Exhibit 3
AS FILED WITH THE
NEW YORK DEPARTMENT
OF STATE JUNE 6, 2006
New York State
Department of State
Division of Corporations, State Records
and Uniform Commercial Code
41 State Street
Albany, NY 12231
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP N Y
Under Section 805 of the Business Corporation Law
1. The name of the Corporation is: TrustCo Bank Corp N Y.
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. An additional Restated Certificate of Incorporation was filed by
the Department of State on the sixth day of August, 1993. Additional
amendments to the Certificate of Incorporation were filed by the
Department of State on June 5, 1996, June 5, 1997, October 2, 1997,
May 20, 1999 and June 25, 2004.
3. a. The Certificate of Incorporation is amended to increase the number
of authorized shares of common stock from 100,000,000 shares to
150,000,000 shares. The number of shares of common stock issued
before and after such Amendment shall be 82,119,360, 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 17,880,640 and the number of shares
of common stock unissued after such Amendment shall be 67,880,640,
such change being at the rate of 1 share of unissued common stock
for 1 share of unissued common stock.
b. To effect the foregoing, Section 4.1 of Article IV of the
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 150,000,000
shares of the par value of $1 per share.
1
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.
/s/ Robert J. McCormick Robert J. McCormick, President & CEO
----------------------- ------------------------------------
(Signature) (Name and Capacity of Signer)
2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP N Y
Under Section 805 of the Business Corporation Law
Filer's Name Corporation Service Company
---------------------------
Address 80 State Street, 6th Floor
--------------------------
City, State and Zip Code Albany, New York 12207-2543
---------------------------
3
AS FILED WITH THE
NEW YORK DEPARTMENT
OF STATE JUNE 25, 2004
New York State
Department of State
Division of Corporations, State Records
and Uniform Commercial Code
41 State Street
Albany, NY 12231
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP N Y
Under Section 805 of the Business Corporation Law
1. The name of the Corporation is: TrustCo Bank Corp N Y.
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. An additional Restated Certificate of Incorporation was filed by
the Department of State on the sixth day of August, 1993. Additional
amendments to the Certificate of Incorporation were filed by the
Department of State on June 5, 1996, June 5, 1997, October 2, 1997 and
May 20, 1999.
3. a. The Certificate of Incorporation is amended to decrease the number
of Directors from not less than seven (7) members and not more than
twenty (20) members to not less than five (5) members and not more
than fifteen (15) members.
b. To effect the foregoing, Article VI of the Certificate of
Incorporation is hereby stricken out in its entirety, and the
following new Article VI is substituted in lieu thereof:
Article VI
Directors; Election and Classification
6. The entire Board of Directors, consisting of not less than
five (5) members and not more than fifteen (15) 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
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 in Class C shall equal said total number
of directors minus the aggregate number of Directors in
Classes
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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, 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.
The 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.
4. The amendment to the Certificate of Incorporation was authorized by the
vote of the board of directors followed by a vote of a majority of all
outstanding shares entitled to vote thereon at a meeting of
shareholders.
/s/ Robert A. McCormick Robert A. McCormick, President & CEO
----------------------- ------------------------------------
(Signature) (Name and Capacity of Signer)
2
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
TRUSTCO BANK CORP N Y
Under Section 805 of the Business Corporation Law
Filer's Name Corporation Service Company
---------------------------
Address 80 State Street, 6th Floor
--------------------------
City, State and Zip Code Albany, New York 12207-2543
---------------------------
3
AS FILED WITH THE
NEW YORK DEPARTMENT
OF STATE MAY 20, 1999
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 N Y (the "Corporation"), certify:
1. The name of the Corporation is TrustCo Bank Corp N Y.
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. An additional Restated Certificate of Incorporation was filed by
the Department of State on the sixth day of August, 1993. Additional
amendments to the Certificate of Incorporation were filed by the
Department of State on June 5, 1996, June 5, 1997 and October 2, 1997.
3. a. The Certificate of Incorporation is amended to increase the number
of authorized shares of common stock of the par value of $1 per
share from 50,000,000 shares to 100,000,000 shares.
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 100,000,000
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.
The Board of Directors of the Corporation shall have the
authority to provide for the issuance of the Preferred Stock
on 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
1
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 does not reduce stated
capital.
5. 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, at a meeting of shareholders.
IN WITNESS WHEREOF, we have signed this Certificate of Amendment on the
18th day of May, 1999.
/s/ Robert A. McCormick
- -------------------------------------
Robert A. McCormick
President and Chief Executive Officer
/s/ William F. Terry
- -------------------------------------
William F. Terry
Secretary
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AS FILED WITH THE
NEW YORK DEPARTMENT
OF STATE OCTOBER 2, 1997
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
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 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 Sate on the
fifteenth day of July 1988, and an Amendment to the Amended and Restated
Certificate of Incorporation was filed by the Department of State on the
twenty-ninth day of August 1991. A further Amended and Restated Certificate
of Incorporation was filed by the department of state on the sixth day of
August 1993, and Amendments to the Amended and Restated Certificate were
filed by the Department of State on the fifth day of June 1996, and the fifth
day of June 1997.
THIRD. The Certificate of Incorporation of the Corporation is restated
as set forth in its entirety below. The Restated Certificate of Incorporation
restates the text of the Certificate of Incorporation as amended on June 5,
1996 and June 5, 1997, which amendments (i) increased the number of
authorized shares of common stock set forth in Section 4.1 of Article IV from
25,000,000 shares to 50,000,000 shares and (ii) changed the number of
directors of the Corporation set forth in Article VI. This Restated
Certificate of Incorporation also changes the process address as set forth in
Article V. No additional changes or amendments are being made pursuant to
this restatement.
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 N Y
(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
1
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 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, pledge 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
2
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 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
3
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.
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 ay general or
specific branch or phase of the activities, enterprises or businesses
authorized in the 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 be and acts either as principal, agents, contractors 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.
4
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 50,000,000 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.
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 on 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.
4.1 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
carry 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 is absolute discretion, may deem advisable.
5
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 proceeding 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 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 (which 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 in Class C shall equal said total number of directors
minus the aggregate number of Directors in 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,
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.
The 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.
Article VII
Duration
7. The duration of the Corporation is to be perpetual.
6
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 shareholder 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 items 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 Combination -- 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 X referred 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 X shall
mean:
(i) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Substantial
7
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 director or indirectly by a Substantial Shareholder.
10.2 Exception to Maximum Vote Requirement.
The provision of Section 10.1 of this Article X 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).
8
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 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(AA); or
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(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.
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 of 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 X, 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.
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10.5 Alteration, Amendment and Repeal
Notwithstanding any other provision of this Certificate or 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 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 X or any provision of this Article X.
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. These Amendments were authorized by votes of the Board of
Directors, followed by votes of the holders of a majority of all outstanding
shares entitled to vote thereon at meetings of Shareholders held on the
twentieth day of May, 1996, and the nineteenth day of May, 1997.
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.
IN WITNESS WHEREOF, THE UNDERSINGED HAVE SIGNED THIS CERTIFICATE THIS
19TH DAY OF AUGUST, 1997, AND DO HEREBY AFFIRM THE CONTENTS TO BE TRUE UNDER
THE PENALTIES OF PERJURY.
/s/ Robert A McCormick
-------------------------------------
ROBERT A. McCORMICK
President and Chief Executive Officer
/s/ William F. Terry
-------------------------------------
WILLIAM F. TERRY
Secretary
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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 N Y, 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
19th day of August, 1997
/s/ Joan Clark
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Notary Public
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