CERTIFICATE OF INCORPORATION
OF
PEOPLES BANKCORP, INC.
(UNDER SECTION 402 OF THE BUSINESS CORPORATION LAW)
FIRST: The name of the Corporation is PEOPLES BANKCORP, INC. (hereinafter
called the "Corporation").
SECOND: This Corporation is formed to act as a savings and loan holding
company and to engage in any lawful act or activity for which a corporation may
be organized under the Business Corporation Law of the State of New York (the
"Business Corporation Law") or any other statute of the State of New York,
provided that the Corporation shall not engage in any act or activity requiring
the consent or approval of any state official, department, board, agency or
other body without such consent or approval first being obtained.
THIRD: The county within this state in which the office of the corporation
is to be located is St. Lawrence County.
FOURTH: The total number of shares of all classes of capital stock which
the Corporation has authority to issue is 3,500,000 shares, of which 3,000,000
are to be shares of common stock, $.01 par value per share (the "Common Stock"),
and 500,000 are to be shares of serial preferred stock, $.01 par value per share
(the "Preferred Stock"). The shares of capital stock may be issued by the
Corporation from time to time as approved by the Board of Directors of the
Corporation without the approval of the shareholders, except as otherwise
provided in this Article Fourth, the Business Corporation Law or, if applicable,
the rules of a national securities exchange on which the Corporation's capital
stock is listed. The consideration for the issuance of the shares of capital
stock shall be paid to or received by the Corporation in the form and manner
permitted by the Business Corporation Law and shall not be less than the par
value per share of such shares.
Notwithstanding any other provision of this Certificate of Incorporation,
no holder of any shares of the Corporation's capital stock shall have or be
entitled to any preemptive, preferential or other right, under Section 622 of
the Business Corporation Law or otherwise, to subscribe for, purchase or
otherwise acquire any shares of any class of the Corporation's capital stock or
any series thereof, whether now or hereafter authorized, or other obligations or
securities of the Corporation convertible into or exchangeable for such shares,
or carrying rights or options to purchase shares of any class of the
Corporation's capital stock or any series thereof, including without limitation
warrants, subscription rights or options to subscribe for, purchase or otherwise
acquire such shares or securities, or any other instruments evidencing such
rights or options.
Subject to the provisions of the Business Corporation Law, the Corporation
is authorized to make pro rata distributions of its authorized but unissued
shares of capital stock to holders of shares of the same or any other class of
the Corporation's capital stock or series thereof.
A description of the different classes and series (if any) of the
Corporation's capital stock, and a statement of the relative powers,
designations, preferences and rights of the shares of each class and series (if
any) of capital stock, and the qualifications, limitations or restrictions
thereof, are as follows:
A. COMMON STOCK. Subject to all of the powers, rights and
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preferences of the holders of Preferred Stock provided by resolution or
resolutions of the Board of Directors pursuant to this Article Fourth or by
the Business Corporation Law, holders of shares of Common Stock shall
exclusively possess all voting power and shall be entitled to one vote for
each share held by such holders with respect to all matters voted on by the
shareholders of the Corporation.
Whenever there shall have been paid, or declared and set aside
for payment, to the holders of the outstanding shares of any class of
capital stock having preference over the Common Stock as to the payment of
dividends or other distributions the full amount of dividends or such other
distributions, and sinking fund or retirement fund or other retirement
payments, if any, to which such holders are respectively entitled in
preference to holders of the Common Stock, then dividends or such other
distributions, as the case may be, may be paid on the Common Stock, and on
any class or series of capital stock entitled to participate therewith as
to dividends or such other dividends, as the case may be, to the holders
thereof out of any assets legally available for the payment of dividends or
such other distributions, but only when and as declared by the Board of
Directors of the Corporation.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation (none of which for purposes of
any provision of this Certificate of Incorporation shall be deemed to
include a consolidation or merger of the Corporation, or the sale of all or
substantially all of the Corporation's assets), after there shall have been
paid, or declared and set aside for payment, to the holders of the
outstanding shares of any class of capital stock having preference over the
Common Stock as to distribution of assets of the Corporation in any such
event the full preferential amounts to which the holders of such shares are
respectively entitled, the holders of the Common Stock and of any class or
series of capital stock entitled to participate therewith, in whole or in
part, as to distribution of the Corporation's assets, shall be entitled,
after payment or provision for payment of all debts and liabilities of the
Corporation, to receive the remaining assets of the Corporation available
for distribution, in cash or in kind, ratably in proportion to the number
of shares of Common Stock held by them.
