Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CNY FINANCIAL CORPORATION
ARTICLE ONE
NAME
The name of the Corporation is CNY Financial Corporation (hereinafter sometimes
referred to as the "Corporation").
ARTICLE TWO
REGISTERED ADDRESS
The address of the registered office of the Corporation in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, County of New Castle. The name
of the registered agent at that address is Corporation Service Company.
ARTICLE THREE
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE FOUR
DEFINITIONS
For the purposes of this Certificate of Incorporation, the following terms shall
have the meanings set forth in this Article Four.
A. "Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on the date of the initial filing
of this Certificate of Incorporation with the Secretary of State of the State of
Delaware.
B. "Announcement Date" shall mean, as to any Business Combination, the date of
the first public announcement of the proposal to engage in the Business
Combination or, if earlier, the first public announcement of any related
Business Combination.
C. "Beneficial Ownership" shall be determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (or any successor rule or statutory provision), or, if said Rule 13d-3
shall be rescinded and there shall be no successor rule or
provision thereto, pursuant to said Rule 13d-3 as in effect on the date of the
initial filing of this Certificate of Incorporation with the Secretary of State
of the State of Delaware; provided, however, that a person shall, in any event,
also be deemed the "beneficial owner" of any Common Stock which such person or
any of its Affiliates beneficially owns, directly or indirectly; or which such
person or any of its Affiliates has: (i) the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (but shall not be deemed to be the
beneficial owner of any securities solely by reason of an agreement, contract,
or other arrangement with this Corporation to effect a Business Combination), or
upon the exercise of conversion rights, exchange rights, warrants, or options or
otherwise, or (ii) sole or shared voting or investment power with respect
thereto pursuant to any agreement, arrangement, understanding, relationship or
otherwise (but shall not be deemed to be the beneficial owner of any voting
shares solely by reason of a revocable proxy granted for a particular meeting of
stockholders, pursuant to a public solicitation of proxies for such meeting,
with respect to shares of which neither such Person nor any such Affiliate is
otherwise deemed the beneficial owner); or which are beneficially owned,
directly or indirectly, by any other Person with which such first mentioned
person or any of its Affiliates acts as a partnership, limited partnership,
syndicate or other group pursuant to any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares of
capital stock of this Corporation; and provided further, however, that: (1) no
Director or Officer of this Corporation (or any Affiliate of any such Director
or Officer) shall, solely by reason of any or all of such Directors or Officers
acting in their capacities as such, be deemed, for any purposes hereof, to
beneficially own any Common Stock beneficially owned by any other such Director
or Officer (or any Affiliate thereof); and (2) neither any employee stock
ownership or similar plan of this Corporation or any subsidiary of this
Corporation, nor any trustee with respect thereto or any Affiliate of such
trustee (solely by reason of such capacity of such trustee), shall be deemed,
for any purposes hereof, to beneficially own any Common Stock held under any
such plan. For purposes only of computing the percentage of Beneficial Ownership
of Common Stock of a Person, the outstanding Common Stock shall include shares
deemed owned by such Person through application of this subsection but shall not
include any other Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise. For all other purposes, the outstanding Common Stock
shall include only Common Stock then outstanding and shall not include any
Common Stock which may be issuable by this Corporation pursuant to any
agreement, or upon the exercise of conversion rights, warrants or options, or
otherwise.
D. "Business Combination" shall mean any transaction described in one or more of
paragraphs 1 through 6 of Section A of Article Nine.
E. In the event of any Business Combination in which the Corporation survives,
the phrase "consideration other than cash to be received" shall include the
shares of Common Stock and/or the shares of any other class of capital stock
retained by the holder of such shares in addition to any other consideration and
securities of the Corporation retained by the recipient of such consideration.
F. "Determination Date" shall mean the date on which an Interested Stockholder
becomes an Interested Stockholder.
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G. "Disinterested Director" means any member of the Board of Directors who is
unaffiliated with the Interested Stockholder and was a member of the Board of
Directors prior to the time that the Interested Stockholder became an Interested
Stockholder, and any Director who is thereafter chosen to fill any vacancy of
the Board of Directors or who is elected and who, in either event, is
unaffiliated with the Interested Stockholder and in connection with his or her
initial assumption of office is recommended for appointment or election by a
majority of Disinterested Directors then on the Board of Directors.
