Exhibit 3.3
Proposed Amended
Restated Organization Certificate
Of
Cortland Savings Bank
Under Section 8007 of The Banking Law
Table of Contents
Article I
Name. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article II
Principal Office. . . . . . . . . . . . . . . . . . . . . 1
Article III
Capital Stock
Section 1. Shares, Classes and Series Authorized. . . . . . . . . . . 1
Section 2. Designations, Powers, Preferences, Rights, Qualifications,
Limitations and Restrictions Relating to the Capital
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Article IV
Limitation On Beneficial Ownership Of Stock
Section 1. Prohibitions Relating to Beneficial Ownership of Voting
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2. Excess Shares. . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Powers of the Board. . . . . . . . . . . . . . . . . . . . 5
Section 4. Severability . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Exclusions . . . . . . . . . . . . . . . . . . . . . . . . 6
Article V
Board Of Directors
Section 1. Number of Directors. . . . . . . . . . . . . . . . . . . . 6
Section 2. Classification of Board. . . . . . . . . . . . . . . . . . 7
Section 3. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4. Removal of Directors . . . . . . . . . . . . . . . . . . . 7
Section 5. Evaluation of Acquisition Proposals. . . . . . . . . . . . 7
Article VI
Action By Shareholders By Written Consent. . . . . . . . . 8
Article VII
Certain Business Combinations
Section 1. Higher Vote Required for Certain Business Combinations . . 8
Section 2. When Higher Vote is Not Required . . . . . . . . . . . . . 9
Section 3. Definitions. . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Powers of the Disinterested Directors. . . . . . . . . . 15
Section 5. Effect on Fiduciary Obligations of Interested
Shareholders. . . . . . . . . . . . . . . . . . . . . . . 15
Section 6. Amendment, Repeal, Etc.. . . . . . . . . . . . . . . . . 15
Article VIII
Indemnification
Section 1. Right to Indemnification . . . . . . . . . . . . . . . . 16
Section 2. Accrual of Right to Indemnification. . . . . . . . . . . 16
Section 3. Individual Indemnification Agreements. . . . . . . . . . 16
Section 4. Insurance. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5. Subsequent Amendment and Subsequent Legislation. . . . . 17
Article IX
Amendments
Section 1. Amendments of Restated Organization Certificate. . . . . 17
Section 2. Amendments of Bylaws . . . . . . . . . . . . . . . . . . 18
Restated Organization Certificate
Of
Cortland Savings Bank
Under Section 8007 of The Banking Law
WE, Wesley D. Stisser and Sandy F. Samson, being the President and Chief
Executive Officer and the Corporate Secretary, respectively, of Cortland
Savings Bank (the "Corporation"), in accordance with Section 8007 of the
Banking Law of the State of New York (the "Banking Law"), do hereby certify
as follows:
FIRST, The name of the Corporation is Cortland Savings Bank.
SECOND, The Corporation was created under the name "Cortland Savings
Bank" by an Act of the Legislature of the State of New York, passed April 13,
1866, 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:
Article I
Name
The name by which the Corporation is to be known is Cortland Savings Bank.
Article II
Principal Office
The principal office of the Corporation is to be located at One North
Main Street, in the City of Cortland, County of Cortland, State of New York.
Article III
Capital Stock
Section 1. Shares, Classes and Series Authorized. The total number of
shares of all classes of capital stock that the Corporation shall have
authority to issue is twenty million (20,000,000) shares, of which two
million (2,000,000) shares shall be preferred stock, par value one cent
($.01) per share (the "Preferred Stock"), and eighteen million (18,000,000)
shares shall be common stock, par value one cent ($.01) per share (the
"Common Stock"). The Preferred Stock and Common Stock are sometimes
hereinafter collectively referred to as the "Capital Stock."
Section 2. Designations, Powers, Preferences, Rights, Qualifications,
Limitations and
Restrictions Relating to the Capital Stock. The following is a statement of the
designations, powers, preferences and rights in respect of the classes of the
Capital Stock, and the qualifications, limitations or restrictions thereof, and
of the authority with respect thereto expressly vested in the Board of Directors
of the Corporation (the "Board"):
(a) Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series, the number of shares and any designation of each
series and the powers, preferences and rights of the shares of each series, and
the qualifications, limitations or restrictions thereof, to be as stated and
expressed in a resolution or resolutions providing for the issue of such series
adopted by the Board, subject to the limitations prescribed by law. The Board
in any such resolution or resolutions is expressly authorized to state for each
such series:
(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 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 shares 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 upon which the shares of such series may be redeemed;
(iv) the amount payable and the rights or preferences to which the holders
of shares 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 such series shall be
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class of 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 Restated Organization Certificate and to the full extent now or
hereafter permitted by the laws of the State of New York.