Each share of Common Stock shall have the same relative powers,
preferences and rights as, and shall be identical in all respects with, all
the other shares of Common Stock.
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B. PREFERRED STOCK. Subject to limitations prescribed by the
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Business Corporation Law and the provisions of this Certificate of
Incorporation, the Board of Directors of the Corporation is authorized to
provide from time to time by resolution or resolutions for the issuance of
one or more series of Preferred Stock, and, by filing a certificate
pursuant to the Business Corporation Law, to establish from time to time
the number of shares of Preferred Stock to be included in each such series,
and to fix and state the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of each such
series, and the qualifications, limitations or restrictions thereof,
including, but not limited to determination of any of the following:
(1) the distinctive serial designation and the number of
shares constituting such series, which number the Board of
Directors may thereafter (except where otherwise provided in a
resolution designating a particular series) increase (but not
above the total number of authorized shares of the series) or
decrease (but not below the number of shares of such series then
outstanding);
(2) the dividend rates or the amount of dividends to be paid
on the shares of such series, the record and payment date or dates
for dividends, whether dividends shall be cumulative and, if so,
from which date or dates, and the participating or other special
rights, if any, including any relative rights of priority of
payment, with respect to dividends to be paid on shares of such
series;
(3) whether the shares of such series shall have voting
rights in addition to the voting rights provided by law, and, if
so, the terms and conditions of such voting rights, including, but
not limited to, the right of the holders of such shares to vote as
a separate class either alone or with the holders of shares of one
or more other series of Preferred Stock and the right to have more
than one vote per share;
(4) whether the shares of such series shall be redeemable
and, if so, the times, prices and other terms and conditions upon
which such shares may be redeemed, including, but not limited to,
the amount per share which shall be payable upon such redemption,
which amount may vary under different conditions and at different
redemption dates;
(5) the amount or amounts payable upon the shares of such
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 upon shares of such series;
(6) whether the shares of such series shall be entitled to
the benefits of a sinking or retirement fund to be applied to the
purchase or redemption of such shares, and, if so entitled, the
terms and conditions of such fund, including,
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but not limited to, the amount of such fund and the manner of its
application, including the price or prices at which such shares
may be redeemed or purchased through the application of such
funds;
(7) whether the shares of such series shall be convertible
into, or exchangeable for, shares of any other class or classes of
the Corporation's capital stock or any series thereof and, if so
convertible or exchangeable, the conversion price or prices or the
rate or rates of exchange, and the adjustments thereof, if any, at
which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange;
(8) the subscription or purchase price and form of
consideration for which the shares of such series shall be issued;
(9) whether the shares of such series which are redeemed,
converted or exchanged shall have the status of authorized but
unissued shares of Preferred Stock and whether such shares may be
reissued as shares of the same or any other series of Preferred
Stock; and
(10) any other relative rights, preferences and limitations
of the shares of such series.
Each share of each series of Preferred Stock shall have the
same relative powers, preferences and rights as, and shall be identical in
all respects with, all the other shares of the same series of Preferred
Stock. Except as required by the Business Corporation Law, the Board of
Directors of the Corporation is authorized to amend this Certificate of
Incorporation to provide for one or more series of Preferred Stock without
obtaining the approval of the holders of any class of capital stock of the
Corporation.
FIFTH: The Secretary of State of the State of New York 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:
Peoples Bankcorp, Inc.
825 State Street
Ogdensburg, New York 13669
Attention: Secretary.
SIXTH: The duration of the Corporation is to be perpetual.
SEVENTH: Cumulative voting rights shall not exist with respect to the
election of directors.