H. "Fair Market Value" means:
(1) in the case of stock, the highest closing sales price of the stock
during the 30-day period immediately preceding the date in question of a share
of such stock on the National Association of Securities Dealers Automated
Quotation System or any system then in use, or, if such stock is admitted to
trading on a principal United States securities exchange registered under the
Securities Exchange Act of 1934, as amended, Fair Market Value shall be the
highest sale price reported during the 30-day period preceding the date in
question, or, if no such quotations are available, the Fair Market Value on the
date in question of a share of such stock as determined by the Board of
Directors in good faith, in each case with respect to any class of stock,
appropriately adjusted for any dividend or distribution in shares of such stock
or any stock split or reclassification of outstanding shares of such stock into
a greater number of shares of such stock or any combination or reclassification
of outstanding shares of such stock into a smaller number of shares of such
stock; and
(2) in the case of property other than cash or stock, the Fair Market Value
of such property on the date in question as determined by the Board of Directors
in good faith.
I. The "Foundation" shall mean the charitable foundation organized at the behest
of the Corporation and funded by the Corporation with a donation of common stock
of the Corporation at or about the time of the Corporation's initial issuance of
its common stock.
J. Reference to "Highest Per Share Price" shall in each case with respect to any
class of stock reflect an appropriate adjustment for any dividend or
distribution in shares of such stock or any stock split or reclassification of
outstanding shares of such stock into a greater number of shares of such stock
or any combination or reclassification of outstanding shares of such stock into
a smaller number of shares of such stock.
K. "Interested Stockholder" shall mean any person (other than the Corporation or
Subsidiary thereof, the Foundation, and other than any pension, profit-sharing,
employee stock ownership or other employee benefit or compensation plan of the
Corporation or any Subsidiary or any trustee or fiduciary with respect to any
such plan or holding Voting Stock for the purpose of funding any such plan or
funding other employee benefits for employees of the Corporation or any
Subsidiary when acting in such capacity) who or which:
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(1) is, or has announced or publicly disclaimed a plan or intention to
become the beneficial owner, directly or indirectly, of more than 10% of the
voting power of the outstanding Voting Stock; or
(2) is an Affiliate of the Corporation and at any time within the two-year
period immediately prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then
outstanding Voting Stock; or
(3) is an assignee of or has otherwise succeeded to any shares of Voting
Stock which were at any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction or
series of transactions not involving a public offering within the meaning of the
Securities Act of 1933, as amended.
L. The "Limit" shall mean 10% of the then-outstanding shares of Common Stock.
M. "Person" shall mean 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, an unincorporated organization or similar company, a
government or political subdivision, a syndicate or any other group formed for
the purpose of acquiring, holding or disposing of securities, or any other
entity.
N. "Subsidiary" means any corporation of which a majority of any class of equity
security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Interested Stockholder, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Corporation.
O. "Voting Stock" shall mean all issued and outstanding capital stock of the
Corporation, without giving effect to the provisions Article Five, Section C,
entitled to vote in the election of Directors.
P. "Whole Board" shall mean the total number of authorized directorships
including all vacancies and unfilled, newly-created directorships.
ARTICLE FIVE
CAPITAL STOCK
A. The total number of shares of all classes of stock which the Corporation
shall have authority to issue is twenty million (20,000,000) consisting of two
million (2,000,000) shares of Preferred Stock, par value one cent ($.01) per
share (the "Preferred Stock"), and eighteen million (18,000,000) shares of
Common Stock, par value one cent ($.01) per share (the "Common Stock").