All shares of the Preferred Stock of any one series shall be identical
to each other in all respects, except that shares of any one series issued at
different times may differ as to the dates from which dividends thereon, if
cumulative, shall be cumulative.
Subject to any limitations or restrictions stated in the resolution or
resolutions of the Board originally fixing the number of shares constituting
a series, the Board may, by resolution
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or resolutions likewise adopted, increase or decrease (but not below the number
of shares of the series then outstanding) the number of shares of the series
subsequent to the issuance of shares of that series and in case the number of
shares of any series shall be so decreased, the shares constituting the decrease
shall resume that status that they had prior to the adoption of the resolution
originally fixing the number of shares constituting such series.
(b) Common Stock. All shares of Common Stock shall be identical to
each other in every respect. Subject to Article IV hereof, the shares of
Common Stock shall entitle the holders thereof to one vote for each share on
all matters upon which shareholders have the right to vote. The holders of
shares of Common Stock shall not be permitted to cumulate their votes for the
election of directors. 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 Restated Organization Certificate (including
any Certificate of Designation relating to any series of Preferred Stock)
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 Restated Organization Certificate (including
any Certificate of Designation relating to any series of Preferred Stock) or
pursuant to the laws of the State of New York.
Subject to the preferences, privileges and powers with respect to each
class of Capital Stock of the Corporation having any priority over the Common
Stock, and the qualifications, limitations or restrictions thereof, the
holders of the Common Stock shall have and possess all rights pertaining to
the Capital Stock.
No holder of shares of Common Stock shall be entitled as such, as a
matter of preemptive right, to subscribe for, purchase or otherwise acquire
any part of any new or additional issue of shares of any class or series
whatsoever of the Corporation, or of securities convertible into shares of
any class or series whatsoever of the Corporation, or of any warrants or
other instruments evidencing rights or options to subscribe for, purchase or
otherwise acquire such shares or securities, whether now or hereafter
authorized or whether issued for cash or other consideration or by way of
dividend.
Article IV
Limitation On Beneficial Ownership Of Stock
Section 1. Prohibitions Relating to Beneficial Ownership of Voting
Stock. No Person, for a period of not less than three years following the
date of filing by the Superintendent of Banks of the State of New York (the
"Superintendent") of this Restated Organization Certificate, shall directly
or indirectly acquire or hold the beneficial ownership of more than ten
percent (10%) of the issued and outstanding Voting Stock of the Corporation.
Any Person so prohibited who directly or indirectly acquires or holds the
beneficial ownership of more than ten percent (10%) of the issued and
outstanding Voting Stock in violation of this Section I shall be subject to
the provisions of Sections 2 and 3 of this Article IV, below. All terms used
in this Article IV and not otherwise defined herein shall have the meanings
ascribed to such terms in Section 3 of Article VII, below, except that the
term "Person" shall not include the Corporation,
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any subsidiary of the Corporation or any pension, profit-sharing, stock bonus or
other compensation plan maintained by the Corporation or by a member of a
controlled group of corporations or trades or businesses of which the
Corporation is a member for the benefit of the employees of the Corporation,
and/or any subsidiary, or any trust or custodial arrangement established in
connection with any such plan.
Section 2. Excess Shares. The transfer of any shares of Voting Stock
that would result in a violation of Section I of this Article IV is
prohibited and shall be null and void. If, notwithstanding the foregoing
prohibition, a Person shall, voluntarily or involuntarily, become or attempt
to become the purported beneficial owner (the "Purported Owner") of shares of
Voting Stock in excess of ten percent (10%) of the issued and outstanding
shares of Voting Stock, the number of shares in excess of ten percent (10%)
shall be deemed to be "Excess Shares," and all of the following provisions
(a) through (g) shall apply to such Excess Shares:
(a) The Purported Owner shall not obtain any rights in and to the
Excess Shares, and the purported transfer of the Excess Shares to the
Purported Owner shall not be recognized by the transfer agent for such shares
(the "Transfer Agent"). Until such time as the Excess Shares are transferred
to a person whose acquisition thereof will not violate the limitation set
forth in Section 1 of this Article IV (a "Permitted Transferee"), the
transferor of the Excess Shares to the Purported Owner (the "Purported
Owner's Transferor") shall be deemed to have retained the Excess Shares and
shall hold and be entitled to exercise all rights incident to ownership of
such Excess Shares. All Excess Shares will continue to be issued and
outstanding.
