Exhibit 3.1
Certificate of Incorporation of NBT BANCORP INC., as amended through July 23,
2001.
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RESTATED
CERTIFICATE OF INCORPORATION
OF
NBT BANCORP INC.
FIRST: The name of the corporation (hereinafter called the Corporation)
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is NBT BANCORP INC.
SECOND: The address of the registered office of the Corporation in the
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State of Delaware is 2711 Centerville Road Suite 400, Wilmington, New Castle
County, Delaware, 19808; and the name of the registered agent of the Corporation
in the State of Delaware at such address is The Prentice-Hall Corporation
System, Inc.
THIRD: The nature of the business and the purpose to be conducted and
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promoted by the Corporation shall be to conduct any lawful business, to promote
any lawful purpose, and to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: The total number of shares of all classes of capital stock
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which the Corporation shall have the authority to issue is Fifty-Two Million
Five Hundred Thousand (52,500,000) shares consisting of Fifty Million
(50,000,000) shares of Common Stock, par value $.01 per share and Two Million
Five Hundred Thousand (2,500,000) shares of Preferred Stock, par value $.01 per
share.
FIFTH: The Board of Directors is authorized, subject to limitations
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prescribed by law and the provisions of the Article FOURTH, to provide for the
issuance of the shares of Preferred Stock in series, and by filing a certificate
pursuant to the applicable law of the State of Delaware, to establish from time
to time the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such series
and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not to be limited to, determination of the following:
(a) The number of shares constituting that series and the distinctive
designation of that series;
(b) The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that
series;
(c) Whether that series shall have voting rights, in addition to the
voting rights provided by law, and, if so, the terms of such voting rights;
(d) Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such conversion, including provisions for
adjustment of the conversion rate in such events as the Board of Directors
shall determine;
(e) Whether or not the shares of that series shall be redeemable, and,
if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per
share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates;
(f) Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and amount of
such sinking fund;
(g) The right of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
and the relative rights of priority, if any, of payment of shares of that
series;
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(h) Any other relative rights, preferences and limitations of that
series.
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment, before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period.
If upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, the assets available for distribution to holders of shares
of Preferred Stock of all series shall be insufficient to pay such holders the
full preferential amount to which they are entitled, then such assets shall be
distributed ratably among the shares of all series of Preferred Stock in
accordance with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
SIXTH: The Corporation is to have perpetual existence.
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SEVENTH: The name and the mailing address of the incorporator are as
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follows:
NAME MAILING ADDRESS
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Everett A. Gilmour 52 South Broad Street
Norwich, New York 13815
EIGHTH: For the management of the business and for the conduct of the
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affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
(a) The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors shall be fixed by, or in the manner provided in, the By-Laws.
Directors need not be elected by written ballot, unless so required by the
By-Laws of the Corporation.
(b) After the original or other By-Laws of the Corporation have been
adopted, amended, or repealed, as the case may be, in accordance with the
provisions of Section 109 of the General Corporation Law of the State of
Delaware, and after the Corporation has received any payment for any of its
stock, the power to adopt, amend, or repeal the By-Laws of the Corporation
may be exercised by the Board of Directors of the Corporation.
NINTH: Meetings of stockholders may be held within or without the State
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of Delaware, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statute) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the By-Laws of the Corporation.
TENTH: From time to time, any of the provisions of this Certificate of
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Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, all in the manner now or hereafter prescribed by the laws of
the State of Delaware, and all rights and powers at any time conferred upon the
stockholders and the directors of the Corporation by this Certificate of
Incorporation are granted subject to the provisions of this Article TENTH. The
provisions set forth in Article ELEVENTH may not be repealed or amended in any
respect, unless such action is approved by the affirmative vote of the holders
of not less than eighty percent (80%) of the outstanding shares of Voting Stock
(as defined in Article ELEVENTH) of the Corporation; provided, however, if there
is a Major Stockholder as defined in Article ELEVENTH, such eighty percent (80%)
vote must include the affirmative vote of at least eighty percent (80%) of
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the outstanding shares of voting stock held by shareholders other than the Major
Stockholder.
