EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2)__________
MANUFACTURERS AND TRADERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 16-0538020
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a national bank) identification No.)
One M&T Plaza
Buffalo, New York 14203-2399
(Address of principal executive offices) (Zip Code)
Robert D. Brown
Vice President
Manufacturers and Traders Trust Company
25 South Charles Street
Baltimore, Maryland 21201
(410) 244-4238
(Name, address and telephone number of agent of service)
ULTRAPETROL (BAHAMAS) LIMITED
(Exact name of obligor as specified in its charter)
Bahamas
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
H&J Corporate Services Ltd.,
Shirlaw House
87 Shirley Street
P.O. Box SS-19084
Nassau, Bahamas
(Address of principal executive offices) (Zip Code)
9% First Preferred Ship Mortgage Notes due 2014
(Title of indenture securities)
ITEM 1. GENERAL INFORMATION
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it is
subject.
Superintendent of Banks of the State of New York, One State Street,
New York, New York 10004-1417
Federal Reserve Bank of New York, 33 Liberty Street, New York, New
York 10045
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
[ITEMS 3 THROUGH 15 OMITTED PURSUANT TO GENERAL INSTRUCTION B TO FORM T-1]
ITEM 16. LIST OF EXHIBITS
Exhibit 1. Organization Certificate of the Trustee as now in effect.*
Exhibit 2. Certificate of Authority of the Trustee to commence business
(contained in Exhibit 1).
Exhibit 3. Authorization of the Trustee to exercise corporate trust powers
(contained in Exhibit 1).
Exhibit 4. Existing By-Laws of the Trustee.*
Exhibit 5. Not Applicable.
Exhibit 6. Consent of the Trustee.*
Exhibit 7. Report of Condition of the Trustee.*
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable.
- -----------------
* Filed Herewith
1
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Manufacturers and Traders Trust Company, a trust company organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Baltimore, and State of Maryland,
on the_21st__day of January, 2005.
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ Robert D. Brown
---------------------------------------
Robert D. Brown
Vice President
2
EXHIBIT 1
ORGANIZATION CERTIFICATE OF THE TRUSTEE
RESTATED ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
UNDER SECTION 8007 OF THE BANKING LAW
The undersigned, being respectively, an Executive Vice President and Chief
Financial Officer, and a Vice President and an Assistant Secretary, of
Manufacturers and Traders Trust Company, pursuant to Section 8007 of the Banking
Law of the State of New York, do hereby restate, certify and set forth as
follows:
(1) The name of the corporation is Manufacturers and Traders Trust
Company. The name under which the corporation was originally incorporated was
The Fidelity Trust and Guaranty Company of Buffalo
(2) The organization certificate of the corporation was filed in the
Office of the Superintendent of Banks of the State of New York on September 13,
1892, and in the Office of the Clerk of Erie County, New York on September 14,
1892, and the certificate of authorization of the Superintendent of Banks of the
State of New York was issued on June 27, 1893.
A first restated organization certificate of the corporation was approved
and filed in the Office of the Superintendent of Banks of the State of New York
on August 6, 1954. Such restated organization certificate was amended from time
to time thereafter. A second restated organization certificate of the
corporation was approved and filed in the Office of the Superintendent of Banks
of the State of New York on February 26, 1991. A third restated organization
certificate of the corporation was approved and filed in the Office of the
Superintendent of Banks of the State of New York on May 22, 1992.
(3) The restated organization certificate is hereby further amended by
adding a new Article 7 to read as follows:
"7. Notwithstanding anything herein or in the Bylaws to the
contrary, each of the following provisions of the Bylaws may not be
amended, modified or repealed, nor may any Bylaw provisions be adopted
that are inconsistent with such provisions, without the unanimous approval
of the entire board of directors:
- the last proviso of the first sentence of Article II, Section
1,
- the entirety of Article II, Section 2(b),
- the last proviso of Article IX, Section 1,
Exhibit 1 - 1
- the entirety of Article IX, Section 2, and
- the entirety of Article X.
The provisions of this Article 7 shall automatically terminate without any
action on the part of the corporation, the board of directors or the
stockholders upon the termination of the foregoing provisions of the
Bylaws in accordance with Article IX, Section 2 of the Bylaws."
(4) The text of the corporation's organization certificate, as amended
heretofore, is hereby restated without further change to read as hereinafter set
forth in full:
"ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
______________________________________________
1. The name by which the said corporation shall be known is
Manufacturers and Traders Trust Company
2. The place where the principal office of the corporation is to be
located is the City of Buffalo, County of Erie and State of New York.
3. The amount of the corporation's capital stock is $200,000,000.
The number of shares into which such capital stock shall be divided is 5,000,000
common shares of the par value of $40 per share.
4. The number of directors which the corporation shall have shall be
not less than seven (7)nor more than thirty (30).
5. The term of existence of the corporation shall be perpetual.
6. The corporation shall exercise the fiduciary powers conferred by
Section 100 of the Banking Law, as amended from time to time, in addition to the
other powers conferred upon banks and trust companies pursuant to the Banking
Law or other applicable law.
7. Notwithstanding anything herein or in the Bylaws to the contrary,
each of the following provisions of the Bylaws may not be amended, modified or
repealed, nor may any Bylaw provisions be adopted that are inconsistent with
such provisions, without the unanimous approval of the entire board of
directors:
- the last proviso of the first sentence of Article II, Section
1,
- the entirety of Article II, Section 2(b),
Exhibit 1 - 2
- the last proviso of Article IX, Section 1,
- the entirety of Article IX, Section 2, and
- the entirety of Article X.
The provisions of this Article 7 shall automatically terminate
without any action on the part of the corporation, the board of directors or the
stockholders upon the termination of the foregoing provisions of the Bylaws in
accordance with Article IX, Section 2 of the Bylaws."
(5) This restatement of the organization certificate was authorized
pursuant to Section 6015 of the Banking Law by the written consent, setting
forth the action taken, of the holder of all of the outstanding shares entitled
to vote thereon.
IN WITNESS WHEREOF, the undersigned have executed, signed and verified
this certificate this _6th_day of July, 2004.
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ MICHAEL P. PINTO
--------------------------------------------
Michael P. Pinto
Executive Vice President and
Chief Financial Officer
By: /s/ BRIAN R. YOSHIDA
--------------------------------------------
Brian R. Yoshida
Vice President and Assistant Secretary
Exhibit 1 - 3
STATE OF NEW YORK )
ss.:
COUNTY OF ERIE )
Michael P. Pinto and Brian R. Yoshida, being first duly sworn, depose and
say that they are respectively, an Executive Vice President and Chief Financial
Officer and a Vice President and an Assistant Secretary of Manufacturers and
Traders Trust Company, that they have read the foregoing certificate and know
the contents thereof and that the statements therein contained are true.