(b) If the Transfer Agent obtains possession of a certificate or
certificates representing Excess Shares, the Transfer Agent shall deliver
such certificate or certificates to a trustee nominated and appointed by the
Board to hold Excess Shares (the "Share Trustee"). Upon receipt of notice
from the Corporation of the existence of Excess Shares and the identity of
the Purported Owner of such Excess Shares, the Share Trustee shall take all
lawful action to cause the Purported Owner to deliver or cause delivery of
the Excess Shares and any indicia of ownership thereof to the Share Trustee.
Upon obtaining possession of such Excess Shares, the Share Trustee shall sell
or cause the sale of the Excess Shares to a Permitted Transferee in the then
existing public market or in such other commercially reasonable fashion as
the Corporation shall direct. In performing the duties herein imposed upon
it, the Share Trustee shall act at all times as the agent for the Purported
Owner's Transferor.
(c) Upon acquisition of the Excess Shares by a Permitted Transferee,
the Permitted Transferee shall have and be entitled to exercise all rights
incident to the ownership of such Excess Shares.
(d) The proceeds realized from the sale of the Excess Shares to the
Permitted Transferee (the "Proceeds") shall be distributed as follows: (i)
first, to the Share Trustee for any costs incurred in respect of its
administration of the Excess Shares, (ii) second, to the Purported Owner, if
known, in an amount up to the amount paid by the Purported Owner, if
determinable, for the Excess Shares and (iii) the remaining Proceeds, if any,
shall be distributed to the Purported Owner's Transferor, if known, and, if
the Purported Owner's Transferor is not known, such remaining Proceeds shall
be held by the Corporation for the benefit of the
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Purported Owner's Transferor or such other persons or entities, as their
interests may appear. Notwithstanding anything in this Article IV to the
contrary, the Corporation shall at all times be entitled to make application to
any court of competent jurisdiction within the State of New York for an
adjudication of the respective rights and interests of any Person in and to the
Proceeds pursuant to this Article IV and applicable law and for leave to pay the
Proceeds into such court.
(e) Immediately upon the purported acquisition of any Excess Shares,
the Purported Owner thereof shall give, or cause to be given, written notice
of such acquisition to the Corporation. In addition, at the request of the
Corporation, each owner of shares of Voting Stock shall furnish to the
Corporation all information reasonably requested with respect to all shares
of Voting Stock directly and indirectly owned by such Person.
(f) Upon a determination by the Board that a Person has attempted or
may attempt to transfer or to acquire Excess Shares, the Board may take such
action as it deems advisable to refuse to give effect to such transfer or
acquisition on the books and records of the Corporation, including, without
limitation, any such action that shall cause the Transfer Agent to record the
Purported Owner's Transferor as the record owner of the Excess Shares, and to
institute proceedings to enjoin or rescind any such transfer or acquisition.
(g) The restrictions set forth in this Article IV shall be noted
conspicuously on all certificates evidencing ownership of shares of Voting
Stock.
Section 3. Powers of the Board.
(a) The Board may, to the extent permitted by law, from time to time
establish, modify, amend or rescind, by Bylaw or otherwise, regulations and
procedures not inconsistent with the express provisions of this Article IV
for the orderly application, administration and implementation of the
provisions of this Article IV. Such procedures and regulations shall be kept
on file with the Secretary of the Corporation and with the Transfer Agent,
shall be made available for inspection by the public and, upon request, shall
be mailed to any holder of shares of Voting Stock.
(b) When it appears that a particular Person has become a Purported
Owner of Excess Shares in violation of Section I of this Article IV and that
the provisions of this Article IV, or any of the rules and regulations of the
Board with respect to this Article IV, require application, interpretation or
construction, then a majority of the directors of the Corporation shall have
the power and duty to interpret all of the terms and provisions of this
Article IV and to determine on the basis of information known to them after
reasonable inquiry all facts necessary to ascertain compliance with this
Article IV, including, without limitation, (i) the number of shares of Voting
Stock beneficially owned by any Person or Purported Owner, (ii) whether a
Person or Purported Owner is an Affiliate or Associate of, or is acting in
concert with, any other Person or Purported Owner, (iii) whether a Person or
Purported Owner has an agreement, arrangement or understanding with any other
Person or Purported Owner as to the voting or disposition of any shares of
Voting Stock, (iv) the application of any other definition or operative
provision of this Article IV to the given facts or (v) any other matter
relating to the applicability or effect of this Article IV.
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The Board shall have the right to demand that any Person who is
reasonably believed to be a Purported Owner of Excess Shares (or who holds of
record Voting Stock beneficially owned by any Person reasonably believed to
be a Purported Owner) supply the Corporation with complete information as to
(i) the record owner(s) of all shares of Voting Stock beneficially owned by
such Person or Purported Owner and (ii) any other factual matter relating to
the applicability or effect of this Article IV as may reasonably be requested
of such Person or Purported Owner.
