Exhibit No. 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
FIRST EMPIRE STATE CORPORATION
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
The undersigned, being the Chairman of the Board, President and Chief
Executive Officer and the Senior Vice President, General Counsel and
Secretary of First Empire State Corporation, pursuant to Section 807 of the
Business Corporation Law of the State of New York, do hereby restate, certify
and set forth:
(1) The name of the corporation is FIRST EMPIRE STATE CORPORATION.
(2) The certificate of incorporation was filed by the Department of State
on the 6th day of November, 1969. A first restated certificate of
incorporation was filed by the Department of State on the 19th day of
December, 1969; a second restated certificate of incorporation was filed by
the Department of State on the 28th day of April, 1986; and a third restated
certificate of incorporation was filed by the Department of State on the 20th
day of April, 1989.
(3) Thereafter, an amendment to the restated certificate of incorporation
was filed by the Department of State on the 14th day of March, 1991 which
designated a series of 9% convertible preferred shares of the Corporation.
All of the shares of the 9%
convertible preferred shares of the Corporation authorized by that
designation were issued on March 15, 1991, and on March 29, 1996 all of such
preferred shares were converted into shares of the common stock of the
Corporation and thereupon canceled.
(4) The restated certificate of incorporation, as amended, is hereby
further amended to effect an amendment authorized by the Business Corporation
Law, to repeal the amendment to the third restated certificate of
incorporation and thereby delete from Article FOURTH the provisions that
established the series of 9% convertible preferred shares of the Corporation.
Article FIFTH, relating to the service of process address, is also hereby
amended.
(5) The text of the certificate of incorporation, as amended heretofore,
is hereby restated as amended to read as hereinafter set forth in full:
CERTIFICATE OF INCORPORATION
of
FIRST EMPIRE STATE CORPORATION
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FIRST: The name of the Corporation is FIRST EMPIRE STATE
CORPORATION.
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SECOND: The purpose or purposes for which it is formed are:
(1) To engage in the business of a bank holding company.
(2) To acquire by purchase, subscription or otherwise, and to own and
hold and exercise all the powers and privileges of ownership and to sell,
exchange, or otherwise dispose of and deal in and with shares, bonds, and
other securities, interests or obligations issued by any person,
corporation, firm, or other entity, domestic or foreign.
(3) To the extent permitted by law to cause to be organized, merged or
consolidated, any corporation, firm or other entity, domestic or foreign.
(4) To the extent permitted by law to render services, assistance, and
advice to, and to act as representative or agent in any capacity of, any
person, corporation, firm, or other entity, domestic or foreign.
(5) To arrange for, finance, pay or cause to be paid the compensation of
the directors, officers or employees of any corporation, firm, or other
entity in the business affairs of which the Corporation shall have any
interest and to adopt, alter or amend any plan or plans for additional
compensation to such directors, officers or employees.
(6) To purchase, lease, or otherwise acquire, and to own, improve,
mortgage or otherwise encumber, real and personal property, or any
interest therein wherever situated.
The foregoing purposes shall be construed in furtherance and not in
limitation of powers now or hereafter conferred by the laws of the State of
New York.
THIRD: The office of the Corporation is to be located in the City
of Buffalo, County of Erie, and State of New York.
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FOURTH: 1. The aggregate number of shares of stock which the
Corporation shall have authority to issue is sixteen million (16,000,000)
shares, divided into two classes, namely, preferred shares and common shares.
The number of preferred shares authorized is one million (1,000,000) shares
of the par value of one dollar ($1.00) per share. The number of common shares
authorized is fifteen million (15,000,000) shares of the par value of five
dollars ($5.00) per share.
2. Authority is hereby granted to the Board of Directors at any time and
from time to time to issue the preferred shares in one or more series and for
such consideration, not less than the par value thereof, as may be fixed from
time to time by the Board of Directors, and, before the issuance of any
shares of a particular series to fix the designation of such series, the
number of shares to comprise such series, the dividend rate or rates payable
with respect to the shares of such series, the redemption price or prices,
the voting rights, and any other relative rights, preferences and limitations
pertaining to such series. In lieu of issuing a new series, the Board of
Directors may increase the number of shares of a series already outstanding.