B. The Board of Directors is authorized, subject to any limitations
prescribed by law, to provide for the issuance of the shares of Preferred
Stock in one or more series, and by filing a certificate pursuant to the
applicable law of the State of Delaware (such certificate being
hereinafter referred to as a "Preferred Stock Designation"), to establish
from time to time the
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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 any qualifications, limitations or restrictions thereof,
including:
(i) the voting powers, if any, of the holders of shares of such series
in addition to any voting rights affirmatively required by law;
(ii) the rights of shareholders in respect of dividends, including,
without limitation, the rate or rates per annum and the time or times
at which (or the formula or other method pursuant to which such rate
or rates and such time or times may be determined) and conditions upon
which the holders of shares of such series shall be entitled to
receive dividends and other distributions, and whether any such
dividends shall be cumulative or non-cumulative and, if cumulative,
the terms upon which such dividends shall be cumulative;
(iii) whether the stock of each such series shall be redeemable by the
Corporation at the option of the Corporation or the holder thereof
and, if redeemable, the terms and conditions upon which the stock of
such series may be redeemed;
(iv) the amount payable and the rights or preferences to which the holders
of the stock of such series shall be entitled upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation;
(v) the terms, if any, upon which shares of stock of such series shall be
convertible into, or exchangeable for, shares of stock of any other
class or classes or of any other series of the same or any other class
or classes, including the price or prices or the rate or rates of
conversion or exchange and the terms of adjustment, if any; and
(vi) any other powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, so far as they are not
inconsistent with the provisions of this Certificate of Incorporation
and to the full extent now or hereafter permitted by the laws of the
State of Delaware.
The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common Stock, without a
vote of the holders of the Preferred Stock, or of any series thereof, unless a
vote of any such holders is required pursuant to the terms of any Preferred
Stock Designation.
C. All shares of Common Stock shall be identical to each other in every respect.
Subject to the provisions of this Article, the shares of Common Stock shall
entitle the holders thereof to one vote for each share on all matters on which
stockholders have the right to vote. Notwithstanding the foregoing, except as
otherwise required by law, holders of Common Stock, as such, shall not be
entitled to vote on any amendment to this Certificate of Incorporation
(including any Preferred Stock Designation) that relates solely to the terms of
one or more outstanding series of Preferred Stock if the holders of such
affected series are entitled, either separately or together with the holders of
one or more other such series, to vote thereon pursuant to this Certificate of
Incorporation (including any Preferred Stock Designation) or pursuant to the
General Corporation Law of the State of Delaware.
D. 1. Notwithstanding any other provision of this Certificate of Incorporation,
in no event shall any record owner of any outstanding Common Stock which is
beneficially owned, directly or
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indirectly, by a Person who, as of any record date for the determination of
stockholders entitled to vote on any matter, beneficially owns in excess of the
Limit, be entitled, or permitted to any vote in respect of the shares held in
excess of the Limit. The number of votes which may be cast by any record owner
by virtue of the provisions hereof in respect of Common Stock beneficially owned
by any Person who beneficially owns shares in excess of the Limit shall be a
number equal to the total number of votes which a single record owner of all
Common Stock beneficially owned by such person would be entitled to cast
(subject to the provisions of this Article), multiplied by a fraction, the
numerator of which is the number of shares of such class or series which are
both beneficially owned by such Person and owned of record by such record owner
and the denominator of which is the total number of shares of Common Stock
beneficially owned by such person owning shares in excess of the Limit. The
provisions of this Section C shall not apply to Common Stock owned of record by
the Foundation or any pension, profit-sharing, employee stock ownership or other
employee benefit or compensation plan maintained by the Corporation, or by a
member of a controlled group of corporations of which the Corporation is a
member, for the benefit of the Corporation or any Subsidiary.
2. The Board of Directors shall have the power to construe and apply the
provisions of this Section C and to determine on the basis of information known
to them after reasonable inquiry all facts necessary or desirable to ascertain
compliance with and implement such provisions including, but not limited to,
matters with respect to: (i) the number of shares of Common Stock beneficially
owned by any Person; (ii) whether a person is an Affiliate of another; (iii)
whether a Person has an agreement, arrangement, or understanding with another as
to the matters referred to in the definition of beneficial ownership; (iv) the
application of any other definition or operative provision of this Section to
the given facts; or (v) any other matter relating to the applicability or effect
of this Section.
3. The Board of Directors shall have the right to demand that any Person
who is reasonably believed to beneficially own Common Stock in excess of the
Limit (or holds of record Common Stock beneficially owned by any Person in
excess of the Limit) supply the Corporation with complete information as to: (i)
the record owner(s) of all shares beneficially owned by such Person who is
reasonably believed to own shares in excess of the Limit; and (ii) any other
factual matter relating to the applicability or effect of this section as may
reasonably be requested of such Person. If such Person fails to supply the
Corporation the information so requested within five (5) business days after
demand, the record owner of any shares beneficially owned by such Person shall
not be entitled to vote in respect of any shares beneficially owned by such
Person until such information is provided.