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EIGHTH: In connection with taking any action, including, without
limitation, action which may involve or relate to any business combination or
transaction, including, without limitation, any merger, consolidation or sale of
the Corporation's assets, or a proposal by another Person or Persons to make a
business combination or transaction or a tender or other exchange offer (whether
in cash or securities, or both) or any other proposal relating to a change or
potential change in the control of the Corporation, and the exercise of its or
their judgment in determining what is in the best interest of the Corporation
and its shareholders, the Board of Directors, any Committee of the Board of
Directors or any individual director may, but shall not be required to, in
addition to considering the long-term and short-term interests of the
Corporation and its shareholders, consider all of the following factors and any
other factors which it deems relevant: (i) the social, legal, economic and other
effects of the action or matter being or to be considered on the Corporation and
its subsidiaries, its and their employees, depositors, customers and creditors
and the communities in which the Corporation and its subsidiaries operate or are
located; and (ii) when evaluating a business combination or transaction or a
proposal by another Person or Persons to make a business combination or
transaction or a tender or other exchange offer or any other proposal relating
to a change or potential change in control of the Corporation, (v) the business,
reputation and financial condition and earnings prospects of the acquiring
Person or Persons and the possible effects of such factors on the Corporation
and its subsidiaries, its and their employees, depositors, customers and
creditors, the future value of the Corporation's capital stock, and the
communities in which the Corporation and its subsidiaries operate or are
located; (w) the reputation, business practices, competence, experience and
integrity of the acquiring Person or Persons and its or their management and
affiliates; (x) the prospects for successful conclusion of the business
combination, transaction, offer or proposal; (y) whether the price or value of
the securities being offered in the business combination, transaction or offer
is acceptable based on the historical and present operating results and
financial condition of the Corporation and whether a more favorable price could
be obtained for the Corporation's securities or assets, whichever the case may
be, in the future; and (z) any antitrust or other legal or regulatory issues
that are raised by the business combination, transaction, offer or proposal. As
used in this Article Eighth, the term "Person" means any individual,
partnership, firm, corporation, association, trust, unincorporated organization
or other entity; when two or more Persons act as a partnership, limited
partnership, syndicate, or other group acting in concert for the purpose of
acquiring, holding, voting or disposing of securities of the Corporation, such
partnership, limited partnership, syndicate or group shall also be deemed a
"Person" for purposes of this Article Eighth.
If the Board of Directors determines that a business combination,
transaction, offer or proposal should not be recommended to the shareholders, it
may take any lawful action to accomplish its purpose of opposing or not
recommending such business combination, transaction, offer or proposal,
including, without limitation, any or all of the following: advising
shareholders not to accept the business combination, transaction, offer or
proposal; soliciting proxies against the business combination, transaction,
offer or proposal; initiating or filing, in good faith, litigation or complaints
with governmental or regulatory authorities against the business combination,
transaction, offer or proposal; issuing the authorized but unissued securities
or treasury stock of the Corporation or granting options (either statutory or
nonstatutory, or both) with respect thereto in
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accordance with applicable law; acquiring another entity or entities to create
an antitrust or other regulatory problem for the business combination,
transaction, offer or proposal; and obtaining a more favorable offer or
proposal.
The provisions of this Article Eighth shall be deemed solely to grant
discretionary authority to the directors and shall not be deemed to provide to
any constituency the right to be considered. In addition, the provisions of this
Articles Eighth shall be supplemental to and in no way limiting of the powers
and authority granted to the directors by applicable law.
NINTH: The Board of Directors of the Corporation shall be divided into
three classes. The respective terms of office of the members of each such class
shall end in successive years. The number of directors in each class shall be
as specified in, or as determined pursuant to, the Bylaws and shall be nearly as
equal as possible. Except as provided in Article Ninth of this Certificate of
Incorporation, the directors in each class shall be elected to hold office until
the third successive annual meeting of shareholders after their election and
until their successors shall have been elected and qualified. At each annual
meeting of shareholders the directors of only one class shall be elected, except
directors who may be elected to fill vacancies. If the number of directors
comprising the Board of Directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain or attain the number of
directors in each class as nearly equal as reasonably possible, but in no case
shall a decrease in the number of directors shorten the term of any incumbent
director.