/s/ MICHAEL P. PINTO
-----------------------------------------------
Michael P. Pinto
/s/ BRIAN R. YOSHIDA
-----------------------------------------------
Brian R. Yoshida
Sworn to before me
this 6th day of July, 2004.
/s/ TIMOTHY G. McEVOY
- ---------------------------------
Notary Public
Exhibit 1 - 4
EXHIBIT 6
CONSENT OF TRUSTEE
Manufacturers and Traders Trust Company hereby consents, in accordance
with the provisions of Section 321(b) of the Trust Indenture Act of 1939, that
reports of examinations by federal, state, territorial and district authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon its request therefor.
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ ROBERT D. BROWN
--------------------------------------------
Robert D. Brown
Vice President
Exhibit 6
EXHIBIT 7
REPORT OF CONDITION OF THE TRUSTEE
MANUFACTURERS AND TRADERS TRUST COMPANY
RESTATED ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
UNDER SECTION 8007 OF THE BANKING LAW
The undersigned, being respectively, a Vice Chairman and Chief Financial
Officer, and a Vice President and an Assistant Secretary, of Manufacturers and
Traders Trust Company, pursuant to Section 8007 of the Banking Law of the State
of New York, do hereby restate, certify and set forth as follows:
(1) The name of the corporation is Manufacturers and Traders Trust
Company. The name under which the corporation was originally incorporated was
The Fidelity Trust and Guaranty Company of Buffalo.
(2) The organization certificate of the corporation was filed in the
Office of the Superintendent of Banks of the State of New York on September 13,
1892, and in the Office of the Clerk of Erie County, New York on September 14,
1892, and the certificate of authorization of the Superintendent of Banks of the
State of New York was issued on June 27, 1893.
A first restated organization certificate of the corporation was approved
and filed in the Office of the Superintendent of Banks of the State of New York
on August 6, 1954. Such restated organization certificate was amended from time
to time thereafter. A second restated organization certificate of the
corporation was approved and filed in the Office of the Superintendent of Banks
of the State of New York on February 26, 1991. A third restated organization
certificate of the corporation was approved and filed in the Office of the
Superintendent of Banks of the State of New York on May 22, 1992. A fourth
restated organization certificate of the corporation was approved and filed in
the Office of the Superintendent of Banks of the State of New York on April 1,
2003.
(3) The restated organization certificate is hereby further amended by
revising Article 1 to read as follows:
"1. The name by which the said corporation shall be known is
Manufacturers and Traders Trust Company or M&T Bank."
(4) The text of the corporation's organization certificate, as amended
heretofore, is hereby restated without further change to read as hereinafter set
forth in full:
"ORGANIZATION CERTIFICATE
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
______________________________________________
1. The name by which the said corporation shall be known is
Manufacturers and Traders Trust Company or M&T Bank.
2. The place where the principal office of the corporation is to be
located is the City of Buffalo, County of Erie and State of New York.
3. The amount of the corporation's capital stock is $200,000,000.
The number of shares into which such capital stock shall be divided is 5,000,000
common shares of the par value of $40 per share.
4. The number of directors which the corporation shall have shall be
not less than seven (7) nor more than thirty (30).
5. The term of existence of the corporation shall be perpetual.
6. The corporation shall exercise the fiduciary powers conferred by
Section 100 of the Banking Law, as amended from time to time, in addition to the
other powers conferred upon banks and trust companies pursuant to the Banking
Law or other applicable law.
7. Notwithstanding anything herein or in the Bylaws to the contrary,
each of the following provisions of the Bylaws may not be amended, modified or
2
repealed, nor may any Bylaw provisions be adopted that are inconsistent with
such provisions, without the unanimous approval of the entire board of
directors:
- the last proviso of the first sentence of Article II, Section
1,
- the entirety of Article II, Section 2(b),
- the last proviso of Article IX, Section 1,
- the entirety of Article IX, Section 2, and
- the entirety of Article X.
The provisions of this Article 7 shall automatically terminate
without any action on the part of the corporation, the board of directors or the
stockholders upon the termination of the foregoing provisions of the Bylaws in
accordance with Article IX, Section 2 of the Bylaws."
__________________________________________________
(5) This restatement of the organization certificate was authorized
pursuant to Section 6015 of the Banking Law by the written consent, setting
forth the action taken, of the holder of all of the outstanding shares entitled
to vote thereon.
IN WITNESS WHEREOF, the undersigned have executed, signed and verified
this certificate this 6th day of July, 2004.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: __________________________________________
Michael P. Pinto
Vice Chairman and Chief Financial Officer
By: __________________________________________
Brian R. Yoshida
Vice President and Assistant Secretary
3
STATE OF NEW YORK )
) SS.:
COUNTY OF ERIE )
Michael P. Pinto and Brian R. Yoshida, being first duly sworn, depose and
say that they are respectively, an Vice Chairman and Chief Financial Officer and
a Vice President and an Assistant Secretary of Manufacturers and Traders Trust
Company, that they have read the foregoing certificate and know the contents
thereof and that the statements therein contained are true.
_______________________________________________
Michael P. Pinto
_______________________________________________
Brian R. Yoshida
Sworn to before me
this 6th day of July, 2004.
_________________________________
Notary Public
4
MANUFACTURERS AND TRADERS TRUST COMPANY
BYLAWS
(AS ADOPTED ON OCTOBER 21, 2003 AND EFFECTIVE AS OF JULY 15, 2003)
BYLAWS
OF
MANUFACTURERS AND TRADERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING: The Annual Meeting of Manufacturers and Traders
Trust Company ("M&T Bank"), for the election of directors and for transaction of
such other business as may be set forth in the notice of meeting, shall be held
at the principal office of M&T Bank or at such other place in the City of
Buffalo, New York on the third Tuesday of April in each year, or on such date
and at such time as the Board of Directors shall determine.
SECTION 2. SPECIAL MEETINGS: Special meetings of the stockholders may be
called to be held at the principal office of M&T Bank or elsewhere within the
State of New York at any time by the Board of Directors or the Chairman of the
Board, the Chief Executive Officer or the President, and shall be called by the
Chairman of the Board, the Chief Executive Officer, the President, the Corporate
Secretary or an Assistant Secretary at the request in writing of five or more
members of the Board of Directors, or at the request in writing of the holders
of record of at least 25% of the outstanding shares of M&T Bank entitled to
vote. Such request shall state the purpose or purposes for which the meeting is
to be called.
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SECTION 3. NOTICE OF MEETINGS: Written notice of each meeting of the
stockholders shall be given by depositing in the United States mail, postage
prepaid, not less than 10 nor more than 50 days before such meeting, a copy of
the notice of such meeting directed to each stockholder of record entitled to
vote at the meeting, at the address as it appears on the record of stockholders
for each such stockholder, or, if such stockholder shall have filed with the
Corporate Secretary of M&T Bank a written request that notices be mailed to some
other address, then directed to such other address. The notice shall state the
place, date and hour of the meeting, the purpose or purposes for which the
meeting is called and, unless it is the annual meeting, indicate that the notice
is being issued by or at the direction of the person or persons calling the
meeting. If action is proposed to be taken at any meeting which would, if taken,
entitle dissenting stockholders to receive payment for their shares, the notice
shall include a statement of that purpose and to that effect. At each meeting of
stockholders only such business may be transacted which is related to the
purpose or purposes set forth in the notice of meeting.