ELEVENTH:
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(a) The affirmative vote of the holders of not less than eighty percent
(80%) of the total voting power of all outstanding shares entitled to vote in
the election of any particular Class of Directors (as defined in Section (e) of
this Article ELEVENTH) and held by disinterested shareholders (as defined below)
shall be required for the approval or authorization of any "Business
Combination," as defined and set forth below:
(1) Any merger, consolidation or other business reorganization or
combination of the Corporation or any of its subsidiaries with any other
corporation that is a Major Stockholder of the Corporation;
(2) Any sale, lease or exchange by the Corporation of all or a
substantial part of its assets to or with a Major Stockholder;
(3) Any issue of any stock or other security of the Corporation or any
of its subsidiaries for cash, assets or securities of a Major Stockholder;
(4) Any reverse stock split of, or exchange of securities, cash or
other properties or assets for any outstanding securities of the
Corporation or any of its subsidiaries or liquidation or dissolution of the
Corporation or any of its subsidiaries in any such case in which a Major
Stockholder receives any securities, cash or other assets whether or not
different from those received or retained by any holder of securities of
the same class as held by such Major Shareholder.
The affirmative vote required by this Article ELEVENTH 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 of
Incorporation or as this Certificate of Incorporation may be 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) For the purpose of this Article ELEVENTH:
(1) The term "Major Stockholder" shall mean and include any person,
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 five percent (5%) or more of the outstanding
shares of Voting Stock, and any Affiliates or Associates of any such
person, 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 consolidated assets of
the Corporation in question or more than twenty-five percent (25%) of the
aggregate par value of authorized and issued Voting Stock of the
Corporation in question, 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 Corporation
entitled to vote in the election of directors.
(4) The term "Beneficial Owner" shall mean any person and certain
related parties, directly or indirectly, who own shares or have the right
to acquire or vote shares of the company.
(5) The term "Disinterested Shareholder" shall mean any holder of
voting securities of the company other then (i) a Major Stockholder if it
or any of them has a financial interest in the transaction being voted on
(except for a financial interest attributable solely to such person's
interest as a stockholder of
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the company which is identical to the interests of all stockholders of the
same class) and (ii) in the context of a transaction described in (a) (4)
above, any Major Stockholder (whether or not having a financial interest
described in clause (i) of this sentence) if it or any of them has directly
or indirectly proposed the transaction, solicited proxies to vote in favor
of the transaction, financed any such solicitation of proxies or entered
into any contract, arrangement, or understanding with any person for the
voting of securities of the company in favor of the transaction.
(c) The provisions of this Article shall not apply to a Business
Combination which is approved by sixty-six and two-thirds percent (66-2/3%) of
those members of the Board of Directors who were directors prior to the time
when the Major Stockholder became a Major Stockholder. The provisions of this
Article shall not apply to a Business Combination which (i) does not change any
stockholder'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 stockholder; (ii)
provides for the provisions of this Article without any amendment, change,
alteration, or deletion, to apply to any successor to the Corporation; and (iii)
does not transfer all or a Substantial Part of the Corporation's assets or
Voting Stock other than to a wholly-owned subsidiary of the Corporation.
(d) Nothing contained in the Article shall be construed to relieve a Major
Stockholder from any fiduciary obligation imposed by law. In addition, nothing
contained in this Article shall prevent any stockholders of the Corporation from
objecting to any Business Combination and from demanding any appraisal rights
which may be available to such stockholder.
(e) The Board of Directors of the Corporation shall be divided into three
classes: Class 1, Class 2 and Class 3, which shall be as nearly equal as
possible. Each Director shall serve for a term ending on the date of the third
Annual Meeting of Shareowners following the Annual Meeting at which such
Director was elected; provided, however, that each initial Director in Class 1
shall hold office until the Annual Meeting of Shareowners in 1987; each initial
Director in Class 2 shall hold office until the Annual Meeting of Shareowners in
1988; and each initial Director in Class 3 shall hold office until the Annual
Meeting of Shareowners in 1989. Such initial Directors for each of the three
Classes of Directors shall be as follows: Class 1 - John M. Kolbas and Paul O.
Stillman; Class 2 - Donald E. Stone, Darryl R. Gregson and Paul R. Enggaard;
Class 3 - Everett A. Gilmour, J. K. Weinman and Thomas J. Mirabito. In the event
of any increase or decrease in the authorized number of Directors, (1) each
Director then serving as such nevertheless continue as a Director of the Class
of which he is a member until the expiration of his current term, or his earlier
resignation, removal from office or death, and (2) the newly created or
eliminated directorships resulting from such increase or decrease shall be
appointed by the Board of Directors among the three Classes of Directors so as
to maintain such Classes as nearly equal as possible. Notwithstanding any of the
foregoing provisions of this Article Eleventh, each Director shall serve until
his successor is elected and qualified or until his earlier resignation, removal
from office or death.
TWELFTH: A director of the corporation shall not be personally liable
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to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the corporation of its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph by the stockholders of the corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the corporation existing at the time of such repeal
or modification.
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