TENTH: Any vacancies in the Board of Directors for any reason, including,
but not limited to, any vacancy resulting by reason of the removal of a director
with cause or, if permitted by this Certificate of Incorporation, without cause,
and any newly created directorships resulting by reason of any increase in the
number of directors may be filled only by the Board of Directors, acting by a
majority of the remaining directors then in office, although less than a quorum,
or by a sole remaining director. Any director so elected by the Board of
Directors to fill a vacancy shall hold office only until the next annual meeting
of shareholders and until his or her successor shall have been elected and
qualified, notwithstanding that the term of office of other directors in the
class of which he or she is a member does not expire at the time of such
meeting. The successor to any director elected by the Board to fill a vacancy
shall be elected by the shareholders to a term of office which shall expire at
the same time as the term of office of the other directors in the class to which
he or she is elected and until his or her successor is elected and qualified.
Notwithstanding any other provision of this Certificate of Incorporation, if the
holders of any class or classes of shares of the Corporation's capital stock,
other than the Common Stock, or any series thereof shall be entitled to elect
one or more directors pursuant to this Certificate of Incorporation, any vacancy
in the directors elected by such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series then in
office, or, if no such director is then in office, by the Board of Directors as
otherwise provided in this Article Tenth.
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ELEVENTH:
A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party
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or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact:
(1) that he or she is or was a director or officer of the
Corporation, or
(2) that he or she, being at the time a director or officer of
the Corporation, is or was serving at the request of the Corporation
as a director, trustee, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(collectively, "another enterprise" or "other enterprise"), whether
either in case (i) or in case (ii) the basis of such proceeding is
alleged action or inaction (x) in an official capacity as a director
or officer of the Corporation, or as a director, trustee, officer,
employee or agent of such other enterprise, or (y) in any other
capacity related to the Corporation or such other enterprise while so
serving as a director, trustee, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Business Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, with
respect to actions taken prior to such amendment, only to the extent
that such amendment does not prohibit the Corporation from providing
broader indemnification rights than permitted prior thereto), against
all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such
person in connection therewith. The persons indemnified by this
Article Eleventh are hereinafter referred to as "indemnitees." Such
indemnification as to such alleged action or inaction shall continue
as to an indemnitee who has after such alleged action or inaction
ceased to be a director or officer of the Corporation, or director,
officer, employee or agent of another enterprise; and shall inure to
the benefit of the indemnitee's heirs, executors and administrators.
The right to indemnification conferred in this Article Eleventh: (i)
shall be a contract right; (ii) shall not be affected adversely as to
any indemnitee by any amendment of this Certificate of Incorporation
with respect to any action or inaction occurring prior to such
amendment; and (iii) shall, subject to any requirements imposed by law
and the Bylaws, include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its
final disposition.
B. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
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INDEMNIFICATION. The rights to indemnification and to the advancement of
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expenses conferred in this Article Eleventh shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, this Certificate of Incorporation, Bylaws,
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agreement (including any agreement between such person and any of the
Corporation's affiliates, predecessor or subsidiary corporations or any
constituent corporation absorbed by the Corporation in a consolidation or
merger), vote of shareholders or disinterested directors or otherwise. The
Bylaws may contain such other provisions concerning indemnification,
including provisions specifying reasonable procedures relating to and
conditions to the receipt by indemnitees of indemnification, provided that
such provisions are not inconsistent with the provisions of this Article
Eleventh.
C. AGENTS AND EMPLOYEES. The Corporation may, to the extent
--------------------
authorized from time to time by the Board of Directors and to the fullest
extent authorized by the Business Corporation Law, as the same exists or
may hereafter be amended, grant rights to indemnification, and to the
advancement of expenses, to any employee or agent of the Corporation (or
any person, other than a director or officer of the Corporation, serving at
the Corporation's request as a director, trustee, officer, employee or
agent of another enterprise) or to persons who are or were a director,
officer, employee or agent of any of the Corporation's affiliates,
predecessor or subsidiary corporations or of a constituent corporation
absorbed by the Corporation in a consolidation or merger or who is or was
serving at the request of such affiliate, predecessor or subsidiary
corporation or of such constituent corporation as a director, officer,
employee or agent of another enterprise, in each case as determined by the
Board of Directors to the fullest extent of the provisions of this Article
Eleventh in cases of the indemnification and advancement of expenses of
directors and officers of the Corporation, or to any lesser extent (or
greater extent, if permitted by law) determined by the Board of Directors.