Any applications, interpretations, constructions or any other
determinations made by the Board pursuant to this Article IV, 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 shareholders and neither the Corporation nor any of its
shareholders shall have the right to challenge any such application,
interpretation, construction or determination.
Section 4. Severability. In the event any provision (or portion
thereof) of this Article IV shall be found to be invalid, prohibited or
unenforceable for any reason, the remaining provisions (or portions thereof)
of this Article IV 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 shareholders that each such remaining provision (or
portion thereof) of this Article IV remain, to the fullest extent permitted
by law, applicable and enforceable as to all shareholders, including
Purported Owners, if any, notwithstanding any such finding.
Section 5. Exclusions. This Article IV 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 the Common Stock; (b) any corporation
formed by the Corporation in connection with its conversion from mutual to
stock form to acquire all of the shares of capital stock of the Corporation
to be issued in connection with such conversion; or (c) 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 (including a
transaction in which the Corporation shall form a holding company) that does
not have the effect, directly or indirectly, of changing the beneficial
ownership interests of the Corporation's shareholders, other than pursuant to
the exercise of any 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.
Article V
Board of Directors
Section 1. Number Of Directors. The number of directors of the
Corporation shall not
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be less than seven (7) nor more than twenty (20). Within such limitations, the
number of directors shall be determined by the bylaws of the Corporation or by
resolution of the Board.
Section 2. Classification of Board. Subject to the rights of any
holders of shares of any series of Preferred Stock that may be issued by the
Corporation pursuant to a resolution or resolutions of the Board providing
for such issuance, the directors of the Corporation shall be divided into
three classes with respect to term of office, each class to contain, as near
as may be possible, one-third of the entire number of the Board, with the
terms of office of one class expiring each successive year. At each annual
meeting of shareholders, the successors to the class of directors whose term
expires at that time shall be elected by the shareholders to serve until the
annual meeting of shareholders held three years next following and until
their successors shall be elected and qualified.
In the event of any intervening changes in the authorized number of
directors, the Board shall designate the class or classes to which the
increase or decrease in directorships shall be apportioned and may designate
one or more directorships as directorships of another class in order to
achieve, as near as may be possible, equality of number of directors among
the classes; provided, however, that no such apportionment or redesignation
shall shorten the term of any incumbent director.
Unless and to the extent that the bylaws so provide, elections of
directors need not be by written ballot.
Section 3. Vacancies. Subject to the limitations prescribed by law, the
bylaws and this Restated Organization Certificate, all vacancies in the
office of director, including vacancies created by newly created
directorships resulting from an increase in the number of directors, shall be
filled by the shareholders, except that vacancies not exceeding one-third of
the entire Board may be filled by the affirmative vote of a majority of the
directors then in office. No person shall be elected a director unless
nominated at a previous regular or special meeting, called for that purpose,
upon the recommendation of the Board, or a committee appointed by the Board.
Any director so elected shall serve for the remainder of the full term of the
class of directors in which the new directorship was created or the vacancy
occurred and until his successor shall be elected and qualified.
Section 4. Removal of Directors. Any or all of the directors may be
removed at any time, but only for cause, and any such removal shall require
the vote, in addition to any vote required by law, of not less than eighty
percent (80%) of the total votes eligible to be cast by the holders of all
outstanding shares of Capital Stock entitled to vote generally in the
election of directors at a meeting of shareholders expressly called for that
purpose. For purposes of this Section 4, conduct worthy of removal for
"cause" shall mean (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, or (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.
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Section 5. Evaluation of Acquisition Proposals. The Board, when
evaluating any offer to the Corporation or to the shareholders of the
Corporation from another party relating to a change or potential change in
control of the Corporation, including, without limitation, any offer to (a)
purchase for cash or exchange any securities or property for any outstanding
equity securities of the Corporation, (b) merge or consolidate the
Corporation with another corporation or (c) purchase or otherwise acquire all
or substantially all of the properties and assets of the Corporation, in
connection with the exercise of its judgment in determining what is in the
best interest of the Corporation and its shareholders, may give due
consideration not only to the price or other consideration being offered, but
also to all other relevant factors, including, without limitation, (1) both
the long-term and the short-term interests of the Corporation and its
shareholders and (2) the effects that the Corporation's actions may have in
the short-term or in the long-term upon any of the following: (i) the
prospects for potential growth, development, productivity and profitability
of the Corporation; (ii) the Corporation's current employees; (iii) the
Corporation's retired employees and other beneficiaries receiving or entitled
to receive retirement, welfare or similar benefits from or pursuant to any
plan sponsored, or agreement entered into, by the Corporation; (iv) the
Corporation's customers and creditors; and (v) the ability of the Corporation
to provide, as a going concern, goods, services, employment opportunities and
employment benefits and otherwise to contribute to the communities in which
is does business.