4. Except as otherwise provided by law or expressly provided in this
Section C, the presence, in person or by proxy, of the holders of record of
shares of capital stock of the Corporation entitling the holders thereof to cast
a majority of the votes (after giving effect, if required, to the provisions of
this Section C) entitled to be cast thereat shall constitute a quorum at all
meetings of the stockholders, and every reference in this Certificate of
Incorporation to a majority or other proportion of capital stock (or the holders
thereof) for purposes of determining any quorum requirement or any requirement
for stockholder consent or approval shall be deemed to
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refer to such majority or other proportion of the votes (or the holders thereof)
then entitled to be cast in respect of such capital stock thereat.
5. Any constructions, interpretations, applications, or determinations
made by the Board of Directors pursuant to this section in good faith and on the
basis of such information and assistance as was then reasonably available for
such purpose shall be conclusive and binding upon the Corporation and its
stockholders and neither the Corporation nor any of its stockholders shall have
the right to challenge any such application, interpretation, construction or
determination.
6. This Article Five, Section C shall not apply to (a) any offer or sale
with a view towards public resale made exclusively by the Corporation to any
underwriter or underwriters acting on behalf of the Corporation, or to the
selling group acting on such underwriter's or underwriters' behalf, in
connection with a public offering of Common Stock; or (b) any reclassification
of securities (including any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation with any of its
Subsidiaries or any other transaction or reorganization that does not have the
effect, directly or indirectly, of changing the beneficial ownership interests
of the Corporation's stockholders, other than pursuant to the exercise of any
dissenters' appraisal rights, except as a result of immaterial changes due to
fractional share adjustments, which changes do not exceed, in the aggregate, one
percent (1%) of the issued and outstanding shares of such class of equity or
convertible securities.
7. In the event any provision (or portion thereof) of this Section C
shall be found to be invalid, prohibited or unenforceable for any reason, the
remaining provisions (or portions thereof) of this Section shall remain in full
force and effect, and shall be construed as if such invalid, prohibited or
unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders that
each such remaining provision (or portion thereof) of this Section C remain, to
the fullest extent permitted by law, applicable and enforceable as to all
stockholders, including stockholders owning an amount of stock over the Limit,
notwithstanding any such finding.
E. No holder of any of the shares of any class or series of stock or of options,
warrants or other rights to purchase shares of any class or series of stock or
of other securities of the Corporation shall have any preemptive right to
purchase or subscribe for any unissued stock of any class or series, or any
unissued bonds, certificates of indebtedness, debentures, or other securities
convertible into or exchangeable for stock of any class or series or carrying
any right to purchase stock of any class or series; but any such unissued stock,
bonds, certificates of indebtedness, debentures, or other securities convertible
into or exchangeable for stock or carrying any right to purchase stock may be
issued pursuant to resolution of the Board of directors of the Corporation to
such persons, firms, corporations, or associations, whether or not holders
thereof, and upon such terms as may be deemed advisable by the Board of
Directors in the exercise of its sole discretion.
F. The Corporation may from time to time, pursuant to authorization by the Board
of Directors of the Corporation and without action by the stockholders, purchase
or otherwise
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acquire shares of any class, bonds, debentures, notes, scrip, warrants,
obligations, evidences of indebtedness, or other securities of the Corporation
in such manner, upon such terms, and in such amounts as the Board of Directors
shall determine; subject, however, to such limitations or restrictions, if any,
as are contained in the express terms of any class of shares of the Corporation
outstanding at the time of the purchase or acquisition in question or as are
imposed by law or regulation.
ARTICLE SIX
MANAGEMENT
The following provisions are inserted for the management of the business and the
conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its Directors
and stockholders:
A. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and authority
expressly conferred upon them by statute or by this Certificate of Incorporation
or the Bylaws of the Corporation, the Directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the Corporation.
B. The Directors of the Corporation need not be elected by written ballot
unless the Bylaws so provide. Shareholders shall not have the right to cumulate
their votes in the election of Directors.
C. Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in
writing by such stockholders in lieu of a meeting of stockholders.
D. Special meetings of stockholders of the Corporation may be called only by
the Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board or as otherwise provided in the Bylaws.
