,133,004 2,099,380
--------- ---------
Shareholders' equity
Capital stock par value $1; 50,000,000 shares
authorized June 30, 1997 and December 31,
1996, and 21,006,145 and 20,959,376 shares
issued June 30, 1997 and December 31, 1996,
respectively..................................... 21,006 20,959
Surplus............................................ 114,649 114,228
Undivided profits.................................. 27,445 23,221
Net unrealized gain on securities available
for sale......................................... 8,001 5,239
Treasury stock at cost - 615,642 and 571,142
shares at June 30, 1997 and December 31, 1996,
respectively..................................... (2,208) (1,247)
--------- ---------
Total shareholders' equity....................... 168,893 162,400
--------- ---------
Total liabilities and shareholders' equity.......2,301,897 2,261,780
========= =========
See accompanying notes to consolidated interim financial statements.
- 2 -
TRUSTCO BANK CORP NY
Consolidated Statements of Cash Flows (Unaudited)
(Dollars in Thousands)
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
SIX MONTHS ENDED June 30, 1997 1996
-------- --------
Cash flows from operating activities:
Net income........................................... 15,446 13,598
-------- --------
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization...................... 1,545 1,593
Provision for loan losses.......................... 2,395 3,964
Loss on sale of securities available for sale...... 858 6,246
Gain on sale of securities available for sale...... (68) (3,195)
Increase in taxes receivable....................... (1,343) (6,431)
Decrease in interest receivable.................... 230 2,116
Decrease in interest payable....................... (59) (168)
Decrease in other assets........................... 3,992 748
Increase in accrued expenses....................... 3,375 1,402
-------- --------
Total adjustments 10,925 6,275
-------- --------
Net cash provided by operating activities............ 26,371 19,873
-------- --------
Cash flows from investing activities:
Proceeds from sales of securities available for
sale.............................................. 72,686 338,028
Purchase of securities available for sale..........(204,379) (296,891)
Proceeds from maturities and calls
of securities avail for sale...................... 83,367 88,796
Net increase in loans.............................. (22,308) (6,820)
Proceeds from sales of real estate owned........... 2,379 2,211
Capital expenditures............................... (1,159) (854)
-------- --------
Net cash provided by/(used in) investing
activities...................................... (69,414) 124,470
-------- --------
Cash flows from financing activities:
Net increase in deposits........................... 26,712 3,202
Increase in short-term borrowing................... 3,583 50,000
Proceeds from issuance of common stock............. 468 540
Proceeds from sale of treasury stock............... 890 ---
Purchase of treasury stock......................... (1,851) ---
Dividends paid..................................... (11,209) (9,707)
-------- --------
Net cash provided by financing activities........ 18,593 44,035
-------- --------
Net increase/(decrease) in cash and cash equivalents. (24,450) 188,378
Cash and cash equivalents at beginning of period..... 355,779 289,889
-------- --------
Cash and cash equivalents at end of period........... 331,329 478,267
======== ========
See accompanying notes to consolidated interim financial statements. Continued)
-3-
TRUSTCO BANK CORP NY
Consolidated Statements of Cash Flows Continued (Unaudited)
(Dollars in Thousands)
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
SIX MONTHS ENDED June 30, 1997 1996
-------- --------
Interest paid...................................... 42,324 40,835
Income taxes paid.................................. 10,549 14,563
Transfer of loans to real estate owned............. 6,576 3,538
Increase in dividends payable...................... 13 19
Change in unrealized (gain)loss on securities
available for sale-gross.......................... (4,603) 18,870
Change in deferred tax effect on unrealized gain
(loss) on securities available for sale........... 1,841 (7,791)
See accompanying notes to consolidated interim financial statements.
-4-
TrustCo Bank Corp NY
Notes to Consolidated Interim Financial Statements
(Unaudited)
1. Financial Statement Presentation
In the opinion of the management of TrustCo Bank Corp NY (the Company), the
accompanying unaudited Consolidated Interim Financial Statements contain all
adjustments necessary to present fairly the financial position as of June 30,
1997, the results of operations for the three months and six months ended June
30, 1997 and 1996, and the cash flows for the six months ended June 30, 1997
and 1996. The accompanying Consolidated Interim Financial Statements should be
read in conjunction with the TrustCo Bank Corp NY year-end Consolidated
Financial Statements, including notes thereto, which are included in TrustCo
Bank Corp NY's 1996 Annual Report to Shareholders on Form 10-K.
2. Recent Accounting Pronouncements
In February 1997, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standards No. 128, "Earnings per Share"
(Statement 128), which establishes standards for computing and presenting
earnings per share (EPS). This statement simplifies the standards for
computing EPS and supersedes Accounting Principals Board Opinion No. 15,
"Earnings per Share" and related interpretations. Statement 128 replaces the
presentation of primary EPS with the presentation of basic EPS. It also
requires dual presentation of basic and diluted EPS on the face of the income
statement for all entities with complex capital structures and requires a
reconciliation of the numerator and denominator of the basic EPS computation
to the numerator and denominator of the diluted EPS computation.
Basic EPS is computed by dividing income available to common stockholders by
the weighted-average number of common shares outstanding for the period.
Diluted EPS reflects the potential dilution that could occur if securities or
other contracts to issue common stock were exercised or converted into common
stock or resulted in the issuance of common stock that then shared in the
earnings of the entity (such as the Company's stock options). This Statement
is effective for financial statements issued for periods ending after December
15, 1997, including interim periods. Earlier application is not permitted.
This Statement requires restatement of all prior-period EPS data presented.
Management does not anticipate that the adoption of Statement 128 will
materially impact EPS.
In February 1997, the FASB issued Statement of Financial Accounting Standards
No. 129, "Disclosure of Information about Capital Structure" (Statement 129),
which establishes standards for disclosure about a company's capital
structure. In accordance with Statement 129, companies will be required to
provide in the financial statements a complete description of all aspects of
their capital structure, including call and put
- 5 -
features, redemption requirements and conversion options. The disclosures
required by Statement 129 are for financial statements for periods ending
after December 15, 1997. Management anticipates providing the required
information in the 1997 annual consolidated financial statements.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
130, "Reporting Comprehensive Income" ( Statement 130) , which establishes
standards for reporting and display of comprehensive income. Statement 130
states that comprehensive income includes the reported net income of a company
adjusted for items that are currently accounted for as direct entries to
equity, such as the mark to market adjustment on securities available for
sale, foreign currency items and minimum pension liability adjustments. This
statement is effective for fiscal years beginning after December 15, 1997.
Management anticipates developing the required information for inclusion in
the 1998 annual consolidated financial statements.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
131, "Disclosures about Segments of an Enterprise and Related Information"
(Statement 131) which establishes standards for reporting by public companies
about operating segments of their business. Statement 131 also establishes
standards for related disclosures about products and services, geographic
areas and major customers. This statement is effective for periods beginning
after December 15, 1997. Management anticipates developing the required
information for inclusion in the 1998 annual consolidated financial
statements.
- 6 -
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Shareholders
TrustCo Bank Corp NY:
We have reviewed the consolidated statement of financial condition of TrustCo
Bank Corp NY and subsidiaries (the Company) as of June 30, 1997, and the
related consolidated statements of income for the three month and six month
periods ended June 30, 1997 and 1996, and the consolidated statements of cash
flows for the six month periods ended June 30, 1997 and 1996. These
consolidated financial statements are the responsibility of the Company's
management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures
to financial data and making inquiries of persons responsible for financial
and accounting matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing standards, the
objective of which is the expression of an opinion regarding the financial
statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that
should be made to the consolidated financial statements referred to above for
them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated statement of financial condition of TrustCo Bank
Corp NY and subsidiaries as of December 31, 1996 and the related consolidated
statements of income, changes in shareholders' equity, and cash flows for the
year then ended (not presented herein); and in our report dated January 24,
1997, we expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the accompanying
consolidated statement of financial condition as of December 31, 1996, is
fairly presented, in all material respects, in relation to the consolidated
statement of financial condition from which it has been derived.
/s/KPMG Peat Marwick LLP
------------------------------
KPMG Peat Marwick LLP
Albany, New York
July 11, 1997
- 7 -
TrustCo Bank Corp NY
Management's Discussion and Analysis
June 30, 1997
The review that follows focuses on the factors affecting the financial
condition and results of operations of TrustCo Bank Corp NY ("TrustCo" or "
Company") during the three month and six month periods ended June 30, 1997,
with comparisons to 1996 as applicable. Net interest income and net interest
margin are presented on a fully taxable equivalent basis in this discussion.
The consolidated interim financial statements and related notes, as well as
the 1996 Annual Report to Shareholders, should be read in conjunction with
this review. Amounts in prior period consolidated interim financial statements
are reclassified whenever necessary to conform to the current period's
presentation. Per share results have all been adjusted for the 15% stock split
effective August 1996.
Statements included in this review and in future filings by TrustCo with the
Securities and Exchange Commission, in TrustCo's press releases, and in oral
statements made with the approval of an authorized executive officer, which
are not historical or current facts, are "forward-looking statements" made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995, and are subject to certain risks and uncertainties that
could cause actual results to differ materially from historical earnings and
those presently anticipated or projected. TrustCo wishes to caution readers
not to place undue reliance on any such forward-looking statements, which
speak only as of the date made. The following important factors, among others,
in some cases have affected and in the future could affect TrustCo's actual
results, and could cause TrustCo's actual financial performance to differ
materially from that expressed in any forward-looking statement: (1) credit
risk, (2) interest rate risk, (3) competition, (4) changes in the regulatory
environment, and (5) changes in general business and economic trends. The
foregoing list should not be construed as exhaustive, and the Company
disclaims any obligation subsequently to revise any forward- looking
statements to reflect events or circumstances after the date of such
statements, or to reflect the occurrence of anticipated or unanticipated
events.
Following this discussion is the table "Distribution of Assets, Liabilities
and Shareholders' Equity: Interest Rates and Interest Differential" which
gives a detailed breakdown of TrustCo's average interest earning assets and
interest bearing liabilities for the three months and six months ended June
30, 1997 and 1996.
Overview
TrustCo recorded net income of $7.9 million, or $0.37 per share for the three
month period ended June 30, 1997, as compared to net income of $6.9 million
and per share earnings of $0.33 for the same time period in 1996. For the six
months ended June 30, 1997, TrustCo recorded net income of $15.4 million or
$0.73 per share compared to $13.6 million and $0.65 per share in the
comparable period in 1996.
- 8 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
The primary factors accounting for the year to date increase in net income
are:
|_| A 3% increase in average earning assets to $2.17 billion,
|_| Reduction in the provision for loan losses by $1.6 million, and
|_| Increase in noninterest income (excluding the effect of securities
transactions ) by approximately $1 million.
These positive factors affecting net income were offset by the following:
|_| Reduction in the net interest margin from 4.14% to 4.04%,
|_| Increase in noninterest expense by $1.7 million, and
|_| Increase in tax expense of $1.1 million.
Asset/Liability Management
TrustCo strives to generate superior earnings capabilities through a mix of
core deposits funding a prudent mix of earning assets. This is, in its most
fundamental form, the essence of asset/liability management. Additionally,
TrustCo attempts to maintain adequate liquidity and reduce, to an acceptable
level, the sensitivity of net interest income to changes in interest rates
while enhancing profitability both on a short-term and long-term basis.
Earning Assets
The average balance of earning assets increased by $45.4 million to $2.18
billion during the second quarter of 1997 compared to 1996. The average yield
on earning assets was 7.99% for the second quarter of 1997 compared to 7.95%
in 1996. For the six months ended June 30, 1997, the average balance of
earning assets increased by $53.2 million to $2.17 billion. Included in the
tables "Distribution of Assets, Liabilities and Shareholders' Equity: Interest
Rates and Interest Differential" is a detailed breakdown of TrustCo's average
earning assets and interest bearing liabilities for the three month and six
month periods ended June 30, 1997 and 1996.
Loans
During the second quarter of 1997, the loan portfolio grew by $17.8 million to
$1.25 billion from the $1.23 billion balance for the comparable period in
1996. The average yield on the loan portfolio decreased 3 basis points to
8.73% for the second quarter of 1997, versus 8.76% for the same time period in
1996. The net result was an increase in interest income on loans to $27.2
million in 1997 from $26.8 million in 1996.
For the six month period ended June 30, 1997, the average balance in the loan
portfolio was $1.24 billion, an increase of $15.7 million over the $1.23
billion average balance for the six
- 9 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
months ended June 30, 1996. The yield on the loan portfolio was 8.72% for the
first half of 1997, and 8.79% for the same time period in 1996. The
combination of the increase in the average balance of loans outstanding offset
the 7 basis points reduction in yield to produce an increase in interest
income on loans to $54.1 million in 1997.
All of the increase during the second quarter and first half of 1997 was
concentrated in the residential mortgage loan portfolio. For the quarter the
average balance of residential mortgage loans was $829.2 million, an increase
of $48.7 million from the second quarter 1996 average balance of $780.5
million. Likewise, for the first half of 1997 the average balance of
residential mortgage loans was $819.4 million, an increase of $44.2 million
from the 1996 average balance of $775.2 million. TrustCo's aggressive
marketing of these loans, combined with quick decision making on loan
applications, and low closing costs, allowed the Company to grow this portion
of the loan portfolio.
Commercial loans decreased by $21.3 million during the second quarter of 1997,
and by $18.3 million year to date 1997, as compared to 1996. The yield on this
portfolio increased to 9.48% for the second quarter, up 14 basis points
compared to the second quarter of 1996. Likewise, the six month results
reflect an increase of 6 basis points in the yield on the commercial loan
portfolio between 1996 and 1997.
Home equity lines of credit decreased to $180.3 million for the second quarter
of 1997, compared to the $188.1 million in the second quarter of 1996. The six
month results also reflect a decrease in the balances of home equity lines of
credit by $8.3 million to $181.8 million in 1997. Installment loans decreased
by $1.8 million and $1.9 million for the quarter and first half of 1997,
respectively, as compared to the same time periods in 1996. These decreases in
loan balances reflect the intense competition that exists for these products
among banks and other financial service providers in the Upstate New York area
TrustCo is a retail oriented institution, and as such, stresses the importance
of consumer oriented products such as residential mortgage loans, home equity
loans, and home equity lines of credit. Each of these areas is an important
contributor to profitability at TrustCo, and is a focus of continued marketing
and product development, to produce increases in the outstanding balances. The
second quarter and year to date results reflect this focus and also highlight
the competitive environment TrustCo operates in with respect to new loan
originations. TrustCo competes with numerous national, regional, and locally
based financial institutions for new loan and deposit business. Recently,
other financial institutions have made changes to their loan underwriting
standards in an effort to maintain or increase loan origination balances,
however, TrustCo has decided not to pursue this strategy, but instead to focus
on its strengths which are: local decision making, loan pricing, speed of
closing, and low closing costs. This focus has been immensely successful,
especially in the residential loan market.
- 10 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
Securities Available for Sale
During the second quarter of 1997, the average balance of securities available
for sale were $632.4 million with a yield of 7.71%, compared to the 1996
second quarter balance of $631.1 million and a 7.56% yield. The combination of
the slightly greater balance outstanding coupled with the 15 basis points
increase in the yield have resulted in interest income of $12.2 million in
1997, compared to $11.9 million in 1996.
The six month period ended June 30, 1997, reflects a decrease in the average
balance outstanding to $613.3 million from the $630.0 million in 1996. The
yield on the portfolio increased by 18 basis points between the six month
period ended June 30,1996, and the comparable period in 1997. Total interest
income remained virtually flat between 1997 and 1996 at $23.6 million in 1997,
and $23.7 million in 1996.
Reflected in both the second quarter and six month results is a shifting
within the securities portfolio from issues by U.S. Government agencies
securities into mortgage backed securities (all of which are issued by U.S.
Government agencies). During the second quarter, the average balance of
mortgage backed securities increased by $55.6 million between 1996 and 1997.
The reason for this shift in portfolio balances is to take advantage of
certain inefficiencies in the mortgage backed securities market compared to
direct issues from the U.S. Government agencies. TrustCo would expect this
trend to continue during 1997, as well as increases in the average balances of
securities issued by various states and political subdivisions.
Federal Funds
During the second quarter, the average balance of federal funds increased to
$306.5 million in 1997, compared to $280.2 million in 1996. The average yield
on this portfolio was 5.57% in the second quarter of 1997, and 5.31% in the
comparable 1996 period. The same trends were also reflected in the year to
date results. The increase in yield on the federal funds portfolio was the
result of the decision by the Federal Reserve Board to increase the target
interest rate on federal funds during the first quarter of 1997 to 5.50%.
The increase in the average balances for 1997 compared to 1996 for both the
quarter and year to date results reflect management's decision to remain
relatively liquid during 1997 as market interest rates in the loan and
securities portfolio were changing. This positions TrustCo to take advantage
of higher rates when the decision is made to reinvest this excess liquidity.
Funding Opportunities
TrustCo utilizes various funding sources to support its earning assets
portfolio. The vast majority of the Company's funding comes from traditional
deposit vehicles such as savings, interest bearing checking, and time deposit
accounts. Also, TrustCo developed a Short-Term
- 11 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
Investment Account which was introduced during 1995. This account is available
exclusively to customers in the Trust Department.
During the quarter total interest bearing liabilities increased by $41.8
million to $1.97 billion in 1997. The overall yield on the interest bearing
liabilities increased 12 basis points to 4.36% in 1997, from 4.24% in the
comparable period in 1996. Total interest expense for the quarter was $21.4
million in 1997, and $20.3 million in 1996. Similar increases were noted for
the six month results with total interest bearing liabilities increasing by
$50.7 million to $1.96 billion in 1997 and the yield increasing 6 basis points
to 4.35%.
The increase in interest bearing liabilities is concentrated in certificates
of deposit and in short term borrowings. For the second quarter of 1997,
certificates of deposit increased by $44.9 million over 1996, and the
short-term borrowing were $19.7 million greater in the second quarter of 1997
than in the comparable period in 1996.
Growth in deposit balances resulted from successful marketing and advertising
campaigns undertaken in 1997. In addition, new branches opened since 1995
continue to attract new customer accounts.
Net Interest Income
Taxable equivalent net interest income totaled $22.2 million for the second
quarter of 1997 and 1996. On a year to date basis, taxable equivalent net
interest income was $44.0 million in 1997 and $43.9 million in 1996. The net
interest spread was 3.63% for the second quarter of 1997 and 3.71% for 1996.
Net interest margin was 4.07% for the second quarter of 1997 and 4.14% in
1996. For the six months the net interest spread and margin were 3.61% and
4.04% in 1997 and 3.70% and 4.14% in 1996, respectively.
Nonperforming Assets
Nonperforming assets include nonperforming loans which are those loans in a
nonaccrual status, loans that have been restructured and loans past due 90
days or more and still accruing interest. Also included in the total of
nonperforming assets are foreclosed real estate properties which are
categorized as real estate owned.
Impaired loans are defined as those commercial and commercial real estate
loans on a nonaccrual status, and loans restructured since January 1, 1995,
when newly effective accounting standards required changing the
identification, measurement and reporting of impaired loans, and loans whose
terms have been modified in a troubled debt restructuring. The following will
describe the nonperforming assets of TrustCo as of June 30, 1997.
