Exhibit 3.(i)
CERTIFICATE OF INCORPORATION
OF
AFSALA BANCORP, INC.
ARTICLE I
Name
The name of the corporation is AFSALA Bancorp, Inc. (herein the "Corporation").
ARTICLE II
Registered Office
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Corporation Trust Center, in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
Powers
The purpose of the Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the Delaware General Corporation
Law.
ARTICLE IV
Term
The Corporation is to have perpetual existence.
ARTICLE V
Incorporator
The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
John M. Lisicki 161 Church Street
Amsterdam, New York 12010
ARTICLE VI
Capital Stock
The aggregate number of shares of all classes of capital stock which the
Corporation has authority to issue is 3,500,000 of which 3,000,000 are to be
shares of common stock, $0.10 par value per share, and of which 500,000 are to
be shares of serial preferred stock, $0.10 par value per share. The shares may
be issued by the Corporation without the approval of stockholders except as
otherwise provided in this Article VI or the rules of a national securities
exchange, if applicable. The consideration for the issuance of the shares shall
be paid to or received by the Corporation in full before their issuance and
shall not be less than the par value per share. The consideration for the
issuance of the shares shall be cash, services rendered, personal property
(tangible or intangible), real property, leases of real property or any
combination of the foregoing. In the absence of actual fraud in the transaction,
the judgment of the board of directors as to the value of such consideration
shall be conclusive. Upon payment of such consideration such shares shall be
deemed to be fully paid and nonassessable. In the case of a stock dividend, the
part of the surplus of the Corporation which is transferred to stated capital
upon the issuance of shares as a stock dividend shall be deemed to be the
consideration for their issuance.
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. Except as provided in this Certificate, the holders of the
common stock shall exclusively possess all voting power. Each holder of shares
of common stock shall be entitled to one vote for each share held by such
holders.
Whenever there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class of stock having
preference over the common stock as to the payment of dividends, the full amount
of dividends and sinking fund or retirement fund or other retirement payments,
if any, to which such holders are respectively entitled in preference to the
common stock, then dividends may be paid on the common stock, and on any class
or series of stock entitled to participate therewith as to dividends, out of any
assets legally available for the payment of dividends, but only when as declared
by the board of directors of the Corporation.
In the event of any liquidation, dissolution or winding up of the
Corporation, after there shall have been paid, or declared and set aside for
payment, to the holders of the outstanding shares of any class having preference
over the common stock in any event, the full preferential amounts to which they
are respectively entitled, the holders of the common stock and of any class or
series of stock entitled to participate therewith, in whole or in part, as to
distribution of 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.
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 of the Corporation.
B. Serial Preferred Stock. Except as provided in this Certificate, the
board of directors of the Corporation is authorized, by resolution or
resolutions from time to time adopted, to provide for the issuance of serial
preferred stock in series and to fix and state the powers, designations,
preferences, and relative, participating, optional, or other special rights of
the shares of 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; and
2. the dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
and
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3. the voting powers, full or limited, if any, of the shares of such
series; and
4. whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions upon which such
shares may be redeemed; and
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
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 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; and
7. whether the shares of such series shall be convertible into, or
exchangeable for, shares of any other class or classes or any other series
of the same or any other class or classes of stock of the Corporation 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; and
8. the subscription or purchase price and form of consideration for
which the shares of such series shall be issued; and
9. whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial
preferred stock and whether such shares may be reissued as shares of the
same or any other series of serial preferred stock.
Each share of each series of serial 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 Corporation of the same series.
ARTICLE VII
Preemptive Rights
No holder of any of the shares of any class or series of stock or of
options, warrants or other rights to purchase shares of any class or series of
stock or of other securities of the Corporation shall have any preemptive right
to purchase or subscribe for any unissued stock of any class or series, or any
unissued bonds, certificates of indebtedness, debentures, or other securities
convertible into or exchangeable for stock of any class or series or carrying
any right to purchase stock of any class or series; but any such unissued stock,
bonds, certificates of indebtedness, debentures, or other securities convertible
into or exchangeable for stock or carrying any right to purchase stock may be
issued pursuant to resolution of the board of directors of the Corporation to
such persons, firms, corporations, or associations, whether or not holders
thereof, and upon such terms as may be deemed advisable by the board of
directors in the exercise of its sole discretion.
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ARTICLE VIII
Repurchase of Shares
The Corporation may from time to time, pursuant to authorization by the
board of directors of the Corporation and without action by the stockholders,
purchase or otherwise acquire shares of any class, bonds, debentures, notes,
scrip, warrants, obligations, evidences of indebtedness, or other securities of
the Corporation in such manner, upon such terms, and in such amounts as the
board of directors shall determine; subject, however, to such limitations or
restrictions, if any, as are contained in the express terms of any class of
shares of the Corporation outstanding at the time of the purchase or acquisition
in question or as are imposed by law or regulation.