SECTION 4. WAIVER OF NOTICE: Whenever under any provisions of these
bylaws, the organization certificate, the terms of any agreement or instrument,
or law, M&T Bank or the Board of Directors or any committee thereof is
authorized to take any action after notice to any person or persons or after the
lapse of a prescribed period of time, such action may be taken without notice
and without the lapse of such period of time, if at any time before or after
such action is completed the person or persons entitled to such notice or
entitled to participate in the action to be taken or, in the case of a
stockholder, by such stockholder's attorney-in-fact, submit a signed waiver of
notice of such requirements. The attendance of any stockholder at any
-2-
meeting, in person or by proxy, without protesting prior to the conclusion the
lack of notice of such meeting, shall constitute a waiver of notice by such
stockholder.
SECTION 5. PROCEDURE: At every meeting of stockholders the order of
business and all other matters of procedure may be determined by the person
presiding at the meeting.
SECTION 6. LIST OF STOCKHOLDERS: A list of stockholders as of the record
date, certified by the officer of M&T Bank responsible for its preparation or by
a transfer agent, shall be produced at any meeting of stockholders upon the
request thereat or prior thereto of any stockholder. If the right to vote at any
meeting is challenged, the inspectors of election, or person presiding thereat,
shall require such list of stockholders to be produced as evidence of the right
of the persons challenged to vote at such meeting, and all persons who appear
from such list to be stockholders entitled to vote thereat may vote at such
meeting.
SECTION 7. QUORUM: At all meetings of the stockholders of M&T Bank a
quorum must be present for the transaction of business and, except as otherwise
provided by law, a quorum shall consist of the holders of record of not less
than a majority of the outstanding shares of M&T Bank entitled to vote thereat,
present either in person or by proxy. When a quorum is once present to organize
a meeting of the stockholders, it is not broken by the subsequent withdrawal of
any stockholders.
SECTION 8. ADJOURNMENTS: The stockholders entitled to vote who are present
in person or by proxy at any meeting of stockholders, whether or not a quorum
shall be present or
-3-
represented at the meeting, shall have power by a majority vote to adjourn the
meeting from time to time without further notice other than announcement at the
meeting. At any adjourned meeting at which a quorum shall be present in person
or by proxy any business may be transacted that might have been transacted on
the original date of the meeting, and the stockholders entitled to vote at the
meeting on the original date (whether or not they were present thereat), and no
others, shall be entitled to vote at such adjourned meeting.
SECTION 9. VOTING; PROXIES: Each stockholder of record entitled to vote
shall be entitled at every meeting of stockholders of M&T Bank to one vote for
each share of stock having voting power standing in each such stockholder's name
on the record of stockholders on the record date fixed pursuant to Section 3 of
Article VI of these bylaws. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent without a meeting may do so either
in person or by proxy appointed by instrument executed in writing by such
stockholder or such stockholder's duly authorized attorney-in-fact and delivered
to the secretary of the meeting. No director, officer, clerk, teller or
bookkeeper of M&T Bank shall act as proxy at any meeting. No proxy shall be
valid after the expiration of 11 months from the date of its execution unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the stockholder executing it except as otherwise provided by law. Directors
elected at any meeting of the stockholders shall be elected by a plurality of
the votes cast. All other corporate action to be taken by vote of the
stockholders shall, except as otherwise provided by law or these bylaws, be
authorized by a majority of the votes cast. The vote for directors shall be by
ballot, but otherwise the vote upon any question before a meeting shall not be
by ballot unless the person
-4-
presiding at such meeting shall so direct or any stockholder, present in person
or by proxy and entitled to vote thereon, shall so demand.
SECTION 10. APPOINTMENT OF INSPECTORS OF ELECTION: The Board of Directors
may, in advance of any meeting of the stockholders, appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors are
not so appointed in advance of the meeting, the person presiding at such meeting
may, and on the request of any stockholder entitled to vote thereat shall,
appoint one or more inspectors. In case any inspector appointed fails to appear
or act, the vacancy may be filled by appointment made by the Board of Directors
in advance of the meeting or at the meeting by the person presiding thereat. No
director, officer or candidate for the office of director of M&T Bank shall be
eligible to act as an inspector of an election of directors of M&T Bank. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his or her ability.
SECTION 11. DUTIES OF INSPECTORS OF ELECTION: The inspectors of election
shall determine the number of shares outstanding and entitled to vote, the
shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders.
-5-
ARTICLE II
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATIONS: Unless otherwise permitted by law,
the number of directors of M&T Bank shall be not less than seven (7) nor more
than thirty (30), with the exact number to be fixed from time to time by
resolution of a majority of the directors, provided that the number of directors
shall not be reduced so as to shorten the term of any director at the time in
office; and provided, further, that, until the Sunset Date (as defined in
Article X hereof), without the consent of the Significant Stockholder (as
defined in Article X hereof), the number of directors shall not exceed twenty
eight (28). If the number of directors be increased at any time, within the
limits above set forth, the vacancy or vacancies in the board arising from such
increase shall be filled as provided in Section 4 of this Article II. Each such
vacancy, and each reduction in the number of directors, shall be reported to the
Superintendent of Banks in the manner prescribed by law. All of the directors
shall be of full age, and at least one-half of them shall be citizens of the
United States at the time of their election and during their continuance in
office, unless otherwise permitted by law. No more than one-third of the
directors shall be active officers or employees of M&T Bank.
SECTION 2. ELECTION AND TENURE OF OFFICE:
(a) Except as otherwise provided by law or these bylaws, each director of
M&T Bank shall be elected at an annual meeting of the stockholders or at any
meeting of the stockholders held in lieu of such annual meeting, which meeting,
for the purposes of these bylaws, shall be deemed the annual meeting, and shall
hold office until the next annual meeting of stockholders
-6-
and until his or her successor has been elected and qualified. Each person who
shall be elected a director of M&T Bank shall, before participating in any
manner as a director of M&T Bank, qualify in the manner prescribed by law and
take and subscribe the oath prescribed by law.