Article VI
Action By Shareholders by Written Consent
Whenever shareholders of the Corporation are required or permitted to
take any action by vote at any annual or special meeting, such action may be
taken without a meeting upon written consent, setting forth the action so
taken, signed by the holders of all outstanding shares of Capital Stock
entitled to vote thereon.
Article VII
Certain Business Combinations
Section 1. Higher Vote Required for Certain Business Combinations.
In addition to any affirmative vote required by law or this Restated
Organization Certificate, and except as otherwise expressly provided in this
Article and subject to applicable laws:
(a) any merger or consolidation of the Corporation or any Subsidiary
with: (i) any Interested Shareholder; or (ii) any other corporation (whether
or not itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Shareholder; or
(b) 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 Shareholder, or any Affiliate or Associate of
any Interested Shareholder, of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value equaling or exceeding 25% or
more of
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the combined assets of the Corporation and its Subsidiaries; or
(c) 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
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Shareholder or any Affiliate or Associate of any Interested Shareholder 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
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder; or
(e) 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
Shareholder) 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 Shareholder or any Affiliate of any
Interested Shareholder; or
(f) any contract, agreement or other arrangement providing for any one
or more of the actions specified in (a) through (e) 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 Restated Organization Certificate or any Preferred
Stock Designation in any agreement with any national securities exchange or
otherwise.
Section 2. When Higher Vote is Not Required. 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 Restated Organization
Certificate, 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 a or b are met:
(a) The Business Combination shall have been approved by a majority of
the Disinterested Directors.
(b) All of the following conditions shall have been met:
(i) 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:
(a) (if applicable) the Highest Per Share Price, including any
brokerage
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commissions, transfer taxes and soliciting dealers' fees, paid by the Interested
Shareholder 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
Shareholder, 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
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher;
(ii) 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 Shareholder
has previously acquired any shares of a particular class or series of capital
stock):
(a) (if applicable) the Highest Per Share Price, including any
brokerage commissions, transfer taxes and soliciting dealers' fees, paid by the
Interested Shareholder 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
Shareholder, 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
(b) (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
(c) 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.
(iii) 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 Shareholder has previously paid for shares of
such class or series of Capital stock. If the Interested Shareholder 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 Shareholder. The price determined in
accordance with Section 2(b) of this Article shall be subject
11
to appropriate adjustment in the event of any stock dividend, stock split,
combination of shares or similar event.
(iv) After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination: (1)
except as approved by a majority of the Disinterested Directors there shall have
been no failure to declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any outstanding stock having
preference over the Common Stock as to dividends or liquidation; (2) 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 (3) neither such Interested Shareholder 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 Shareholder
becoming an Interested Shareholder and except in a transaction that, after
giving effect thereto, would not result in any increase in the Interested
Shareholder's percentage beneficial ownership of any class or series of capital
stock of the Corporation.
(v) After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder 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.
(vi) 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).
Section 3. Definitions. For purposes of this Article VII, the following
terms shall have the following meanings:
(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 Exchange Act, as in effect on the date of filing by the Superintendent of
this Restated Organization Certificate whether or not the Corporation was then
subject to such rule.
(b) "Announcement Date" shall mean the date of the first public
announcement of the proposal of the Business Combination.
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(c) A Person shall be deemed the "beneficial owner," or to have
"beneficial ownership," of any shares of Voting Stock that:
(i) such Person or any of its Affiliates or Associates beneficially
owns, directly or indirectly;
(ii) such Person or any or its Affiliates or Associates has (A) 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 a Person shall not be deemed to be the beneficial owner of any Voting
Stock solely by reason of an agreement, arrangement or understanding with the
Corporation to effect a Business Combination) or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (B)
the right to vote, or to direct the vote of, pursuant to any agreement,
arrangement or understanding (but neither such Person nor any Affiliate or
Associate shall be deemed to be the beneficial owner of any shares of Voting
Stock solely by reason of a revocable proxy granted for a particular meeting
of shareholders, pursuant to a public solicitation of proxies for such
meeting, and with respect to which shares neither such Person nor any
Affiliate or Associate is otherwise deemed the beneficial owner); or
(iii) is beneficially owned, directly or indirectly, by any other
Person with which such first mentioned Person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except to the extent contemplated by the
parenthetical clause of Section 3(c)(ii)(B)) or disposing of any shares of
Voting Stock; provided, however, that no director or officer of the
Corporation (nor any Affiliate or Associate of any such director or officer)
(y) 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 Voting Stock of the Corporation beneficially owned by
any other such director or officer (or any Affiliate or Associate thereof) or
(z) shall be deemed to beneficially own any Voting Stock of the Corporation
owned by any pension, profit-sharing, stock bonus or other compensation plan
maintained by the Corporation or by a member of a controlled group of
corporations or trades or businesses of which the Corporation is a member for
the benefit of employees of the Corporation and/or any Subsidiary, or any
trust or custodial arrangement established in connection with any such plan,
not specifically allocated to such Person's personal account.