ARTICLE IX
Meetings of Stockholders; Cumulative Voting; Proxies
A. Notwithstanding any other provision of this Certificate or the Bylaws
of the Corporation, no action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
B. Special meetings of the stockholders of the Corporation for any purpose
or purposes may be called at any time by a majority of the board of directors of
the Corporation, or by a committee of the board of directors which has been duly
designated by the board of directors and whose powers and authorities, as
provided in a resolution of the board of directors or in the Bylaws of the
Corporation, include the power and authority to call such meetings, but such
special meetings may not be called by any other person or persons.
C. Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after 11 months from its date, unless the proxy
provides for a longer period. Without limiting the manner in which a stockholder
may authorize another person or persons to act for him as proxy, the following
shall constitute a valid means by which a stockholder may grant such authority.
1. A stockholder may execute a writing authorizing another person or
persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing
such writing or causing his or her signature to be affixed to such writing
by any reasonable means including, but not limited to, facsimile
signature.
2. A stockholder may authorize another person or persons to act for
him as proxy by transmitting or authorizing the transmission of a
facsimile telecommunication, telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy
or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the
proxy to receive such transmission, provided that any such facsimile
telecommunication, telegram, cablegram or other means of electronic
transmission, must either set forth or be submitted with information from
which it can be determined that the facsimile telecommunication, telegram,
cablegram, or other electronic transmission was authorized by the
stockholder. If it is determined that such facsimile telecommunications,
telegrams, cablegrams, or other electronic transmission are valid, the
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inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied.
3. Any copy, facsimile telecommunication, or other reliable
reproduction of the writing or transmission created pursuant to this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile
telecommunication, or other reproduction shall be a complete reproduction
of the entire original writing or transmission.
D. There shall be no cumulative voting by stockholders of any class or
series in the election of directors of the Corporation.
E. Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws of the Corporation may provide.
ARTICLE X
Notice for Nominations and Proposals
Advance notice of stockholder nominations for the election of directors
and of business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner provided in the
Bylaws of the Corporation.
ARTICLE XI
Directors
A. Number; Vacancies. The number of directors of the Corporation shall be
such number, not less than three nor more than 15 (exclusive of directors, if
any, to be elected by holders of preferred stock of the Corporation, voting
separately as a class), as shall be provided from time to time in or in
accordance with the Bylaws of the Corporation, provided that no decrease in the
number of directors shall have the effect of shortening the term of any
incumbent director, and provided further that no action shall be taken to
decrease or increase the number of directors from time to time unless at least
two-thirds of the directors then in office shall concur in said action.
Vacancies in the board of directors of the Corporation, however caused, and
newly created directorships shall be filled by a vote of two-thirds of the
directors then in office, whether or not a quorum, and any director so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of the class to which the director has been chosen expires and
when the director's successor is elected and qualified.
B. Classified Board. The board of directors of the Corporation shall be
divided into three classes of directors which shall be designated Class I, Class
II, and Class III. The members of each class shall be elected for a term of
three years and until their successors are elected and qualified. Such classes
shall be as nearly equal in number as the then total number of directors
constituting the entire board of directors shall permit, with the terms of
office of all members of one class expiring each year. At the first annual
meeting of stockholders, directors in Class I shall be elected to hold office
for a term expiring at the third succeeding annual meeting thereafter. At the
second annual meeting of stockholders, directors of Class II shall be elected to
hold office for a term expiring at the third succeeding meeting thereafter. At
the third annual meeting of stockholders, directors of Class III shall be
elected to hold office for a term expiring at the third succeeding annual
meeting thereafter. Thereafter, at each succeeding annual
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meeting, a director whose term shall expire at any annual meeting shall continue
to serve until such time as his successor shall have been duly elected and shall
have qualified unless his position on the board of directors shall have been
abolished by action taken to reduce the size of the board of directors prior to
said meeting.
Should the number of directors of the Corporation be reduced, the
directorship(s) eliminated shall be allocated among classes as appropriate so
that the number of directors in each class is as specified in the immediately
preceding paragraph. The board of directors shall designate, by the name of the
incumbent(s), the position(s) to be abolished. Notwithstanding the foregoing, no
decrease in the number of directors shall have the effect of shortening the term
of any incumbent director. Should the number of directors of the Corporation be
increased, the additional directorships shall be allocated among classes as
appropriate so that the number of directors in each class is as specified in the
immediately preceding paragraph.
C. Initial Board of Directors. The initial board of directors shall consist
of the following individuals divided into the following classes pursuant to
Subsection B. of this Article XI.
Class I Class II Class III
- ------- -------- ---------
John M. Lisicki Ronald S. Tecler John A. Kosinski, Jr.