(b) Notwithstanding anything herein to the contrary:
(i) for so long as the Significant Stockholder holds at least
fifteen percent (15%) of the outstanding shares of common stock of M&T Bank
Corporation, the board of directors shall nominate and recommend for election as
directors of M&T Bank four (4) persons designated by the Significant
Stockholder, each of whom is reasonably acceptable to M&T Bank;
(ii) for so long as the Significant Stockholder holds at least ten
percent (10%), but less than fifteen percent (15%), of the outstanding shares of
common stock of M&T Bank Corporation, the board of directors shall nominate and
recommend for election as directors of M&T Bank two (2) persons designated by
the Significant Stockholder, each of whom is reasonably acceptable to M&T Bank;
(iii) for so long as the Significant Stockholder holds at least five
percent (5%), but less than ten percent (10%), of the outstanding shares of
common stock of M&T Bank Corporation, the board of directors shall nominate and
recommend for election as a director of M&T Bank one (1) person designated by
the Significant Stockholder, who is reasonably acceptable to M&T Bank.
(iv) For purposes of determining the number of outstanding shares of
common stock of M&T Bank Corporation for purposes of this Article II, Section
2(b), there shall be used the number of shares of common stock of M&T Bank
Corporation disclosed as outstanding on the cover page of M&T Bank Corporation's
most recently filed Annual Report on Form 10-K or Report on Form 10-Q, as the
case may be, or the number of shares of common stock of M&T
-7-
Bank Corporation actually outstanding as of a later date, if requested by M&T
Bank or the Significant Stockholder, determined on the same basis as the number
of shares disclosed on such Reports. Any share held by any direct or indirect
subsidiary of the Significant Stockholder of which the Significant Stockholder
holds 80% or more of the outstanding equity capital or voting shares shall be
deemed held by the Significant Stockholder. In the event that the transaction
that would result in the Significant Stockholder's holdings being below any
threshold set forth herein is a transaction that gives rise to an Issuance Event
(as defined in Article X hereof), no diminution in the percentage of the
outstanding shares of common stock of the Corporation held by the Significant
Stockholder shall be deemed to have occurred until the earlier of such time as
the Significant Stockholder gives written notice that it shall not exercise its
Maintenance Rights (as defined in Article X hereof) or the deadline for exercise
of such Maintenance Rights has passed without the Significant Stockholder having
provided notice that it shall exercise the same. No diminution in the percentage
of outstanding shares of common stock held by the Significant Stockholder shall
be deemed to have occurred as a result of any issuance of shares that is subject
to the Corporation's repurchase obligations under Section 7.2(c) or Section
7.2(e) of the Reorganization Agreement. In the event that the Significant
Stockholder's holdings decrease to less than fifteen percent (15%), but not less
than twelve percent (12%), of the outstanding common stock, the Significant
Stockholder's holdings shall be deemed to be equal to fifteen percent (15%) for
all purposes of the definition of Sunset Date and of this Article II, Section
2(b), unless, not later than one year from the date on which the Significant
Stockholder's holdings decreased to less than fifteen percent (15%), the
Significant Stockholder's holdings have not been restored to at least fifteen
percent (15%) of the outstanding shares of common stock of M&T Bank Corporation.
-8-
(v) In the event that M&T Bank objects to any designee for board
service on the grounds that such designee is not "reasonably acceptable" under
any provision of this Article II, Section 2(b), M&T Bank shall fully cooperate
and shall use best efforts to work with the Significant Stockholder to promptly
resolve any such objection so that such designee may as promptly as practicable
serve in the capacity for which he or she has been designated or, in the
alternative, to promptly identify a substitute candidate that is reasonably
acceptable, in order to give effect to the intention of the M&T Bank and the
Significant Stockholder regarding board representation contemplated by this
Article II, Section 2(b).
SECTION 3. RESIGNATION: Any director of M&T Bank may resign at any time by
giving his or her resignation to the Chairman of the Board, the Chief Executive
Officer, the President or the Corporate Secretary. Such resignation shall take
effect at the time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 4. VACANCIES: Except as set forth in Article II, Section 2(b) or
as hereinafter provided, all vacancies in the office of director shall be filled
by election by the stockholders entitled to vote at any meeting of the
stockholders notice of which shall have referred to the proposed election.
Subject to Article II, Section 2(b), vacancies not exceeding one-third of the
entire board may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term; or two vacancies may, with the consent of the
Superintendent of Banks of the State of New York, be left unfilled until the
next annual election. Each vacancy in the office of director and each election
by the
-9-
Board of Directors to fill any such vacancy shall be reported to the
Superintendent of Banks in the manner provided by law.
SECTION 5. DIRECTORS' FEES: Directors, except salaried officers of M&T
Bank who are directors, may receive a fee for their services as directors and
traveling and other out-of-pocket expenses incurred in attending any regular or
special meeting of the board. The fee may be a fixed sum for attending each
meeting of the Board of Directors or a fixed sum paid monthly, quarterly, or
semiannually, irrespective of the number of meetings attended or not attended.
The amount of the fee and the basis on which it shall be paid shall be
determined by resolution of the Board of Directors.
SECTION 6. MEETINGS OF DIRECTORS: A regular meeting of the Board of
Directors shall be held at least six times each year, provided that during any
three consecutive calendar months the board shall meet at least once. The first
meeting of the Board of Directors after each annual meeting of the stockholders
shall be held immediately after the adjournment of such annual meeting and shall
constitute the regular meeting of the Board of Directors for the month in which
such first meeting is held. The Board of Directors shall, from time to time,
designate the place, date and hour for the holding of regular meetings but, in
the absence of any such designation, regular meetings of the Board of Directors
shall be held at the principal office of M&T Bank in the City of Buffalo, New
York, at 11:00 o'clock a.m., on the third Tuesday of each January, February,
April, July, September and October. No notice need be given of such regular
meetings except such notice as these bylaws or the Board of Directors by
resolution may require. Special meetings of the Board of Directors shall be held
at such times and at such places as the Board of
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Directors or the Chairman of the Board, the Chief Executive Officer or the
President, and shall also be held upon the request of any 4 directors made in
writing to the Chairman of the Board, the Chief Executive Officer or the
President.
SECTION 7. NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS: Notice of
each special meeting of the Board of Directors stating the time and place
thereof, shall be given by the Chairman of the Board, the Chief Executive
Officer, the President, the Corporate Secretary, or an Assistant Secretary, or
by any member of the board to each member of the board not less than 3 days
before the meeting by depositing the same in the United States mail, postage
prepaid, addressed to each member of the board at his or her residence or usual
place of business, or not less than 1 day before the meeting by telephoning or
by delivering the same to each member of the board personally, or by sending the
same by facsimile or electronic mail to his or her residence or usual place of
business. Notice of a meeting need not be given to any director who submits a
signed waiver of notice whether before or after the meeting, or who attends the
meeting without protesting, prior thereto or at its commencement, the lack of
notice to him or her. The notice of any special meeting of the Board of
Directors need not specify the purpose or purposes for which the meeting is
called, except as provided in Article IX of these bylaws.
