Exhibit 3.3
Restated Organization Certificate of
Cohoes Savings Bank in Stock Form
RESTATED ORGANIZATION
CERTIFICATE
OF
COHOES SAVINGS BANK
UNDER SECTION 8007 OF
THE BANKING LAW
We, Harry L. Robinson, being the President and Chief Executive Officer,
and Richard A. Ahl, being the Secretary, of Cohoes Savings Bank, in accordance
with Section 8007 of the Banking Law of the State of New York (the "New York
Banking Law"), do hereby certify as follows:
FIRST, the name of the Corporation is Cohoes Savings Bank, originally
formed under the name "Cohoes Savings Institution."
SECOND, the Corporation was created under the name "Cohoes Savings
Bank" by an Act of the Legislature of the State of New York, passed April 11,
1851, such Act having been amended and supplemented from time to time
thereafter. Under Section 1001(5) of the Banking Law, such Act is the
Organization Certificate of the Corporation.
THIRD, the text of the Organization Certificate of the Corporation is
hereby amended and restated in its entirety to read as follows:
Section 1. Name.
The name by which the Corporation is to be known is Cohoes Savings Bank
(the "Bank").
Section 2. Principal Office.
The principal office of the Bank shall be located in the City of
Cohoes, County of Albany, State of New York.
Section 3. Duration.
The duration of the Bank is perpetual.
Section 4. Capital Stock.
The total number of shares of all classes of the capital stock which
the Bank has authority to issue is thirty million (30,000,000), of which
twenty-five million (25,000,000) shall be common stock, par value $.01 per share
("Common Stock") and of which five million (5,000,000) shall be preferred stock,
par value $.01 per share ("Preferred Stock"). The shares may be issued from time
to time as authorized by the Board of Directors without further approval of
stockholders except as otherwise provided in this Section 4 or to the extent
that such approval is required by governing law,
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rule, or regulation. The consideration for the issuance of the shares shall be
paid in full before their issuance and shall not be less than the par value.
Neither promissory notes nor future services shall constitute payment or part
payment for the issuance of shares of the Bank. The consideration for the shares
shall be cash, tangible or intangible property (to the extent direct investment
in such property would be permitted), labor or services actually performed for
the Bank, or any combination of the foregoing. In the absence of actual fraud in
the transaction, the value of such property, labor, or services, as determined
by the Board of Directors of the Bank, 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, that part of the surplus of the Bank which is
transferred to stated capital upon the issuance of shares as a share dividend
shall be deemed to be the consideration for their issuance.
Nothing contained in this Section 4 (or in any supplementary sections
hereto) shall entitle the holders of any class or series of capital stock to
vote as a separate class or series or to more than one vote per share, provided,
that this restriction on voting separately by class or series shall not apply:
(i) to any provision which would authorize the holders of
Preferred Stock, voting as a class or series, to elect some
members of the Board of Directors, but less than a majority
thereof, in the event of default in the payment of dividends
on any class or series of Preferred Stock;
(ii) to any provision which would require the holders of Preferred
Stock, voting as a class or series, to approve the merger or
consolidation of the Bank with another corporation or the
sale, lease, or conveyance (other than by mortgage or pledge)
of properties or business in exchange for securities of a
corporation other than the Bank if the Preferred Stock is
exchanged for securities of such other corporation; provided,
that no provision may require such approval for transactions
undertaken with the assistance or pursuant to the direction of
any regulatory authority;
(iii) to any amendment which would adversely change the specific
terms of any class or series of capital stock as set forth in
this Section 4 (or in any supplementary sections hereto),
including any amendment which would create or enlarge any
class or series ranking prior thereto in rights and
preferences. An amendment which increases the number of
authorized shares of any class or series of capital stock, or
substitutes the surviving institution in a merger or
consolidation for the Bank, shall not be considered to be such
an adverse change.
A description of the different classes and series (if any) of the
Bank's capital stock and a statement of the designations, and the relative
rights, preferences, and limitations of the shares of each class of and
series(if any) of capital stock are as follows:
A. Common Stock. Except as provided in this Section 4 (or in any
supplementary sections hereto) the holders of the Common Stock
shall exclusively possess all voting
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power. Each holder of shares of Common Stock shall be entitled
to one vote for each share held by such holder. Shareholders
shall not be entitled to cumulate their votes for the election
of directors. 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 of 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. In the event of any liquidation, dissolution, or
winding up of the Bank, the holders of the Common Stock (and
the holders of any class or series of stock entitled to
participate with the Common Stock in the distribution of
assets) shall be entitled to receive, in cash or in kind, the
assets of the Bank available for distribution remaining after:
(i) payment or provision for payment of the Bank's debts and
liabilities; (ii) distributions or provision for distributions
in settlement of its liquidation account; and (iii)
distributions or provision for distributions to holders of any
class or series of stock having preference over the Common
Stock in the liquidation, dissolution, or winding up of the
Bank. Each share of Common Stock shall have the same relative
rights as and be identical in all respects with all the other
shares of Common Stock.
