EXHIBIT 3.1
Certificate of Incorporation of NBT Bancorp Inc.,
as amended through February 17, 2000
CERTIFICATE OF INCORPORATION
OF
NBT BANCORP INC.
AS AMENDED THROUGH
FEBRUARY 17, 2000
FIRST: The name of the corporation (hereinafter called the
Corporation) is NBT BANCORP INC.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 229 South State Street, City of Dover, County of Kent; and
the name of the registered agent of the Corporation in the State of Delaware at
such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and the purpose to be conducted and
promoted by the Corporation shall be to conduct any lawful business, to promote
any lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
(A) FOURTH: The total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue is Thirty-Two Million Five Hundred
Thousand (32,500,000) shares, consisting of Thirty Million (30,000,000) shares
of Common Stock, par value $.01 per share and Two Million Five Hundred Thousand
(2,500,000) shares of Preferred Stock, par value $.01 per share.
Each share of Common Stock having no par value, stated value $1.00 per
share (`Existing Common Stock') outstanding on the effective date of the
amendment including this paragraph shall be reclassified as and changed into one
share of Common Stock, par value $.01 per share ("New Common Stock"), upon the
effectiveness of such amendment. The certificates that prior to the
effectiveness of such amendment represented Existing Common Stock shall remain
outstanding and shall thereafter represent the shares of New Common Stock into
which the Shares of Existing Common Stock have been reclassified as provided
herein.
FIFTH: The Board of Directors is authorized, subject to limitations
prescribed by law and the provisions of the Article FOURTH, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include,
but not to be limited to, determination of the following:
(a) The number of shares constituting that series and the
distinctive designation of that series;
(b) The dividend rate on the shares of that series, whether
dividends shall be cumulative, and, if so, from which date or dates, and the
relative rights of priority, if any, of payment of dividends shares of that
series;
(c) Whether that series shall have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of such voting
rights;
(A) AS LAST AMENDED FEBRUARY 17, 2000
(d) Whether that series shall have conversion privileges, and,
if so, the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of Directors shall
determine;
(e) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable, and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the terms and
amount of such sinking fund;
(g) The right of the shares of that series in the event of
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, and the relative rights of priority, if any, of payment of shares
of that series;
(h) Any other relative rights, preferences and limitations of
that series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment, before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series of Preferred
Stock in accordance with the respective preferential amounts (including unpaid
cumulative dividends, if any) payable with respect thereto.
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
Everett A. Gilmour 52 South Broad Street
Norwich, New York 13815
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
A. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors. The number
of directors shall be fixed by, or in the manner provided in, the By-Laws.
Directors need not be elected by written ballot, unless so required by the
By-Laws of the Corporation.
B. After the original or other By-Laws of the Corporation have
been adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and after the Corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the By-Laws of the Corporation may
be exercised by the Board of Directors of the Corporation.
NINTH: Meetings of stockholders may be held within or without the State
of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statute) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
TENTH: From time to time, any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, all in the manner now or hereafter prescribed by the laws of
the State of Delaware, and all rights and powers at any time conferred upon the
stockholders and the directors of the Corporation by this Certificate of
Incorporation are granted, subject to the provisions of this Article TENTH. The
provisions set forth in Article ELEVENTH may not be repealed or amended in any
respect, unless such action is approved by the affirmative vote of the holders
of not less than eighty percent (80%) of the outstanding shares of Voting Stock
(as defined in Article ELEVENTH) of the Corporation; provided, however, if there
is a Major Stockholder as defined in Article ELEVENTH, such eighty percent (80%)
vote must include the affirmative vote of at least eighty percent (80%) of the
outstanding shares of voting stock held by shareholders other than the Major
Stockholder.
(B) ELEVENTH:
(a) The affirmative vote of the holders of not less than eighty percent
(80%) of the total voting power of all outstanding shares entitled to vote in
the election of any particular Class of Directors (as defined in Section (c) of
this Article ELEVENTH) and held by disinterested shareholders (as defined below)
shall be required for the approval or authorization of any "Business
Combination," as defined and set forth below:
(1) Any merger, consolidation or other business reorganization
or combination of the Corporation or any of its subsidiaries with any other
corporation that is a Major Stockholder of the Corporation;
(2) Any sale, lease or exchange by the Corporation of all or a
substantial part of its assets to or with a Major Stockholder;
(3) Any issue of any stock or other security of the
Corporation or any of its subsidiaries for cash, assets or securities of a Major
Stockholder;
(4) Any reverse stock split of, or exchange of securities,
cash or other properties or assets of any outstanding securities of the
Corporation or any of its subsidiaries or liquidation or dissolution of the
Corporation or any of its subsidiaries in any such case in which a Major
Stockholder receives any securities, cash or other assets whether or not
different from those received or retained by any holder of securities of the
same class as held by such Major Shareholder.