SECTION 8. QUORUM: At all meetings of the Board of Directors, except as
otherwise provided by law or these bylaws, a quorum shall be required for the
transaction of business and shall consist of not less than one-third of the
entire board, and the vote of a majority of the directors present shall decide
any question which may come before the meeting. A majority of
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the directors present at any meeting, although less than a quorum, may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
SECTION 9. MEETINGS BY CONFERENCE TELEPHONE: Any one or more members of
the Board of Directors or any committee thereof may participate in a meeting of
such board or committee by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation in a meeting by such means shall
constitute presence in person at such meeting.
SECTION 10. PROCEDURE: The order of business and all other matters of
procedure at every meeting of directors may be determined by the person
presiding at the meeting.
SECTION 11. THE CHAIRMAN OF THE BOARD: The Board of Directors shall
annually, at the first meeting (the "Annual Reorganization Meeting") of the
board after the Annual Meeting of Stockholders, appoint or elect from its own
number a Chairman of the Board who shall have such authority and perform such
duties as the Board of Directors or the Executive Committee may from time to
time prescribe. The Chairman of the Board shall, unless otherwise determined by
the Board of Directors, hold office until the first meeting of the board
following the next Annual Meeting of Stockholders and until his or her successor
has been elected or appointed and qualified.
SECTION 12. THE VICE CHAIRMEN OF THE BOARD: The Board of Directors shall
annually, at the Annual Reorganization Meeting of the board after the Annual
Meeting of
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Stockholders, appoint or elect from its own number one or more Vice Chairmen of
the Board who shall have such authority and perform such duties as the Board of
Directors or the Executive Committee may from time to time prescribe. The Vice
Chairmen of the Board shall, unless otherwise determined by the Board of
Directors, hold office until the first meeting of the board following the next
Annual Meeting of Stockholders and until their successors have been elected or
appointed and qualified. The Board of Directors shall elect a non-executive Vice
Chairman of the Board who will perform the duties of "lead outside director."
ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE: The Board of Directors shall, by
resolution adopted by a majority of the entire board, designate from among its
members an Executive Committee consisting of five or more directors. The Board
of Directors may designate one or more directors as alternate members of the
Executive Committee, who may replace any absent member or members of the
Executive Committee at any meeting thereof. In the interim between meetings of
the Board of Directors, the Executive Committee shall have all the authority of
the Board of Directors except as otherwise provided by law. All acts done and
powers and authority conferred by the Executive Committee from time to time
within the scope of its authority shall be, and may be deemed to be, and may be
certified as being, the act and under the authority of the Board of Directors.
The Chief Executive Officer, or the Chairman of the Board in the absence of the
Chief Executive Officer, shall preside at all meetings of the Executive
Committee. The Executive
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Committee shall elect from its members a chairman to preside at any meeting of
the Executive Committee at which the Chief Executive Officer and the Chairman of
the Board shall be absent. Four members of the Executive Committee shall
constitute a quorum for the transaction of business.
SECTION 2. EXAMINING COMMITTEE: The Board of Directors shall, by
resolution adopted by a majority of the entire board, designate from among its
members an Examining Committee consisting of not less than 3 directors to
examine fully the books, papers and affairs of M&T Bank, and the loans and
discounts thereof, as provided by law. The Examining Committee shall have the
power to employ such assistants as it may deem necessary to enable it to perform
its duties.
SECTION 3. OTHER COMMITTEES: The Board of Directors may from time to time,
by resolution or resolutions, appoint or provide for one or more other
committees consisting of such directors, officers, or other persons as the board
may determine. Each committee, to the extent provided in said resolution or
resolutions, shall have such powers and functions in the management of M&T Bank
as may be lawfully delegated by the Board of Directors in the interim between
meetings of the board. Each committee shall have such name as may be provided
from time to time in said resolution or resolutions, and shall serve at the
pleasure of the Board of Directors.
SECTION 4. MINUTES OF MEETINGS OF COMMITTEES: The Executive Committee, the
Examining Committee, and each other committee shall keep regular minutes of its
proceedings
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and report the same to the Board of Directors at the next meeting thereof, or as
soon thereafter as may be practicable under the circumstances.
SECTION 5. FEES TO MEMBERS OF COMMITTEES: Members of committees, except
salaried officers of M&T Bank who are members of committees, may receive a fee
for their services as members of committees and traveling and other
out-of-pocket expenses incurred in attending any regular or special meeting of a
committee. The fee may be a fixed sum for attending each committee meeting or a
fixed sum paid monthly, quarterly, or semiannually, irrespective of the number
of meetings attended or not attended. The amount of the fee and the basis on
which it shall be paid shall be determined by resolution of the Board of
Directors.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS: The Board of Directors shall annually, at the Annual
Reorganization Meeting of the board after the Annual Meeting of Stockholders,
elect from its own number a Chief Executive Officer and a President, and appoint
or elect one or more Vice Presidents, a Corporate Secretary, a Treasurer, an
Auditor, and such other officers as it deems necessary and appropriate. At the
Annual Reorganization Meeting, the Board of Directors shall also reelect all of
the then officers of M&T Bank until the next Annual Reorganization Meeting. In
the interim between Annual Reorganization Meetings, the Board of Directors or
the Executive Committee may also from time to time elect or appoint a Chief
Executive Officer, a President or
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such additional officers to the rank of Vice President, including (without
limitation as to title or number) one or more Vice Presidents, Administrative
Vice Presidents, Senior Vice Presidents and Executive Vice Presidents, and any
other officer positions as they deems necessary and appropriate; and, the head
of the Human Resources Department of M&T Bank or his or her designee or
designees, may appoint officers below the rank of Vice President, including
(without limitation as to title or number) one or more Banking Officers,
Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and
Assistant Auditors. Each such person elected or appointed by the Board of
Directors, the Executive Committee, or the head of the Human Resources
Department of M&T Bank or his or her designee or designees, in between Annual
Reorganization Meetings shall, unless otherwise determined by the Board or
Directors, the Executive Committee or the head of the Human Resources Department
of M&T Bank or his or her designee or designees, hold office until the next
Annual Reorganization Meeting.
SECTION 2. TERM OF OFFICE: The Chief Executive Officer, the President,
each Vice President, the Corporate Secretary, the Treasurer, and the Auditor
shall, unless otherwise determined by the Board of Directors, hold office until
the first meeting of the board following the next annual meeting of stockholders
and until their successors have been elected and qualified. Each additional
officer appointed or elected by the Board of Directors, or by the Executive
Committee, shall hold office for such term as shall be determined from time to
time by the Board of Directors or the Executive Committee. Any officer, however,
may be removed at any time by the Board of Directors, or his or her authority
suspended by the Board of Directors, with or without cause. If the office of any
officer becomes vacant for any reason, the Board of Directors shall have the
power to fill such vacancy.
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SECTION 3. THE CHIEF EXECUTIVE OFFICER: The Chief Executive Officer shall
preside at all meetings of the stockholders and of the Board of Directors. The
Chief Executive Officer shall, under control of the Board of Directors and the
Executive Committee, have the general management of M&T Bank's affairs and shall
exercise general supervision over all activities of M&T Bank. The Chief
Executive Officer shall have the power to appoint or hire, to remove, and to
determine the compensation of, all employees of M&T Bank who are not officers.