Before the issue of any shares of a series established by the Board of
Directors, the Board shall cause to be delivered to the Department of State
the necessary certificate of amendment under the Business Corporation Law of
the State of New York as now in effect or hereafter amended.
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3. The description of the common shares and of their relative rights and
limitations are as follows:
(a) Out of the assets of the Corporation which are by law available for
the payment of dividends remaining after all dividends to which any
preferred shares then outstanding shall be entitled shall have been declared
and paid or set apart for payment for all past dividend periods, dividends
may be declared and paid upon the common shares to the exclusion of the
holders of preferred shares.
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of record of any
preferred shares then outstanding shall be entitled to be paid the amount
which the Board of Directors prior to issuance of such preferred shares
fixed to be paid for each such share upon such liquidation, dissolution or
winding up as set forth in the necessary certificate of amendment, as
required by Article FOURTH, Paragraph 2 above plus accumulated dividends on
such shares up to the date of such liquidation, dissolution or winding up of
the Corporation and no more. After payment to the holders of any preferred
shares then outstanding of the amount payable to them as aforesaid, the
remaining assets of the Corporation shall be payable to and distributed
ratably among the holders of record of the common shares.
(c) The holders of the common shares shall vote share for share,
together with the holders of any series of the preferred shares entitled to
have voting rights except as may be provided by the Board of Directors with
respect to any other series of the preferred shares.
FIFTH: The Secretary of State is designated as the agent of the
Corporation upon whom process against the Corporation may be served. The post
office address to which the Secretary of State shall mail a copy of any
process against the Corporation
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served upon him is Executive Offices, 19th Floor, One M&T Plaza, Buffalo, New
York 14240.
SIXTH: No holder of shares of the Corporation of any class, now or
hereafter authorized, shall have any preferential or preemptive right to
subscribe for, purchase or receive any shares of the Corporation of any
class, now or hereafter authorized, or any options or warrants for such
shares, or any rights to subscribe to or purchase such shares, or any
securities convertible into or exchangeable for such shares, which may at any
time be issued, sold or offered for sale by the Corporation.
SEVENTH: As to any act or omission occurring after the adoption of
this provision, a director of the Corporation shall, to the maximum extent
permitted by the laws of the State of New York, have no personal liability to
the Corporation or any of its stockholders for damages for any breach of duty
as a director, provided that this Article SEVENTH shall not eliminate or
reduce the liability of a director in any case where such elimination or
reduction is not permitted by law.
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(6) This restatement of the certificate of incorporation of FIRST EMPIRE
STATE CORPORATION was authorized by the Board of Directors of the Corporation
at a meeting thereof duly convened and held on April 15, 1997.
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IN WITNESS WHEREOF, the undersigned have executed, signed and verified this
certificate this 7th day of May, 1997.
FIRST EMPIRE STATE CORPORATION
By: /s/ Robert G. Wilmers
-----------------------
Chairman of the Board,
President and
Chief Operating Officer
By: /s/ Richard A. Lammert
-------------------------
Senior Vice President,
General Counsel and Secretary
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STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
Robert G. Wilmers and Richard A. Lammert, being first duly sworn, depose
and say that they are respectively, the Chairman of the Board, President and
Chief Executive Officer and the Senior Vice President, General Counsel and
Secretary of FIRST EMPIRE STATE CORPORATION, that they have read the
foregoing certificate and know the contents thereof and that the statements
therein contained are true.
/s/ Robert G. Wilmers
----------------------
/s/ Richard A. Lammert
-----------------------
Sworn to before me
this 7th day of
May, 1997.
/s/ Timothy G. McEvoy
- ---------------------
Notary Public
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RESTATED CERTIFICATE OF INCORPORATION
OF
FIRST EMPIRE STATE CORPORATION
UNDER SECTION 807 OF THE BUSINESS CORPORATION LAW
Dated: May 7, 1997
Filer: Richard A. Lammert, Esq.
Senior Vice President,
General Counsel and Secretary
First Empire State Corporation
One M & T Plaza
Buffalo, New York 14240
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