Nonperforming loans: Total nonperforming loans were $12.2 million at June 30,
1997, down $1.7 million from the total at June 30, 1996. Nonaccrual loans were
$ 7.7 million at June
- 12 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
30, 1997, compared to $10.8 million at June 30, 1996. Restructured loans
increased $1.4 million to $3.5 million as of June 30, 1997, compared to June
30, 1996.
Total commercial and commercial real estate impaired loans were $2.4 million
at June 30, 1997, and together with the newly restructured retail loans of
$3.7 million, represent the Company's impaired loans at June 30, 1997. Of the
total $12.2 million of nonperforming loans at June 30, 1997, $6.1 million were
identified as being impaired, leaving $6.2 million of loans that are
nonperforming retail loans. TrustCo does not consider these to be impaired
loans.
During the first six months of 1997 there have been $2.3 million of commercial
loan charge offs, and $1.4 million of consumer loan charge offs. Recoveries
during the six month period have been $2.0 million.
Real estate owned: Total real estate owned increased to $8.8 million at June
30, 1997, from $4.7 million at June 30, 1996. The increase in real estate
owned between June 30, 1996, and June 30, 1997, was principally due to two
commercial real estate properties that were foreclosed on in the third quarter
of 1996 and the first quarter of 1997. Likewise, there has been an increase in
foreclosures on residential real estate between June 30, 1996 and 1997. The
increase in the residential real estate foreclosures is an indication of the
economic stress that the Upstate New York area is suffering as a result of
corporate downsizing, relocating of state employees, and the overall lack of
growth in the area.
Allowance for loan losses: The balance of the allowance for loan losses is
maintained at a level that is, in management's judgment, representative of the
amount of the risk inherent in the loan portfolio, given past, present and
expected future conditions.
At June 30, 1997, the allowance for loan losses was $ 52.3 million, which
represents a slight increase from the $51.6 million in the allowance at year
end 1996. The allowance represent 4.16% of the loan portfolio as of June 30,
1997, up slightly from 4.15% of loans as of year end 1996. The year to date
provision charged to expense was $2.4 million in 1997 and $4.0 million in
1996.
Liquidity and Interest Rate Sensitivity
TrustCo seeks to obtain favorable sources of funding and to maintain prudent
levels of liquid assets in order to satisfy varied liquidity demands.
TrustCo's earnings performance and strong capital position enable the Company
to raise funds easily in the marketplace and to secure new sources of funding.
The Company actively manages its liquidity through target ratios established
under its liquidity policies. Continual monitoring of both historical and
prospective ratios allows TrustCo to employ strategies necessary to maintain
adequate liquidity. Management has also defined various degrees of adverse
liquidity situations which could potentially occur, and has prepared
appropriate continuance plans should such a situation arise.
- 13 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
Noninterest Income
Total noninterest income for the three months ended June 30, 1997, was $3.8
million compared to $1.0 million in 1996. For 1997 the Company recorded $300
thousand of net securities losses during the second quarter, compared to $2.6
million of net securities losses in the comparable period in 1996. Therefore,
once these securities transactions are eliminated, the second quarter 1997
noninterest income was $4.1 million compared to $3.7 million in 1996. The
increase in noninterest income is primarily centered in growth in Trust
Department income and fees charged on deposit accounts.
For the six months ended June 30, 1997, total noninterest income (excluding
the effect of net securities transactions) was $8.1 million in 1997, and $7.2
million for the corresponding period in 1996.
Noninterest Expenses
Total noninterest expense for the second quarter of 1997 was $11.6 million, an
increase of $900 thousand from the $10.7 million recognized in the second
quarter of 1996. The increase in noninterest expense is due to increases in
salaries and benefits cost of $500 thousand as a result of increasing benefit
costs and new hires, increase in occupancy cost of $200 thousand due to
additional costs associated with new branches opened in 1996 and 1997, and a
$500 thousand increase in equipment cost also attributable to the branch
expansion program and computer modifications. These additional costs were
slightly offset by decreases in real estate expenses and other miscellaneous
costs.
For the first six months of 1997, noninterest expense amounted to $ 22.8
million compared to $21.1 million in 1996. Similar to the second quarter
results, the increased costs are primarily in the salaries and benefits area
and the additional costs associated with the branch expansion program.
Income Taxes
In the second quarter of 1997 and 1996, TrustCo recognized $4.7 million and
$4.1 million, respectively, of income tax expense. This resulted in an
effective tax rate of 37.3% in 1997 and 1996. For the six months of 1997,
total tax expense was $9.2 million compared to $8.1 million in 1996.
- 14 -
TrustCo Bank Corp NY
Management's Discussion and Analysis -- continued
June 30, 1997
Capital Resources
Consistent with its long-term goal of operating a sound and profitable
financial organization, TrustCo strives to maintain strong capital ratios. New
issues of equity securities have not been required since traditionally, most
of its capital requirements are met through the capital retained in the
Company (after the dividends on the common stock).
Total shareholders' equity at June 30, 1997, was $168.9 million an increase of
$15.5 million from the June 30, 1996 balance of $153.4 million.. The change in
shareholders' equity between 1996 and 1997 reflect the net income retained by
TrustCo, and $6.7 million of additional unrealized gains on the securities
available for sale portfolio as of June 30, 1997, as compared to June 30,
1996. Excluding the effect of this market value adjustment on securities
available for sale, total stockholders' equity would have been $160.9 million
at June 30, 1997, and $152.1 million at June 30, 1996.
TrustCo declared dividends of $0.55 per share during the first six months of
1997, compared to $0.48 in 1996. These resulted in a dividend payout ratio of
72.7% in 1997, and 71.5% in 1996. The Company achieved the following capital
ratios as of June 30, 1997 and 1996:
June 30, Minimum Regulatory
1997 1996 Guidelines
---- ---- ----------
Tier 1 risk adjusted
capital 13.37 12.64 4.00
Total risk adjusted
capital 14.66 13.92 8.00
In addition, at June 30, 1997 and 1996, consolidated equity to asset ratio
(excluding the mark to market adjustment on securities available for sale) was
7.01% and 6.85%, respectively.
- 15 -
TrustCo Bank Corp NY
Management's Discussion and Analysis
STATISTICAL DISCLOSURE
I. DISTRIBUTION OF ASSETS, LIABILITIES AND SHAREHOLDERS' EQUITY;
INTEREST RATES AND INTEREST DIFFERENTIAL
The following table summarizes the component distribution of average balance
sheet, related interest income and expense and the average annualized yields on
interest-earning assets and annualized rates on interest-bearing libilities of the
Registrant and the Bank (adjusted for tax equivalency) for each of the reported periods.
Nonaccrual loans are included in loans for this analysis. The average balances of sec-
urities available for sale is calculated using amortized costs for these securities.
Included in the balance of shareholders' equity is unrealized appreciation, net of tax,
in the available for sale portfolio of $4.7 million in 1997 and $2.6 million in 1996.
The subtotals contained in the following table are the arithmetic totals of the items
contained in that category.
Second Quarter Second Quarter
1997 1996
___________________________ ___________________________
Average Average Average Average Change in Variance Variance
(dollars in thousands) Balance Interest Rate Balance Interest Rate Interest Balance Rate
Income/ Change Change
Assets Expense
Commercial loans..........$ 205,983 $4,877 9.48% $227,301 $ 5,303 9.34% (426) (894) 468
Residential mortgage ..... 829,227 17,112 8.25% 780,528 16,201 8.30% 911 1,522 (611)
Home equity lines of credit 180,294 4,228 9.41% 188,066 4,293 9.18% (65) (571) 506
Installment loans......... 29,685 957 12.93% 31,526 1,033 13.18% (76) (57) (19)
------- ------ -------- ------ ----- ----- ----
Loans,net of unearned
income........... 1,245,189 27,174 8.73% 1,227,421 26,830 8.76% 344 --- 344
Securities available for
sale:
U.S. Treasuries and
agencies........ 388,988 7,599 7.81% 456,154 8,775 7.70% (1,176) (2,048) 872
Mortgage-backed
securities...... 114,412 2,189 7.65% 58,767 1,112 7.57% 1,077 1,064 13
States and political
subdivisions.... 95,882 1,946 8.12% 73,269 1,436 7.84% 510 457 53
Other ................... 33,092 460 5.57% 42,871 601 5.62% (141) (136) (5)
------- ------ ------- ----- ----- ----- -----
Total securities
available for sale..... 632,374 12,194 7.71% 631,061 11,924 7.56% 270 (663) 933
Federal funds sold........ 306,462 4,255 5.57% 280,165 3,712 5.31% 543 359 184
------- ------ ------- ----- ----- ----- ----- -----
Total Interest earning
assets................ 2,184,025 43,623 7.99% 2,138,647 42,466 7.95% 1,157 (304) 1,461
Allowance for loan loss.. (52,639) ------ (51,230) ------ ----- ----- -----
Cash and non-interest
earning assets 150,623 128,127
-------- --------
Total assets............. $2,282,009 $2,215,544
========== ==========
Liabilities and shareholders' equity
Deposits:
Interest-bearing
checking............ $ 233,763 899 1.54% $ 236,196 902 1.54% (3) (21) 18
Money market accounts. 59,609 435 2.93% 69,202 500 2.91% (65) (85) 20
Savings............... 661,430 5,664 3.44% 672,179 5,737 3.43% (73) (97) 24
CD's over $100,000.... 97,761 1,415 5.80% 86,635 1,214 5.63% 201 163 38
Other time deposits... 798,069 11,591 5.83% 764,326 10,840 5.70$ 751 506 245
------- ------ ------- ------ ----- --- ---
Total time deposits.... 1,850,632 20,004 4.34% 1,828,538 19,193 4.22% 811 466 345
Short-term borrowings.... 115,725 1,373 4.76% 96,000 1,097 4.59% 276 235 41
------ ------ --------- ------ ----- --- ---
Total interest-bearing
Liabilities 1,966,357 21,377 4.36% 1,924,538 20,290 4.24% 1,087 701 386
Demand deposits.......... 116,930 ------ 110,271 ------ ----- --- ---
Other liabilities........ 35,884 28,968
Shareholders' equity..... 162,838 151,767
--------- ---------
Total liab.& shareholders
equity................ $2,282,009 2,215,544
========= =========
Net interest income...... 22,246 22,176 70 (1,005) 1,075
------ ------ ----- ----- -----
Net interest spread...... 3.63% 3.71%
Net interest margin (net interest
income to total interest earning
assets)..... 4.07% 4.14%
Tax equivalent adjustment 760 644
------ ------
Net interest income
per book....... 21,486 $21,532
====== ======
-16-
TrustCo Bank Corp NY
Management's Discussion and Analysis
STATISTICAL DISCLOSURE
I. DISTRIBUTION OF ASSETS, LIABILITIES AND SHAREHOLDERS' EQUITY;
INTEREST RATES AND INTEREST DIFFERENTIAL
The following table summarizes the component distribution of average balance
sheet, related interest income and expense and the average annualized yields on
interest-earning assets and annualized rates on interest-bearing libilities of the
Registrant and the Bank (adjusted for tax equivalency) for each of the reported periods.
Nonaccrual loans are included in loans for this analysis. The average balances of sec-
urities available for sale is calculated using amortized costs for these securities.
Included in the balance of shareholders' equity is unrealized appreciation, net of tax,
in the available for sale portfolio of $4.8 million in 1997 and $6.9 million in 1996.
The subtotals contained in the following table are the arithmetic totals of the items
contained in that category.
Six Months Six Months
1997 1996
_______________________________ ______________________________
Average Average Average Average Change in Variance Variance
(dollars in thousands Balance Interest Rate Balance Interest Rate Interest Balance Rate
Income/ Change Change
Assets Expense
Commercial loans........ 211,525 $ 9,918 9.40% $229,859 $10,723 9.34% (805) (979) 174
Residential mortgage loans 819,412 33,846 8.26% 775,229 32,288 8.33% 1,558 2,293 (735)
Home equity lines of credit 181,841 8,366 9.28% 190,109 8,742 9.25% (376) (457) 81
Installment loans....... 30,224 1,950 13.01% 32,096 2,131 13.35% (181) (126) (55)
------- ------- -------- ------- ----- ----- -----
Loans,net of unearned
income 1,243,002 54,080 8.72% 1,227,293 53,884 8.79% 196 731 (535)
Securities available for sale:
U.S. Treasuries and
Agencies.. 386,067 15,066 7.81% 452,289 17,279 7.64% (2,213) (3,225) 1,012
Mortgage-backed securities 98,187 3,778 7.70% 65,471 2,434 7.44% 1,344 1,256 88
States and political
subdivisions 94,942 3,842 8.09% 71,017 2,751 7.75% 1,091 963 128
Other ................. 34,102 940 5.53% 41,200 1,242 6.04% (302) (202) (100)
------- ------- -------- ------ ----- ----- -----
Total securities
available for sale.... 613,298 23,626 7.71% 629,977 23,706 7.53% (80) (1,208) 1,128
Federal funds sold...... 316,514 8,577 5.46% 262,335 7,013 5.38% 1,564 1,448 116
------- ------- -------- ------ ----- ----- -----
Total Interest earning
assets...... 2,172,814 86,283 7.96% 2,119,605 84,603 7.99% 1,680 971 709
Allowance for loan loss. (52,807) ------- (50,862) ------- ----- ----- -----
Cash and non-interest
earning asses 151,584 129,897
--------- ---------
Total assets............ $2,271,591 $2,198,640
============ ===========
Liabilities and shareholders' equity
Deposits:
Interest-bearing checking 233,923 1,784 1.54% 233,814 1,793 1.54% (9) 2 (11)
Money market accounts... 60,375 877 2.93% 69,969 1,012 2.91% (135) (155) 20
Savings................. 660,545 11,251 3.43% 664,329 11,433 3.46% (182) (78) (104)
CD's over $100,000...... 96,032 2,737 5.75% 87,757 2,495 5.72% 242 229 13
Other time deposits..... 793,624 22,926 5.83% 772,336 22,104 5.76% 822 570 252
------- ------ --------- ------- ----- ----- -----
Total time deposits..... 1,844,499 39,575 4.33% 1,828,205 38,837 4.27% 738 568 170
Short-term borrowings... 114,750 2,690 4.73% 80,315 1,830 4.58% 860 801 59
----------- ------- ------- ------- ----- ----- -----
Total interest-bearing
liabilities........ 1,959,249 42,265 4.35% 1,908,520 40,667 4.29% 1,598 1,369 229
Demand deposits......... 115,785 ------- 107,193 ------- ----- ----- -----
Other liabilities....... 34,065 28,025
Shareholders' equity.... 162,492 154,902
--------- ---------
Total liab & shareholders
equity........ 2,271,591 2,198,640
========= =========
Net interest income..... 44,018 43,936 82 (398) 480
------- ------- ----- ----- -----
Net interest spread..... 3.61% 3.70%
Net interest margin
(net interest income to
total interest earning
assets).... 4.04% 4.14%
Tax equivalent adjustment 1,525 1,273
------- -------
Net interest income
per book $42,493 $42,663
======= =======
-17-
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
TrustCo Bank Corp NY
Date: August 5, 1997 By: /s/Robert A. McCormick
-----------------------
Robert A. McCormick
President and
Chief Executive Officer
Date: August 5, 1997 By: /s/Robert T. Cushing
-----------------------
Robert T. Cushing
Vice President and Chief
Financial Officer
- 18 -
Exhibits Index
- -------------------------------------------------------------------------------
Reg S-K
Exhibit No. Description Page No.
----------- ---------------------------------------------------------------
3(i)a Amended and Restated Certificate of 21
Incorporation of TrustCo Bank Corp NY,
dated July 27, 1993
3(i)b Certificate of Amendment of the Certificate 33
of Incorporation of TrustCo Bank Corp NY,
dated May 28, 1996
3(i)c Certificate of Amendment of the Certificate 36
of Incorporation of TrustCo Bank Corp NY,
dated May 19, 1997
3(ii)a Amended and Restated By-Laws of TrustCo 41
Bank Corp NY, dated June 9, 1997
3(ii)b Amended and Restated ByLaws of Trustco 53
Bank, N.A., dated June 6, 1997
10(a) TrustCo Bank Corp NY Performance Bonus 66
Plan, dated May 19, 1997
10(b) Performance Bonus Unit Agreement Under 79
TrustCo Bank Corp NY Performance Bonus
Plan
10(c) TrustCo Bank Corp NY Directors 82
Performance Bonus Plan, dated May 19,
1997
10(d) Performance Bonus Unit Agreement Under 94
TrustCo Bank Corp NY Directors
Performance Bonus Plan
10(e) Amendment No. 5 to Employment 97
Agreement between Trustco Bank, National
Association and TrustCo Bank Corp NY and
Robert A. McCormick, effective May 1, 1997
- 19 -
10(f) Amendment No. 2 to Employment 99
Agreement among Trustco Bank, National
Association and TrustCo Bank Corp NY and
Robert T. Cushing, Nancy A. McNamara,
Ralph A. Pidgeon and William F. Terry,
effective May 1, 1997
22 Submission of Matters to Vote of Security 101
Holders -- Annual Meeting
- 20 -
Exhibit 3(i)a
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
TRUSTCO BANK CORP NY
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
We, Robert A. McCormick and William F. Terry, being respectively, the
President and Chief Executive Officer and Senior Vice President and Secretary
of TrustCo Bank Corp NY, certify:
FIRST. The name of the Corporation is TRUSTCO BANK CORP NY.
SECOND. The Certificate of Incorporation was filed by the Department of
State on the twenty-eighth day of October 1981. An Amended and Restated
Certificate of Incorporation was filed by the Department of State on the
eighth day of July 1988 and an Amendment to the Amended and Restated
Organization Certificate was filed by the Department of State on the
eighteenth day of September 1991.
THIRD. The Certificate of Incorporation of the Corporation is restated
as set forth in its entirety below. The only change to the certificate of
incorporation is increase in the number of authorized shares of common stock
set forth in Section 4.1 of Article IV from 10,000,000 shares to 25,000,000
shares.
FOURTH. The Certificate of Incorporation, as amended and restated,
is set forth below:
Article I
Name
1. The name of the corporation is:
TrustCo Bank Corp NY
(hereinafter called the "Corporation").
Article II
Purposes
2. Subject to any limitation provided in the Business Corporation Law
or any other statute of the State of New York, and except as otherwise
specifically provided in this Certificate, the purposes for which the
Corporation is formed are:
2.1 To the extent that a corporation formed under the Business
Corporation Law of the State of New York may lawfully do so, to acquire, own,
control, hold with power to vote, deal in and with, and dispose of, in any
manner, interests in financial institutions, including, without limitation,
banks, trust companies, savings banks, national banking associations, savings
and loan associations, industrial banks, investment banks, service
- 21 -
banks, safe deposit companies, credit unions, and mutual trust investment
companies, located within or without the State of New York, and to acquire,
own, control, hold with power to vote, deal in and with, and dispose of, in
any manner, interests in any other companies, corporations, partnerships,
trusts, unincorporated associations, joint stock associations, and other
entities, which are engaged in activities related to the business of banking.