SECTION 4. THE PRESIDENT: The President, subject to the control and
direction of the Board of Directors and the Chief Executive Officer, shall have
immediate supervision over the business, affairs, and properties of M&T Bank,
shall have and exercise general authority with respect thereto, shall perform
all duties and exercise all powers generally incident to this office and shall
perform such additional duties and be vested with such additional powers as
shall be assigned from time to time by the Board of Directors, the Executive
Committee, and if he is not the Chief Executive Officer, by such officer. In the
absence or incapacity of the Chairman of the Board, the President shall have the
powers and exercise the duties of the Chairman of the Board, including the
powers of Chief Executive Officer if the Chairman of the Board is the Chief
Executive Officer.
SECTION 5. THE VICE PRESIDENTS: The Vice Presidents shall have such powers
and perform such duties as may be assigned to them respectively by the Board of
Directors, the Executive Committee, the Chairman of the Board, the Chief
Executive Officer or the President. Any one or more individuals may be
designated by the Board of Directors as "Executive Vice President," "Senior Vice
President," "Administrative Vice President" or "Vice President," or by
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such other title or titles as the Board of Directors may determine. In the
absence or incapacity of both the Chairman of the Board, the Chief Executive
Officer and the President, the Vice Presidents shall exercise the powers and
perform the duties of those officers in such order of precedence as shall be
determined by the Board of Directors, the Executive Committee, the Chairman of
the Board, the Chief Executive Officer or the President.
SECTION 6. THE CORPORATE SECRETARY AND ASSISTANT SECRETARIES: The
Corporate Secretary shall issue notices of all meetings of stockholders, the
Board of Directors and the Executive Committee, where notices of such meetings
are required by law or these bylaws. He or she shall attend all meetings of
stockholders, the Board of Directors and the Executive Committee and keep the
minutes thereof in proper books provided for that purpose. He or she shall affix
the corporate seal to and sign such instruments as require the seal and his or
her signature and shall perform such other duties as usually pertain to this
office or as are properly required by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President.
The Assistant Secretaries may, in the absence or disability of the
Corporate Secretary or at his or her request, perform the duties and exercise
the powers of the Corporate Secretary, and shall perform such other duties as
the Board of Directors, the Chairman of the Board, the Chief Executive Officer
or the President shall prescribe.
SECTION 7. THE TREASURER AND ASSISTANT TREASURERS: The Treasurer shall
keep permanent records of the assets and liabilities and of all matters and
transactions bearing upon
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the financial affairs of M&T Bank. He or she shall, whenever required by the
Board of Directors, present a statement of the business of M&T Bank, a balance
sheet thereof as of the end of the last preceding month or such other date as
may be so required. He or she shall make and sign such reports, statements and
instruments as may be required by the Board of Directors or the President or by
law and shall perform such other duties as usually pertain to this office or as
are properly required by the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President.
The Assistant Treasurers may, in the absence or disability of the
Treasurer or at his or her request, perform the duties and exercise the powers
of the Treasurer, and shall perform such other duties as the Board of Directors,
the Chairman of the Board, the Chief Executive Officer or the President shall
prescribe.
SECTION 8. THE AUDITOR: The Auditor shall be responsible to the Chair of
the Examining Committee and, through the Examining Committee, to the Board of
Directors for the safety of all operations and for the systems of internal
audits and protective controls; he or she shall perform such other duties as the
Chairman of the Board, the Chief Executive Officer or the President may
prescribe and shall make such examinations and reports as may be required by the
directors' Examining Committee. He or she shall have the duty to report to the
Chairman of the Board, the Chief Executive Officer and the President on all
matters concerning the safety of the operations of M&T Bank which he or she
deems advisable or which the Chairman of the Board, the Chief Executive Officer
or the President may request. In addition, the Auditor shall have the duty of
reporting independently of all officers of M&T Bank to the directors' Examining
Committee
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whenever he or she deems it necessary or desirable to do so, but in any event
not less often than annually on all matters concerning the safety of the
operations of M&T Bank.
The Assistant Auditors may, in the absence or disability of the Auditor,
or at his or her request, perform the duties and exercise the powers of the
Auditor, and shall perform such other duties as the Board of Directors, the
Chairman of the Board, the Chief Executive Officer or the President shall
prescribe.
SECTION 9. OTHER OFFICERS: All other officers that may be elected or
appointed by the Board of Directors, the Executive Committee or the head of the
Human Resources Department of M&T Bank or his or her designee or designees shall
exercise such powers and perform such duties as the Board of Directors, the
Executive Committee, the Chairman of the Board, the Chief Executive Officer or
the President shall prescribe, except as the law may otherwise require.
SECTION 10. OFFICERS HOLDING TWO OR MORE OFFICES: Any two or more offices
may be held by the same person, except the offices of President and Corporate
Secretary. No officer shall execute or verify any instrument in more than one
capacity if such instrument be required by law or otherwise to be executed or
verified by any two or more officers.
SECTION 11. DUTIES OF OFFICERS MAY BE DELEGATED: In case of the absence or
disability of any officer of M&T Bank, or in case of a vacancy in any office or
for any other reason that the Board of Directors, the Chairman of the Board, the
Chief Executive Officer or the President may deem sufficient, the Board of
Directors, the Chairman of the Board, the Chief Executive Officer
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or the President, except as otherwise provided by law or these bylaws, may
delegate, for the time being, the powers or duties of any officer to any other
officer or to any director.
SECTION 12. COMPENSATION OF OFFICERS: The Nomination, Compensation and
Governance Committee of the Board of Directors of M&T Bank Corporation shall,
through appropriate consultation with the Board of Directors, determine the
compensation and benefits of the Chief Executive Officer and other executive
officers of M&T Bank. In the event and to the extent that the Nomination,
Compensation and Governance Committee shall not hereafter exercise its
discretionary power in respect of all other officers, the compensation to be
paid to all other officers shall be determined by the Chief Executive Officer.