B. Preferred Stock. The Bank may provide in amendments to this
Restated Organization Certificate for one or more classes of
Preferred Stock, which shall be separately identified. The
shares of any class may be divided into and issued in series,
with each series separately designated so as to distinguish
the shares thereof from the shares of all other series and
classes. The terms of each series shall be set forth in an
amendment to this Restated Organization Certificate. All
shares of the same class shall be identical except as to the
following relative rights and preferences, as to which there
may be variations between different series:
(a) The distinctive serial designation and the number of
shares constituting such series;
(b) The dividend rate 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(s),
the payment date(s) for dividends, and the
participating or other special rights, if any, with
respect to dividends;
(c) The voting powers, full or limited, if any, of the
shares of such series;
(d) Whether the shares of such series shall be redeemable
and, if so, the price(s) at which, and the terms and
conditions on which, such shares may be redeemed;
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(e) The amount(s) payable upon the shares of such series
in the event of voluntary or involuntary liquidation,
dissolution, or winding up of the Bank;
(f) Whether the shares of such series shall be entitled
to the benefit 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(s) at
which such shares may be redeemed or purchased
through the application of such fund;
(g) Whether the shares of such series shall be
convertible into, or exchangeable for, shares of any
other class or classes of stock of the Bank and, if
so, the conversion price(s) or the rate(s) 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;
(h) The price or other consideration for which the shares
of such series shall be issued; and
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(i) 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 rights as and be identical in
all respects with all the other shares of the same
series. The Board of Directors shall have authority
to divide, by the adoption of an amendment to this
Restated Organization Certificate, any authorized
class of Preferred Stock into series, and, within the
limitations set forth in this section and the
remainder of this Restated Organization Certificate,
fix and determine the relative rights and preferences
of the shares of any series so established. Prior to
the issuance of any preferred shares of a series
established by an amendment to this Restated
Organization Certificate adopted by the Board of
Directors, the Bank shall make any filings of such
amendments as may be required by applicable law.
Section 5. Preemptive Rights.
Holders of the capital stock of the Bank shall not be entitled to
preemptive rights with respect to any shares of the Bank which may be issued.
Section 6. Liquidation Account.
Pursuant to the regulations of the New York State Banking Board, the
Bank shall establish and maintain a liquidation account for the benefit of its
deposit account holders as of March 31, 1998 ("eligible depositors") and
September 30, 1998 ("supplemental eligible depositors"). In the event of a
complete liquidation of the Bank, it shall comply with such regulations with
respect to the amount and the priorities on liquidation of each of the Bank's
eligible depositor's and supplemental
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eligible depositor's inchoate interest in the liquidation account, to the extent
it is still in existence; provided, that an eligible depositor's inchoate
interest in the liquidation account shall not entitle such eligible depositor to
any voting rights at meetings of the Bank's stockholders.
Section 7. Certain Provisions Applicable for Three Years.
Notwithstanding anything contained in the Bank's Restated Organization
Certificate or bylaws to the contrary, for a period of three years from the date
of consummation of the conversion of the Bank from mutual to stock form no
person shall directly or indirectly acquire the beneficial ownership of more
than 10 percent of any class of any equity security of the Bank. This limitation
shall not apply to a transaction in which the Bank forms a holding company in
conjunction with conversion, or thereafter, if such formation is without change
in the respective beneficial ownership interests of the Bank's stockholders
other than pursuant to the exercise of any dissenter and appraisal rights, the
purchase of shares by underwriters in connection with a public offering, or the
purchase of shares by a tax-qualified employee stock benefit plan. In the event
shares are acquired in violation of this Section 7, all shares beneficially
owned by any person in excess of 10% shall be considered "excess shares" and
shall not be counted as shares entitled to vote and shall not be voted by any
person or counted as voting shares in connection with any matters submitted to
the stockholders for a vote; provided, however a person shall not be deemed to
be the beneficial owner of shares represented by proxies held by such person
unless such shares are otherwise deemed beneficially owned by such person.
For the purposes of this Section 7, the following definitions apply:
(i) The term "person" includes an individual, a firm, a group
acting in concert, a corporation, a partnership, an
association, a joint venture, a pool, a joint stock company, a
trust, any unincorporated organization or similar company, a
syndicate or any other group formed for the purpose of
acquiring, holding or disposing of the equity securities of
the Bank or any other entity.
(ii) The term "acquire" includes every type of acquisition, whether
effected by purchase, exchange, operation of law or otherwise.
(iii) The term "acting in concert" means (a) knowing participation
in a joint activity or conscious parallel action towards a
common goal whether or not pursuant to an express agreement,
or (b) a combination or pooling of voting or other interests
in the securities of an issuer for a common purpose pursuant
to any contract, understanding, relationship, agreement or
other arrangement, whether written or otherwise.
Section 8. Call for Special Meetings.
Special meetings of the stockholders for any purpose or purposes may be
called at any time by the Chairman of the Board of Directors or the majority of
the Whole Board of Directors (the term "Whole Board of Directors" shall mean the
number of authorized directorships, whether or not there exists any vacancies in
any previously authorized directorships).