(d) The term "Business Combination" shall mean any transaction that is
referred to in any one or more of the following paragraphs (i) through (vi):
(i) any merger or consolidation of the Corporation or any Subsidiary
with (A) any Interested Shareholder or (B) any other entity (whether or not such
other entity is itself an Interested Shareholder) which is, or after such merger
or consolidation would be, an Affiliate or Associate of any Interested
Shareholder;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder of any assets of the Corporation or any Subsidiary
13
having an aggregate Fair Market Value equal to five percent (5%) or more of the
total assets of the Corporation or the Subsidiary in question as of the end of
its most recent fiscal year ending prior to the time the determination is being
made;
(iii) 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 Shareholder or any Affiliate or
Associate of any Interested Shareholder having an aggregate Fair Market Value
equal to twenty percent (20%) or more of the aggregate Fair Market Value of all
of the outstanding Capital Stock other than on a pro rata basis to all holders
of Voting Stock and other than in connection with the exercise or conversion of
securities issued pro rata that are exercisable for, or convertible into,
securities of the Corporation or any Subsidiary;
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any Interested
Shareholder or any Affiliate or Associate of any Interested Shareholder;
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or consolidation
of the Corporation with any Subsidiary or any other transaction (whether or not
with or into or otherwise involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of equity or convertible securities of
the Corporation or any Subsidiary that is directly or indirectly owned by any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder, 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 or series of equity or
convertible securities; or
(vi) the acquisition by the Corporation or a Subsidiary of any
securities of an Interested Shareholder.
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 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 receipt of
such consideration.
(e) "Consummation Date" shall mean the date of the consummation of the
Business Combination.
(f) "Determination Date" shall mean the date on which the Interested
Shareholder became an Interested Shareholder.
(g) "Disinterested Director" shall mean any member of the Board of the
Corporation who is not affiliated with the Interested Shareholder and who
either was a member of the Board prior to the Determination Date or was
recommended for election by a majority of the
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Disinterested Directors in office at the time such director was nominated for
election.
(h) "Fair Market Value" shall mean (i) in the case of stock, the
highest closing price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for New York Stock
Exchange listed stocks, or, if such stock is not quoted on such Composite
Tape or if such stock is not listed on such Exchange, then on the principal
United States securities exchange registered under the Exchange Act, on which
such stock is listed, or, if such stock is not listed on any such exchange,
then the highest closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the Nasdaq Stock
Market or any system then in use, or if no such quotation is available, then
the fair market value on the date in question of a share of such stock as
determined in good faith by a majority of the Disinterested Directors then in
office, 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 (ii) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in good
faith by a majority of the Disinterested Directors then in office.
(i) References 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.
(j) "Interested Shareholder" shall mean any Person (other than the
Corporation, any parent of the Corporation, any Subsidiary or any pension,
profit-sharing, stock bonus or other compensation plan maintained by the
Corporation or by a member of a controlled group of corporations or trades or
businesses of which the Corporation is a member for the benefit of employees
of the Corporation, any parent of the Corporation or any Subsidiary, or any
trust or custodial arrangement established in connection with any such plan
or holding Voting Stock for the purpose of funding any such plan or funding
employee lending for employees of the Corporation or any Subsidiary) who or
which:
(i) is the beneficial owner of ten percent (10%) or more of the Voting
Stock;
(ii) 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 of ten percent (1 0%) or more of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock that were at any time within the two-year period immediately
prior to the date in question beneficially owned by any other Interested
Shareholder, 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.
15
In determining whether a Person is an Interested Shareholder pursuant to
this subsection (j), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
subsection (c) of this Section 3, but shall not include any other shares of
Voting Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(k) "Person" shall mean any corporation, partnership, trust,
unincorporated organization or association, syndicate, any other entity or a
natural person, together with any Affiliate or Associate of such person or
any other person acting in concert with such person (which shall include,
without limitation, persons seeking to combine or pool their voting or other
interests in the Voting Stock for a common purpose, pursuant to any contract,
understanding, relationship, agreement or otherwise, but shall not include
the directors or officers of the Corporation acting solely in their
capacities as such).