2.2 To the extent that a corporation formed under the Business
Corporation law of the State of New York may lawfully do so, to engage in,
carry on, conduct, and participate in activities, enterprises and businesses
permitted to be engaged in, carried on, conducted and participated in by bank
holding companies under applicable provisions of law and also research,
experimenting, manufacturing, assembling, building, erecting, trading, buying,
selling, collecting, distributing, wholesaling, retailing, importing,
exporting, processing, compounding, producing, refining, synthesizing, mining,
extracting, growing, liquidating, dismantling, demolishing, servicing,
promoting, exhibiting and publishing activities, enterprises and businesses;
and also any activities, enterprises, ventures and businesses similar or
incidental to any of the foregoing.
2.3 To create, acquire, hold, deal in and with, and dispose of, in any
manner, any legal or equitable interest in real property and chattels real,
and, without limiting the generality of the foregoing, to purchase, receive,
take (by grant, gift, devise, bequest or otherwise), own, hold, improve.
employ, use, operate, manage, repair, control, maintain, sell, assign,
transfer, convey, exchange, lease, alter, construct, mortgage or encumber real
property, whether improved or unimproved, and structures and improvements on
real property, or leaseholds, or any other legal or equitable interests or
rights therein.
2.4 To create, acquire, hold, deal in and with, and dispose of, in any
manner, any legal or equitable interest in tangible or intangible personal
property, and, without limiting the generality of the foregoing, to make,
purchase, receive, take (by grant, gift, bequest, lease, exchange or
otherwise), own, hold, improve, employ, use, operate, manage, repair, control,
maintain, process, import, export, sell, assign, transfer, convey, exchange,
lease or otherwise dispose of, mortgage, ledge or otherwise encumber or in any
manner to exploit, turn to account, trade or deal in or with, personal
property, whether tangible or intangible, or any other legal or equitable
interests or rights therein.
2.5 To make, create, apply for, renew, take (by grant, gift, bequest or
otherwise), purchase, lease or otherwise acquire, to hold, own, register, use,
operate, to sell, assign, license, lease, transfer, exchange or otherwise
dispose of, to mortgage, pledge or otherwise encumber, to acquire or grant
licenses with respect to, or in any manner to exploit, turn to account, trade
or deal in or with, copyrights, trademarks, service marks, designs,
inventions, discoveries, improvements, developments, processes, formulas,
patents, trade names, labels, prints, or any interest or right, whether legal
or equitable, therein.
2.6 To purchase, take (by grant, gift, bequest or otherwise), receive,
subscribe for, invest in or otherwise acquire, own, hold, employ, sell, lend,
lease, exchange, transfer, assign, or otherwise dispose of, mortgage, pledge,
use, and otherwise deal in and with, or in respect of shares, stock, bonds,
debentures, warrants, rights, scrip, notes, evidences of indebtedness,
certificates of interest or participation in profit-sharing agreements,
collateral
- 22 -
trust certificates, preorganization certificates and subscriptions, investment
contracts, voting trust certificates, certificates of deposit or other
securities or obligations of any kind by whomsoever issued (whether or not
engaged in similar or different businesses, governmental or other activities);
to exercise in respect thereof all powers and privileges of individual or
corporate ownership or interest therein, including the right to vote thereon
(by proxy or otherwise) for any and all purposes; to consent or otherwise act
with respect thereto, without limitation and to issue in exchange therefor the
Corporation's shares, stock, bonds, debentures, warrants, rights, scrip,
notes, evidences of indebtedness, or other securities or obligations of any
kind.
2.7 To make contracts, incur debts and other liabilities, and borrow
money on such terms and at such rate of interest as the Corporation may
determine; and to mortgage, pledge, convey, assign, in trust or otherwise
encumber or dispose of, the property, good will, franchises or other assets of
the Corporation, including contract rights and including after-acquired
property.
2.8 To lend money, with or without security; provided that the
Corporation shall not have the power to engage in the business of banking.
2.9 To issue, reissue, sell, assign, exchange, pledge, negotiate or
otherwise dispose of, to purchase, receive, take, own, hold or otherwise
acquire, to deal in or with, or to cancel, shares, stock, bonds, debentures,
warrants, rights, scrip, notes, evidences of indebtedness or other securities
or obligations of the corporation of any kind, whether secured or unsecured,
and whether or not convertible into or subordinated to any other class of
securities.
2.10. In furtherance of its corporate business, to guarantee or assume
liability for the payment of the principal of, or dividends or interest on, or
sinking fund payments in respect of, shares, stock, bonds, debentures,
warrants, rights, scrip, notes, evidences of indebtedness, certificates of
interest or participation in profit-sharing agreements, collateral trust
certificates, preorganization certificates and subscriptions, investment
contracts, voting trust certificates, certificates of deposit, or other
securities or obligations of any kind by whomsoever issued; and to guarantee
or assume liability for the performance of any other contract or obligation,
made or issued by any domestic or foreign corporation, partnership,
association, trustee, group, individual or entity; and, when authorized in any
manner provided by law, to give any guaranty although not in furtherance of
the Corporation's purposes.
2.11 In furtherance of its corporate business, to be a promoter,
partner, co-venturer, member, associate or manager of other business
enterprises or ventures, or to be an agent thereof, or to the extent permitted
in any jurisdiction to be an incorporator of other corporations of any kind or
type.
2.12 To cause to be formed under the laws of any state or country, to
control or in any manner participate in the management of, to reorganize,
merge, consolidate, and to liquidate or dissolve any corporation, association
or organization of any kind.
- 23 -
2.13 To engage in, carry on, conduct and/or participate in any activity,
enterprise or business which is similar or related to any activity, enterprise
or business herein set forth, or which is capable of being conveniently
carried on incidental to any such activity, enterprise or business or which
may directly or indirectly protect or enhance the value of any of the rights
or property of the Corporation.
2.14 To engage in, carry on, conduct and/or participate in any general
or specific branch or phase of the activities, enterprises or businesses
authorized in this Certificate in the State of New York or in any other state
of the United States and in all foreign countries, and in all territories,
possessions and other places, and in connection with the same, or any thereof,
to he and act either as principal, agent, contractor or otherwise.
2.15 To do everything necessary, suitable, convenient or proper for the
accomplishment, attainment or furtherance of, to do every other act or thing
incidental to, appurtenant to, growing out of or connected with, the purposes
set forth in this Certificate, whether alone or in association with others; to
possess all the rights, powers and privileges now or hereafter conferred by
the laws of the State of New York upon a corporation organized under the
Business Corporation Law of the State of New York (as the same may be amended
from time to time) or any statute which may be enacted to supplement or
replace it, and, in general, to carry on any of the activities and to do any
of the things herein set forth to the same extent and as fully as a natural
person or a partnership, association, corporation, or other entity, or any of
them, might or could do; provided that nothing herein set forth shall be
construed as authorizing the Corporation to possess any purpose, object, or
power, or to do any act or thing forbidden by law to a corporation organized
under the Business Corporation Law of the State of New York.
The foregoing provisions of this Article shall be construed as purposes,
objects and powers, and each as an independent purpose, object and power, in
furtherance, and not in limitation, of the purposes, objects and powers
granted to the Corporation by the laws of the State of New York; and except as
otherwise specifically provided in any such provision, no purpose, object or
power herein set forth shall be in any way limited or restricted by reference
to, or inference from, any other provision of this Certificate.
Article III
Office
The office of the corporation is to be located in the City of
Schenectady, County of Schenectady, and State of New York.
Article IV
Number of Shares; Preemptive Rights Denied
4.1 The total number of shares of Common Stock which the Corporation
shall have authority to issue is 25,000,000 shares of the par value of $1 per
share.
The total number of shares of Preferred Stock which the Corporation
shall have authority to issue is 500,000 shares of the par value of $10 per
share.
- 24 -
The Board of Directors of the Corporation shall have the authority to
provide for the issuance of the Preferred Stock in one or more series, with
such voting powers, full or limited, but not to exceed one vote per share, or
without voting powers, and with such designations, conversion tights,
redemption prices, dividend rates and similar matters, including preferences
over shares of Common Stock or other series of Preferred Stock as to dividends
or distributions of assets and relative participation, optional or other
special rights, and qualifications, limitations or restrictions thereof, as
shall be set forth in resolutions providing for the issuance thereof that may
be adopted by the Board of Directors.
4.2 No holder of shares of the Corporation shall be entitled as of right
to subscribe for, purchase or receive any new or additional shares of any
class, whether now or hereafter authorized, or any notes, bonds, debentures or
other securities convertible into, or carrying options or warrants to
purchase, shares of any class; but all such new or additional shares of any
class, or notes, bonds, debentures or other securities convertible into, or
carrying options or warrants to purchase, shares of any class may be issued or
disposed of by the Board of Directors to such persons and on such terms as it,
in its absolute discretion, may deem advisable.
Article V
Designation of Secretary of State; Mailing Address
5. The Secretary of State is designated as the agent of the Corporation
upon whom process in any action or proceeding against the Corporation may be
served, and the address to which the Secretary of State shall mail a copy of
process in any action or preceding against the Corporation which may be served
upon him is:
320 State Street
Schenectady, NY 12301
Attn: Corporate Secretary
Article VI
Directors; Election and Classification
6. The entire Board of Directors, consisting of not less than twelve
(12) members and not more than fifteen (15) members, shall be divided into
three (3) classes. The number of directors of Class A shall equal one-third
(1/3) of the total number of directors as determined in the manner provided in
the By-Laws (with any fractional remainder to count as one); the number of
directors of Class B shall equal one-third (1/3) of said total number of
directors (or the nearest whole number thereto); and the number of directors
of Class C shall equal said total number of directors minus the aggregate
number of directors of Classes A and B. At the election of the first Board of
Directors, the class of each of the members then elected shall be designated.
The term of office of each member then designated as a Class A director shall
expire at the annual meeting of shareholders next ensuing, that of each member
then designated as a Class B director at the annual meeting of shareholders
one year thereafter, and that of each member then designated as a Class C
director at the annual meeting of shareholders two years thereafter. At each
annual meeting of shareholders held after the election and classification of
the first Board of Directors,
- 25 -
directors to succeed those whose terms expire at such annual meeting shall be
elected to hold office for a term expiring at the third succeeding annual
meeting of shareholders and until their respective successors are elected and
have qualified or until their respective earlier displacement from office by
resignation, removal or otherwise.
Article VII
Duration
7. The duration of the Corporation is to be perpetual.
Article VIII
Shareholders - Quorum, Voting and Special Meetings
8. The holders of at least a majority of the outstanding Voting Stock
of the Corporation shall be present in person or by proxy at any meeting of
shareholders in order to constitute a quorum for the transaction of any
business, and the affirmative vote of at least a majority of the Corporation's
outstanding Voting Stock shall be needed to approve any matter on which such
shareholders are entitled to vote except that the affirmative vote or request,
as the case may be, of at least two-thirds of the Corporation's Voting Stock
shall be needed to effect a change, modification or repeal of any provision in
the Certificate of Incorporation or By-Laws and to call a Special Meeting of
shareholders. This provision does not affect those circumstances under which
shareholders may call a Special Meeting for the election of directors as a
matter of law and the right of management to call shareholder meetings as set
forth in the By-Laws.
Article IX
Quorum and Voting Requirements at Directors' Meeting
9. A majority of the Board of Directors shall be present at any meeting
of Directors in order to constitute a quorum for the transaction of any
business. The affirmative vote of a majority of the entire Board of Directors
shall be necessary for the transaction of any business or specified item of
business, except as otherwise provided in this Certificate, and except that,
the affirmative vote of two-thirds of the entire Board of Directors shall be
necessary to change, amend or repeal any provision of the Certificate of
Incorporation or By-Laws.
Article X
Business Combination
10.1 Shareholder Approval of Business Combinations -- Maximum Vote.
(A) Except as otherwise expressly provided in Section 10.2 of this
Article 10, the approval of any Business Combination (as hereinafter defined)
shall, in addition to any affirmative vote required by law or any other
provision of this Certificate of Incorporation or any preferred stock
designation of the Corporation, require the affirmative vote of the holders of
not less than two-thirds of the shares of the Corporation then entitled to
vote generally in the election of directors of the Corporation (hereinafter in
this Article 10 referred
- 26 -
to as "Voting Stock"), voting together as a single class, with each share of
Voting Stock to have one (1) vote.
(B) The term "Business Combination" as used in this Article 10 shall
mean:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Substantial Shareholder (as
hereinafter defined) or (b) any other corporation which, after such merger or
consolidation, would be a Substantial Shareholder, regardless of which entity
survives;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or with
any Substantial Shareholder of all or any significant part of the assets of
the Corporation or any Subsidiary, or both, with a "significant part of the
assets" to be defined as more than ten percent (10%) of the total assets of
such entity as shown on its audited statement of condition as of the end of
the most recent fiscal year ending prior to the time the particular
transaction is announced;
(iii) the adoption of any plan or proposal for the liquidation
or dissolution of the Corporation proposed by or on behalf of any Substantial
Shareholder; or
(iv) any transaction involving the Corporation or any
Subsidiary, including any issuance, transfer or reclassification of any
securities of, or any recapitalization of, the Corporation or any Subsidiary,
or any merger or consolidation of the Corporation with any Subsidiary (whether
or not involving a Substantial Shareholder), if the transaction would have the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is owned directly or indirectly by a
Substantial Shareholder.
10.2 Exception to Maximum Vote Requirement.
The provision of Section 10.1 of this Article 10 shall not be applicable
to any Business Combination, and such Business Combination shall require only
such affirmative shareholder vote as is required by law or otherwise, if, in
the case of a Business Combination which does not involve any cash or other
consideration being received by shareholders of the Corporation (in their
capacities as shareholders), the condition specified in the following
paragraph (i) is met, or, in the case of any Business Combination, either the
condition specified in the following paragraph (i) is met or the condition
specified in the following paragraph (ii) is met:
(i) the Business Combination shall have been approved by
two-thirds of the Disinterested Directors (as hereinafter defined), it being
understood that this condition shall not be capable of satisfaction unless
there is at least one Disinterested Director.
(ii) the consideration to be received per share by holders of
Common Stock of the Corporation and by holders of each other class of Voting
Stock outstanding, if any, shall be Fair Consideration (as hereinafter
defined).
- 27 -
10.3 Definitions.
(A) "Fair Consideration" shall mean,
(i) in the case of shares of Common Stock, an amount in cash or
readily available funds at least equal to the highest of the following
(whether or not the Substantial Shareholder has previously acquired such
shares):
(a) the highest per share price paid by the
Substantial Shareholder for any such shares acquired by it within the three-
year period immediately preceding the first public announcement of the
proposal of the Business Combination (hereinafter referred to as the
"Announcement Date"), plus an "Interest Adjustment" of such price, as
defined hereafter in this Section 10.3(A);
(b)the highest reported per share price at which such
shares were publicly traded during the three-year period immediately
preceding the Announcement Date, plus an "Interest Adjustment" of such price,
as defined hereafter in this Section 10.3(A);
(c) the per share fair market value of such shares on
the Announcement Date, plus an "Interest Adjustment" of such value, as
defined hereafter in this Section 10.3(A); or
(d)the book value per share of Common Stock as of the
end of the latest fiscal quarter preceding the Announcement Date, plus an
"Interest Adjustment" of such value, as defined hereafter in this Section
10.3(A).
(ii) and in the case of shares of any class of Voting Stock of
the Corporation outstanding, an amount in cash or readily available funds at
least equal to the highest of the following (whether or not the Substantial
Shareholder has previously acquired any such shares);
(a) the highest per share price paid by the
Substantial Shareholder for any such shares acquired by it within the
three-year period immediately preceding the Announcement Date, plus an
"Interest Adjustment" of such price, as defined hereafter in this Section
10.3(A);
(b)the highest reported per share price at which such
shares were public traded during the three-year period immediately preceding
the Announcement Date, plus an "Interest Adjustment" of such price,as defined
hereafter in this Section 10.3(A);
(c) the per share fair market value of such shares on
the Announcement Date, plus an "Interest Adjustment" of such value,as defined
hereafter in this Section 10.3(AA); or
(d)the highest preferential amount per share to which
the holders of such shares are entitled in the event of voluntary or
involuntary liquidation or dissolution of the Corporation.
- 28 -
An "Interest Adjustment" of any price or value per share for a class of
shares under this Section 10.3(A) shall equal an amount of interest on such
price or value compounded annually from the Announcement Date until the
Consummation Date of the Business Combination (the "Consummation Date"), or,
in the case of subdivisions (a) and (b) in each of the subsections (A)(i) and
(A)(ii) in this Section 10.3, from the date the Substantial Shareholder first
became a Substantial Shareholder (the "Determination Date") until the
Consummation Date, at a market prime rate of interest as may be determined
from time to time by a majority of the Disinterested Directors, less the
aggregate amount of any cash dividends per share paid on such class of shares
during such period up to but not in excess of such amount of interest.
(B) "Substantial Shareholder" shall mean and include any individual,
corporation, partnership or other person or entity (other than the Corporation
or any Subsidiary) which, together with its "Affiliates" and "Associates" (as
such terms were defined as of December 11, 1984, in Rule 12b-2 under the
Securities Exchange Act of 1934, is the "Beneficial Owner" (as determined in
accordance with the criteria set forth as of December 11, 1984, under Rule
13d-3 under the Securities Exchange Act of 1934) in the aggregate of more than
five percent (5%) of the voting power of the then-outstanding Voting Stock of
the Corporation of any Affiliate or Associate of any such individual,
corporation, partnership or other person or entity.
(C) "Subsidiary" shall mean any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Corporation.
(D) "Disinterested Director" shall mean any member of the Board of
Directors of the Corporation (the "Board") who is unaffiliated with the
Substantial Shareholder and who was a member of the Board prior to the
Determination Date or became a member of the Board after the Determination
Date and was recommended or elected by a majority of Disinterested Directors
then on the Board.
10.4 Interpretative Power of Disinterested Directors.
A majority of the Disinterested Directors from time to time shall have
the power and duty to determine, on the basis of facts known to them after
reasonable inquiry, all facts necessary to determine compliance with this
Article 10, including, without limitation, (1) whether a person or entity is a
Substantial Shareholder, (2) whether the price in a proposed Business
Combination is Fair Consideration, (3) the number of shares of Voting Stock
beneficially owned by any person or entity at any given time, and (4) the fair
market value as of any given date of the shares of any class of Voting Stock.
10.5 Alteration, Amendment and Repeal
Notwithstanding any other provision of this Certificate of Incorporation
or any provision of law or any preferred stock designation of the Corporation
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the
Voting Stock required by law or this Certificate of Incorporation or any
preferred stock designation of this Corporation, the affirmative vote of
- 29 -
the holders of at least two-thirds of the voting power of the then-outstanding
shares of Voting Stock, voting together as a single class, shall be required
to alter, amend or repeal, or to adopt any provision inconsistent with, this
Article 10 or any provision of this Article 10.