Daniel J. Greco John A. Tesiero, Jr. Joseph G. Opalka
Florence B. Opiela
D. Voting as a Class in the Election of Directors. Whenever the holders of
any one or more series of preferred stock of the Corporation shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the board of directors shall consist of said directors so elected
in addition to the number of directors fixed as provided above in this Article
XI. Notwithstanding the foregoing, and except as otherwise may be required by
law, whenever the holders of any one or more series of preferred stock of the
Corporation shall have the right, voting separately as a class, to elect one or
more directors of the Corporation, the terms of the director or directors
elected by such holders shall expire at the next succeeding annual meeting of
stockholders.
ARTICLE XII
Removal of Directors
Notwithstanding any other provision of this Certificate or the Bylaws of
the Corporation, no member of the board of directors of the Corporation may be
removed except for cause, and then only by the affirmative vote of at least 80%
of the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that purpose.
Notwithstanding the foregoing, whenever the holders of any one or more series of
preferred stock of the Corporation shall have the right, voting separately as a
class, to elect one or more directors of the Corporation, the preceding
provisions of this Article XII shall not apply with respect to the director or
directors elected by such holders of preferred stock.
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ARTICLE XIII
Certain Limitations on Voting Rights
A. Notwithstanding any other provision of this Certificate, in no event
shall any record owner of any outstanding Common Stock which is beneficially
owned, directly or indirectly, by a person who, as of any record date for the
determination of stockholders entitled to vote on any matter, beneficially owns
in excess of 10% of the then-outstanding shares of Common Stock (the "Limit"),
be entitled, or permitted to any vote in respect of the shares held in excess of
the Limit. The number of votes which may be cast by any record owner by virtue
of the provisions hereof in respect of Common Stock beneficially owned by such
person owning shares in excess of the Limit shall be a number equal to the total
number of votes which a single record owner of all Common Stock owned by such
person would be entitled to cast, multiplied by a fraction, the numerator of
which is the number of shares of such class or series which are both
beneficially owned by such person and owned of record by such record owner and
the denominator of which is the total number of shares of Common Stock
beneficially owned by such Person owning shares in excess of the Limit.
Further, for a period of five years from the completion of the conversion
of Amsterdam Federal Savings and Loan Association from mutual to stock form, no
Person shall directly or indirectly Offer to acquire or acquire the beneficial
ownership of more than 10% of any class of any equity security of the
Corporation.
B. The following definitions shall apply to this Article XIII.
1. "Affiliate" shall have the meaning ascribed to it in Rule 12b-2
of the General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on the date of filing of this Certificate.
2. "Beneficial Ownership" (including "Beneficially Owned") shall be
determined pursuant to Rule 13d-3 of the General Rules and Regulations
under the Securities Exchange Act of 1934 (or any successor rule or
statutory provision), or, if said Rule 13d-3 shall be rescinded and there
shall be no successor rule or provision thereto, pursuant to said Rule
13d-3 as in effect on the date of filing of this Certificate; provided,
however, that a Person shall, in any event, also be deemed the "beneficial
owner" of any Common Stock:
(a) which such Person or any of its Affiliates owns, directly
or indirectly; or
(b) which such Person or any of its Affiliates has (i) the
right to acquire (whether such right is exercisable immediately or
only after the passage of time), pursuant to any agreement,
arrangement or understanding (but shall not be deemed to be the
Beneficial Owner of any voting shares solely by reason of an
agreement, contract, or other arrangement with this Corporation to
effect any transaction which is described in any one or more of
Sections 1 through 5 of Section A of Article XIV) or upon the
exercise of conversion rights, exchange rights, warrants, or options
or otherwise, or (ii) sole or shared voting or investment power with
respect thereto pursuant to any agreement, arrangement,
understanding, relationship or otherwise (but shall not be deemed to
be the Beneficial Owner of any voting shares solely by reason of a
revocable proxy granted for a particular meeting of stockholders,
pursuant to a public solicitation
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of proxies for such meeting, with respect to shares of which neither
such Person nor any such Affiliate is otherwise deemed the
Beneficial Owner); or
(c) which are owned directly or indirectly, by any other
Person with which such first mentioned Person or any of its
Affiliates acts as a partnership, limited partnership, syndicate or
other group pursuant to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any
shares of capital stock of this Corporation;
and provided further, however, that (1) no director or officer of this
Corporation (or any Affiliate of any such director or officer) shall, solely by
reason of any or all of such directors or officers acting in their capacities as
such, be deemed, for any purposes hereof, to Beneficially Own any Common Stock
Beneficially Owned by any other such director or officer (or any Affiliate
thereof), and (2) neither any employee stock ownership or similar plan of this
Corporation or any subsidiary of this Corporation, nor any trustee with respect
thereto or any Affiliate of such trustee (solely by reason of such capacity of
such trustee), shall be deemed, for any purposes hereof, to Beneficially Own any
Common Stock held under any such plan. For purposes of computing the percentage
Beneficial Ownership of Common Stock of a Person, the outstanding Common Stock
shall include shares deemed owned by such Person through application of this
subsection but shall not include any other Common Stock which may be issuable by
this Corporation pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise. For all other purposes, the
outstanding Common Stock shall include only Common Stock then outstanding and
shall not include any Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon the exercise of conversion rights, warrants
or options, or otherwise.