ARTICLE SEVEN
DIRECTORS
A. The number of Directors shall be fixed from time to time by the Board of
Directors pursuant to a resolution adopted by a majority of the Whole Board but
shall not be less than 5 nor more than 15 (other than Directors elected by the
holders of shares of only one or more series of preferred stock. The Directors
(other than those Directors elected by the holders of any series of Preferred
Stock provided for or fixed pursuant to the provision of Section B of Article
Five hereof) shall be divided into three classes, as nearly equal in number as
reasonably possible, with the term of office of the first class to expire at the
first annual meeting of stockholders, the term of office of the second class to
expire at the second annual meeting of stockholders and the term of office of
the third class to expire at the third annual meeting of stockholders, with each
Director to hold office until his or her successor shall have been duly elected
and qualified. At each annual meeting of stockholders
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following such initial classification and election, Directors elected to succeed
those Directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election with each Director to hold office until his or her successor shall have
been duly elected and qualified.
B. Subject to the rights of holders of any series of Preferred Stock
outstanding, all newly created directorships resulting from any increase in the
authorized number of Directors and any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled only by a majority vote of the Directors
then in office, though less than a quorum, and Directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been chosen expires. No decrease
in the number of Directors constituting the Board of Directors shall shorten the
term of any incumbent Director.
C. Advance notice of stockholder nominations for the election of Directors and
of business to be brought by stockholders before any meeting of the stockholders
of the Corporation shall be given in the manner provided in the Bylaws of the
Corporation.
D. Subject to the rights of holders of any series of Preferred Stock then
outstanding, any Director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote
of the holders of at least 80% of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of Directors (after giving effect to the
provisions of Article Five of this Certificate of Incorporation), voting
together as a single class. For purposes of this Section D, conduct worthy
of removal for "cause" shall include, but not be limited to (a) conduct as a
director of the Corporation or any subsidiary of the Corporation that
involves willful material misconduct, breach of fiduciary duty involving
personal pecuniary gain or gross negligence in the performance of duties,
(b) conduct, whether or not as a director of the Corporation or a subsidiary
of the Corporation that involves dishonesty or breach of fiduciary duty and
is punishable by imprisonment for a term exceeding one year under state or
federal law or (c) removal of such person from the Board of Directors of the
Bank, if such person is so serving, in accordance with the Restated
Organization Certificate and Bylaws of the Bank.
E. Notwithstanding anything set forth in this Certificate of Incorporation to
the contrary, the qualifications, term of office and provisions governing
vacancies, removal and other matters pertaining to Directors elected by
holders of shares of one or more series of Preferred Stock shall be as set
forth in a resolution or resolutions adopted by the Board of Directors
setting forth the designations, preferences and rights relating to any such
series of Preferred Stock pursuant to Article Five hereof.
ARTICLE EIGHT
BYLAWS
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A. The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of
the Corporation by the Board of Directors shall require the approval of a
majority of the Whole Board.
B. The stockholders shall also have power to amend, alter or repeal the Bylaws
at any meeting of stockholders provided notice of the proposed change was given
in the notice of the meeting; provided, however, that, notwithstanding any other
provisions of the Bylaws or any provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the voting stock required by law, the
Certificate of Incorporation, any Preferred Stock Designation or the Bylaws, the
affirmative votes of the holders of at least 80% of the voting power of all the
then-outstanding shares of Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal any provisions of the Bylaws. Shares
owned in excess of the "Limit" as described in Article Five shall be counted for
the purpose of determining the aggregate voting power of the outstanding shares
of Voting Stock but such shares shall remain subject to any restrictions or
voting limitations set forth in Article Five.