Article XI
Limitation of Personal Liability
11. To the fullest extent that the Business Corporation Law of the State
of New York, as the same exists or may hereafter be amended, permits
elimination or a limitation of the liabilities of directors, no director of
the corporation shall be liable to the corporation, or its shareholders for
any breach of duty in such capacity. Any repeal or modification of this
Article by the shareholders of the corporation shall be prospective only and
shall not adversely affect any elimination or limitation of the personal
liability of a director of the corporation for acts or omissions occurring
prior to the effective date of such repeal or modification.
FIFTH. This Amendment was authorized by a vote of the Board of
Directors, followed by a vote of the holders of a majority of all outstanding
shares entitled to vote thereon at a meeting of Shareholders held on the
seventeenth day of May, 1993.
SIXTH. This restatement of the Certificate of Incorporation of the
Corporation was authorized by a majority vote of the Board of Directors
pursuant to section 807 of the Business Corporation Law.
- 30 -
IN WITNESS WHEREOF, THE UNDERSIGNED HAVE SIGNED THIS CERTIFICATE
THIS 27th DAY OF July , 1993, AND DO HEREBY AFFIRM THE CONTENTS TO BE
TRUE UNDER THE PENALTIES OF PERJURY.
/s/ROBERT A. McCORMICK
----------------------
ROBERT A. McCORMICK
President
/s/WILLIAM F. TERRY
-------------------
WILLIAM F. TERRY
Secretary
- 31 -
STATE OF NEW YORK )
) SS.
COUNTY OF SCHENECTADY )
ROBERT A. McCORMICK, being duly sworn, deposes and says that he is the
President and Chief Executive Officer of TRUSTCO BANK CORP NY, the Corporation
named in the foregoing Certificate, that he has read and signed said
Certificate and knows the contents thereof, and that the statements contained
therein are true.
/s/Robert A. McCormick
----------------------
ROBERT A. McCORMICK
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Sworn to before me this
27th day of July , 1993
/s/Joan Clark
--------------------------
Notary Public
Notary Public State of New York
Qualified in Albany County
01CL4822282
My commission expires Nov. 30, 1994
- 32 -
Exhibit 3(i)b
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP NY
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
WE, THE UNDERSIGNED, Robert A. McCormick and William F. Terry, being
respectively, the President and Chief Executive Officer and the Secretary of
TrustCo Bank Corp NY, certify:
1. The name of the Corporation is TrustCo Bank Corp NY.
2. The Certificate of Incorporation was filed by the Department of State
on the twenty- eighth day of October, 1981. A Restated Certificate of
Incorporation was filed by the Department of State on the fifteenth day of
July, 1988 and an Amendment to the Certificate of Incorporation was filed by
the Department of State on the twenty-ninth day of August, 1991. A further
Restated Certificate of Incorporation was filed by the Department of State on
the sixth day of August, 1993.
3. a.The Certificate of Incorporation is amended to increase the number
of authorized shares of common stock from 25,000,000 shares to
50,000,000 shares. The number of shares of common stock issued
before and after such Amendment shall be 18,198,585, such change
being at the rate of 1 share of issued common stock for 1 share of
issued common stock. The number of shares of common stock unissued
before such Amendment shall be 6,801,415 and the number of shares
of common stock unissued after such Amendment shall be 31,801,415,
such change being at the rate of 1 share of unissued common stock
for 4.68 shares of unissued common stock.
b.To effect the foregoing, Section 4.1 of Article IV of the Amended
and Restated Certificate of Incorporation is hereby stricken out
in its entirety,and the following new Article IV is substituted in
lieu thereof:
4.1 The total number of shares of Common Stock which
the Corporation shall have authority to issue is
50,000,000 shares of the par value of $1 per share.
- 33 -
The total number of shares of Preferred Stock
which the Corporation shall have authority to issue is
500,000 shares of the par value of $10 per share.
The Board of Directors of the Corporation
shall have the authority to provide for the issuance
of the Preferred Stock in one or more series, with
such voting powers, full or limited, but not to exceed
one vote per share, or without voting powers, and with
such designations, conversion rights, redemption
prices, dividend rates and similar matters, including
preferences over shares of Common Stock or other
series of Preferred Stock as to dividends or
distributions of assets and relative participation,
optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be set
forth in resolutions providing for the issuance
thereof that may be adopted by the Board of Directors.
4. The amendment to the Certificate of Incorporation was authorized by a
majority vote of the Board of Directors, followed by vote of the holders of a
majority of the Corporation's outstanding shares entitled to vote thereon,
pursuant to Section 803 of the Business Corporation Law.
IN WITNESS WHEREOF, we have signed this Certificate of Amendment on the
28th day of May, 1996 and we affirm the statements contained therein as true
under penalties of perjury.
/s/Robert A. McCormick
------------------------------------
Robert A. McCormick
President and Chief Executive Officer
/s/William F. Terry
------------------------------------
William F. Terry
Secretary
- 34 -
STATE OF NEW YORK )
) SS
COUNTY OF SCHENECTADY )
Robert A. McCormick, being duly sworn, deposes and says that he is the
President and Chief Executive Officer of TrustCo Bank Corp NY, the Corporation
named in the foregoing Certificate of Amendment, that he has read and signed
said Certificate and knows the contents thereof, and that the statements
contained therein are true.
/s/Robert A. McCormick
------------------------------------
Robert A. McCormick
President and Chief Executive Officer
Sworn to before me this
28th day of May, 1996
/s/Joan Clark
--------------------------
Notary Public
My Commission Expires:
Joan Clark
Notary Public State of New York
Qualified in Albany County
01CL4822282
Commission Expires Nov. 30, 1996
- 35 -
Exhibit 3(i)c
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP N Y
UNDER SECTION 805 OF THE NEW YORK BUSINESS CORPORATION LAW
WE, THE UNDERSIGNED, Robert A. McCormick and William F. Terry, being
respectively, the President and Chief Executive Officer and the Secretary of
TrustCo Bank Corp N Y, New York corporation (the "Corporation"), certify:
5. The name of the Corporation is TrustCo Bank Corp N Y.
6. The Certificate of Incorporation of the Corporation was filed by the
Department of State on the twenty-eighth day of October, 1981. A Restated
Certificate of Incorporation was filed by the Department of State on the
fifteenth day of July, 1988 and an Amendment to the Restated Certificate of
Incorporation was filed by the Department of State on the twenty-ninth day of
August, 1991. A further Restated Certificate of Incorporation was filed by the
Department of State on the sixth day of August, 1993 and an Amendment to the
Restated Certificate of Incorporation was filed by the Department of State on
the fifth day of June, 1996.
7. a. The Certificate of Incorporation of the Corporation
is amended to change the number of directors. The
minimum number of directors shall be decreased from
twelve (12) to seven (7) and the maximum number of
directors shall be increased from fifteen (15) to
twenty (20). The number of directors shall be divided
into three (3) classes, as nearly equal in number as
possible, with one class to be elected annually for a
three-year term.
b. To effect the foregoing, Article VI of the Amended
and Restated Certificate of Incorporation of the
Corporation is hereby stricken out in its entirety,
and the following new Article IV is substituted in
lieu thereof:
- 36 -
6. The entire Board of Directors, consisting
of not less than seven (7) members and not more than
twenty (20) members, shall be divided into three (3)
classes of not less than two (2) members each, which
classes are hereby designated as Class A, Class B and
Class C. The number of directors of Class A shall
equal one-third (1/3) of the total number of directors
as determined in the manner provided in the Bylaws
(with any fractional remainder to count as one); the
number of directors in class B shall equal one-third
(1/3) of said total number of directors (or the
nearest whole number thereto); and the number of
Directors in Class C shall equal said total number of
directors minus the aggregate number of directors of
Classes A and B. At the election of the first Board of
Directors, the class of each of the members then
elected shall be designated. The term of office of
each member than designated as a Class A director
shall expire at the annual meeting of shareholders
next ensuing, that of each member then designated as a
Class B director at the annual meeting of shareholders
one year thereafter, and that of each member then
designated as a class C director at the annual meeting
of shareholders two years thereafter. At each annual
meeting of shareholders held after the election and
classification of the first Board of Directors,
directors to succeed those whose terms expire at such
annual meeting shall be elected to hold office for a
term expiring at the third succeeding annual meeting
of shareholders and until their respective successors
are elected and have qualified or until their
respective earlier displacement from office by
resignation, removal or otherwise.
Board of Directors of the Corporation shall have the
authority to establish from time to time the exact
number of directors, as shall be set forth in
resolutions that may be adopted by the Board of
Directors.
8. The amendment to the Certificate of Incorporation of the Corporation
was authorized by a majority vote of the Board of Directors, followed by vote
of the holders of a majority of the Corporation's outstanding shares entitled
to vote thereon, pursuant to Section 803 of the New York Business Corporation
Law.
- 37 -
IN WITNESS WHEREOF, we have signed this Certificate of Amendment on the
19th day of May, 1997 and we affirm the statements contained therein as true
under penalties of perjury.
/s/Robert A. McCormick
------------------------------------
Robert A. McCormick
President and Chief Executive Officer
/s/William F. Terry
------------------------------------
William F. Terry
Secretary
- 38 -
STATE OF NEW YORK )
) SS
COUNTY OF SCHENECTADY )
Robert A. McCormick, being duly sworn, deposes and says that he is the
President and Chief Executive Officer of TrustCo Bank Corp NY, the Corporation
named in the foregoing Certificate of Amendment, that he has read and signed
said Certificate and knows the contents thereof, and that the statements
contained therein are true.
/s/Robert A. McCormick
------------------------------------
Robert A. McCormick
President and Chief Executive Officer
Sworn to before me this
19th day of May, 1997
/s/Robert Breton
--------------------------
Notary Public
Robert Breton
Notary Public, State of New York
Qualified in Schenectady County
02BR4956524
Commission Expires 9-25-97
My Commission Expires Sept. 25, 1997
- 39 -
STATE OF NEW YORK )
) SS
COUNTY OF SCHENECTADY )
William F. Terry, being duly sworn, deposes and says that he is the
Secretary of TrustCo Bank Corp NY, the Corporation named in the foregoing
Certificate of Amendment, that he has read and signed said Certificate and
knows the contents thereof, and that the statements contained therein are
true.
/s/William F. Terry
------------------------------------
William F. Terry
Secretary
Sworn to before me this
19th day of May, 1997
/s/Ann M. Noble
------------------------------
Notary Public
My Commission Expires:
Ann M. Noble
Notary Public, State of New York
No. 4878488
Qualified in Saratoga County
Commission Expires Nov. 24, 1998
- 40 -
Exhibit 3(ii)a
BY-LAWS OF
TRUSTCO BANK CORP NY
(a New York State Corporation)
(As Amended Through May 20, 1997)
-----------------------------------------------
ARTICLE 1
DEFINITIONS
As used in these By-Laws, unless the context otherwise requires, the term:
1.1 "Board" means the Board of Directors of the Corporation
1.2 "Business Corporation Law" means the Business Corporation Law of the State
of New York, as amended from time to time.
1.3 "By-Laws" means the initial By-Laws of the Corporation, as amended from
time to time.
1.4 "Certificate of Incorporation" means the initial certificate of
incorporation of the Corporation, as amended, supplemented or restated from
time to time.
1.5. "Corporation" means TrustCo Bank Corp NY.
1.6 "Directors" means directors of the Corporation.
1.7 "Entire Board" means the total number of directors which the Corporation
would have if there were no vacancies.
1.8 "Chief Executive Officer" means the Chief Executive Officer of the
corporation.
1.9 "Chairman" means chairman of the Board of the Corporation.
1.10 "President" means the President of the Corporation.
1.11 "Secretary" means the Secretary of the Corporation.
1.12 "Vice President" means the Vice President of the Corporation.
ARTICLE 2
- 41 -
SHAREHOLDERS
2.1 PLACE OF MEETINGS. Every meeting of shareholders shall be held at such
place within or without the State of New York as shall be designated by the
Board of Directors in the notice of such meeting or in the waiver of notice
thereof.
2.2 ANNUAL MEETING. A meeting of shareholders shall be held annually for the
election of Directors and the transaction of other business at such hour and
on such business day as may be determined by the Board. Written notice of such
meeting, stating the place, date and hour thereof, shall be given, personally
or by mail, not less than ten nor more than fifty days before the date of such
meeting, to each shareholder certified to vote at such meeting.
2.3 SPECIAL MEETINGS. A special meeting of shareholders, other than those
regulated by statute, may be called at any time by the Board or by the Chief
Executive Officer. It shall also be the duty of the Chief Executive Officer to
call such a meeting whenever requested in writing so to do by shareholders
owning two thirds of the issued and outstanding share entitled to vote at such
a meeting. Written notice of such meeting, stating the place, date, hour and
purpose thereof, and indicating that it is being given by the person or
persons calling such meeting, shall be given, personally or by mail, not less
than ten nor more than fifty days before the date of such meeting, to each
shareholder certified to vote at such meeting.
2.4 QUORUM AND VOTING REQUIREMENTS; ADJOURNMENT. Except with respect to
a special meeting for the election of Directors as required by law, or as
otherwise provided in these ByLaws, (a) the holders of at least a majority of
the outstanding shares of the Corporation shall be present in person or by
proxy at any meeting of the shareholders in order to constitute a quorum for
the transaction of any business, and (b) the votes of the holders of at least
a majority of the outstanding shares of the Corporation shall be necessary at
any meeting of shareholders for the transaction of any business or specified
item of business, other than the changing, amending or repealing of any
provision of the Certificate of Incorporation or By- Laws which shall require
the affirmative vote of two-thirds of the Corporation's voting stock;
provided, however, that when a specified item of business is required to be
voted on by a class or series (if the Corporation shall then have outstanding
shares or more than one class or series), voting as a class, the holders of a
majority of the shares of such class or series shall constitute a quorum (as
to such class or series) for the transaction of such item of business. The
holders of a majority of shares present in person or represented by proxy at
any meeting of shareholders, including an adjourned meeting, whether or not a
quorum is present, may adjourn such meeting to another time and place.
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2.5 INSPECTORS AT MEETINGS. Two or more inspectors shall be appointed by the
Board or the Executive Committee prior to each Annual Meeting of Shareholders,
to serve at the meeting or any adjournment thereof. In case any person
appointed fails to appear or act, the vacancy may be filled by appointment
made by the Board in advance of the meeting or at the meeting by the person
presiding thereat.
2.6 ORGANIZATION. At every meeting of shareholders, the Chief Executive
Officer, or in his absence, an officer of the Corporation designated by the
Board or the Chief Executive Officer, shall act as Chairman of the meeting.
The Secretary, or in his absence, one of the Vice Presidents not acting as
Chairman of the meeting, shall act as Secretary of the meeting. In case none
of the officers above designated to act as Chairman or Secretary of the
meeting, respectively, shall be present, a Chairman or a Secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast
at such meeting by the holders of shares present in person, or represented by
proxy and entitled to vote at the meeting.
2.7 ORDER OF BUSINESS. The order of business at all meetings of shareholders
shall be as determined by the Chairman of the meeting, but the order of
business to be followed at any meeting at which a quorum is present may be
changed by a majority of the votes cast at such meeting by the holders of
shares present in person or represented by proxy and entitled to vote at the
meeting.
ARTICLE 3
DIRECTORS
3.1 BOARD OF DIRECTORS. Except as otherwise provided in the Certificate of
Incorporation, the affairs of the Corporation shall be managed and its
corporate powers exercised by its Board. In addition to the powers expressly
conferred by the By-Laws, the Board may exercise all powers and perform all
acts which are not required, by the By-Laws or the Certificate of
Incorporation or by law, to be exercised and performed by the shareholders.
3.2 NUMBER; QUALIFICATION; TERM OF OFFICE. Subject to Section 702(b) of the
--------------------------------------
Business Corporation Law, the number of Directors constituting the Entire
Board may be changed from time to time by action of the shareholders or the
Board, provided that such number shall not be less than twelve nor more than
fifteen. The Directors shall be divided into three classes as nearly equal in
number as may be, one class to be elected each year for a term of three years
and until their successors are elected and qualified. A Director attaining 75
years of age shall cease to be a Director and that office shall be vacant. A
director who was an employee of the Corporation at the time of his election,
shall vacate his office when he ceases to be a full-time employee of the
Company and shall not be eligible for reelection.
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3.3 ELECTION. Directors shall be elected by the affirmative vote of the
holders of a majority of the Company's outstanding voting stock.
3.4 NEWLY CREATED DIRECTORSHIP AND VACANCIES. Newly created directorships
resulting from an increase in the number of Directors and vacancies occurring
in the Board for any reason, may be filled by vote of a majority of the
Directors then in office, although less than a quorum, at any meeting of the
Board. Directors elected by the Board shall hold office until the next meeting
of shareholders at which the election of directors is in the regular order of
business, and until their successors have been elected and qualified.
3.5 RULES AND REGULATIONS. The Board of Directors may adopt such Rules and
Regulations for the conduct of its meetings and the management of the affairs
of the Company as it may deem proper, not inconsistent with the laws of the
State of New York, or these By-Laws.
3.6 REGULAR MEETINGS. Regular meetings of the Board shall be held on the third
Tuesday of February, May, August and November, unless otherwise specified by
the Board, and may be held at such times and places as may be fixed from time
to time by the Board, and may be held without notice.
3.7 SPECIAL MEETINGS. Special meetings of the Board shall be held whenever
called by the Chief Executive Officer, and a special meeting shall be called
by the Chief Executive Officer or the Secretary at the written request of any
seven Directors. Notice of the time and place of each special meeting of the
Board shall, if mailed, be addressed to each Director at the address
designated by him for that purpose or, if none is designated, at his last
known address at least three days before the date on which the meeting is to
be held; or such notice shall be sent to each Director at such address by
telegraph, or similar means of communication, or be delivered to him
personally, not later than the day before the date on which such meeting is to
be held.
3.8 WAIVERS OF NOTICE. Anything in these By-Laws or in any resolution adopted
by the Board to the contrary notwithstanding, notice of any meeting of the
Board need not be given to any Director who submits a signed waiver of such
notice, whether before or after such meeting, or who attends such meeting
without protesting, prior thereto or at its commencement, the lack of notice
to him.
3.9 ORGANIZATION. At each meeting of the Board, the Chief Executive Officer of
the Corporation, or in the absence of the Chief Executive Officer, a Chairman
chosen by the majority of the Directors present, shall preside. The Secretary,
or in the absence of the Secretary, a Vice President, shall act as Secretary
at each meeting of the Board.
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3.10 QUORUM AND VOTING. A majority of the Entire Board shall constitute a
quorum for the transaction of business or of any specified item of business at
any meeting of the Board. The affirmative vote of a majority of the Entire
Board shall be necessary for the transaction of any business or specified item
of business at any meeting of the Board, except that the affirmative vote of
two-thirds of the Entire Board shall be necessary to change, amend or repeal
any provision of the Certificate of Incorporation or By-Laws.
3.11 WRITTEN CONSENT OF DIRECTORS WITHOUT A MEETING. Any action required
or permitted to be taken by the Board may be taken without a meeting if all
members of the Board consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the Board shall be filed with the minutes of the proceedings of the
Board.