3. The term "Offer" shall mean every written offer to buy or
acquire, solicitation of an offer to sell, tender offer or request or invitation
for tender of, a security or interest in a security for value; provided that the
term "Offer" shall not include (i) inquiries directed solely to the management
of the Corporation and not intended to be communicated to stockholders which are
designed to elicit an indication of management's receptivity to the basic
structure of a potential acquisition with respect to the amount of cash and or
securities, manner of acquisition and formula for determining price, or (ii)
non-binding expressions of understanding or letters of intent with the
management of the Corporation regarding the basic structure of a potential
acquisition with respect to the amount of cash and/or securities, manner of
acquisition and formula for determining price.
4. A "Person" shall mean any individual, firm, corporation, or
other entity.
C. The board of directors shall have the power to construe and apply the
provisions of this Article XIII and to make all determinations necessary or
desirable to implement such provisions, including but not limited to matters
with respect to (i) the number of shares of Common Stock Beneficially Owned by
any Person, (ii) whether a Person is an Affiliate of another, (iii) whether a
Person has an agreement, arrangement, or understanding with another as to the
matters referred to in the definition of Beneficial Ownership, (iv) the
application of any other definition or operative provision of the section to the
given facts, or (v) any other matter relating to the applicability or effect of
this Article XIII.
D. The board of directors shall have the right to demand that any Person
who is reasonably believed to Beneficially Own Common Stock in excess of the
Limit (or holders of record of Common Stock Beneficially Owned by any Person in
excess of the Limit) supply the Corporation with complete
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information as to (i) the record owner(s) of all shares Beneficially Owned by
such Person who is reasonably believed to own shares in excess of the Limit and
(ii) any other factual matter relating to the applicability or effect of this
Article XIII as may reasonably be requested of such Person.
E. Except as otherwise provided by law or expressly provided in this
Article XIII, the presence in person or by proxy of the holders of record of
shares of capital stock of the Corporation entitling the holders thereof to cast
a majority of the votes (after giving effect, if required, to the provisions of
this Article XIII) entitled to be cast by the holders of shares of capital stock
of the Corporation entitled to vote shall constitute a quorum at all meetings of
the stockholders, and every reference in this Certificate of Incorporation to a
majority or other proportion of capital stock (or the holders thereof) for
purposes of determining any quorum requirement or any requirement for
stockholder consent or approval shall be deemed to refer to such majority or
other proportion of the votes (or the holders thereof) then entitled to be cast
in respect of such capital stock.
F. The provisions of this Article XIII shall not be applicable to any
tax-qualified defined benefit plan or defined contribution plan of the
Corporation or its subsidiaries or to the acquisition of more than 10% of any
class of equity security of the Corporation if such acquisition has been
approved by a majority of the Continuing Directors, as defined in Article XIV of
this Certificate; provided, however, that such approval shall only be effective
if such Continuing Directors shall have the power to construe and apply the
provisions of this Article XIII and to make all determinations necessary or
desirable to implement such provisions, including but not limited to matters
with respect to (a) the number of shares Beneficially Owned by any Person, (b)
whether a Person has an agreement, arrangement, or understanding with another as
to the matters referred to in the definition of Beneficial Ownership, (c) the
application of any other material fact relating to the applicability or effect
of this Article XIII. Any constructions, applications, or determinations made by
the Continuing Directors pursuant to this Article XIII 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
stockholders.
G. In the event any provision (or portion thereof) of this Article XIII
shall be found to be invalid, prohibited or unenforceable for any reason, the
remaining provisions (or portions thereof) of this Article XIII shall remain in
full force and effect, and shall be construed as if such invalid, prohibited or
unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders that
each such remaining provision (or portion thereof) of this Article XIII remain,
to the fullest extent permitted by law, applicable and enforceable as to all
stockholders, including stockholders owning an amount of stock over the Limit,
notwithstanding any such finding.