Nothing in this Article Eleventh C. shall limit the indemnification
provided in Article Eleventh A. hereof to any officer or director of the
Corporation who was or is made a party or is threatened to be made a party
to or is otherwise involved in any proceeding by reason of the fact that he
or she is or was serving at the request of the Corporation as a director,
officer, trustee, employee or agent of any subsidiary of the Corporation or
any other enterprise.
TWELFTH: No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for any breach of fiduciary
duty by such director as a director, except to the extent such exculpation is
prohibited by the Business Corporation Law. No amendment to or repeal of this
Article Twelfth shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
THIRTEENTH: Any director may be removed from office at any time for cause
by (i) the affirmative vote of the holders of at least eighty percent (80%) of
the combined voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors or
(ii) the affirmative vote of sixty-six and two-thirds percent (66 2/3%) of the
entire Board of Directors, other than the director to be removed.
Notwithstanding the immediately preceding sentence, when the holders of any
series of Preferred Stock are entitled to elect one or more directors pursuant
to a resolution or resolutions providing for any series of Preferred Stock under
Article
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Fourth hereof, any director so elected by the holders of such series may be
removed only by the applicable vote of the holders of the shares of such series
as set forth in such resolution or resolutions. Directors shall not be removed
without cause. Cause is defined as any one or more of the following: the
commission of any violation of law, rule or regulation or of a cease and desist
order which has become final; engaging or participating in any unsafe or unsound
practice in connection with the Corporation or any of its subsidiaries
regardless of whether actual harm or damages result to the Corporation; the
commission or omission of or engaging in any act, or practice which constitutes
a material breach of a director's fiduciary duty as director, involves personal
dishonesty on the part of the director or demonstrates a willful or continuing
disregard for the best interests of the Corporation; the adjudication that a
director is of an unsound mind; the adjudication that a director is bankrupt;
the intentional destruction of the Corporation's property; the breach or
violation of any agreements with the Corporation or any of its subsidiaries
signed by the director, including, but not limited to, confidentiality and
nondisclosure agreements; or engaging in dishonorable or disruptive behavior,
practices or acts which would be reasonably expected to harm or bring into
disrepute the Corporation, its business or its employees. The phrase "the entire
Board of Directors" or "the entire Board," as used in this Certificate of
Incorporation shall refer to the total number of directors which the Corporation
would have if there were no vacancies.
FOURTEENTH: The Corporation may lend money to or guarantee the obligation
of any director of the Corporation if the particular loan or guarantee is
approved by the shareholders of the Corporation pursuant to the provisions of
the Business Corporation Law or if the Board of Directors determines that the
particular loan or guarantee benefits the Corporation and either approves the
particular loan or guarantee or a general plan authorizing such loans and
guarantees.
FIFTEENTH: Subject to applicable law and except as otherwise expressly
required by this Certificate of Incorporation, any action required or permitted
to be taken by the shareholders of the Corporation must be effected or taken at
a duly called annual or special meeting of such shareholders and may not be
effected or taken by any consent in writing by any such shareholders.
SIXTEENTH: The shareholder vote required to approve a Business Combination
(as hereinafter defined) shall be as set forth in this Article Sixteenth, in
addition to any other requirements under applicable law.