(l) "Subsidiary" shall mean any corporation of which a majority of any
class or series of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in subsection (j) of this Section 3, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class or series of voting securities is owned, directly or indirectly, by the
Corporation.
(m) "Voting Stock" shall mean all of the outstanding shares of Capital
Stock entitled to vote generally in the election of directors.
Section 4. Powers of The Disinterested Directors. When it appears that
a particular Person may be an Interested Shareholder and that the provisions
of this Article VII need to be applied or interpreted, then a majority of the
directors of the Corporation who would qualify as Disinterested Directors
shall have the power and duty to interpret all of the terms and provisions of
this Article VII and to determine on the basis of information known to them
after reasonable inquiry all facts necessary to ascertain compliance with
this Article VII, including, without limitation, (a) whether a Person is an
Interested Shareholder, (b) the number of shares of Voting Stock beneficially
owned by any Person, (c) whether a Person is an Affiliate or Associate of
another, (d) the Fair Market Value of (i) the assets that are the subject of
any Business Combination, (ii) the securities to be issued or transferred by
the Corporation or any Subsidiary in any Business Combination, (iii) the
consideration other than cash to be received by holders of shares of any
class or series of Common Stock or Voting Stock other than Common Stock in
any Business Combination, (iv) the outstanding Capital Stock or (v) any other
item the Fair Market Value of which requires determination pursuant to this
Article VII and (e) whether all of the applicable conditions set forth in
Section 2 of this Article VII have been met with respect to any Business
Combination.
Any constructions, applications, or determinations made by the Board
pursuant to this Article VII, 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 shareholders,
and neither the Corporation nor any of its shareholders shall have the right
to challenge any such construction, application or determination.
16
Section 5. Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article VII shall be construed to relieve any
Interested Shareholder from any fiduciary obligations imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions
of this Restated Organization Certificate 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 Restated Organization Certificate or any Preferred
Stock Designation, the affirmative vote of the holders of at least 80 percent
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 V 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 V.
Article VIII
Indemnification
SECTION 1. Right to Indemnification. The Corporation shall, to the
maximum extent authorized or permitted and in the manner provided by the
Banking Law and any applicable federal law, indemnify any person who is made,
or threatened to be made, a party to any action, suit or proceeding, whether
civil, criminal or administrative, by reason of the fact that such person, or
such person's testator or intestate, is or was a trustee, director or officer
of the Corporation or one of the Corporation's subsidiaries, or any
predecessor of the Corporation, or serves or served any other corporation, or
any partnership, association, joint venture, trust, employee benefit plan,
conference or other group or enterprise in any capacity at the request of the
Corporation or one of the Corporation's subsidiaries, or any predecessor of
the Corporation, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and reasonably
incurred, and the Corporation shall advance any related expense in full.
Employees or agents of the Corporation may be similarly indemnified. Such
right of indemnification and advancement shall be in addition to and not
exclusive of any other rights or remedies to which such person may be or
become entitled under any statute, insurance policy, agreement, bylaw or
otherwise.
SECTION 2. Accrual of Right to Indemnification. In addition to the
Corporation's obligation to indemnify under Section 1 of this Article VIII,
the Corporation's obligation to indemnify, and any person's right to
indemnification, under this Article VIII shall accrue as of the time of the
accrual of the cause of action asserted in the threatened or pending action,
suit, or proceeding, and no subsequent change in this Restated Organization
Certificate or the bylaws of the Corporation shall have any effect on the
Corporation's obligation to indemnify or a person's right to indemnification.
The provisions of this Article VIII shall be deemed to be a contract between
the Corporation and each director, trustee and officer of the Corporation who
serves in such capacity at any time while this Article VIII is in effect, and
any subsequent change of this Article VIII shall not affect the rights or
obligations then existing with respect to any state of facts then or
theretofore existing as it relates to any action or proceeding therefore or
thereafter
17
brought or threatened based in whole or in part upon any such state of facts.
SECTION 3. Individual Indemnification Agreements. In addition to the
Corporation's obligation to indemnify under Sections 1 and 2 of this Article
VIII, the Board may also, to the maximum extent permitted by law, in its
discretion, approve agreements between the Corporation and one or more
directors, officers or employees of the Corporation under which the
Corporation would indemnify such directors, officers and employees in the
event that any such person is made, or threatened to be made, a party to any
action or proceeding, whether civil, criminal or administrative, by reason of
the fact that such person is or was a trustee, director, officer or employee
of the Corporation or one of the Corporation's subsidiaries, or any
predecessor of the Corporation, or serves or served any other corporation, or
any partnership, association, joint venture, trust, employee benefit plan,
conference or other group or enterprise in any capacity at the request of the
Corporation or one of the Corporation's subsidiaries, or any predecessor of
the Corporation, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and reasonably
incurred.