ARTICLE XIV
Approval of Business Combinations
A. General Requirement. The affirmative vote of the holders of not less than
eighty percent (80%) of the outstanding shares of "Voting Stock" (as hereinafter
defined) shall be required for the approval or authorization of any "Business
Combination," as defined and set forth below:
1. Any merger, reorganization, or consolidation of the Corporation
or any of its "Affiliates" (as defined in Subsection B of Article XIII of
this Certificate) with or into any Principal Shareholder (as hereinafter
defined);
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2. Any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or in a series of related transactions) of
all or a "Substantial Part" (as hereinafter defined) of the assets of the
Corporation or any of its Affiliates to any Principal Shareholder;
3. Any sale, lease, exchange, or other transfer (in one transaction
or in a series of related transactions) by any Principal Shareholder to
the Corporation or any of the Corporation's Affiliates of any assets,
cash, or securities in exchange for shares of Voting Stock (or of shares
of stock of any of the Corporation's Affiliates entitled to vote in the
election of directors of such Affiliate or securities convertible into or
exchangeable for shares of Voting Stock or such stock of an Affiliate, or
options, warrants, or rights to purchase shares of Voting Stock or such
stock of an Affiliate);
4. The adoption at any time when there exists any Principal
Shareholder of any plan or proposal for the liquidation or dissolution of
the Corporation; and
5. Any reclassification of securities (including any reverse stock
split), recapitalization, or other transaction at any time when there
exists any Principal Shareholder if such reclassification,
recapitalization, or other transaction would result in a decrease in the
number of holders of the outstanding shares of Voting Stock.
The affirmative vote required by this Article XIV shall be in addition to
the vote of the holders of any class or series of stock of the Corporation
otherwise required by law, by any other Article of this Certificate, as amended,
by any resolution of the board of directors providing for the issuance of a
class or series of stock, or by any agreement between the Corporation and any
national securities exchange.
B. Certain Definitions. For the purposes of this Article XIV:
1. The term "Principal Shareholder" shall mean and include any
individual, corporation, partnership, or other person or entity which,
together with its "Affiliates" and "Associates" (as defined at Rule 12b-2
under the Securities Exchange Act of 1934), "beneficially owns" (as
hereinafter defined) in the aggregate ten percent (10%) or more of the
outstanding shares of Voting Stock, and any Affiliate or Associate of any
such individual, corporation, partnership, or other person or entity.
2. The term "Substantial Part" shall mean more than twenty-five
percent (25%) of the fair market value of the total assets of the
Corporation, as of the end of its most recent fiscal quarter ending prior
to the time the determination is being made.
3. The term "Voting Stock" shall mean the stock of the Corporation
entitled to vote in the election of directors.
4. Any corporation, partnership, person, or entity will be deemed to
be a "Beneficial Owner" of or to own beneficially any share or shares of
stock of the Corporation: (a) which it owns directly, whether or not of
record; or (b) which it has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement or arrangement or understanding or upon exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or which it
has the right to vote pursuant to any agreement, arrangement, or
understanding; or (c) which are owned directly or indirectly (including
shares
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deemed to be owned through application of clause (b) above) by any
Affiliate or Associate; or (d) which are owned directly or indirectly
(including shares deemed to be owned through application of clause (b)
above) by any other corporation, person, or entity with which it or any of
its Affiliates or Associates have any agreement or arrangement or
understanding for the purpose of acquiring, holding, voting, or disposing
of Voting Stock.
For the purpose only of determining the percentage of the
outstanding shares of Voting Stock which any corporation, partnership,
person, or other entity beneficially owns, directly or indirectly, the
outstanding shares of Voting Stock will be deemed to include any shares of
Voting Stock which such corporation, partnership, person or other entity
beneficially owns pursuant to the foregoing provisions of this subsection
(whether or not such shares of Voting Stock are in fact issued or
outstanding), but shall not include any other shares of Voting Stock which
may be issuable either immediately or at some future date pursuant to any
agreement, arrangement, or understanding or upon exercise of conversion
rights, exchange rights, warrants, options, or otherwise.
C. Exceptions. The provisions of this Article XIV shall not apply to a
Business Combination that is approved by two-thirds of those members of the
board of directors who were directors prior to the time when the Principal
Shareholder became a Principal Shareholder (the "Continuing Directors"). The
provisions of this Article XIV also shall not apply to a Business Combination
which (a) does not change any shareholder's percentage ownership in the shares
of stock entitled to vote in the election of directors of any successor of the
Corporation from the percentage of the shares of Voting Stock owned by such
shareholder; (b) provides for the provisions of this Article XIV, without any
amendment, change, alteration, or deletion, to apply to any successor to the
Corporation; and (c) does not transfer all or a Substantial Part of the
Corporation's assets other than to a wholly-owned subsidiary of the Corporation.
D. Additional Provisions. Nothing contained in this Article XIV, shall be
construed to relieve a Principal Shareholder from any fiduciary obligation
imposed by law. In addition, nothing contained in this Article XIV shall prevent
any shareholders of the Corporation from objecting to any Business Combination
and from demanding any appraisal rights which may be available to such Principal
Shareholder.