ARTICLE NINE
CERTAIN BUSINESS COMBINATIONS
A. In addition to any affirmative vote required by law or this Certificate of
Incorporation, and except as otherwise expressly provided in this Article and
subject to applicable laws:
(1) any merger or consolidation of the Corporation or any Subsidiary with:
(i) any Interested Stockholder; or (ii) any other entity (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation would
be, an Affiliate or Associate of an Interested Stockholder; or
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to, with or for the
benefit of any Interested Stockholder, or any Affiliate or Associate of any
Interested Stockholder, of any assets of the Corporation or any Subsidiary
having an aggregate Fair Market Value equaling or exceeding 25% or more of the
combined assets of the Corporation and its Subsidiaries; or
(3) the issuance or transfer by the Corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of the Corporation or
any Subsidiary to any Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder in exchange for cash, securities or other property
(or a combination thereof) having an aggregate Fair Market Value equaling or
exceeding 25% of the combined Fair Market Value of the outstanding Common Stock
of the Corporation and its Subsidiaries, except for any issuance or transfer
pursuant to an employee benefit plan of the Corporation or any Subsidiary
thereof; or
(4) the adoption of any plan or proposal for the liquidation or dissolution
of the Corporation proposed by or on behalf of an Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder; or
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(5) any reclassification of securities (including any reverse stock split),
or recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested Stockholder; or
(6) any contract, agreement or other arrangement providing for any one or
more of the actions specified (1) through (5) above,
shall in any such event require the affirmative vote of the holders of at
least 80% of the voting power of the Voting Stock, voting together as a
single class. Such affirmative vote shall be required notwithstanding the
fact that no vote may be required, or that a lesser percentage may be
specified, by law or by any other provisions of this Certificate of
Incorporation or any Preferred Stock Designation in any agreement with any
national securities exchange or otherwise. Shares owned in excess of the
"Limit" as described in Article Five shall be counted for the purpose of
determining the aggregate voting power of the outstanding shares of Voting
Stock but such shares shall remain subject to any restrictions or voting
limitations set forth in Article Five.
B. The provisions of Section A of this Article shall not be applicable to any
particular Business Combination, and such Business Combination shall require
only the affirmative vote (if any) as is required by law or by this Certificate
of Incorporation, if, in the case of any Business Combination that does not
involve any cash or other consideration being received by the stockholders of
the Corporation solely in their capacity as stockholders of the Corporation, the
condition specified in the following paragraph 1 is met or, in the case of any
other Business Combination, all of the conditions specified in either of the
following paragraphs 1 or 2 are met:
(1) The Business Combination shall have been approved by a majority of the
Disinterested Directors.
(2) All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value, as of
the date of the consummation of the Business Combination, of consideration other
than cash to be received per share by the holders of Common Stock in such
Business Combination shall at least be equal to the higher of the following:
(i) (if applicable) the Highest Per Share Price, including any
brokerage commissions, transfer taxes and soliciting dealers' fees, paid by the
Interested Stockholder or any of its Affiliates for any shares of Common Stock
acquired by it: (x) within the two-year period immediately prior to the
applicable Announcement Date; or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher, plus interest compounded annually
from the Determination Date to the date the Business Combination is consummated
at the highest prime rate of interest for United States Banks as published from
time to time in the Eastern Edition of the
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Wall Street Journal, or if no longer so published then such other indicator of
the prime bank rate of interest as is selected by a majority of the
Disinterested Directors then in office; or
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher;
(b) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration other
than cash to be received per share by holders of shares of any class or series
of outstanding capital stock other than Common Stock shall be at least equal to
the highest of the following (it being intended that the requirements of this
subparagraph (b) shall be required to be met with respect to every such class or
series of outstanding capital stock, whether or not the Interested Stockholder
has previously acquired any shares of a particular class or series of capital
stock):
(i) (if applicable) the Highest Per Share Price, including any
brokerage commissions, transfer taxes and soliciting dealers' fees, paid by the
Interested Stockholder for any shares of such class or series of capital stock
acquired by it: (x) within the two-year period immediately prior to the
Announcement Date; or (y) in the transaction in which it became an Interested
Stockholder, whichever is higher; plus interest compounded annually from the
Determination Date to the date the Business Combination is consummated at the
highest prime rate of interest for United States Banks as published from time to
time in the Eastern Edition of the Wall Street Journal, or if no longer so
published then such other indicator of the prime bank rate of interest as is
selected by a majority of the Disinterested Directors then in office; or
(ii) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of capital stock are
entitled in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation; or
(iii) the Fair Market Value per share of such class or series of
capital stock on the Announcement Date or on the Determination Date, whichever
is higher.