3.12 PARTICIPATION IN MEETING OF BOARD BY MEANS OF CONFERENCE
TELEPHONE OR SIMILAR COMMUNICATIONS EQUIPMENT. Any one or more members
of the Board may participate in a meeting of the Board by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
ARTICLE 4
COMMITTEES
4.1 EXECUTIVE COMMITTEE. There shall be an Executive Committee consisting of
not more than nine Directors, of which four shall constitute a quorum. All but
six of the members of such Executive Committee shall be appointed by the Board
of Directors, shall be known as permanent members and shall hold office until
the organization of the Board after the annual election next succeeding their
respective appointments. Six places on the Executive Committee shall be filled
by the Directors, other than the permanent members of the Executive Committee,
in rotation according to alphabetical order, each panel of six rotating
members serving for one calendar month. In the event that any member of the
Executive Committee is unable to attend a meeting, the Chief Executive Officer
may invite any other Director to take his place for such meeting. The
Executive Committee shall possess and exercise all of the delegable powers of
the Board, except when the latter is in session. It shall keep a record of its
proceedings, and the same shall be subject to examination by the Board at any
time. All acts done and powers and authority conferred by the Executive
Committee from time to time, within the scope of its authority, shall be and
be deemed to be and may be certified as being the act and under the authority
of the Board. Meetings of the Executive Committee shall be held at such times
and places and upon such, if any, notice as the Executive Committee shall
determine from time to time, provided
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that a special meeting of the Executive Committee may be called by the Chief
Executive Officer, in his discretion, and shall be called by the Chief
Executive Officer or Secretary on the written request of any three members,
three days' notice of the time and place of which shall be given in the same
manner as notices of special meetings of the Board of Directors, except that
if such notice is given otherwise than by mail, it shall be sufficient if
given at any time on or before the day preceding the meeting.
4.2 OTHER COMMITTEES. The Board, by resolution adopted by a majority of the
Entire Board, may designate from among its members such other standing or
special committees as may seem necessary or desirable from time to time.
ARTICLE 5
OFFICERS
5.1 OFFICERS. The Board may elect or appoint a Chairman and shall elect or
appoint a President, either of which it shall designate the Chief Executive
Officer and shall elect or appoint one or more Vice Presidents and a
Secretary, and such other officers as it may from time to time determine. All
officers shall hold their offices, respectively, at the pleasure of the Board.
The Board may require any and all officers, clerks and employees to give a
bond or other security for the faithful performance of their duties, in such
amount and with such sureties as the Board may determine.
5.2 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the Corporation
shall have general supervision over the business of the Corporation, subject,
however, to the control of the Board and of any duly authorized committee of
Directors. The Chief Executive Officer shall, if present, preside at all
meetings of the shareholders, at all meetings of the Board and shall supervise
the carrying out of policies adopted or approved by the Board. He may, with
the Secretary or any other officer of the Corporation, sign certificates for
shares of the Corporation. He may sign and execute, in the name of the
Corporation, deeds, mortgages, bonds, contracts and other instruments, subject
to any restrictions imposed by the By-Laws, Board or applicable laws, and, in
general, he shall perform all duties incident to the office of the Chief
Executive Officer and such other duties as from time to time may be assigned
to him by the Board.
5.3 CHAIRMAN AND PRESIDENT. Either the Chairman or the
President shall be designated the Chief Executive Officer of
the Corporation. The one not so designated shall perform
such duties as from time to time may be assigned to him by
the Board or by the Chief Executive Officer.
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5.4 OTHER OFFICERS. All the other officers of the Corporation shall perform
all duties incident to their respective offices, subject to the supervision
and direction of the Board, the Chief Executive Officer, and the Executive
Committee, and shall perform such other duties as may from time to time be
assigned them by the Board or by the Chief Executive Officer. The President
and any Vice President may also, with the Secretary, sign and execute, in the
name of the Corporation, deeds, mortgages, bonds, contracts and other
instruments, subject to any restrictions imposed by the By-Laws, Board or
applicable laws.
ARTICLE 6
CONTRACTS, LOANS, ETC
6.1 EXECUTION OF CONTRACTS. The Board may authorize any officer, employee or
agent, in the name and on behalf of the Corporation, to enter into any
contract or execute and satisfy any instrument, and any such authority may be
general or confined to specific instances, or otherwise limited.
6.2 LOANS. The Chief Executive Officer or any other officer, employee or agent
authorized by the Board may effect loans and advances at any time for the
Corporation from any bank, trust company or other institution or from any
firm, corporation or individual, and for such loans and advances may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and when authorized so to do may pledge
and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances.
6.3 SIGNATURE AUTHORITY. The Chief Executive Officer shall from time to time
authorize the appropriate officers and employees of the Corporation who are to
sign, execute, acknowledge, verify and deliver or accept all agreements,
conveyances, transfers, obligations, authentications, certificates and other
documents and instruments and to affix the seal of the Corporation to any such
document or instrument and to cause the same to be attested by the Secretary
or Assistant Secretary.
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ARTICLE 7
SHARES
7.1 STOCK CERTIFICATES. Certificates representing shares of the Corporation,
in such form as shall be determined from time to time by the Board, shall be
signed by the Chief Executive Officer, the Chairman, the President, or any
Vice President and the Secretary, and may be sealed with the seal of the
Corporation or a facsimile thereof.
7.2 TRANSFER OF SHARES. Transfers of shares shall be made only on the book of
the Corporation by the holder thereof or by his duly authorized attorney or a
transfer agent of the Corporation, and on surrender of the certificate or
certificates representing such shares properly endorsed for transfer and upon
payment of all necessary transfer taxes. Every certificate exchanged, returned
or surrendered to the Corporation shall be marked "Canceled", with the date of
cancellation, by the Secretary or the transfer agent of the Corporation. A
person in whose name shares shall stand on the books of the Corporation shall
be deemed the owner thereof to receive dividends, to vote as such owner and
for all other purposes as respects the Corporation. No transfer of shares
shall be valid as against the Corporation, its shareholders and creditors for
any purpose, except to render the transferee liable for the debts of the
Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom
transferred.
7.3 CLOSING OF TRANSFER BOOKS. The Board may prescribe a period prior to any
shareholders' meeting or prior to the payment of any dividend, not exceeding
fifty days, during which no transfer of stock on the books of the Corporation
may be made and may fix a day as provided by the Business Corporation Law as
of which shareholders entitled to notice and to vote at such meeting shall be
determined.
7.4 TRANSFER AND REGISTRY AGENTS. The Corporation may from time to time
maintain one or more transfer offices or agents and registry officer or agents
at such place or places as may be determined from time to time by the Board.
7.5 LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES. If the holder of any
shares shall notify the Corporation of any loss, destruction, theft or
mutilation of the certificate or certificates representing such shares, the
Corporation may issue a new certificate or certificates to replace the old,
upon such conditions as may be specified by the Board consistent with
applicable laws.
ARTICLE 8
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EMERGENCIES
8.1 OPERATION DURING EMERGENCY. In the event of a state of emergency declared
by the President of the United States or the person performing his functions
or by the Governor of the State of New York or by the person performing his
functions, the officers and employees of the Corporation shall continue to
conduct the affairs of the Corporation under such guidance from the Directors
as may be available except as to matters which by statute require specific
approval of the Board of Directors and subject to conformance with any
governmental directives during the emergency.
8.2 OFFICERS PRO TEMPORE DURING EMERGENCY. The Board of Directors shall have
power, in the absence or disability of any officer, or upon the refusal of any
officer to act, to delegate and prescribe such officer's powers and duties to
any other officer for the time being.
8.3 DISASTER. In the event of a state of emergency resulting from disaster of
sufficient severity to prevent the conduct and management of the affairs and
business of the Corporation by the Directors and officers as contemplated by
these By-Laws, any two or more available members of the Executive Committee
shall constitute a quorum of that committee for the full conduct and
management of the affairs and business of the Corporation, notwithstanding any
other provision of these By-Laws, and such committee shall further be
empowered to exercise all powers reserved to any and all other committees of
the Board established pursuant to Article 4 of these By-Laws. In the event of
the unavailability, at such time, of at least two members of the Executive
Committee, any three available Directors may constitute themselves the
Executive Committee pro tem for the full conduct and management of the affairs
and business of the Corporation in accordance with the provisions of this
Article, until such time as the incumbent Board or a reconstituted Board is
capable of assuming full conduct and management of such affairs and business.
ARTICLE 9
SEAL
9.1 SEAL. The Board may adopt a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation and the year and State
of its incorporation.
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ARTICLE 10
FISCAL YEAR
10.1 FISCAL YEAR. The fiscal year of the Corporation shall be determined,
and may be changed, by resolution of the Board.
ARTICLE 11
VOTING OF SHARES HELD
11.1 VOTING OF SHARE HELD BY THE CORPORATION. Unless otherwise provided by
resolution of the Board and excepting the shares of any subsidiary company of
the Corporation which are to be voted in accordance with the resolution of the
Board, the Chief Executive Officer may from time to time appoint one or more
attorneys or agents of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast
as a shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Corporation, at meetings of the holders of the
shares or other securities of such other corporation and to consent in writing
to any action by any such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed on behalf of the Corporation
and under its corporate seal, or otherwise, such written proxies, consents,
waivers or other instruments as he may deem necessary or proper in the
premises; or the Chief Executive Officer may himself attend any meeting of the
holders of the shares or other securities of any such other corporation and
thereat vote or exercise any or all other powers of the Corporation as the
holder of such shares or other securities of such other corporation.
ARTICLE 12
AMENDMENTS TO BY-LAWS
12.1 AMENDMENTS. The By-Laws or any of them may be altered, amended,
supplemented or repealed, or new By-Laws may be adopted by a vote of the
holders of at least two-thirds of the shares entitled to vote at any regular
or special meeting of shareholders, or by a vote of at least two- thirds of
the Entire Board of Directors at any regular or special meeting thereof,
provided notice of such proposed changes has been set forth in the notice of
meeting of shareholders or Directors.
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ARTICLE 13
INDEMNIFICATION OF DIRECTORS AND OFFICERS
13.1 In addition to authorization provided by law, the Directors are
authorized, by resolution, to provide indemnification or to advance expenses
to any Officer or Director seeking such indemnification or the advancement of
such expenses. They may also, by resolution, authorize agreements providing
for indemnification.
13.2 The indemnification and advancement authorized by this Article shall be
subject to each of the conditions or limitations set forth in the succeeding
subdivisions(s) of this Section.
13.2.1 No indemnification may be made to or on behalf of any Director or
Officer if a judgment or other final adjudication adverse to the Officer
or Director establishes that his acts were committed in bad faith or
were the result of an act of deliberate dishonesty and were material to
the cause of action so adjudicated, or that he personally gained in fact
a financial profit or other advantage to which he was not entitled.
13.3 Officers and Directors of any wholly owned subsidiary serve at the
request of the Corporation for the purpose of this Article.
13.4 The Directors may by resolution, authorize the Corporation's Officers and
Directors to serve as a Director or Officer of any other corporation of any
type or kind, domestic or foreign, of any partnership, joint venture, trust,
employee benefit plan or other enterprise for the purpose of the
indemnification provisions of this Article. The failure to enact such a
resolution shall not, in itself, create a presumption that such service was
not authorized.
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I, William F. Terry, Secretary of TrustCo Bank Corp NY, Schenectady, New York,
hereby certify that the foregoing is a complete, true and correct copy of the
By-Laws of TrustCo Bank Corp NY, and that the same are in full force and
effect at this date.
/s/William F. Terry
-------------------
Secretary
6/9/97
--------
Date
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Exhibit 3(ii)b
BYLAWS OF
TRUSTCO BANK, N.A.
Article I
Meetings of Shareholders
Section 1.1. Annual Meeting. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the association, 192 Erie
Boulevard, City of Schenectady, State of New York or such other place as the
board of directors may designate, at 2:00 o'clock P.M., on the third Tuesday
of April of each year, or if that date falls on a legal holiday in the State
in which the association is located, on the next following banking day. Notice
of the meeting shall be mailed, postage prepaid, at least 10 days and no more
than 50 days prior to the date thereof, addressed to each shareholder at
his/her address appearing on the books of the association, unless the
shareholder files with the secretary a written request to mail notices to him
or her at another address. If, for any cause, an election of directors is not
made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 50 days of
the date fixed, to be designated by the board of directors, or, if the
directors fail to fix the date, by shareholders representing two thirds of the
shares.
Section 1.2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the president, the board of directors or by any one or more
shareholders owning, in the aggregate, not less than fifty-one percent of the
stock of the association. Every such special meeting, unless otherwise
provided by law, shall be called by mailing, postage prepaid, not less than 10
days nor more than 50 days prior to the date fixed for the meeting, to each
shareholder at the address appearing on the books of the association, unless
the shareholder files with the secretary a written request to mail notices to
him or her at another address, a notice stating the purpose of the meeting.
The board of directors may fix a record date for determining shareholders
entitled to notice and to vote at any meeting, in reasonable proximity to the
date of giving notice to the shareholders of such meeting. The record date for
determining shareholders entitled to demand a special meeting is the date the
first shareholder signs a demand for the meeting describing the purpose or
purposes for which it is to be held.
If an annual or special shareholders' meeting is adjourned to a different
date, time, or place, notice need not be given of the new date, time or place,
if the new date, time or place is announced at the meeting before adjournment,
unless any additional items of business are to be considered, or the
association becomes aware of an intervening event materially affecting any
matter to be voted on more than 10 days prior to the date to which the meeting
is adjourned. If a new record date for the adjourned meeting is
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fixed, however, notice of the adjourned meeting must be given to persons who
are shareholders as of the new record date.
Section 1.3. Nominations of Directors. Nominations for election to the board
of directors may be made by the board of directors or by any stockholder of
any outstanding class of capital stock of the association entitled to vote for
the election of directors. Nominations, other than those made by or on behalf
of the existing management of the association, shall be made in writing and
shall be delivered or mailed to the president of the association and to the
Comptroller of the Currency, Washington, D.C., not less than 14 days nor more
than 50 days prior to any meeting of shareholders called for the election of
directors, provided, however, that if less than 21 days' notice of the meeting
is given to shareholders, such nomination shall be mailed or delivered to the
president of the association and to the Comptroller of the Currency not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder:
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the association that
will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the association owned by the
notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the chairman of the meeting, and upon his/her instructions, the
vote tellers may disregard all votes cast for each such nominee.
Section 1.4. Judges of Election. Every election of directors shall be managed
by two or more judges, who shall be appointed from among the shareholders by
the board of directors. The judges of election shall hold and conduct the
election at which they are appointed to serve. After the election, they shall
file with the secretary a certificate signed by them, certifying the result
thereof and the names of the directors elected. The judges of election, at the
request of the chairman of the meeting, shall act as tellers of any other vote
by ballot taken at such meeting, and shall certify the result thereof. If any
judge so appointed shall be absent or refuse to act or if his/her office shall
become vacant and not have been filled by the board, if two of them be present
they may act; otherwise, or if there shall be a failure to appoint two judges
of elections, the presiding officer of the meeting may appoint one or two
judges of election for such meeting, as may be required.
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Section 1.5. Proxies. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
association shall act as proxy. Proxies shall be valid only for one meeting,
to be specified therein, and any adjournments of such meeting. Proxies shall
be dated and filed with the records of the meeting. Proxies with rubber
stamped facsimile signatures may be used and unexecuted proxies may be counted
upon receipt of a confirming telegram from the shareholder. Proxies meeting
the above requirements submitted at any time during a meeting shall be
accepted.
Section 1.6. Quorum. A majority of the outstanding capital stock, represented
in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law, or by the shareholders or
directors pursuant to Section 9.2, but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without
further notice. A majority of the votes cast shall decide every question or
matter submitted to the shareholders at any meeting, unless otherwise provided
by law or by the articles of association, or by the shareholders or directors
pursuant to Section 10.2.
Article II
Directors
Section 2.1. Board of Directors. The board of directors shall have the power
to manage and administer the business and affairs of the association. Except
as expressly limited by law, all corporate powers of the association shall be
vested in and may be exercised by the board. The directors shall be divided
into three classes as nearly equal in number as may be, one class to be
elected each year for a term of three years and until their successors are
elected and have qualified. A director attaining 75 years of age shall cease
to be a director and that office shall be vacant. A director who was an
employee of the association at the time of his/her election, shall vacate
his/her office when he/she ceases to be a full-time employee of the
association and shall not be eligible for reelection.
Section 2.2. Number. The board shall consist of not less than seven (7) nor
more than twenty (20) members, the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution of a
majority of the full board.
Section 2.3. Organization Meeting. The chairman or secretary, upon receiving
the certificate of the judges, of the result of any election, shall notify the
directors-elect of their election and of the time at which they are required
to meet at the main office of the association to organize the new board and
elect and appoint officers of the association for the succeeding year. Such
meeting shall be held on the day of the election or as soon thereafter as
practicable, and, in any event, within 30 days thereof. If, at the time fixed
for such meeting, there shall not be a quorum, the directors present may
adjourn the meeting, from time to time, until a quorum is obtained.
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Section 2.4. Regular Meetings. The regular meetings of the board of directors
shall be held, without notice, at 12 o'clock noon on the third Tuesday of each
month at the main office or other such place as the board may designate. When
any regular meeting of the board falls upon a holiday, the meeting shall be
held on the next banking business day unless the board shall designate another
day.
Section 2.5. Special Meetings. Special meetings of the board of directors may
be called by the president of the association, or at the request of three or
more directors. Each member of the board of directors shall be given three
days notice stating the time and place by telegram, letter, or in person, of
each special meeting.
Section 2.6. Quorum. A majority of the director positions on the board shall
constitute a quorum at any meeting, except when otherwise provided by law, or
the bylaws, but a less number may adjourn any meeting, from time to time, and
the meeting may be held, as adjourned, without further notice. If the number
of directors is reduced below the number that would constitute a quorum, no
business may be transacted, except selecting directors to fill vacancies in
conformance with Section 2.7.
If a quorum is present, the board of directors may take action through the
vote of a majority of the directors who are in attendance.
Section 2.7. Vacancies. Vacancies in the Board of Directors occurring during
the year may be filled for the unexpired term by a majority vote of the
remaining directors. Any additional directors resulting from an increase in
the number of directors shall be divided among the classes of directors as
nearly as practicable in proportion to the respective number of directors in
each class prior to the increase, and such additional directors may be elected
by a majority of the directors in office at the time of the increase, or if
not so elected prior to the next annual meeting of shareholders, such
additional directors shall be elected by vote of the shareholders at such
meeting.
Section 2.8. Waivers of Notice. Waiver of notice in writing by any director of
any special meeting of the board of directors, whether executed prior or
subsequent to such meeting, or attendance at such meeting, shall be equivalent
to notice to such director of such meeting.
Section 2.9. Rules and Regulations. The board of directors may adopt such
rules and regulations for the conduct of its meetings and the management of
the affairs of the association as it may deem proper, not inconsistent with
the laws of the United States, or these bylaws.