E. Notwithstanding Article XX or any provisions of this Certificate or the
Bylaws of the Corporation (and notwithstanding the fact that a lesser percentage
may be specified by law, this Certificate or the Bylaws of the Corporation), the
affirmative vote of the holders of at least 80% of the outstanding shares
entitled to vote thereon (and, if any class or series is entitled to vote
thereon separately, the affirmative vote of the holders of at least 80% of the
outstanding shares of each such class or series) shall be required to amend or
repeal this Article XIV or adopt any provisions inconsistent with this Article
XIV.
ARTICLE XV
Fair Price Requirements
A. General Requirement. No "Business Combination" (as defined in Article
XIV) shall be effected unless all of the following conditions, to the extent
applicable, are fulfilled.
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1. The ratio of (a) the aggregate amount of the cash and the fair
market value of the other consideration to be received per share by the
holders of the common stock of the Corporation in the Business Combination
to (b) the "Market Price" (as hereinafter defined) of the common stock of
the Corporation immediately prior to the announcement of the Business
Combination or the solicitation of the holders of the common stock of the
Corporation regarding the Business Combination, whichever is first, shall
be at least as great as the ratio of (x) the highest price per share
previously paid by the "Principal Shareholder" (as hereinafter defined)
(whether before or after it became a Principal Shareholder) for any of the
shares of common stock of the Corporation at any time Beneficially Owned,
directly, or indirectly, by the Principal Shareholder to (y) the Market
Price of the common stock of the Corporation on the trading date
immediately prior to the earliest date on which the Principal Shareholder
(whether before or after it became a Principal Shareholder) purchased any
shares of common stock of the Corporation during the two year period prior
to the date on which the Principal Shareholder acquired the shares of
common stock of the Corporation at any time owned by it for which it paid
the highest price per share (or, if the Principal Shareholder did not
purchase any shares of common stock of the Corporation during the two year
period, the Market Price of the common stock of the Corporation on the
date of two years prior to the date on which the Principal Shareholder
acquired the shares of common stock of the Corporation at any time owned
by it for which it paid the highest price per share).
2. The aggregate amount of the cash and the fair market value of the
other consideration to be received per share by the holders of the common
stock of the Corporation in the Business Combination shall be not less
than the highest price per share previously paid by the Principal
Shareholder (whether before or after it became a Principal Shareholder)
for any of the shares of common stock of the Corporation at any time
Beneficially Owned, directly or indirectly, by the Principal Shareholder.
3. The consideration to be received by the holders of the common
stock of the Corporation in the Business Combination shall be in the same
form and of the same kind as the consideration paid by the Principal
Shareholder in acquiring the majority of the shares of common stock of the
Corporation already Beneficially Owned, directly or indirectly, by the
Principal Shareholder.
The conditions imposed by this Article XV shall be in addition to all
other conditions (including, without limitation, the vote of the holders of any
class or series of stock of the Corporation) otherwise imposed by law, by any
other Article of this Certificate, by any resolution of the board of directors
providing for the issuance of a class or series of stock, or by any agreement
between the Corporation and any national securities exchange.
B. Certain Definitions. For the purpose of this Article XV, the definitions
of "Business Combination," "Principal Shareholder," "Substantial Part," "Voting
Stock," and "Beneficial Owner" set forth in Article XIV will apply to this
Article XV.
The "Market Price" of the common stock of the Corporation shall be the
mean between the high "bid" and the low "asked" prices of the common stock in
the over-the-counter market on the day on which such value is to be determined
or, if no shares were traded on such date, on the next preceding day on which
such shares were traded, as reported by the National Association of Securities
Dealers Automated Quotation System ("Nasdaq") or other national quotation
service. If the common stock of the
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Corporation is not regularly traded in the over-the-counter market but is
registered on a national securities exchange or traded in the national
over-the-counter market, the market value of the common stock shall mean the
closing price of the common stock on such national securities exchange or market
on the day on which such value is to be determined or, if no shares were traded
on such day, on the next preceding day on which shares were traded, as reported
by National Quotation Bureau, Incorporated or other national quotation service.
If no such quotations are available, the fair market value of the date in
question of a share of such stock as determined by the board of directors in
good faith; and in the case of property other than cash or stock, the fair
market value of such property other than cash or stock, the fair market value of
such property on the date in question as determined by the board of directors in
good faith.
C. Exceptions. The provisions of this Article XV shall not apply to a
Business Combination which was approved by two-thirds of those members of the
board of directors of the Corporation who were directors prior to the time when
the Principal Shareholder became a Principal Shareholder. The provisions of
which this Article XV also shall not apply to a Business Combination which (a)
does not change any shareholder's percentage ownership in the shares of stock
entitled to vote in the election of directors of any successor of the
Corporation from the percentage of the shares of Voting Stock Beneficially Owned
by such shareholder; (b) provides for the provisions of this Article XV, without
any amendment, change alteration, or deletion, to apply to any successor to the
Corporation; and (c) does not transfer all or a Substantial Part of the
Corporation's assets other than to a wholly-owned subsidiary of the Corporation;
provided, however, that nothing contained in this Article XV shall permit the
Corporation to issue any of its shares of Voting Stock or to transfer any of its
assets to a wholly-owned subsidiary of the Corporation if such issuance of
shares of Voting Stock or transfer of assets is part of a plan to transfer such
shares of Voting Stock or assets to a Principal Shareholder.