(c) The consideration to be received by holders of a particular class
of outstanding capital stock (including Common Stock) shall be in cash or in the
same form as the Interested Stockholder has previously paid for shares of such
class or series of Capital Stock. If the Interested Stockholder has paid for
shares of any class or series of Capital Stock with varying forms of
consideration, the form of consideration to be received per share by holders of
shares of such class or series of Capital Stock shall be either cash or the form
used to acquire the largest number of shares of such class or series of Capital
Stock previously acquired by the Interested Stockholder. The price determined in
accordance with subparagraph B(2) of this Article shall be subject to
appropriate adjustment in the event of any stock dividend, stock split,
combination of shares or similar event.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (i)
except as approved by a majority of the Disinterested Directors there shall have
been no failure to declare and pay at the regular date
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therefor any full quarterly dividends (whether or not cumulative) on any
outstanding stock having preference over the Common Stock as to dividends or
liquidation; (ii) there shall have been: (x) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect any
subdivision of the Common Stock), except as approved by a majority of the
Disinterested Directors; and (y) an increase in such annual rate of dividends as
necessary to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common Stock, unless the
failure to so increase such annual rate is approved by a majority of the
Disinterested Directors, and (iii) neither such Interested Stockholder nor any
of its Affiliates shall have become the beneficial owner of any additional
shares of capital stock except as part of the transaction that results in such
Interested Stockholder becoming an Interested Stockholder and except in a
transaction that, after giving effect thereto, would not result in any increase
in the Interested Stockholder's percentage beneficial ownership of any class or
series of capital stock of the Corporation.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder), of any loans,
advances, guarantees, pledges or other financial assistance or any tax credits
or other tax advantages provided, directly or indirectly, by the Corporation,
whether in anticipation of or in connection with such Business Combination or
otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (or
any subsequent provisions replacing such Act, and the rules or regulations
thereunder) shall be mailed to stockholders of the Corporation at least 30 days
prior to the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to such Act or
subsequent provisions).
C. A majority of the Disinterested Directors of the Corporation shall have the
power and duty to determine for the purposes of this Article, on the basis of
information known to them after reasonable inquiry: (i) whether a person is an
Interested Stockholder; (ii) the number of shares of Voting Stock beneficially
owned by any person; (iii) whether a person is an Affiliate or Associate of
another; (iv) whether the applicable conditions set forth in paragraph (2) of
Section B of this Article Nine have been met with respect to any Business
Combination, (v) the Fair Market Value of stock or other property in accordance
with Section H of Article Four, and (vi) whether the assets which are the
subject of any Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation or any Subsidiary
in any Business Combination has an aggregate Fair Market Value equaling or
exceeding 25% of the combined Fair Market Value of the Common Stock of the
Corporation and its Subsidiaries. A majority of the Disinterested Directors
shall have the further power to interpret all of the terms and provisions of
this Article.
D. Nothing contained in this Article shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
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E. Notwithstanding any other provisions of this Certificate of Incorporation or
any provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any particular class or
series of the Voting Stock required by law, this Certificate of Incorporation or
any Preferred Stock Designation, the affirmative vote of the holders of at least
80% of the voting power of all of the then-outstanding shares of the Voting
Stock, voting together as a single class or series, shall be required to alter,
amend or repeal this Article. For the purposes of the preceding sentence, shares
owned in excess of the Limit which have no voting power pursuant to Article Five
shall be counted in determining the aggregate voting power of all outstanding
shares of Voting Stock but shall remain subject to the limitations on voting set
forth in Article Five.
ARTICLE TEN
BOARD DETERMINATIONS
The Board of Directors of the Corporation, when evaluating any offer of another
Person to (A) make a tender or exchange offer for any equity security of the
Corporation; (B) merge or consolidate the Corporation with another corporation
or entity; or (C) purchase or otherwise acquire all or substantially all of the
properties and assets of the Corporation, may, in connection with the exercise
of its judgment in determining what is in the best interest of the Corporation
and its stockholders, give due consideration to all relevant factors, including,
without limitation, those factors that Directors of any subsidiary of the
Corporation may consider in evaluating any action that may result in a change or
potential change in the control of the subsidiary, and the social and economic
effect of acceptance of such offer: (i) on the Corporation's present and future
customers and employees and those of its Subsidiaries; (ii) on the communities
in which the Corporation and its Subsidiaries operate or are located; (iii) on
the ability of the Corporation to fulfill its corporate objective as a bank
holding company under applicable laws and regulations; and (iv) on the ability
of its Subsidiary banks or savings institutions to fulfill the objectives of a
stock form financial institution under applicable statutes and regulations.