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Article III
Committees of the Board
Section 3.1. Executive Committee. There shall be an executive committee
consisting of not more than nine directors, of which four shall constitute a
quorum. All but six of the members of such executive committee shall be
appointed by the board of directors, shall be known as permanent members and
shall hold office until the organization of the board after the annual
election next succeeding their respective appointments. Six places on the
executive committee shall be filled by the directors, other than the permanent
members of the executive committee, in rotation according to alphabetical
order, each panel of six rotating members serving for one calendar month. In
the event that any member of the executive committee is unable to attend a
meeting, the chief executive officer may invite any other director to take
his/her place for such meeting. The executive committee shall possess and
exercise all of the delegable powers of the board, except when the latter is
in session. It shall keep a record of its proceedings and the same shall be
subject to examination by the board at any time. All acts done and powers and
authority conferred by the executive committee from time to time, within the
scope of its authority, shall be and be deemed to be and may be certified as
being the act and under the authority of the board.
Section 3.2. Meetings of the Executive Committee. Meetings of the executive
committee shall be held at such times and places and upon such, if any, notice
as the executive committee shall determine from time to time, provided that a
special meeting of the executive committee may be called by the chief
executive officer, in his/her discretion, and shall be called by the chief
executive officer or secretary on the written request of any three members,
three days notice of the time and place of which shall be given in the same
manner as notices of special meetings of the board of directors, except that
if such notice is given otherwise than by mail it shall be sufficient if given
at any time on or before the day preceding the meeting.
Section 3.3. Examining Committee. There shall be an examining committee
composed of not less than three directors, exclusive of any active officers,
appointed by the board annually or more often to hold office during the
pleasure of the board. The duty of that committee shall be to examine at least
once during each calendar year and within 15 months of the last examination
the affairs of the association or cause suitable examinations to be made by
auditors responsible only to the board of directors and to report the result
of such examination in writing to the board at the next regular meeting
thereafter. Such report shall state whether the association is in a sound
condition, and whether adequate internal controls and procedures are being
maintained and shall recommend to the board such changes in the manner of
conducting the affairs of the association as shall be deemed advisable.
Section 3.4. Other Committees. The board of directors may appoint, from time
to time, from its own members, compensation, special litigation and other
committees of one or more persons, for such purposes and with such powers as
the board may determine. Each committee must have one or more
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member(s), who serve at the pleasure of the board of directors. Provisions of
the articles and bylaws governing place of meetings, notice of meeting, quorum
and voting requirements of the board of directors, apply to committees and
their members as well. The creation of a committee and appointment of members
to it must be approved by the board of directors.
However, a committee may not:
(1) Authorize distributions of assets or dividends.
(2) Approve action required to be approved by shareholders.
(3) Fill vacancies on the board of directors or any of its committees.
(4) Amend articles of association.
(5) Adopt, amend or repeal bylaws.
(6) Authorize or approve issuance or sale or contract for sale of shares,
or determine the designation and relative rights, preferences and
limitations of a class or series of shares.
Article IV
Officers and Employees
Section 4.1. Officers. The board may elect or appoint one of its members to be
chairman and shall elect or appoint one of its members to be president, either
of whom it shall designate the chief executive officer and shall elect or
appoint one or more vice presidents, a secretary, a chief financial officer
and such other officers as it may from time to time determine. The board may
authorize an officer to appoint and dismiss one or more officers or assistant
officers. All officers shall hold their offices, respectively, at the pleasure
of the board, without regard to whether the board or a duly authorized officer
has appointed such officers. The board may require any and all officers,
clerks, and employees to give a bond or other security for the faithful
performance of their duties, in such amount and with such sureties as the
board may determine.
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Section 4.2. President. If the president is not the chairman, then in the
absence of the chairman, the president shall preside at any meeting of the
board. The president shall have general executive powers, and shall have and
may exercise any and all other powers and duties pertaining by law,
regulation, or practice, to the office of president, or imposed by these
bylaws. The president shall also have and may exercise such further powers and
duties as from time to time may be conferred, or assigned by the board of
directors.
Section 4.3. Chief Executive Officer. The board shall designate either the
chairman of the board or the president to be the chief executive officer. The
chief executive officer of the association shall have general supervision over
the business of the association, subject, however, to the control of the board
and of any duly authorized committee of directors. The chief executive officer
shall preside at all meetings of the shareholders, at all meetings of the
board and shall supervise the carrying out of policies adopted and approved by
the board. The chief executive officer may appoint or dismiss one or more
officers or assistant officers as he or she may from time to time determine to
be necessary or desirable; provided however, that the board shall retain
exclusive authority to elect or appoint the chairman of the board of
directors, the president, the chief executive officer, the secretary, the
auditor and such other officers of the association the election or appointment
of which the board may, by resolution, reserve to itself. The chief executive
officer may sign and execute, in the name of the association deeds, mortgages,
bonds, contracts and other instruments, subject to any restrictions imposed by
the bylaws, board, or applicable laws, and, in general, the chief executive
officer shall perform all duties incident to the office of the chief executive
officer and such other duties as from time to time may be assigned to him or
her by the board.
Section 4.4. Secretary. The board of directors shall appoint a secretary who
shall be secretary of the board and of the association, and shall keep
accurate minutes of all meetings. The secretary shall attend to the giving of
all notices required by these bylaws; shall be custodian of the corporate
seal, records, documents and papers of the association; shall provide for the
keeping of proper records of all transactions of the association; shall have
and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of cashier, or imposed by these bylaws;
and shall also perform such other duties as may be assigned from time to time,
by the board of directors.
Section 4.5. Chairman and President. Either the chairman or the president
shall be designated the chief executive officer of the association. The one
not so designated shall perform such duties as from time to time may assigned
to him by the board or by the chief executive officer.
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Section 4.6. Other Officers. All the other officers of the association shall
perform all duties incident to their respective offices, subject to
supervision and direction of the board, the chief executive officer, the
executive committee, and shall perform such other duties as may from time to
time be assigned them by the board or by the chief executive officer.
Section 4.7. Auditor. The board of directors shall appoint an auditor to serve
during the pleasure of the board. The auditor shall make such examination of
the accounts, records and transactions of the association as may be required
by the board or the examining committee thereof and the auditor shall perform
such other duties as are prescribed in an audit program to be approved by the
board. The auditor shall be free to examine any department or section of bank
routine without previous officer consultation. The auditor shall maintain a
summary record of dates of completed audits, and shall make periodic reports
to the board or executive committee and to the examining committee, which
shall include such suggestions and recommendations as it may consider it
advisable to make.
Section 4.8. Signature Authority. The signature powers of officers and
employees of the association and the authority of such officers and employees
to affix the seal of the association to any document or instrument shall be
prescribed by the board, which may confer upon certain officers the authority
to delegate such powers or authorizations.
Article V
Fiduciary Activities
Section 5.1. Trust Officer. There shall be a trust officer of this association
whose duties shall be to manage, supervise and direct all fiduciary
activities. Such person shall do or cause to be done all things necessary or
proper in carrying on the fiduciary business of the association according to
provisions of law and applicable regulations; and shall act pursuant to
opinion of counsel where such opinion is deemed necessary. Opinions of counsel
shall be retained on file in connection with all important matters pertaining
to fiduciary activities. The trust officer shall be responsible for all assets
and documents held by the association in connection with fiduciary matters.
The board of directors may appoint other trust officers as it may deem
necessary, with such duties as may be assigned.
Section 5.2. Trust Advisory Committee. The board of directors shall appoint a
committee of three directors, exclusive of any active officer of the
association, which shall, along with the board of directors, have oversight
responsibility for the fiduciary activities of the association. The Committee,
along with the board of directors, will insure that an annual review of all
trust accounts is performed to insure that the accounts are being administered
in accordance with the trust agreement.
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Section 5.3. Fiduciary Files. There shall be maintained by the association
all fiduciary records necessary to assure that its fiduciary responsibilities
have been properly undertaken and discharged.
Section 5.4. Trust Investments. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship
and local law. Where such instrument does not specify the character and class
of investments to be made and does not vest in the association a discretion in
the matter, funds held pursuant to such instrument shall be invested in
investments in which corporate fiduciaries may invest under local law.
Article VI
Stock and Stock Certificates
Section 6.1. Transfers. Shares of stock shall be transferable on the books of
the association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall in proportion to his/her shares, succeed to all rights of the prior
holder of such shares. The board of directors may impose conditions upon the
transfer of the stock reasonably calculated to simplify the work of the
association with respect to stock transfers, voting at shareholder meetings,
and related matters and to protect it against fraudulent transfers.
Section 6.2. Stock Certificates. Certificates of stock shall bear the
signature of the chief executive officer, president or vice president (which
may be engraved, printed or impressed), and shall be signed manually or by
facsimile process by the secretary, assistant secretary, chief financial
officer or any other officer appointed by the board of directors for that
purpose, to be known as an authorized officer, and the seal of the association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the
association properly endorsed.
The board of directors may adopt or use procedures for replacing lost, stolen,
or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial owner
of shares that are registered in the name of a nominee may be recognized by
the association as the shareholder. The procedure may set forth:
(1) The types of nominees to which it applies.
(2) The rights or privileges that the association recognizes in a
beneficial owner.
(3) How the nominee may request the association to recognize the beneficial
owner as the shareholder.
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(4) The information that must be provided when the procedure is selected.
(5) The period over which the association will continue to recognize the
beneficial owner as the shareholder.
(6) Other aspects of the rights and duties created.
Section 6.3. Record Date and Closing Transfer Books. The board of directors
may prescribe a period prior to any stockholders' meeting or prior to the
declaration of any dividend, not exceeding fifty days, during which a transfer
of stock on the books of the association may be made or may fix a day as
provided by the laws of the United States or the Office of the Comptroller of
the Currency as of which stockholders entitled to notice and to vote at such
meeting shall be determined.
Article VII
Corporate Seal
The president, the secretary or other officer thereunto designated by the
board of directors, shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form or such other form as the board of
directors may from time to time prescribe:
( Impression )
( of )
( Seal )
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Article VIII
Emergencies
Section 8.1. Operation During Emergency. In the event of a state of emergency
declared by the President of the United States or the person performing
his/her functions or by the Governor of the State of New York or the person
performing his/her functions, the officers and employees of the association
shall continue to conduct the affairs of the association under such guidance
from the directors as may be available except as to matters which by statute
require specific approval of the board of directors and subject to conformance
with any governmental directives during the emergency.
Section 8.2. Officers Pro Tempore During Emergency. The board of directors
shall have power, in the absence or disability of any officer, or upon the
refusal of any officer to act, to delegate and prescribe such officer's powers
and duties to any other officer for the time being.
Section 8.3. Disaster. In the event of a state of emergency resulting from
disaster of sufficient severity to prevent the conduct and management of the
affairs and business of the association by its directors and officers as
contemplated by these bylaws, any two or more available members of the then
incumbent executive committee shall constitute a quorum of the committee for
the full conduct and management of the affairs and business of the association
in accordance with the provisions of Article III of these bylaws; and in
addition, such committee shall be empowered to exercise all of the powers
reserved to any other committee under Article III hereof. In the event of the
unavailability, at such time, of a minimum of two members of the then
incumbent executive committee, any three available directors shall constitute
the executive committee for the full conduct and management of the affairs and
business of the association in accordance with the provisions of this Article.
This Article shall be subject to implementation by resolutions of the board of
directors passed from time to time for that purpose and any provisions of
these bylaws (other than this Article) and any resolutions which are contrary
to the provisions of this Article or to the provisions of any such implemental
resolutions shall be suspended until it shall be determined by any interim
executive committee acting under this Article, that it shall be to the
advantage of the association acting under this Article, that it shall be to
the advantage of the association to resume the conduct and management of its
affairs and business under all the provisions of these bylaws.
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Section 8.4. Certification of Authority. Anyone dealing with the association
may accept a certification by any three officers that a specified individual
is acting as chief executive officer, president, vice president, chief
financial officer, secretary or assistant secretary, as the case may be, under
the emergency provisions of these bylaws.
Section 8.5. Alternate Location. Offices of the association at which its
business shall be conducted shall be the main office thereof located at 192
Erie Boulevard, Schenectady, and all other legally authorized locations which
may be leased or acquired by the association to carry on its business. During
an emergency resulting in any authorized place of business of the association
being unable to function, the business ordinarily conducted at any such
location shall be relocated elsewhere in suitable quarters, in addition to or
in lieu of the location heretofore mentioned, as may be authorized by the
board of directors or the executive committee or by such persons as are then,
in accordance with these bylaws or resolutions adopted from time to time by
the board of directors, dealing with the exercise of authority in the time of
such emergency, conducting the affairs of the association. Upon any temporary
relocation of an office of the association, as provided under this Article,
notice in writing thereof shall be given to the Office of the Comptroller of
the Currency. Any temporarily relocated place of business of the association
shall be returned to its original location as soon as practicable and such
temporary place of business shall then be discontinued.
Article IX
Miscellaneous Provisions
Section 9.1. Fiscal Year. The fiscal year of the association shall be the
calendar year.
Section 9.2. Execution of Instruments. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, proxies and other instruments or
documents may be signed, executed, acknowledged, verified, delivered or
accepted on behalf of the association by the chairman of the board, or the
president, or any vice president, or the secretary, or the chief financial
officer, or, if in connection with the exercise of fiduciary powers of the
association, by any of those officers or by any trust officer. Any such
instruments may also be executed, acknowledged, verified, delivered or
accepted on behalf of the association in such other manner and by such other
officers as the board of directors may from time to time direct. The
provisions of this section 9.2 are supplementary to any other provision of
these bylaws.
Section 9.3. Records. The articles of association, the bylaws and the
proceedings of all meetings of the shareholders, the board of directors, and
standing committees of the board, shall be recorded in appropriate minute
books provided for that purpose. The minutes of each meeting shall be signed
by the secretary, cashier or other officer appointed to act as secretary of
the meeting.
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Section 9.4. Corporate Governance. To the extent not inconsistent with
applicable federal banking statutes or regulations, or bank safety and
soundness, the corporate governance of the association shall be subject to the
provisions of the Model Business Corporation Act.
Article X
Bylaws
Section 10.1. Inspection. A copy of the bylaws, with all amendments, shall at
all times be kept in a convenient place at the main office of the association,
and shall be open for inspection to all shareholders during banking hours.
Section 10.2. Amendments. The bylaws may be amended, altered or repealed, at
any regular meeting of the board of directors, by a vote of two-thirds of the
total number of the directors except as provided below provided notice of such
proposed changes has been set forth in the notice of meeting of shareholders
or directors. Two-thirds of the association's shareholders may amend or repeal
the bylaws even though the bylaws also may be amended or repealed by its board
of directors.
I, William F. Terry, certify that: (1) I am the duly constituted secretary of
Trustco Bank, N.A. and secretary of its board of directors, and as such
officer am the official custodian of its records; (2) the foregoing bylaws are
the bylaws of the association, and all of them are now lawfully in force and
effect.
I have hereunto affixed my official signature and the seal of the association,
in the city of Schenectady, on this 6th day of June 1997.
/s/William F. Terry
-------------------
William F. Terry, Secretary
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Exhibit 10(a)
TRUSTCO BANK CORP NY
PERFORMANCE BONUS PLAN
TABLE OF CONTENTS
Page No.
ARTICLE I, DEFINITIONS.....................................................1
ARTICLE II, ADMINISTRATION.................................................4
ARTICLE III, GRANTS.............................................. .........4
ARTICLE IV, PERFORMANCE BONUS UNITS........................................5
ARTICLE V, VESTING OF PERFORMANCE BONUS UNITS..............................6
ARTICLE VI, PAYMENT OF PERFORMANCE BONUS UNITS.............................6
ARTICLE VII, VALUATION OF PERFORMANCE BONUS UNITS..........................8
ARTICLE VIII, CHANGES IN CAPITAL AND CORPORATE STRUCTURE...................8
ARTICLE IX, NONTRANSFERABILITY.............................................9
ARTICLE X, WITHHOLDING.....................................................9
ARTICLE XI, VOTING AND DIVIDEND RIGHTS....................................10
ARTICLE XII, CLAIMS.......................................................10
ARTICLE XIII, MISCELLANEOUS PROVISIONS....................................11
ARTICLE XIV, AMENDMENT OF THE PLAN........................................13
ARTICLE XV, EFFECTIVENESS AND TERMS OF PLAN...............................13
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TRUSTCO BANK CORP NY
PERFORMANCE BONUS PLAN
WHEREAS, TrustCo Bank Corp NY (hereinafter referred to as the
"Company") desires to provide a performance bonus to a select group of
management or highly compensated employees of the Company and its subsidiaries
in the event of a change in control of the Company, which is based upon the
appreciation in the value of the common stock of the Company;
NOW, THEREFORE, effective as of May 19, 1997, the Company hereby adopts
the TrustCo Bank Corp NY Performance Bonus Plan which shall read as follows:
ARTICLE I
DEFINITIONS
Section 1.1 "Beneficiary" means the person or persons designated by a
Participant in writing to receive any benefits under this Plan upon the
Participant's death. If a Participant fails to designate a Beneficiary, if no
such Beneficiary is living upon the death of such Participant or if such
designation is legally ineffective, then "Beneficiary" shall mean the trustee
of the Participant's revocable living trust, and, if none, to the personal
representative of the estate of such deceased Participant.
Section 1.2 "Cause" means conduct of a Participant which is finally
adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct. The Committee shall have sole and uncontrolled discretion with
respect to the application of the provisions of this
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Section 1.2 and any determination shall be conclusive and binding upon the
Participant and all other persons.
Section 1.3 "Change in Control" means any of the following events: (a)
any individual, corporation (other than the Company), partnership, trust,
association, pool, syndicate, or any other entity or any group of persons
acting in concert becomes the beneficial owner, as that concept is defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, of securities of the Company possessing
twenty percent (20%) or more of the voting power for the election of Directors
of the Company; (b) there shall be consummated any consolidation, merger or
other business combination involving the Company or the securities of the
Company in which holders of voting securities of the Company immediately prior
to such transaction own, as a group, immediately after such transaction,
voting securities of the Company (or, if the Company does not survive such
transaction, voting securities of the Company surviving such transaction)
having less than fifty percent (50%) of the total voting power in an election
of Directors of the Company (or such other surviving corporation); (c) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Directors of the Company cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by the Company's shareholders, of each new Director of the
Company was approved by a vote of at least two-thirds of the Directors of the
Company then still in office who were Directors of the Company at the
beginning of any such period; (d) removal by the stockholders of all or any of
the incumbent Directors of the Company other than a removal for Cause; or (e)
there shall be consummated any sale,
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lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company (on a
consolidated basis) to a party which is not controlled by or under common
control with the Company.
Section 1.4 "Committee" means the Stock Option Committee of the Board
of Directors of the Company.
Section 1.5 "Company" means TrustCo Bank Corp NY.
Section 1.6 "Participant" means a key employee of the Company or a
subsidiary of the Company who is designated by the Committee as eligible to
participate in the Plan. An individual who has an Account in the Plan and
whose employment with the Company terminates for reasons other than Cause
within one year prior to a Change in Control will continue to be a Participant
in the Plan.
Section 1.7 "Performance Bonus Unit Account" or "Account" means the
account established on behalf of each Participant in the Plan in accordance
with Section 4.1 herein.
Section 1.8 "Performance Bonus Unit" means a unit granted pursuant to
Section 3.1 herein, the value of which is based upon the appreciation in value
of the common stock of the Company.