D. Additional Provisions. Nothing contained in this Article XV shall be
construed to relieve a Principal Shareholder from any fiduciary obligation
imposed by law. In addition, nothing contained in this Article XV shall prevent
any shareholders of the Corporation from objecting to any Business Combination
and from demanding any appraisal rights which may be available to such
shareholders.
E. Notwithstanding Article XX or any other provisions of this Certificate
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate or the Bylaws of the
Corporation), the affirmative vote of the holders of at least 80% of the
outstanding shares entitled to vote thereon (and, if any class or series is
entitled to vote thereon separately, the affirmative vote of the holders of at
least 80% of the outstanding shares of each such class or series) shall be
required to amend or repeal or adopt any provisions inconsistent with this
Article XV.
ARTICLE XVI
Evaluation of Offers
The board of directors of the Corporation, when evaluating any offer to
(A) make a tender or exchange offer for any equity security of the Corporation,
(B) merge or consolidate the Corporation with another corporation or entity, or
(C) purchase or otherwise acquire all or substantially all of the properties and
assets of the Corporation, may, in connection with the exercise of its judgment
in determining what is in the best interest of the Corporation and its
stockholders, give due consideration to all relevant factors, including, without
limitation, the social and economic effect of acceptance of such offer: on the
Corporation's present and future customers and employees and those of its
subsidiaries; on the communities in which the Corporation and its subsidiaries
operate or are located; on the ability of the
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Corporation to fulfill its corporate objectives as a financial institution
holding company; and on the ability of its subsidiary financial institution(s)
to fulfill the objectives of a federally insured financial institution under
applicable statutes and regulations.
ARTICLE XVII
Elimination of Directors' Liability
Directors of the Corporation shall have no liability to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that this Article XVIII shall not eliminate liability of a
director (i) for any breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not made in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which a director derived an improper personal benefit. If the Delaware
General Corporation Law is amended after the effective date of this Certificate
to further eliminate or limit the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
ARTICLE XVIII
Indemnification
A. Persons. The Corporation shall indemnify, to the extent provided in
Subsection B, D, or F of this Article XVIII:
1. any person who is or was a director, officer, or employee of
the Corporation; and
2. any person who serves or served at the Corporation's request as
a director, officer, employee, partner, or trustee of another corporation,
partnership, joint venture, trust, or other enterprise.
B. Extent -- Derivative Suits. In case of a threatened, pending or
completed action or suit by or in the right of the Corporation against a person
named in Subsection A of this Article XVIII by reason of the person holding a
position named in Subsection A of this Article XVIII, the Corporation shall
indemnify the person if the person satisfies the standard in Subsection C of
this Article XVIII, for expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of the action or suit.
C. Standard -- Derivative Suits. In case of a threatened, pending, or
completed action or suit by or in the right of the Corporation, a person named
in Subsection A of this Article XVIII shall be indemnified only if:
1. the person is successful on the merits or otherwise; or
2. the person acted in good faith in the transaction which is the
subject of the suit or action, and in a manner the person reasonably
believed to be in, or not opposed to, the best
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interest of the Corporation, including, but not limited to, the taking of
any and all actions in connection with the Corporation's response to any
tender offer or any offer or proposal of another party to engage in a
Business Combination (as defined in Article XIV of this Certificate) not
approved by the board of directors. However, the person shall not be
indemnified in respect of any claim, issue, or matter as to which the
person has been adjudged liable to the Corporation unless (and only to the
extent that) the Court of Chancery or the court in which the suit was
brought shall determine, upon application, that despite the adjudication
but in view of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
D. Extent -- Nonderivative Suits. In case of a threatened, pending, or
completed suit, action, or proceeding (whether civil, criminal, administrative,
or investigative), other than a suit by or in the right of the Corporation,
together hereafter referred to as a nonderivative suit, against a person named
in Subsection A of this Article XVIII by reason of the person holding a position
named in Subsection A of this Article XVIII, the Corporation shall indemnify the
person if the person satisfies the standard in Subsection E of this Article
XVIII, for amounts actually and reasonably incurred by the person in connection
with the defense or settlement of the nonderivative suit, including, but not
limited to (i) expenses (including attorneys' fees), (ii) amounts paid in
settlement, (iii) judgments, and (iv) fines.