A. (1) Except as otherwise expressly provided in this Article
Sixteenth, the affirmative vote of the holders of (i) at least 80% of the
outstanding shares entitled to vote thereon (and, if any class or series of
shares is entitled to vote thereon separately, the affirmative vote of the
holders of at least two-thirds of the outstanding shares of each such class
or series) and (ii) a majority of the outstanding shares entitled to vote
thereon not including shares deemed beneficially owned by an Interested
Shareholder (as hereinafter defined) shall be required in order to
authorize any of the following:
(a) any merger, share exchange or consolidation of the
Corporation or any subsidiary thereof with or into an Interested
Shareholder;
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(b) any sale, lease, exchange, transfer or other disposition of
(including, without limitation, the granting of any mortgage, pledge
or other security interest in) all or any Substantial Part (as
hereinafter defined) of the assets (in one transaction or in a series
of transactions) of the Corporation (including, without limitation,
any voting securities of a subsidiary) or of a subsidiary thereof to
an Interested Shareholder or proposed by or on behalf of an Interested
Shareholder;
(c) any sale, lease, exchange, transfer or other disposition of
including, without limitation, any granting of a mortgage, pledge or
any other security interest in, all or any Substantial Part of the
assets (in one transaction or in a series of transactions) of an
Interested Shareholder to the Corporation or a subsidiary thereof;
(d) the issuance or transfer (in one transaction or in a series
of transactions) by the Corporation or any subsidiary thereof of any
securities of the Corporation or of a subsidiary thereof to an
Interested Shareholder other than pursuant to a dividend or
distribution made pro rata to all shareholders of the Corporation;
(e) the acquisition by the Corporation or a subsidiary thereof
of any securities of an Interested Shareholder or of any securities
convertible into securities of an Interested Shareholder;
(f) any transaction proposed by or on behalf of an Interested
Shareholder or pursuant to any agreement, arrangement or understanding
with an Interested Shareholder which has the effect, directly or
indirectly, of increasing the Interested Shareholder's proportionate
ownership of voting securities of the Corporation or of a subsidiary
thereof (or of securities that are convertible to, exchangeable for or
carry the right to acquire such voting securities);
(g) the adoption of any plan or proposal of liquidation or
dissolution of the Corporation, any reincorporation of the Corporation
in another state or jurisdiction, any reclassification of the common
stock of the Corporation, or any recapitalization involving the common
stock of the Corporation proposed by or on behalf of an Interested
Shareholder.
(h) any loans, advances, guarantees, pledges, financial
assistance, security arrangements, restrictive covenants or any tax
credits or other tax advantages provided by, through or to the
Corporation or any subsidiary thereof as a result of which an
Interested Shareholder receives a benefit, directly or indirectly,
other than proportionately as a shareholder; and
(i) any agreement, contract or other arrangement providing for
any of the transactions described in this Section (A).
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(2) Such affirmative vote shall be required notwithstanding any other
provision of this Certificate of Incorporation, any provision of law, or
any agreement with any national securities exchange or automated quotation
system which might otherwise permit a lesser vote or no vote.
(3) The term "Business Combination" as used in this Article Sixteenth
shall mean any transaction which is referred to in any one or more of
Subsections (1)(a) through (1)(i) of this Section A.
B. The provisions of Section A of this Article Sixteenth shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by any
other provision of this Certificate of Incorporation, any provisions of law
or any agreement with any federal regulatory agency, national securities
exchange or automated quotation system, if either the Business Combination
or the transaction in which the Interested Shareholder became an Interested
Shareholder shall have been approved in advance by at least two-thirds of
the Continuing Directors (as hereinafter defined); provided, however, that
such approval shall be effective only if obtained at a meeting at which a
Continuing Director Quorum (as hereinafter defined) is present.
C. For the purpose of this Article Sixteenth the following
definitions apply:
(1) The term "Interested Shareholder" shall mean: (a) any
individual, corporation, partnership or other person or entity which
together with its "affiliates" (as that term is defined in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act
of 1934) "beneficially owns" (as that term is defined in Rule 13d-3 of
the General Rules and Regulations under the Securities Exchange Act of
1934) in the aggregate 10% or more of the outstanding shares of the
Common Stock of the Corporation; (b) any "affiliate" (as that term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934) of
any such individual, corporation, partnership or other person or
entity; or (c) any corporation which would be an "affiliate" (as that
term is defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934) of any such individual,
corporation, partnership or other person or entity following a
Business Combination. Without limitation, any shares of the common
stock of the Corporation which any Interested Shareholder has the
right to acquire pursuant to any agreement, upon exercise of
conversion rights, warrants or options or otherwise shall be deemed
"beneficially owned" by such Interested Shareholder.
(2) The term "Substantial Part" shall mean more than 10 percent
of the total assets of the Corporation or the Related Person, as the
case may be, as of the end of its most recent fiscal year ending prior
to the time the determination is made.