(B) AS AMENDED FEBRUARY 21, 1986
The affirmative vote required by this Article ELEVENTH shall be in addition to
the vote of the holders of any class or series of stock of the Corporation
otherwise required by law, by any other Article of this Certificate of
Incorporation, or as this Certificate of Incorporation may be amended, by any
resolution of the Board of Directors providing for the issuance of a class or
series of stock, or by any agreement between the Corporation and any national
securities exchange.
(b) For the purpose of this Article ELEVENTH:
(1) The term "Major Stockholder" shall mean and
include any person, corporation, partnership, or other person or entity which,
together with its "Affiliates" and "Associates" (as defined at Rule 12b-2 under
the Securities Exchange Act of 1934), "beneficially owns" (as hereinafter
defined) in the aggregate five percent (5%) or more of the outstanding shares of
Voting Stock, and any Affiliates or Associates of any such person, corporation,
partnership, or other person or entity.
(2) The term "Substantial Part" shall mean more
than twenty-five percent (25%) of the fair market value of the total
consolidated assets of the Corporation in question, or more than twenty-five
percent (25%) of the aggregate par value of authorized and issued Voting Stock
of the Corporation in question, as of the end of its most recent fiscal quarter
ending prior to the time the determination is being made.
(3) The term "Voting Stock" shall mean the stock
of Corporation entitled to vote in the election of directors.
(4) The term "Beneficial Owner" shall mean any
person and certain related parties, directly, or indirectly who own shares or
have the right to acquire or vote shares of the company.
(5) The term "Disinterested Shareholder" shall
mean any holder of voting securities of the company other then (i) a Major
Stockholder if it or any of them has a financial interest in the transaction
being voted on (except for a financial interest attributable solely to such
person's interest as a stockholder of the company which is identical to the
interests of all stockholders of the same class) and (ii) in the context of a
transaction described in (a) (4) above, any Major Stockholder (whether or not
having a financial interest described in clause (i) of this sentence) if it or
any of them has directly or indirectly proposed the transaction, solicited
proxies to vote in favor of the transaction, financed any such solicitation of
proxies or entered into any contract, arrangement, or understanding with any
person for the voting of securities of the company in favor of the transaction.
(c) The provisions of this Article shall not apply to a
Business Combination which is approved by sixty-six and two-thirds percent
(66-2/3%) of those members of the Board of Directors who were directors prior to
the time when the Major Stockholder became a Major Stockholder. The provisions
of this Article shall not apply to a Business Combination which (i) does not
change any stockholder's percentage ownership in the shares of stock entitled to
vote in the election of directors of any successor of the Corporation from the
percentage of the shares of Voting Stock owned by such stockholder; (ii)
provides for the provisions of this Article without any amendment, change,
alteration, or deletion, to apply to any successor to the Corporation; and (iii)
does not transfer all or a Substantial Part of the Corporation's assets or
Voting Stock other than to a wholly-owned subsidiary of the Corporation.
(d) Nothing contained in the Article shall be construed to
relieve a Major Stockholder from any fiduciary obligation imposed by law. In
addition, nothing contained in this Article hall prevent any stockholders of the
Corporation from objecting to any Business Combination and from demanding any
appraisal rights which may be available to such stockholder.
(C)
(e) The Board of Directors of the Corporation shall be divided
into three classes: Class 1,Class 2 and Class 3, which shall be as nearly equal
as possible. Each Director shall serve for a term ending on the date of the
third Annual Meeting of Stockholders following the Annual Meeting at which such
Director was elected; provided, however, that each initial Director in Class 1
shall hold office until the Annual Meeting of Stockholders in 1987; each initial
Director in Class 2 shall hold office until the Annual Meeting of Stockholders
in 1988; and each initial Director in Class 3 shall hold office until the Annual
Meeting of Stockholders in 1989. Such initial Directors for each of the three
Classes of Directors shall be as follows: Class 1 - John M. Kolbas and Paul O.
Stillman; Class 2 - Donald E. Stone,
Darryl R. Gregson and Paul R. Enggaard; Class 3 - Everett A. Gilmour, J.K.
Weinman and Thomas J. Mirabito. In the event of any increase or decrease in the
authorized number of Directors, (1) each Director then serving as such
nevertheless continue as a Director of the Class of which he is a member until
the expiration of his current term, or his earlier resignation, removal from
office or death, and (2) the newly created or eliminated directorships resulting
from such increase or decrease shall be appointed by the Board of Directors
among the three Classes of Directors so as to maintain such classes as nearly
equal as possible. Notwithstanding any of the foregoing provisions of this
Article ELEVENTH, each Director shall serve until his successor is elected and
qualified or until his earlier resignation, removal from office or death.
(D) TWELTH: A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as director except for liability (i) for any breach of the director's duty
of loyalty to the Corporation of its stockholders, (ii) for acts of omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law, as the
same exists or hereafter may be amended, or (iv) for any transaction from which
the director derived an improper personal benefit. If the Delaware General
Corporation Law hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the amended Delaware
General Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
(C) PARAGRAPH (E) ADDED BY AMENDMENT FEBRUARY 21, 1986.
(D) ARTICLE TWELFTH ADDED BY AMENDMENT FEBRUARY 28, 1987.