E. Standard -- Nonderivative Suits. In case of a nonderivative suit, a
person named in Subsection A of this Article XVIII shall be indemnified only if:
1. the person is successful on the merits or otherwise; or
2. the person acted in good faith in the transaction which is the
subject of the nonderivative suit and in a manner the person reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, including, but not limited to, the taking of any and all
actions in connection with the Corporation's response to any tender offer
or any offer or proposal of another party to engage in a Business
Combination (as defined in Article XIV of this Certificate) not approved
by the board of directors and, with respect to any criminal action or
proceeding, the person had no reasonable cause to believe the person's
conduct was unlawful. The termination of a nonderivative suit by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent shall not, in itself, create a presumption that the person
failed to satisfy the standard of this Subsection E.2.
F. Determination That Standard Has Been Met. A determination that the
standard of Subsection C or E of this Article XVIII has been satisfied may be
made by a court, or, except as stated in Subsection C.2 of this Article XVIII
(second sentence), the determination may be made by:
1. the board of directors by a majority vote of directors of the
Corporation who were not parties to the action, suit, or proceeding, even
though less than a quorum; or
2. independent legal counsel (appointed by a majority of the
disinterested directors of the Corporation, whether or not a quorum) in a
written opinion; or
3. the stockholders of the Corporation.
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G. Proration. Anyone making a determination under Subsection F of this
Article XVIII may determine that a person has met the standard as to some
matters but not as to others, and may reasonably prorate amounts to be
indemnified.
H. Advance Payment. The Corporation may pay in advance any expenses
(including attorneys' fees) which may become subject to indemnification under
Subsections A through G of this Article XVIII if the person receiving the
payment undertakes in writing to repay the same if it is ultimately determined
that the person is not entitled to indemnification by the Corporation under
Subsections A through G of this Article XVIII.
I. Nonexclusive. The indemnification and advancement of expenses provided
by Subsections A through H of this Article XVIII or otherwise granted pursuant
to Delaware law shall not be exclusive of any other rights to which a person may
be entitled by law, bylaw, agreement, vote of stockholders, or disinterested
directors, or otherwise.
J. Continuation. The indemnification and advance payment provided by
Subsections A through H of this Article XVIII shall continue as to a person who
has ceased to hold a position named in Subsection A of this Article XVIII and
shall inure to the person's heirs, executors, and administrators.
K. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who holds or who has held any position named in Subsection A of
this Article XVIII, against any liability asserted against the person and
incurred by the person in any such position, or arising out of the person's
status as such, whether or not the Corporation would have power to indemnify the
person against such liability under Subsections A through H of this Article
XVIII.
L. Savings Clause. If this Article XVIII or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director, officer, employee, and
agent of the Corporation as to costs, charges, and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including an action by or in the right of the Corporation to the
full extent permitted by any applicable portion of this Article XVIII that shall
not have been invalidated and to the full extent permitted by applicable law.
If Delaware law is amended to permit further indemnification of the
directors, officers, employees, and agents of the Corporation, then the
Corporation shall indemnify such persons to the fullest extent permitted by
Delaware law, as so amended. Any repeal or modification of this Article XVIII by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director, officer, employee or agent existing at the time of
such repeal or modification.
ARTICLE XIX
Amendment of Bylaws of the Corporation
In furtherance and not in limitation of the powers conferred by statute, a
majority of the board of directors of the Corporation is expressly authorized to
make, repeal, alter, amend, and rescind the Bylaws of the Corporation.
Notwithstanding any other provision of this Certificate or the Bylaws of the
Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law), the Bylaws of the Corporation shall not be made, repealed,
altered, amended, or rescinded by the stockholders of the Corporation except by
the vote of the holders of not less than 80% of the outstanding
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shares of capital stock of the Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) cast at a
meeting of the stockholders called for that purpose (provided that notice of
such proposed adoption, repeal, alteration, amendment, or rescission is included
in the notice of such meeting), or, as set forth above, by the board of
directors.
ARTICLE XX
Amendment of Certificate of Incorporation
The Corporation reserves the right to repeal, alter, amend, or rescind any
provision contained in this Certificate in the manner now or hereafter
prescribed by law, and all rights conferred on stockholders herein are granted
subject to this reservation. Notwithstanding the foregoing, the provisions set
forth in Articles IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, and this
Article XX of this Certificate may not be repealed, altered, amended, or
rescinded in any respect unless the same is approved by the affirmative vote of
the holders of not less than 80% of the outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors
(considered for this purpose as a single class) cast at a meeting of the
stockholders called for that purpose (provided that notice of such proposed
adoption, repeal, alteration, amendment, or rescission is included in the notice
of such meeting).
ARTICLE XXI
Section 203 of the Delaware General Corporation Law, "Business
Combinations with Interested Shareholders," shall not apply to the Corporation.
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I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation, do certify that the facts herein stated are
true, and accordingly, have hereto set my hand this the 4th day of June, 1996.
/s/ John M. Lisicki
John M. Lisicki, Incorporator
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