ARTICLE ELEVEN
INDEMNIFICATION
A. Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a Director or an Officer of the
Corporation or, while a Director or Officer of the Corporation, is or was
serving at the request of the Corporation as a Director, Officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity or in any other capacity while serving shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties
14
under the Employee Retirement Income Security Act of 1974, as amended, and
amounts paid in settlement) reasonably incurred or suffered by such indemnitee
in connection therewith; provided, however, that, except as provided in Section
C of this Article the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
B. The right to indemnification conferred in Section A of this Article shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the General
Corporation Law of the State of Delaware requires, an advancement of expenses
incurred by an indemnitee in his or her capacity as a Director or Officer (and
not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, services to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise. The rights to indemnification and to
the advancement of expenses conferred in Sections A and B of this Article shall
be contract rights and such rights shall continue as to an indemnitee who has
ceased to be a Director, Officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
C. If a claim under Section A or B of this Article is not paid in full by the
Corporation within sixty days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the General Corporation Law of the State of Delaware. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not
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entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
D. The rights to indemnification and to the advancement of expenses conferred
in this Article shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, the Corporation's Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself
and any Director, Officer, employee or agent of the Corporation or subsidiary or
Affiliate or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
F. To the extent that any person who is or was or has agreed to become a
Director or officer of the Corporation is made a witness to any action, suit or
proceeding to which he or she is not a party by reason of the fact that he or
she was, is or has agreed to become a Director or Officer of the Corporation,
or, while a Director or Officer of the Corporation, is or was serving or has
agreed to serve as a Director, Officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, at the
request of the Corporation, such person shall be indemnified against all costs,
charges and expenses actually and reasonable incurred by such person or on such
person's behalf in connection therewith. To the extent that any person who is or
was or has agreed to become an employee or agent of the Corporation is made a
witness to any action, suit or proceeding to which he or she is not a party by
reason of the fact that he or she was, is or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, at the request of the Corporation, such
person may be indemnified against all costs, charges and expenses actually and
reasonable incurred by such person or on such person's behalf in connection
therewith.
G. The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of expenses
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Article with respect to the indemnification and advancement
of expenses of Directors and Officers of the Corporation.
H. If this Article or any portion shall be invalidated on any ground by any
court of competent jurisdiction, the Corporation shall nevertheless indemnify
each Director or officer, and may indemnify each employee or agent, of the
Corporation as to any costs, charges, expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including an action by or in the right of the Corporation), to
the full extent permitted by any applicable portion of this Article that shall
not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE TWELVE
LIABILITY OF DIRECTORS
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A Director of this Corporation shall not be personally liable 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 or 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 General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the Director derived an
improper personal benefit. If the General Corporation Law of the State of
Delaware is amended to authorize corporate action further eliminating or
limiting the personal liability of Directors, then the liability of a Director
of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing at the time of such repeal
or modification.
ARTICLE THIRTEEN
AMENDMENT
The Corporation reserves the right to amend or repeal any provision contained in
this Certificate of Incorporation in the manner prescribed by the laws of the
State of Delaware and all rights conferred upon stockholders are granted subject
to this reservation; provided, however, that, notwithstanding any other
provision of this Certificate of Incorporation or any provision of law which
might otherwise permit a lesser vote or no vote, but in addition to any vote of
the holders of any class or series or series of the stock of this Corporation
required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 80% of the voting power of all of the then-outstanding
Voting Stock, voting together as a single class or series, shall be required to
amend or repeal this Article, Article 4, Section C of Article 5, Sections C or D
of Article 6, Article 7, Article 8, Article 9, Article 11, or Article 12.
ARTICLE 14
INCORPORATOR
The name and mailing address of the sole incorporator are as follows:
Name: Jay L. Hack
Mailing Address: Serchuk & Zelermyer, LLP, 81 Main Street, White Plains,
New York 10601
I, THE UNDERSIGNED, being the incorporator, for the purpose of forming a
corporation under the laws of the State of Delaware, do make, file and record
this Certificate of Incorporation and do certify that the facts herein stated
are true, and accordingly, have hereto set my hand this 17th day of June, 1998.
/s/ Jay L. Hack, Incorporator
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