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(3) The term "Continuing Director" shall mean any member of the
Board of Directors of the Corporation who is unaffiliated with an
Interested Shareholder and was a member of the Board of Directors
prior to the time that the Interested Shareholder became an Interested
Shareholder, and any successor of a Continuing Director who is
recommended to succeed a Continuing Director by a majority of
Continuing Directors then on the board of directors.
(4) The term "Continuing Director Quorum" shall mean at least
two-thirds of the Continuing Directors capable of exercising the
powers conferred on them.
SEVENTEENTH:
A. For a period of five years from the effective date of the
completion of the conversion of Ogdensburg Federal Savings and Loan
Association from mutual to stock form (which entity shall become a wholly
owned subsidiary of the Corporation upon such conversion), no person shall
directly or indirectly offer to acquire or acquire the beneficial ownership
of more than 10% of any class of equity security of the Corporation, unless
such offer or acquisition shall have been approved in advance by a two-
thirds vote of the Continuing Directors, as such term is defined in Article
Sixteenth hereof. In addition, for a period of five years from the
completion of the conversion of Ogdensburg Federal Savings and Loan
Association from mutual to stock form, and notwithstanding any provision to
the contrary in this Certificate of Incorporation or the bylaws of the
Corporation, where any person directly or indirectly acquires beneficial
ownership of more than 10% of any class of equity security of the
Corporation in violation of this Article Sixteenth, the securities
beneficially owned in excess of 10% shall not be counted as shares entitled
to vote, shall not be voted by any person or counted as voting shares in
connection with any matter submitted to the shareholders for a vote, and
shall not be counted as outstanding for purposes of determining a quorum or
the affirmative vote necessary to approve any matter submitted to the
shareholders for a vote.
B. If, at any time after five years from the effective date of the
completion of the conversion of Ogdensburg Federal Savings and Loan
Association from mutual to stock form, any person shall acquire the
beneficial ownership of more than 10% of any class of equity security of
the Corporation without the prior approval by a two-thirds vote of the
Continuing Directors, as defined in Article Sixteenth of this Certificate
of Incorporation, then the record holders of voting stock of the
Corporation beneficially owned by such acquiring person shall have only the
voting rights set forth in this Section (A) on any matter requiring their
vote or consent. With respect to each vote in excess of 10% of the voting
power of the outstanding shares of voting stock of the Corporation which
such record holders would otherwise be entitled to cast without giving
effect to this Section (A), such record holders in the aggregate shall be
entitled to cast only one-hundredth (1/100th) of a vote, and the aggregate
voting power of such record holders, so limited for all shares
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of voting stock of the Corporation beneficially owned by such acquiring
person, shall be allocated proportionately among such record holders. For
each such record holder, this allocation shall be accomplished by
multiplying the aggregate voting power, as so limited, of the outstanding
shares of voting stock of the Corporation beneficially owned by such
acquiring person by a fraction whose numerator is the number of votes
represented by the shares of voting stock of the Corporation owned of
record by such record holder (and which are beneficially owned by such
acquiring person) and whose denominator is the total number of votes
represented by the shares of voting stock of the Corporation that are
beneficially owned by such acquiring person. A person who is a record owner
of shares of voting stock of the Corporation that are beneficially owned
simultaneously by more than one person shall have, with respect to such
shares, the right to cast the least number of votes that such person would
be entitled to cast under this Section (B) by virtue of such shares being
so beneficially owned by any of such acquiring persons.
C. DEFINITIONS. The term "person" means an individual, a group
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acting in concert, a corporation, a partnership, an association, a joint
stock company, a trust, an unincorporated organization or similar company,
a syndicate or any other group acting in concert formed for the purpose of
acquiring, holding or disposing of securities of the Corporation. The term
"acquire" includes every type of acquisition, whether effected by purchase,
exchange, operation of law or otherwise. The term "offer" includes every
offer to buy or otherwise acquire, solicitation of an offer to sell, tender
offer for or request for invitation for tenders of, a security or interest
in a security for value. The term "acting in concert" includes: (1)
knowing participation in a joint activity or conscious parallel action
towards a common goal whether or not pursuant to an express agreement; and
(2) a combination or pooling of voting or other interests in the
Corporation's outstanding shares for a common purpose pursuant to any
contract, understanding, relationship, agreement or other arrangement,
whether written or otherwise. The term "beneficial ownership" shall have
the meaning defined in Rule 13d-3 of the General Rules and Regulations
under the Securities Exchange Act of 1934.