Section 1.9 "Plan" means the TrustCo Bank Corp NY Performance Bonus
Plan.
ARTICLE II
ADMINISTRATION
Section 2.1 The Plan shall be administered by the Committee. Subject
to the provisions of the Plan, the Committee shall have exclusive power to
select the key
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employees to be granted Performance Bonus Units, to determine the number of
Performance Bonus Units to be granted to each key employee selected and to
determine the time or times when Performance Bonus Units will be granted;
provided, however, that the individuals designated for participation will be
from a select group of management or highly compensated employees. The
authority granted to the Committee by the preceding sentence will be exercised
based upon recommendations received from the management of the Company.
The Committee shall have authority to interpret the Plan, to adopt and
revise rules and regulations relating to the Plan, to determine the conditions
subject to which any awards may be made or payable, and to make any other
determinations which it believes necessary or advisable for the administration
of the Plan. Determinations by the Committee shall be made by majority vote
and shall be final and binding on all parties with respect to all matters
relating to the Plan.
ARTICLE III
GRANTS
Section 3.1 Performance Bonus Units shall be granted to such key
employees of the Company as the Committee shall determine. The maximum number
of Performance Bonus Units that may be awarded under the Plan shall not exceed
an aggregate of 1,000,000 units. If any Performance Bonus Unit awarded under
the Plan shall be forfeited or canceled, such Performance Bonus Unit may again
be awarded under the Plan. Performance Bonus Units shall be granted at such
time or times and shall be subject to such
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terms and conditions, in addition to the terms and conditions set forth in the
Plan, as the Committee shall determine.
ARTICLE IV
PERFORMANCE BONUS UNITS
Section 4.1 Performance Bonus Units granted to a Participant shall be
credited to a Performance Bonus Unit Account established and maintained for
such Participant. The Account of a Participant shall be the record of
Performance Bonus Units granted to him under the Plan, is solely for
accounting purposes and shall not require a segregation of any Company assets.
Each Performance Bonus Unit shall be valued by the Committee, in the manner
provided in Article VII, as of the date of grant thereof. Each grant of
Performance Bonus Units under the Plan to a Participant and the value of such
Performance Bonus Units as of the date of grant shall be communicated by the
Committee in writing to the Participant within thirty (30) days after the date
of grant.
ARTICLE V
VESTING OF PERFORMANCE BONUS UNITS
Section 5.1 Performance Bonus Units granted to a Participant shall
become vested upon the earlier of (i) a Change in Control or (ii) the
Participant's termination of employment with the Company for reasons other
than Cause within one year prior to a Change in Control.
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ARTICLE VI
PAYMENT OF PERFORMANCE BONUS UNITS
Section 6.1 Upon a Change in Control each Participant shall be entitled
to receive from the Company an amount, with respect to each Performance Bonus
Unit in the Participant's Account, determined as follows: (i) the value (as
determined by the Committee pursuant to Article VII) of each Performance Bonus
Unit in the Participant's Account, as of the date of the Change of Control,
(ii) reduced by the value (as determined pursuant to Article VII) of such
Performance Bonus Unit as of the date of grant thereof to the Participant.
Section 6.2 Payment to a Participant of the amount set forth in Section
6.1 for Performance Bonus Units shall be made within thirty (30) days after
the Change in Control, in cash or stock at the discretion of the Committee. A
Participant will not be entitled to receive any earnings on the value of his
Performance Bonus Units with respect to the period between the date of the
Change in Control and the receipt of payments under the Plan.
Section 6.3 In the event the benefits paid to a Participant under this
Plan or any other plan or agreement are subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986 (the "Excise Tax"), then the
Company will pay to the Participant, within ten (10) days after the date the
Excise Tax is determined to be due, an additional amount ("Gross Up") such
that the net amount retained by the Participant after deduction of (i) any
Excise Tax on the benefits under the Plan and any other benefits subject to
the Excise Tax, and (ii) any Federal, State and local income taxes and Excise
Tax upon the payment provided for in this Section 6.3, shall be equal to the
benefits under the Plan. For purposes of determining the amount of the Gross
Up, the Participant shall be deemed
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to pay Federal, State and local income taxes at the highest marginal rate of
taxation in the calendar year in which payment of benefits under the Plan are
to be made. State and local income taxes shall be determined based upon the
state and locality of the Participant's domicile upon a Change of Control. The
determination of whether such Excise Tax is payable and the amount thereof
shall be based upon the opinion of tax counsel selected by the Company and
acceptable to the Participant. If such opinion is not finally accepted by the
Internal Revenue Service upon audit, then appropriate adjustments shall be
computed (without interest but with Gross Up, if applicable) by such tax
counsel based upon the final amount of the Excise Tax so determined. The
adjusted amount shall be paid by the appropriate party in one lump cash sum
within thirty (30) days of such computation.
ARTICLE VII
VALUATION OF PERFORMANCE BONUS UNITS
Section 7.1 Except as provided in Section 7.2, for all purposes of the
Plan, the value of a Performance Bonus Unit on a date of grant pursuant to
Section 3.1 or upon the date of a Change in Control pursuant to Section 6.1
will be an amount equal to the average of the high and low prices for shares
of Company common stock on the applicable date, as reported on the National
Association of Securities Dealers Automatic Quotation ("NASDAQ") National
Market System or such other system as may supersede it. If the applicable date
is not a trading day for NASDAQ market makers, the price on the next preceding
trading day will be used to determine the value of the Performance Bonus Unit.
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Section 7.2 In the case of a Change in Control defined in Section
1.3(b) herein, the value of a Performance Bonus Unit on an applicable
determination date will be based upon the value of the consideration received
or to be received by shareholders of the Company in connection with such
Change in Control.
ARTICLE VIII
CHANGES IN CAPITAL AND CORPORATE STRUCTURE
Section 8.1 In the event of any change in the outstanding shares of
common stock of the Company by reason of an issuance of additional shares,
recapitalization, reclassification, reorganization, stock split, reverse stock
split, combination of shares, stock dividend or similar transaction, the
Committee shall proportionately adjust, in an equitable manner, the number of
Performance Bonus Units held by Participants under the Plan. The foregoing
adjustment shall be made in a manner that will cause the relationship between
the aggregate appreciation in outstanding common stock and earnings per share
of the Company and the increase in value of each Performance Bonus Unit
granted hereunder to remain unchanged as a result of the applicable
transaction.
ARTICLE IX
NONTRANSFERABILITY
Section 9.1 Performance Bonus Units granted under the Plan, and any
rights and privileges pertaining thereto, may not be transferred, assigned,
pledged or hypothecated in any manner, by operation of law or otherwise, other
than by will or by the laws of descent
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and distribution, and shall not be subject to execution, attachment or similar
process. In the event of a Participant's death, payment of any amount due
under the Plan shall be made to the Participant's Beneficiary.
ARTICLE X
WITHHOLDING
Section 10.1 The Company shall have the right to deduct from all
amounts paid pursuant to the Plan any taxes required by law to be withheld
with respect to such awards.
ARTICLE XI
VOTING AND DIVIDEND RIGHTS
Section 11.1 Except as provided under Section 8.1, no Participant shall
be entitled to any voting rights, to receive any dividends, or to have his
Account credited or increased as a result of any dividends or other
distribution with respect to the common stock of the Company.
ARTICLE XII
CLAIMS
Section 12.1 If a claim for benefits under the Plan is denied, the
Committee will provide a written notice of the denial setting forth the
specific reasons for the denial, a description of any additional material or
information necessary for a claimant to perfect a claim, an explanation of why
such material or information is necessary and appropriate and information as
to the steps to be taken for the claim to be submitted for review. A claimant
may request a review of a denial. Such request should be submitted to
Committee in writing,
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within sixty (60) days after receipt of the denial notice stating the reasons
for requesting the review. A claimant may review pertinent documents and
submit issues and comments in writing. A decision will be made on the review
of the denial of a claim not later than sixty (60) days after the Committee's
receipt of a request for review unless special circumstances require an
extension of time for processing, in which case a decision shall be rendered
as soon as possible but not later than one hundred twenty (120) days after
receipt of a request for review, provided that the claimant is given written
notice of the extension of time within the original sixty (60) day period. The
decision on review will be in writing to claimant and shall include specific
reasons for the decision.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 No employee or other person shall have any claim or right
to be granted an award under the Plan. Neither the Plan nor any action taken
hereunder shall be construed as giving any employee any right to be retained
in the employ of the Company.
Section 13.2 The Plan shall at all times be entirely unfunded and no
provision shall at any time be made with respect to segregating assets of the
Company for payment of any benefits hereunder. No Participant or other person
shall have any interest in any particular assets of the Company by reason of
the right to receive a benefit under the Plan and any such Participant or
other person shall have only the rights of a general unsecured creditor of the
Company with respect to any rights under the Plan.
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Section 13.3 Notwithstanding the provisions of Section 13.2, the
Company may in its discretion make contributions to a rabbi trust for the
purpose of accumulating assets to satisfy its obligations hereunder; provided,
however, that upon a Change in Control, the Company will make contributions to
a rabbi trust in an amount that is sufficient to pay each Plan participant or
beneficiary the benefits to which Plan participants or their beneficiaries
would be entitled pursuant to the terms of the Plan as of the date of the
Change in Control. For purposes of this Section 13.3, the term "Change in
Control" will include the execution of a definitive agreement expressing the
intent to accomplish any consolidation, merger or other business combination
involving the Company or the securities of the Company described in Section
1.3(b) herein. At all times the assets of the rabbi trust shall remain subject
to the general creditors of the Company.
Section 13.4 Except when otherwise required by the context, any
masculine terminology in this document shall include the feminine, and any
singular terminology shall include the plural.
Section 13.5 If a Change in Control, as defined in Section 1.3(b) is
intended to be accounted for under the pooling of interests accounting rules,
and any provision of this Plan is determined to preclude that Change in
Control from being accounted for under the pooling of interests accounting
rules, the Plan may be amended to eliminate the obstacle to the use of pooling
of interests rules for that Change in Control or other changes to the Plan may
be made that are determined to be appropriate. No such amendment or other
changes should created an obstacle to the Change of Control being accounted
for under the pooling of interests accounting rules.
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ARTICLE XIV
AMENDMENT OF THE PLAN
Section 14.1 The Board of Directors of the Company may alter or amend
the Plan from time to time without obtaining the approval of the stockholders
of the Company. No amendment to the Plan may alter, impair or reduce the
number of Performance Bonus Units granted under the Plan prior to the
effective date of such amendment or any vesting or payment provisions with
respect thereto without the written consent of any affected Participant.
ARTICLE XV
EFFECTIVENESS AND TERMS OF PLAN
Section 15.1 The effective date of the Plan shall be May 19, 1997. The
Committee may at any time terminate the Plan. Upon termination of the Plan,
payments shall be made with respect to Performance Bonus Units granted prior
to the date of termination.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed on
this 19th day of May, 1997.
TRUSTCO BANK CORP NY
By: /s/ Robert A. McCormick
-------------------------
Title: President
-------------------------
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Exhibit 10(b)
PERFORMANCE BONUS UNIT AGREEMENT
UNDER
TRUSTCO BANK CORP NY PERFORMANCE BONUS PLAN
THIS PERFORMANCE BONUS UNIT AGREEMENT is made as of June 17, 1997, by
and between TrustCo Bank Corp NY (the "Company") and
(the "Unit Holder").
WHEREAS, the Company's Board of Directors maintains the TrustCo
Bank
Corp NY Performance Bonus Plan (the "Plan"); and
WHEREAS, under the Plan, the Unit Holder is to be granted Performance
Bonus Units ("Units") under the Plan to the extent provided in this Agreement.
NOW, THEREFORE, the Company and the Unit Holder hereby agree as
follows:
1. The Plan is incorporated into and made a part of this Agreement and
the Unit Holder accepts all provisions of the Plan. To the extent that any
provision of this Agreement conflicts with the Plan, the terms of the Plan
shall be controlling.
2. Subject to the terms and conditions set forth in this
Agreement and the Plan, the Company grants to the Unit Holder
Performance Bonus Units value at $ per unit.
3. The Units are granted on the basis of the shares of stock of the
Company as presently constituted. If and whenever, prior to the payment of
benefits under this Agreement, the Company shall effect a subdivision or
consolidation of shares, the payment of a stock dividend in stock or other
increase or reduction of the number of shares of the stock outstanding,
without receiving compensation therefore in money, services or property, the
number of Units granted under this Agreement shall be appropriately adjusted.
Such adjustment shall be made by the Committee under the Plan whose
determination as to what adjustment shall be made, and the extent thereof,
shall be final, binding and conclusive.
Except as expressly provided above, the issue by the Company of shares
of stock of any class, or securities convertible into or exchangeable for
shares of stock of any class, shall not affect, and no adjustment shall be
made to, the number of Units granted under this Agreement.
4. Whenever the term "Unit Holder" is used in any provision of this
Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom the Unit may be transferred, the word "Unit Holder" shall be
deemed to include such person or persons.
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5. As a condition of granting the Unit, the Unit Holder agrees that
nothing herein contained shall affect or restrict the right of the Company to
terminate his employment at any time, with or without cause, and the Unit
Holder and his successors and assigns agree that any dispute or disagreement
which shall arise under or as a result of this Agreement shall be determined
by the Committee under the Plan in its sole discretion and judgment and that
any such determination and any interpretation by that Committee of the terms
of this Agreement or the Plan, shall be final, binding and conclusive for all
purposes.
6. Every notice or other communication relating to this Agreement shall
be in writing, and shall be mailed to or delivered to the party for whom it is
intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided; provided
that, unless and until some other address be so designated, all notices or
communications by the Unit Holder to the Company shall be mailed or delivered
to the Company at its offices at 192 Erie Boulevard, Schenectady, NY
12305-1808. All notices or communications by the Company to the Unit Holder
may be given to the Unit Holder personally or may be mailed to him at the
address shown below his signature to this Agreement.
7. Amounts paid with respect to Units granted under this Agreement are
subject to the Company's collection of any taxes required to be withheld by
federal, state or local governments.
8. Neither this Agreement nor any Unit subject to this Agreement may be
transferred by the Unit Holder except by will or the laws of descent and
distribution. The Units under this Agreement may be exercised during the Unit
Holder's lifetime only by the Unit Holder.
9. Units granted under this Agreement will not become vested until the
earlier of (i) a Change in Control, or (ii) the Participant's termination of
employment with the Company for reasons other than Cause within one year prior
to a Change in Control.
10. Amounts payable under the Unit will be paid within thirty (30) days
after a Change in Control, in cash or stock, at the discretion of the Company.
11. All decisions and interpretations made by the Committee established
to administer the Plan, with regard to any question arising hereunder or under
the Plan shall be binding and conclusive on the Company and Unit Holder. Any
capitalized terms in this Agreement shall have the same meaning as under the
Plan. This Agreement shall be governed by the law of the State of New York and
shall bind and inure to the benefit of the Company, its successor and assigns,
and to the Unit Holder, and except as otherwise provided in this Agreement and
the Plan, to his assigns and legal representative(s).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all of this ____ day of _______, 199_.
ATTEST: TRUSTCO BANK CORP NY
SECRETARY PRESIDENT
(Corporate Seal)
UNIT HOLDER
ADDRESS:
WITNESS:
- 81 -
Exhibit 10(c)
TRUSTCO BANK CORP NY
DIRECTORS PERFORMANCE BONUS PLAN
TABLE OF CONTENTS
Page No.
ARTICLE I, DEFINITIONS....................................................1
ARTICLE II, ADMINISTRATION................................................3
ARTICLE III, GRANTS.......................................................4
ARTICLE IV, PERFORMANCE BONUS UNITS.......................................4
ARTICLE V, VESTING OF PERFORMANCE BONUS UNITS.............................5
ARTICLE VI, PAYMENT OF PERFORMANCE BONUS UNITS............................5
ARTICLE VII, VALUATION OF PERFORMANCE BONUS UNITS.........................6
ARTICLE VIII, CHANGES IN CAPITAL AND CORPORATE STRUCTURE..................6
ARTICLE IX, NONTRANSFERABILITY............................................7
ARTICLE X, WITHHOLDING....................................................7
ARTICLE XI, VOTING AND DIVIDEND RIGHTS....................................8
ARTICLE XII, CLAIMS.......................................................8
ARTICLE XIII, MISCELLANEOUS PROVISIONS....................................9
ARTICLE XIV, AMENDMENT OF THE PLAN.......................................11
ARTICLE XV, EFFECTIVENESS AND TERMS OF PLAN..............................11
- 82 -
TRUSTCO BANK CORP NY
DIRECTORS PERFORMANCE BONUS PLAN
WHEREAS, TrustCo Bank Corp NY (hereinafter referred to as the
"Company") desires to provide a performance bonus to the non-employee members
of its Board of Directors in the event of a change in control of the Company,
which is based upon the appreciation in the value of the common stock of the
Company;
NOW, THEREFORE, effective as of May 19, 1997, the Company hereby adopts
the TrustCo Bank Corp NY Directors Performance Bonus Plan which shall read as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 "Beneficiary" means the person or persons designated by a
Director in writing to receive any benefits under this Plan upon the
Director's death. If a Director fails to designate a Beneficiary, if no such
Beneficiary is living upon the death of such Director or if such designation
is legally ineffective, then "Beneficiary" shall mean the trustee of the
Director's revocable living trust, and, if none, the personal representative
of the estate of such deceased Director.
Section 1.2 "Change in Control" means any of the following events: (a)
any individual, corporation (other than the Company), partnership, trust,
association, pool, syndicate, or any other entity or any group of persons
acting in concert becomes the beneficial owner, as that concept is defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
- 83 -
Securities Exchange Act of 1934, of securities of the Company possessing
twenty percent (20%) or more of the voting power for the election of Directors
of the Company; (b) there shall be consummated any consolidation, merger or
other business combination involving the Company or the securities of the
Company in which holders of voting securities of the Company immediately prior
to such transaction own, as a group, immediately after such transaction,
voting securities of the Company (or, if the Company does not survive such
transaction, voting securities of the Company surviving such transaction)
having less than fifty percent (50%) of the total voting power in an election
of Directors of the Company (or such other surviving corporation); (c) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Directors of the Company cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by the Company's shareholders, of each new Director of the
Company was approved by a vote of at least two-thirds of the Directors of the
Company then still in office who were Directors of the Company at the
beginning of any such period; (d) removal by the stockholders of all or any of
the incumbent Directors of the Company other than a removal for Cause; or (e)
there shall be consummated any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company (on a consolidated basis) to a party which is not
controlled by or under common control with the Company.
- 84 -
Section 1.3 "Committee" means the Stock Option Committee of the Board
of Directors of the Company.
Section 1.4 "Company" means TrustCo Bank Corp NY.
Section 1.5 "Director" means a member of the Board of Directors of the
Company who is not an employee of the Company or any of its subsidiaries.
Section 1.6 "Performance Bonus Unit Account" or "Account" means the
account established on behalf of each Director in the Plan in accordance with
Section 4.1 herein.
Section 1.7 "Performance Bonus Unit" means a unit granted pursuant to
Section 3.1 herein, the value of which is based upon the appreciation in value
of the common stock of the Company.