SECTION 13. SPECIAL POWERS: The Chairman of the Board, the Vice Chairmen
of the Board, the Chief Executive Officer, the President, any Vice President,
any Assistant Vice President, any Banking Officer, the Corporate Secretary, any
Assistant Secretary, and the Treasurer shall each have power and authority:
To sign, countersign, certify, issue, assign, endorse, transfer
and/or deliver notes, checks, drafts, bills of exchange, certificates of
deposit, acceptances, letters of credit, advices for the transfer or
payment of funds, orders for the sale and for delivery of securities,
guarantees of signatures, and all other instruments, documents and
writings in connection with the business of M&T Bank in its corporate or
in any trust or fiduciary capacity;
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To sign the name of M&T Bank and affix its seal, or cause the same
to be affixed, to deeds, mortgages, satisfactions, assignments, releases,
proxies, powers of attorney, trust agreements, and all other instruments,
documents or papers necessary for the conduct of the business of M&T Bank,
either in its corporate capacity or in any trust or fiduciary capacity;
To endorse, sell, assign, transfer and deliver any stocks, bonds,
mortgages, notes, certificates of interest, certificates of indebtedness,
certificates of deposit and any evidences of indebtedness or of any rights
or privileges which now are or may hereafter be held by or stand in the
name of M&T Bank, either in its corporate capacity, or in any fiduciary or
trust capacity, and to execute proxies, powers of attorney or other
authority with respect thereto;
To accept on behalf of M&T Bank any guardianship, receivership,
executorship or any general or special trust specified in the Banking Law
of the State of New York;
To authenticate or certificate any bonds, debentures, notes, or
other instruments issued under or in connection with any mortgage, deed of
trust or other agreement or instrument under which M&T Bank is acting as
trustee or in any other fiduciary capacity;
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To sign, execute and deliver certificates, reports, checks, orders,
receipts, certificates of deposit, interim certificates, and other
documents in connection with its duties and activities as registrar,
transfer agent, disbursing agent, fiscal agent, depositary, or in any
other corporate fiduciary capacity.
The powers and authority above conferred may at any time be modified,
changed, extended or revoked, and may be conferred in whole or in part on other
officers and employees by the Board of Directors or the Executive Committee.
SECTION 14. BONDS: The Board of Directors may require any officer, agent
or employee of M&T Bank to give a bond to M&T Bank, conditional upon the
faithful performance of his or her duties, with one or more sureties and in such
amount as may be satisfactory to the Board of Directors.
ARTICLE V
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. RIGHT OF INDEMNIFICATION: Each director and officer of M&T
Bank, whether or not then in office, each director and officer of a subsidiary
that M&T Bank directly or indirectly owns more than 50% of the voting securities
of, whether or not then in office, and any person whose testator or intestate
was such a director or officer, shall be indemnified by M&T Bank for the defense
of, or in connection with, any threatened, pending or completed actions or
-23-
proceedings and appeals therein, whether civil, criminal, governmental,
administrative or investigative, in accordance with and to the fullest extent
permitted by the Banking Law of the State of New York or other applicable law,
as such law now exists or may hereafter be amended; provided, however, that M&T
Bank shall provide indemnification in connection with an action or proceeding
(or part thereof) initiated by such a director or officer only if such action or
proceeding (or part thereof) was authorized by the Board of Directors.
SECTION 2. ADVANCEMENT OF EXPENSES: Expenses incurred by a director or
officer in connection with any action or proceeding as to which indemnification
may be given under Section 1 of this Article V may be paid by M&T Bank in
advance of the final disposition of such action or proceeding upon (a) receipt
of an undertaking by or on behalf of such director or officer to repay such
advancement in the event that such director or officer is ultimately found not
to be entitled to indemnification as authorized by this Article V and (b)
approval by the Board of Directors acting by a quorum consisting of directors
who are not parties to such action or proceeding or, if such a quorum is not
obtainable, then approval by stockholders. To the extent permitted by law, the
Board of Directors or, if applicable, the stockholders, shall not be required
under this Section 2, to find that the director or officer has met the
applicable standard of conduct provided by law for indemnification in connection
with such action or proceeding.
SECTION 3. AVAILABILITY AND INTERPRETATION: To the extent permitted under
applicable law, the rights of indemnification and to the advancement of expenses
provided in this Article V (a) shall be available with respect to events
occurring prior to the adoption of this Article V, (b) shall continue to exist
after any recision or restrictive amendment of this Article V with respect
-24-
to events occurring prior to such recision or amendment, (c) may be interpreted
on the basis of applicable law in effect at the time of the occurrence of the
event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the
nature of contract rights which may be enforced in any court of competent
jurisdiction as if M&T Bank and the director or officer for whom such rights are
sought were parties to a separate written agreement.
SECTION 4. OTHER RIGHTS: The rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any other rights to which any such director, officer or other person may now
or hereafter be otherwise entitled whether contained in the organization
certificate, these bylaws, a resolution of stockholders, a resolution of the
Board of Directors, or an agreement providing such indemnification, the creation
of such other rights being hereby expressly authorized. Without limiting the
generality of the foregoing, the rights of indemnification and to the
advancement of expenses provided in this Article V shall not be deemed exclusive
of any rights, pursuant to statute or otherwise, of any such director, officer
or other person in any such action or proceeding to have assessed or allowed in
his or her favor, against M&T Bank or otherwise, his or her costs and expenses
incurred therein or in connection therewith or any part thereof.
SECTION 5. SEVERABILITY: If this Article V or any part hereof shall be
held unenforceable in any respect by a court of competent jurisdiction, it shall
be deemed modified to the minimum extent necessary to make it enforceable, and
the remainder of this Article V shall remain fully enforceable.
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ARTICLE VI
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK: The shares of stock of M&T Bank shall be
represented by certificates which shall be numbered and shall be entered in the
books of M&T Bank as they are issued. Each stock certificate shall when issued
state the name of the person or persons to whom issued and the number of shares
and shall be signed by the Chairman of the Board, the Chief Executive Officer or
the President or a Vice President and by the Corporate Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, and shall be sealed with
the seal of M&T Bank or a facsimile thereof. The signatures of the officers upon
a certificate may be facsimiles if the certificate is countersigned by a
transfer agent or registered by a registrar. In case any officer who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
M&T Bank with the same effect as if he were such officer at the date of its
issue. No certificate of stock shall be valid until countersigned by a transfer
agent if M&T Bank has a transfer agent, or until registered by a registrar, if
M&T Bank has a registrar.
SECTION 2. TRANSFERS OF SHARES: Shares of stock shall be transferable on
the books of M&T Bank by the holder thereof, in person or by duly authorized
attorney, upon the surrender of the certificate representing the shares to be
transferred, properly endorsed. M&T Bank shall be entitled to treat the holder
of record of any share or shares of stock as the owner thereof and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person whether or not it shall
have express or other notice
-26-
thereof, save as specifically provided by the laws of the State of New York. The
Board of Directors, to the extent permitted by law, shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates of stock and may
appoint one or more transfer agents and registrars of the stock of M&T Bank.