D. EXCLUSION FOR UNDERWRITERS, EMPLOYEE BENEFIT PLANS AND CERTAIN
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PROXIES. The restrictions contained in this Article Seventeenth shall not
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apply to: (1) any underwriter or member of an underwriting or selling
group involving a public sale or resale of securities of the Corporation or
a subsidiary thereof; provided, however, that upon completion of the sale
or resale of such securities, no such underwriter or member of such selling
group is a beneficial owner of more than 10% of any class of equity
security of the Corporation; (2) any proxy granted to one or more
Continuing Directors, as defined in Article Sixteenth of this Certificate
of Incorporation, by a shareholder of the Corporation; or (3) any employee
benefit plans of the Corporation or a subsidiary thereof. In addition, the
Continuing Directors, as defined in Article Sixteenth of this Certificate
of Incorporation, the officers and employees of the Corporation and its
subsidiaries, the directors of subsidiaries of the Corporation, the
employee benefit plans of the Corporation and its subsidiaries, entities
organized or established by the Corporation or any subsidiary
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thereof pursuant to the terms of such plans and trustees and fiduciaries
with respect to such plans acting in such capacity shall not be deemed to
be a group with respect to their beneficial ownership of voting stock of
the Corporation solely by virtue of their being directors, officers or
employees of the Corporation or a subsidiary thereof or by virtue of the
Continuing Directors, as defined in Article Sixteenth of this Certificate
of Incorporation, the officers and employees of the Corporation and its
subsidiaries and the directors of subsidiaries of the Corporation being
fiduciaries or beneficiaries of an employee benefit plan of the Corporation
or a subsidiary of the Corporation. Notwithstanding the foregoing, no
director, officer or employee of the Corporation or any of its
subsidiaries, or group of any of them, shall be exempt from the provisions
of this Article Sixteenth should any such person or group become a
beneficial owner of more than 10% of any class of equity security of the
Corporation.
D. DETERMINATIONS. A majority of the Continuing Directors, as
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defined in Article Sixteenth of this Certificate of Incorporation, shall
have the power to construe and apply the provisions of this Article
Seventeenth and to make all determinations necessary or desirable to
implement such provisions, including but not limited to matters with
respect to: (1) the number of shares beneficially owned by any person;
(2) whether a person has an agreement, arrangement or understanding with
another as to the matters referred to in the definition of beneficial
ownership; (3) the application of any other definition or operative
provision of this Article Seventeenth to the given facts; or (4) any other
matter relating to the applicability or effect of this Article Seventeenth.
Any constructions, applications or determinations made by the Continuing
Directors, as defined in Article Sixteenth of this Certificate of
Incorporation, pursuant to this Article Seventeenth in good faith and on
the basis of such information and assistance as was then reasonably
available for such purpose shall be conclusive and binding upon the
Corporation and its shareholders.
EIGHTEENTH:
A. The Corporation hereby reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, and
all rights conferred upon shareholders are granted subject to this
reservation. Except as may be required by applicable law or any other
provision of this Certificate of Incorporation, any such amendment,
alteration, change or repeal of any provision of this Certificate of
Incorporation shall require the affirmative vote of both (a) a majority of
the Board of Directors and (b) a majority of the combined voting power of
all of the shares of capital stock of the Corporation then entitled to vote
generally in the election of directors.
B. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of a majority of the
Board of Directors and the holders of at least 80 percent (80%) of the
combined voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of directors
shall be required
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to amend, repeal, alter, change or adopt any provision inconsistent with
Articles Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Sixteenth and Seventeenth hereof and this Section B.
NINETEENTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, make,
amend, change, alter or repeal the Bylaws of the Corporation.
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IN WITNESS WHEREOF, this certificate has been subscribed this _____ day
of September, 1998, by the undersigned, who affirms that the statements made
herein are true under the penalties of perjury.
_______________________________
Robert E. Wilson
825 State Street
Ogdensburg, New York 13669
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