Section 1.8 "Plan" means the TrustCo Bank Corp NY Directors
Performance Bonus Plan.
ARTICLE II
ADMINISTRATION
Section 2.1 The Plan shall be administered by the Committee. The
Committee shall have authority to interpret the Plan, to adopt and revise
rules and regulations relating to the Plan, to determine the conditions
subject to which any awards may be made or payable, and to make any other
determinations which it believes necessary or advisable for the administration
of the Plan. Determinations by the Committee shall be made by majority vote
and shall be final and binding on all parties with respect to all matters
relating to the Plan.
- 85 -
ARTICLE III
GRANTS
Section 3.1 Performance Bonus Units shall be granted to each Director
at such time or times as the Committee shall determine. The maximum number of
Performance Bonus Units that may be awarded under the Plan shall not exceed an
aggregate of 100,000 shares. If any Performance Bonus Unit awarded under the
Plan shall be forfeited or canceled, such Performance Bonus Unit may again be
awarded under the Plan. Performance Bonus Units shall be subject to such terms
and conditions, in addition to the terms and conditions set forth in the Plan,
as the Committee shall determine.
ARTICLE IV
PERFORMANCE BONUS UNITS
Section 4.1 Performance Bonus Units granted to a Director shall be
credited to a Performance Bonus Unit Account established and maintained for
such Director. The Account of a Director shall be the record of Performance
Bonus Units granted to him under the Plan, is solely for accounting purposes
and shall not require a segregation of any Company assets. Each Performance
Bonus Unit shall be valued by the Committee, in the manner provided in Article
VII, as of the date of grant thereof. Each grant of Performance Bonus Units
under the Plan to a Director and the value of such Performance Bonus Units as
of the date of grant shall be communicated by the Committee in writing to the
Director within thirty (30) days after the date of grant.
- 86 -
ARTICLE V
VESTING OF PERFORMANCE BONUS UNITS
Section 5.1 Performance Bonus Units granted to a Director shall become
vested upon a Change in Control.
ARTICLE VI
PAYMENT OF PERFORMANCE BONUS UNITS
Section 6.1 Upon a Change in Control each Director shall be entitled to
receive from the Company an amount, with respect to each Performance Bonus
Unit in the Director's Account, determined as follows: (i) the value (as
determined by the Committee pursuant to Article VII) of each Performance Bonus
Unit in the Director's Account, as of the date of the Change of Control, (ii)
reduced by the value (as determined pursuant to Article VII) of such
Performance Bonus Unit as of the date of grant thereof to the Director.
Section 6.2 Payment to a Director of the amount set forth in Section
6.1 for Performance Bonus Units shall be made within thirty (30) days after
the Change in Control, in cash or stock at the discretion of the Committee. A
Director will not be entitled to receive any earnings on the value of his
Performance Bonus Units with respect to the period between the date of the
Change in Control and the receipt of payments under the Plan.
- 87 -
ARTICLE VII
VALUATION OF PERFORMANCE BONUS UNITS
Section 7.1 Except as provided in Section 7.2, for all purposes of the
Plan, the value of a Performance Bonus Unit on a date of grant pursuant to
Section 3.1 or upon a Change in Control pursuant to Section 6.1 will be an
amount equal to the average of the high and low prices for shares of Company
common stock on the applicable date, as reported on the National Association
of Securities Dealers Automatic Quotation ("NASDAQ") National Market System or
such other system as may supersede it. If the applicable date is not a trading
day for NASDAQ market makers, the price on the next preceding trading day will
be used to determine the value of the Performance Bonus Unit.
Section 7.2 In the case of a Change in Control defined in Section
1.2(b) herein, the value of a Performance Bonus Unit on the date of the Change
in Control will be based upon the value of the consideration received or to be
received by shareholders of the Company in connection with such Change in
Control.
ARTICLE VIII
CHANGES IN CAPITAL AND CORPORATE STRUCTURE
Section 8.1 In the event of any change in the outstanding shares of
common stock of the Company by reason of an issuance of additional shares,
recapitalization, reclassification, reorganization, stock split, reverse stock
split, combination of shares, stock dividend or similar transaction, the
Committee shall proportionately adjust, in an equitable manner, the number of
- 88 -
Performance Bonus Units held by Directors under the Plan. The foregoing
adjustment shall be made in a manner that will cause the relationship between
the aggregate appreciation in outstanding common stock and earnings per share
of the Company and the increase in value of each Performance Bonus Unit
granted hereunder to remain unchanged as a result of the applicable
transaction.
ARTICLE IX
NONTRANSFERABILITY
Section 9.1 Performance Bonus Units granted under the Plan, and any
rights and privileges pertaining thereto, may not be transferred, assigned,
pledged or hypothecated in any manner, by operation of law or otherwise, other
than by will or by the laws of descent and distribution, and shall not be
subject to execution, attachment or similar process. In the event of a
Director's death, payment of any amount due under the Plan shall be made to
the Director's Beneficiary.
ARTICLE X
WITHHOLDING
Section 10.1 The Company shall have the right to deduct from all
amounts paid pursuant to the Plan any taxes required by law to be withheld
with respect to such awards.
- 89 -
ARTICLE XI
VOTING AND DIVIDEND RIGHTS
Section 11.1 Except as provided under Section 8.1, no Director shall be
entitled to any voting rights, to receive any dividends, or to have his
Account credited or increased as a result of any dividends or other
distribution with respect to the common stock of the Company.
ARTICLE XII
CLAIMS
Section 12.1 If a claim for benefits under the Plan is denied, the
Committee will provide a written notice of the denial setting forth the
specific reasons for the denial, a description of any additional material or
information necessary for a claimant to perfect a claim, an explanation of why
such material or information is necessary and appropriate and information as
to the steps to be taken for the claim to be submitted for review. A claimant
may request a review of a denial. Such request should be submitted to
Committee in writing, within sixty (60) days after receipt of the denial
notice stating the reasons for requesting the review. A claimant may review
pertinent documents and submit issues and comments in writing. A decision will
be made on the review of the denial of a claim not later than sixty (60) days
after the Committee's receipt of a request for review unless special
circumstances require an extension of time for processing, in which case a
decision shall be rendered as soon as possible but not later
- 90 -
than one hundred twenty (120) days after receipt of a request for review,
provided that the claimant is given written notice of the extension of time
within the original sixty (60) day period. The decision on review will be in
writing to claimant and shall include specific reasons for the decision.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 No employee or other person shall have any claim or right
to be granted an award under the Plan. Neither the Plan nor any action taken
hereunder shall be construed as giving any employee any right to be retained
in the employ of the Company.
Section 13.2 The Plan shall at all times be entirely unfunded and no
provision shall at any time be made with respect to segregating assets of the
Company for payment of any benefits hereunder. No Director or other person
shall have any interest in any particular assets of the Company by reason of
the right to receive a benefit under the Plan and any such Director or other
person shall have only the rights of a general unsecured creditor of the
Company with respect to any rights under the Plan.
Section 13.3 Notwithstanding the provisions of Section 13.2, the
Company may in its discretion make contributions to a rabbi trust for the
purpose of accumulating assets to satisfy its obligations hereunder; provided,
however, that upon a Change in Control, the Company will make contributions to
a rabbi trust in an amount that is sufficient to pay each Director or
beneficiary the
- 91 -
benefits to which Directors or their beneficiaries would be entitled pursuant
to the terms of the Plan as of the date of the Change in Control. For purposes
of this Section 13.3, the term "Change in Control" will include the execution
of a definitive agreement expressing the intent to accomplish any
consolidation, merger or other business combination involving the Company or
the securities of the Company described in Section 1.2(b) herein. At all times
the assets of the rabbi trust shall remain subject to the general creditors of
the Company.
Section 13.4 Except when otherwise required by the context, any
masculine terminology in this document shall include the feminine, and any
singular terminology shall include the plural.
Section 13.5 If a Change in Control, as defined in Section 1.2b is
intended to be accounted for under the pooling of interests accounting rules,
and any provision of this Plan is determined to preclude that Change in
Control from being accounted for under the pooling of interests accounting
rules, the Plan may be amended to eliminate the obstacle to the use of pooling
of interests rules for that Change in Control or other changes to the Plan may
be made that are determined to be appropriate. No such amendment or other
changes should created an obstacle to the Change of Control being accounted
for under the pooling of interests accounting rules.
- 92 -
ARTICLE XIV
AMENDMENT OF THE PLAN
Section 14.1 The Board of Directors of the Company may alter or amend
the Plan from time to time without obtaining the approval of the stockholders
of the Company. No amendment to the Plan may alter, impair or reduce the
number of Performance Bonus Units granted under the Plan prior to the
effective date of such amendment or any vesting or payment provisions with
respect thereto without the written consent of any affected Director.
ARTICLE XV
EFFECTIVENESS AND TERMS OF PLAN
Section 15.1 The effective date of the Plan shall be May 19, 1997. The
Committee may at any time terminate the Plan. Upon termination of the Plan,
payments shall be made with respect to Performance Bonus Units granted prior
to the date of termination.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed on
this 19th day of May, 1997.
TRUSTCO BANK CORP NY
By: /s/Robert A. McCormick
-----------------------
Title: President
----------------
- 93 -
Exhibit 10(d)
DIRECTORS PERFORMANCE BONUS UNIT AGREEMENT
UNDER
TRUSTCO BANK CORP NY DIRECTORS PERFORMANCE BONUS PLAN
THIS DIRECTORS PERFORMANCE BONUS UNIT AGREEMENT is made as of June 17,
1997, by and between TrustCo Bank Corp NY (the "Company") and , (the "Unit
Holder").
WHEREAS, the Company's Board of Directors maintains the TrustCo
Bank Corp NY Directors Performance Bonus Plan (the "Plan"); and
WHEREAS, under the Plan, the Unit Holder is to be granted Performance
Bonus Units ("Units") under the Plan to the extent provided in this Agreement.
NOW, THEREFORE, the Company and the Unit Holder hereby agree as
follows:
1. The plan is incorporated into and made a part of this Agreement and
the Unit Holder accepts all provisions of the Plan. To the extent that any
provision of this Agreement conflicts with the Plan, the terms of the Plan
shall be controlling.
2. Subject to the terms and conditions set forth in this
Agreement and the Plan, the Company grants to the Unit Holder
Performance Bonus Units valued at $ per unit.
3. The Units are granted on the basis of the shares of stock of the
Company as presently constituted. If and whenever, prior to the payment of
benefits under this Agreement, the Company shall effect a subdivision or
consolidation of shares, the payment of a stock dividend in stock or other
increase or reduction of the number of shares of the stock outstanding,
without receiving compensation therefore in money, services or property, the
number of Units granted under this Agreement shall be appropriately adjusted.
Such adjustment shall be made by the Committee under the Plan whose
determination as to what adjustment shall be made, and the extent thereof,
shall be final, binding, and conclusive.
Except as expressly provided above, the issue by the Company of shares
of stock of any class, or securities convertible into or exchangeable for
shares of stock of any class, shall not affect, and no adjustment shall be
made to, the number of Units granted under this Agreement.
4. Whenever the term "Unit Holder" is used in any provision of this
Agreement under circumstances where the provision should logically be
construed to apply to the executors, the administrators, or the person or
persons to whom the Unit may be transferred, the word "Unit Holder" shall be
deemed to include such person or persons.
- 94 -
5. As a condition of granting the Unit, the Unit Holder agrees that
nothing herein contained shall affect or restrict the right of the Company to
terminate his directorship at any time, with or without cause, and the Unit
Holder and his successors and assigns agree that any dispute or disagreement
which shall arise under or as a result of this Agreement shall be determined
by the Committee under the Plan in its sole discretion and judgment and that
any such determination and any interpretation by that Committee of the terms
of this Agreement or the Plan, shall be final, binding, and conclusive for all
purposes.
6. Every notice or other communication relating to this Agreement shall
be in writing, and shall be mailed to or delivered to the party for whom it is
intended at such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided; provided
that, unless and until some other address be so designated, all notices or
communications by the Unit Holder to the Company shall be mailed or delivered
to the Company as its offices at 192 Erie Boulevard, Schenectady, New York
12305-1808. All notices or communications by the Company to the Unit Holder
may be given to the Unit Holder personally or may be mailed to him at the
address shown below his signature to this Agreement.
7. Amounts paid with respect to Units granted under this Agreement are
subject to the Company's collection of any taxes required to be withheld by
federal, state or local governments.
8. Neither this Agreement nor any Unit subject to this Agreement may be
transferred by the Unit Holder except by will or the laws of descent and
distribution. The Units under this Agreement may be exercised only by the Unit
Holder during his lifetime.
9. Units granted under this Agreement will not become vested until the
earlier of (i) a Change in Control, or (ii) the Director's termination of
employment with the Company for reasons other than Cause within one year prior
to a Change in Control.
10. Amounts payable under the Unit will be paid within thirty
(30) days after a Change in Control in cash.
11. All decisions and interpretations made by the Committee established
to administer the Plan, with regard to any question arising hereunder or under
the Plan shall be binding and conclusive on the Company and Unit Holder. Any
capitalized terms in this Agreement shall have the same meaning as under the
Plan. This Agreement shall be governed by the law of the State of New York and
shall bind and inure to the benefit of the Company, its successors and
assigns, and to the Unit Holder, and except as otherwise provided in this
Agreement and the Plan, to his assigns and legal representatives).
- 95 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all of this 18th day of June, 1997.
ATTEST: TRUSTCO BANK CORP NY
By
SECRETARY PRESIDENT
(Corporate Seal)
WITNESS: UNIT HOLDER
Address:
- 96 -
Exhibit 10(e)
AMENDMENT NO. 5 TO
EMPLOYMENT AGREEMENT BETWEEN
TRUSTCO BANK, NATIONAL ASSOCIATION AND
TRUSTCO BANK CORP NY AND
ROBERT A. MCCORMICK
WHEREAS, Trustco Bank, National Association (herein referred to as the
"Company") and Trustco Bank Corp NY (herein referred to as "TrustCo") entered
into an Employment Agreement (herein referred to as the "Agreement") with
Robert A. McCormick (herein referred to as the "Executive"); and
WHEREAS, the Company, TrustCo and the Executive desire to
amend the Agreement effective as of May 1, 1997;
NOW, THEREFORE, effective May 1, 1997, the Agreement is hereby amended
in the following respect:
I.
Paragraph 2 of the Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"2. Term. "The term of this Agreement shall commence on January 1,
1992 and shall continue until December 31, 1994. Beginning on January 1, 1995,
and January 1 of each and every year thereafter, this Agreement shall renew,
automatically, for the succeeding three year term, unless the Executive is
notified by the method described in Paragraph 10 herein to the contrary
("Nonrenewal Notice"). Nothing contained herein, however, shall be construed
to extend the Executive's right to employment beyond the age of 70 years or
the then mandatory retirement age in effect at the Companies whichever shall
be greater."
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IN WITNESS WHEREOF, the Company, Trustco and the Executive have caused
this Amendment No. 5 to be executed this 20th day of May, 1997.
TRUSTCO BANK, NATIONAL TRUSTCO BANK CORP NY
ASSOCIATION
By: /s/William F. Terry By: /s/William F. Terry
-------------------- --------------------
Title: Secretary Title: Secretary
------------ ------------
/s/Robert A. McCormick
------------------------
Robert A. McCormick
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Exhibit 10(f)
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT BETWEEN
TRUSTCO BANK, NATIONAL ASSOCIATION AND
TRUSTCO BANK CORP NY AND
Robert T. Cushing
WHEREAS, TrustCo Bank, National Association (herein referred to as the
"Company") and TrustCo Bank Corp NY (herein referred to as "TrustCo") entered
into an Employment Agreement (herein referred to as the "Agreement") with
Robert T. Cushing (herein referred to as the "Executive"); and
WHEREAS, the Company, TrustCo and the Executive desire to amend
the Agreement effective as of May 1, 1997;
NOW, THEREFORE, effective May 1, 1997, the Agreement is hereby amended
in the following respect:
I.
Paragraph 2 of the Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"2. Term. "The term of this Agreement shall commence on June
21, 1994, and shall continue until December 31, 1994. Beginning on
January 1, 1995, and on January 1 of each and every year thereafter,
this Agreement shall automatically renew for an additional year on the
same terms and conditions, except to the extent modified in writing,
unless the Executive is notified by the method set forth in Paragraph
11 herein that Executive has been terminated ("Nonrenewal Notice").
Nothing contained herein, however, shall be construed to extend the
Executive's right to employment beyond the age of 70 years or the then
mandatory retirement age in effect, which ever shall be greater."
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IN WITNESS WHEREOF, the Company, TrustCo and the Executive have caused
this Amendment No. 2 to be executed this 20th day of May, 1997.
TRUSTCO BANK, NATIONAL TRUSTCO BANK CORP NY
ASSOCIATION
By:/s/Robert A. McCormick By:/s/Robert A. McCormick
---------------------- ----------------------
Title: President & CEO Title: President & CEO
------------------ ------------------
/s/Robert T. Cushing
---------------------
Robert T. Cushing
Note to Exhibit 10(f)
Nancy A. McNamara, Ralph A. Pidgeon and William F. Terry all
executed a similar Amendment No. 2, similarly modifying their
respective Employment Agreements.
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Exhibit 22
Item 4. Submission of Matters to Vote of Security Holders -- Annual Meeting
1. Election of Directors:
At the annual meeting held May 19, 1997, shareholders of the Company
were asked to consider the Company's nominees for directors and to
elect six (6) directors, five (5) to serve for a term of three (3)
years, and one* (1) to serve a one-year term. The Company's nominees
for director were: Barton A. Andreoli, Nancy A. McNamara, John S.
Morris, Ph.D., James H. Murphy, D.D.S., William J. Purdy, and Anthony
J. Marinello, M.D., Ph.D. The results of shareholder voting are as
follows:
DIRECTOR FOR WITHHELD ABSTAIN NON-VOTE
-------- --- -------- ------- --------
Andreoli 18,407,675 347,452 N/A N/A
McNamara 18,262,373 492,754 N/A N/A
Morris 18,425,639 329,487 N/A N/A
Murphy 18,237,309 517,817 N/A N/A
Purdy 18,438,369 316,758 N/A N/A
Marinello* 18,158,094 597,033
Directors continuing in office are:Lionel O. Barthold,M. Norman Brickman,
Robert A. McCormick, Richard J. Murray, Jr., Kenneth C. Petersen,William
D. Powers, and William F. Terry.
2. Shareholders were asked to consider a proposal to amend the Amended and
Restated Certificate of Incorporation to adjust the minimum and maximum
number of directors. The results of the shareholder voting are as
follows:
FOR AGAINST ABSTAIN WITHHELD NON-VOTE
17, 710,507 940,545 104,074 N/A N/A
3. Shareholders of the Company were also asked to consider a proposal to
ratify the selection by TrustCo's Board of Directors of KPMG Peat Marwick
LLP as the independent certified public accountants for the Company for
the fiscal year ending December 31, 1997. The results of shareholder
voting are as follows:
FOR AGAINST ABSTAIN WITHHELD NON-VOTE
18,582,867 54,648 117,612 N/A N/A
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