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Section 9. Directors.
The Bank shall be under the direction of a Board of Directors. The
authorized number of directors, as stated in the Bank's bylaws, shall not be
less than seven nor more than 30 except when a greater number is approved by the
Superintendent of Banks of the State of New York (the "Superintendent") or his
delegatees. The Board shall be divided into three classes as nearly equal in
number as possible. The members of each class shall be elected for a term of
three years and until their successors are elected and qualified.
Section 10. Amendment of Restated Organization Certificate.
Except as provided in Section 4, no amendment, addition, alteration,
change, or repeal of this Restated Organization Certificate shall be made,
unless such is first proposed by a majority of the Whole Board of Directors of
the Bank and then approved by the affirmative vote of the holders of at least a
majority of the total votes eligible to be cast at a legal meeting. Any
amendment, addition, alteration, change or repeal so acted upon shall be
effective upon approval and filing by the Superintendent of Banks in accordance
with applicable regulatory procedures.
Section 11. Amendment of Bylaws.
No amendment, addition, alteration, change or repeal of the Bylaws of
the Bank shall be made, unless made in a manner consistent with the New York
Banking Law and the regulations thereunder and approved by a majority of the
Whole Board of Directors or by the affirmative vote of at least 80% of the votes
eligible to be cast by the stockholders of the Bank at any legal meeting.
Section 12. Indemnification.
(a) Scope of Indemnification. The Bank shall, to the maximum
extent permitted and in the manner provided by the New York
Banking Law and any applicable federal law, indemnify each
person made, or threatened to be made, a party to any action,
suit or proceeding, whether criminal or civil, by reason of
the fact that such person or such person's testator or
intestate is or was a director or officer of the Bank, or is
or was serving, in any capacity, at the request of the Bank,
any other corporation, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, against
judgments, fines, penalties, amounts paid in settlement and
reasonable expenses, including attorneys' fees and expenses
actually and necessarily incurred in connection therewith, or
any appeal therein, provided that the person to be indemnified
has met the applicable standard of conduct to be so
indemnified under the New York Banking Law or any other
applicable law.
(b) Reimbursement of Expenses. The Bank shall advance or promptly
reimburse upon request any person entitled to indemnification
hereunder for all reasonable expenses, including attorneys'
fees and expenses, reasonably incurred in defending any action
or proceeding in advance of the final disposition thereof upon
receipt of an undertaking by or on behalf of such person to
repay such amount if such person is
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ultimately found not to be entitled to indemnification or,
where indemnification is granted, to the extent the expenses
so advanced or reimbursed exceed the amount to which such
person is entitled; provided, however, that such person shall
cooperate in good faith with any request by the Bank that
common counsel be used by the parties to any action or
proceeding who are similarly situated unless to do so would be
inappropriate due to actual or potential differing interest
between or among parties.
(c) Additional Rights. Nothing herein shall limit or affect any
right of any director, officer, or other corporate personnel
otherwise than hereunder to indemnification or expenses,
including attorneys' fees and expenses, under any statute,
rule, regulation, certificate of incorporation, bylaws,
insurance policy, contract, or otherwise; without affecting or
limiting the rights of any director, officer or other
corporate personnel pursuant to this Section 12, the Bank is
authorized to enter into agreements with any of its directors,
officers or other corporate personnel extending rights to
indemnification and advancement of expenses to the fullest
extent permitted by applicable law.
(d) Notice of Amendments or Elimination. Anything in this Restated
Organization Certificate to the contrary notwithstanding, no
elimination or amendment of this Section 12 adversely
affecting the right of any person to indemnification or
advancement of expenses hereunder shall be effective until the
60th day following notice to such person of such action, and
no elimination of or amendment to this Section 12 shall
deprive any such person's rights hereunder arising out of
alleged or actual occurrences, act or failures to act prior to
such 60th day. Any amendments or eliminations made pursuant to
this Section 12 are only effective with regard to acts
occurring after such date.
(e) Continuation of Benefit. The indemnification of any person
provided by this Section 12 shall continue after such person
has ceased to be a director or officer of the Bank and shall
inure to the benefit of such person's heirs, executors,
administrators and legal representatives.
(f) Severability of Provisions. In case any provision in this
Section 12 shall be determined at any time to be unenforceable
in any respect, the other provisions of this Section 12 shall
not in any way be affected or impaired thereby, and the
affected provision shall be given the fullest possible
enforcement in the circumstances, it being the intention of
the Bank to afford indemnification and advancement of expenses
to its directors or officers, acting in such capacities or in
the other capacities mentioned herein, to the fullest extent
permitted by law.
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As approved by a majority of the Board of Trustees of the Bank on ____________,
1998 and approved by at least 75% in amount of the deposit liabilities of voting
depositors of the Bank present in person or by proxy at a meeting of voting
depositors held on _________, 1998, to be effective on the date filed by the
Superintendent of Banks of the State of New York in his office.
_____________________________________ _________________
Harry L. Robinson Richard A. Ahl
President and Chief Executive Officer Secretary
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