SECTION 3. FIXING OF RECORD DATE: The Board of Directors may fix, in
advance, a day and hour not more than 50 days nor less than 10 days before the
date on which any meeting of stockholders is to be held, as the time as of which
stockholders entitled to notice of and to vote at such meeting and at all
adjournments thereof shall be determined; and, in the event such record date and
time is fixed by the Board of Directors, no one other than the holders of record
on such date and time of stock entitled to notice of or to vote at such meeting
shall be entitled to notice of or to vote at such meeting or any adjournment
thereof. If a record date and time shall not be fixed by the Board of Directors
for the determination of stockholders entitled to notice of and to vote at any
meeting of stockholders, stockholders of record at the close of business on the
day next preceding the day on which notice of such meeting is given, and no
others, shall be entitled to notice of and to vote at such meeting or any
adjournment thereof. The Board of Directors may fix, in advance, a day and hour,
not exceeding 50 days preceding the date fixed for the payment of a dividend of
any kind or the allotment of any rights, as the record time for the
determination of the stockholders entitled to receive any such dividend or
rights, and in such case only stockholders of record at the time so fixed shall
be entitled to receive such dividend or rights.
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SECTION 4. RECORD OF STOCKHOLDERS: M&T Bank shall keep at its office in
the State of New York, or at the office of its transfer agent or registrar in
this state, a record containing the names and addresses of all stockholders, the
number and class of shares held by each and the dates when they respectively
became the owner of record thereof.
SECTION 5. LOST STOCK CERTIFICATES: The holder of any certificate
representing shares of stock of M&T Bank shall immediately notify M&T Bank of
any mutilation, loss or destruction thereof, and the Board of Directors may in
its discretion cause one or more new certificates for the same number of shares
in the aggregate to be issued to such holder upon the surrender of the mutilated
certificate, or, in case of loss or destruction of the certificate, upon
satisfactory proof of such loss or destruction and the deposit of indemnity by
way of bond or otherwise in such form and amount and with such sureties or
security as the Board of Directors may require to protect M&T Bank against loss
or liability by reason of the issuance of such new certificates; but the Board
of Directors may in its discretion refuse to issue such new certificates save
upon the order of the court having jurisdiction in such matters.
ARTICLE VII
CORPORATE SEAL
SECTION 1. FORM OF SEAL: The seal of M&T Bank shall be circular in form,
with the words "Manufacturers and Traders Trust Company" in the margin thereof,
and the numerals
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"1856" and the word "seal" and the numerals "1892" in the center thereof. The
seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
EMERGENCY OPERATIONS
Whenever the provisions of Article 7 of the New York State Defense
Emergency Act (L. 1961, c. 654) become operative by reason of an "acute
emergency," as defined in said Act, the following provision shall also become
operative:
1. If the Chief Executive Officer of M&T Bank shall not be available,
his or her powers and authority shall vest in and may be exercised by other
officers of M&T Bank in the following order:
a. The Chairman of the Board;
b. Any Vice Chairman of the Board;
c. The President;
d. The Executive Vice Presidents in the order of seniority
determined by length of service;
e. The Senior Vice Presidents in the order of seniority
determined by length of service;
f. A Vice President selected from and by those Vice Presidents
who shall be available.
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2. The directors and acting directors present at any meeting held
as provided by statute may by resolution alter the foregoing order of succession
or designate the person from among the foregoing group who shall act as Chief
Executive Officer; provided, however, that the directors and acting directors
shall have no power to remove any officer or to fill any vacancy on a permanent
basis or to cause M&T Bank to enter into any contract of employment for a term
of over one year.
3. The directors and acting directors shall take such action as
counsel may advise in order that the normal operations of M&T Bank shall be
restored as promptly as practicable.
ARTICLE IX
AMENDMENTS; TERMINATION
SECTION 1. PROCEDURE FOR AMENDING BYLAWS: These bylaws may be added
to, amended or repealed at any meeting of stockholders notice of which shall
have referred to the proposed action, by the vote of the holders of record of a
majority of the outstanding shares of M&T Bank entitled to vote, or at any
meeting of the Board of Directors notice of which shall have referred to the
proposed action, by the vote of a majority of the Board of Directors; provided,
however, that if any bylaw regulating an impending election of directors is
adopted or amended or repealed by the Board of Directors, there shall be set
forth in the notice of the next meeting of stockholders for the election of
directors the bylaw so adopted or amended or repealed, together with a concise
statement of the changes made; and provided further that the last proviso of the
first sentence of
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Article II, Section 1, the entirety of Article II, Section 2(b), the entirety of
Article X and this proviso may not be amended, modified or repealed, nor may any
Bylaw provisions be adopted that are inconsistent with such provisions, in each
case, without the unanimous approval of the entire board of directors.
SECTION 2. TERMINATION OF CERTAIN PROVISIONS: Each of the provisions of
these Bylaws set forth in the last proviso of Article IX, Section 1 hereof shall
automatically terminate without any action on the part of M&T Bank, the board of
directors or the stockholders on the first date following the date upon which
the Significant Stockholder ceases to be the beneficial owner of at least five
percent (5%) of the outstanding shares of common stock of the Holding Company.
ARTICLE X
CERTAIN DEFINITIONS
SECTION 1. DEFINITIONS: For purposes of Article II of these Bylaws:
(a) "ISSUANCE EVENT" shall mean an "Issuance Event" defined in Section
1.42 of the Reorganization Agreement.
(b) "MAINTENANCE RIGHTS" shall mean the "Seller Maintenance Rights"
defined in Section 1.75 of the Reorganization Agreement.
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(c) "REORGANIZATION AGREEMENT" shall mean the Agreement and Plan of
Reorganization, dated September 26, 2002, by and among the Significant
Stockholder, Allfirst Financial Inc. and M&T Bank Corporation, as amended or
supplemented from time to time.
(d) "SIGNIFICANT STOCKHOLDER" shall mean Allied Irish Banks, p.l.c., a
limited liability company incorporated under the laws of Ireland having its
registered office at Bankcentre, Ballsbridge, Dublin 4, Ireland, and any
successor thereto.
(e) "SUNSET DATE" shall mean the first date following the date upon
which the Significant Stockholder ceases to be the beneficial owner of at least
15% of the outstanding shares of common stock of the Corporation, determined in
accordance with, and subject to, paragraph (iv) of Article II, Section 2(b)
hereof.
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MANUFACTURERS AND TRADERS TRUST COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
In thousands December 31, 2004
- ------------ -----------------
Assets Cash and due from banks $ 1,334,631
Money-market assets 189,494
Investment securities
Available for sale (cost: $7,886,559) 7,882,481
Held to maturity (market value: $100,275) 98,050
Other (market value: $320,532) 320,532
------------
Total investment securities 8,301,063
------------
Loans and leases, net of unearned discount 38,127,775
Allowance for credit losses (624,181)
------------
Loans and leases, net 37,503,594
Other assets 5,085,358
------------
Total assets $ 52,414,140
============
Liabilities Deposits
Noninterest-bearing $ 8,428,628
Interest-bearing 26,917,612
------------
Total deposits 35,346,240
Short-term borrowings 4,703,664
Accrued interest and other liabilities 673,858
Long-term borrowings 5,486,046
------------
Total liabilities 46,209,808
------------
Stockholder's equity 6,204,332
------------
Total liabilities and stockholder's equity $ 52,414,140
============