SECTION 4. Insurance. The Corporation may, but shall not be obliged to,
purchase and maintain insurance on behalf of any person who is or was a
director, trustee or officer of the Corporation or is or was serving at the
request of the Corporation as a director, trustee or officer of another
corporation of any type or kind, domestic or foreign, against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under the provisions of this Article VIII.
SECTION 5. Subsequent Amendment and Subsequent Legislation. Neither the
amendment, termination or repeal of this Article VIII or of relevant
provisions of the Banking Law or any other applicable laws, nor the adoption
of any provision of this Restated Organization Certificate or the bylaws of
the Corporation or of any statute inconsistent with this Article VIII shall
eliminate, affect or diminish in any way the rights of any trustee, director,
officer, employee or agent of the Corporation to indemnification under the
provisions of this Article VIII with respect to any action, suit or
proceeding arising out of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such amendment, termination or
repeal.
If the Banking Law is amended to expand further the indemnification
permitted to trustees, directors, officers, employees or agents of the
Corporation, then the Corporation shall indemnify such persons to the fullest
extent permitted by the Banking Law as so amended.
Article IX
Amendments
SECTION 1. Amendments of Restated Organization Certificate. In addition
to any affirmative vote required by applicable law and any voting rights
granted to or held by holders of shares of Preferred Stock, any alteration,
amendment, repeal or rescission (collectively, any "Change") of any provision
of this Restated Organization Certificate must be approved by a
18
majority of the directors of the Corporation then in office and by the
affirmative vote of the holders of a majority (or such greater proportion as may
otherwise be required pursuant to any specific provision of this Restated
Organization Certificate) of the total votes eligible to be cast by the holders
of all outstanding shares of Capital Stock entitled to vote thereon; provided,
however, that if any such Change relates to Section 5 of Article VIII or
Articles IV, V, VI or IX of this Restated Organization Certificate, such Change
must be approved either (i) by not less than a majority of the authorized number
of directors and, if one or more Interested Shareholders (as defined in Article
VII hereof) exist, by not less than a majority of the Disinterested Directors
(as defined in Article VII hereof), or (ii) by the affirmative vote of the
holders of not less than two-thirds of the total votes eligible to be cast by
the holders of all outstanding shares of Capital Stock entitled to vote thereon
and, if the Change is proposed by or on behalf of an Interested Shareholder or a
director who is an Affiliate or Associate (as such terms are defined in Article
VII hereof) of an Interested Shareholder, by the affirmative vote of the holders
of not less than a majority of the total votes eligible to be cast by the
holders of all outstanding shares of Capital Stock entitled to vote thereon not
beneficially owned by an Interested Shareholder or an Affiliate or Associate
thereof. Subject to the foregoing, the Corporation reserves the right to amend
this Restated Organization Certificate from time to time in any and as many
respects as may be desired and as may be lawfully contained in an original
organization certificate filed at the time of making such amendment.
Except as may otherwise be provided in this Restated Organization
Certificate, the Corporation reserves the right at any time, and from time to
time, to amend, alter, change or repeal any provision contained in this
Restated Organization Certificate, and to add or insert herein any other
provisions authorized by the laws of the State of New York at the time in
force, in the manner now or hereafter prescribed by law, and all rights,
preferences and privileges of any nature conferred upon shareholders,
directors or any other persons whomsoever by and pursuant to this Restated
Organization Certificate in its present form or hereafter amended are granted
subject to the rights reserved in this Section.
Section 2. Amendments Of Bylaws. The bylaws of the Corporation, except
as provided by applicable law or this Restated Organization Certificate, or
as otherwise provided by the bylaws, may be amended or repealed by the Board
or by vote of the shareholders entitled to vote in the election of directors;
provided, however, that no amendment to the bylaws shall be made by the Board
unless notice of the proposed amendment shall have been given at the previous
meeting of the Board.
FOURTH, This amendment and restatement of the Restated Organization
Certificate was authorized by a majority vote of the members of the Board of
Trustees of the Corporation.
IN WITNESS WHEREOF, we have made, signed and acknowledged this
certificate in duplicate, this ____ day of _________________, 1998.
-----------------------------
Wesley D. Stisser
19
President and
Chief Executive Officer
Acknowledged by:
-----------------------------
Sandy F. Samson
Corporate Secretary
20
STATE OF NEW YORK )
)ss.:
COUNTY OF CORTLAND )
On the __ day of ________________, 1998, before me personally came Wesley
D. Stisser and Sandy F. Samson, to me known and known to me to be the individual
described in and who executed the foregoing instrument, and they duly
acknowledged to me that they executed the same.
-----------------------------
Notary Public
21