Exhibit 3(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF STERLING BANCORP
Under Section 807 of the
Business Corporation Law
Pursuant to the provisions of Section 807 of the Business Corporation Law,
the undersigned hereby certify:
FIRST: The name of the Corporation is STERLING BANCORP and the name under
which it was originally incorporated was STANDARD PRUDENTIAL UNITED CORPORATION.
SECOND: The Certificate of Incorporation of the Corporation was filed by
the Department of State of the State of New York on the 6th day of May, 1966.
THIRD: The Restated Certificate of Incorporation was duly authorized by
the vote of a majority of the members of the Board of Directors of the
Corporation.
FOURTH: The text of the Certificate of Incorporation is restated by this
Certificate without amendment or change to read as herein set forth in full as
follows:
ARTICLE FIRST: The name of the corporation is STERLING BANCORP (the
"Corporation").
ARTICLE SECOND: The purposes for which the Corporation is formed are as
follows:
1. To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own, use, operate, install, maintain, service, repair,
process, alter, improve, import, export, sell, exchange, barter, distribute,
mortgage, lease, assign, transfer and generally to trade and deal in and with,
at wholesale or retail, all goods, wares, merchandise, textiles, raw materials,
natural or manufactured articles or products, machinery, equipment, devices,
systems, parts, supplies, apparatus and personal property of every kind, nature
or description, tangible or intangible, used or capable of being used for any
purpose whatsoever and to engage, finance and participate in any mercantile,
manufacturing, commercial, industrial or trading business of any kind or
character in any part of the world.
2. To adopt, apply for, obtain, register, purchase, lease or otherwise
acquire and to maintain, protect, hold, use, own, exercise, develop, manufacture
under, operate and introduce, and to sell and grant licenses or other rights in
respect of, assign, or otherwise dispose of, turn to account, or in any manner
deal with and contract with reference to, any trademarks, trade names, patents,
patent rights, concessions, franchises, designs, copyrights and distinctive
marks and rights analogous thereto, and inventions, devices, improvements,
processes, secret or otherwise, recipes, formulae and the like,
39
Exhibit 3(i)
including such thereof as may be covered by, used in connection with, or secured
or received under, Letters Patent of the United States of America or elsewhere,
and any licenses in respect thereof and any or all rights connected therewith or
pertaining thereto; and with a view to the working and development thereof, to
carry on any business which the Corporation may consider calculated, directly or
indirectly, to effectuate the use, exercise or development thereof.
3. To subscribe for, purchase, acquire, hold, own or become interested in,
whether by subscription, purchase, underwriting, loan, participation in
syndicates or otherwise, to sell, assign, transfer, mortgage, pledge or
otherwise dispose of, or in any manner to deal in or with, and in furtherance of
its corporate business and subject to the limitations prescribed by statute to
guarantee, stocks, bonds, debentures, warrants, rights, scrip, notes, evidences
of indebtedness, or other shares, securities or obligations of any kind by
whomsoever issued whatsoever in any part of the world or of any government,
domestic or foreign, to exercise in respect thereof all powers and privileges of
individual ownership or interest therein, including the right to vote thereon
for any and all purposes; to consent or otherwise act with respect thereto,
without limitations, including the doing of all acts necessary or advisable for
the protection, improvement, preservation and enhancement thereof; and to issue
in exchange therefor or in payment thereof the Corporation's own shares, bonds,
debentures, warrants, rights, scrip, notes, evidences of indebtedness or other
shares, securities or obligations of any kind by whomsoever issued.
4. In furtherance of its corporate business and subject to the limitations
prescribed by statute, to acquire by purchase, exchange or otherwise, all or any
part of, or any interest in, the properties, assets, franchises, business and
good will of any one or more corporations, associations, partnerships, firms,
syndicates or individuals and to pay for the same in cash, property or its own
or other securities, shares or obligations of any kind by whomsoever issued; to
hold, operate, reorganize, liquidate, mortgage, pledge, sell, exchange, or in
any manner dispose of the whole or any part thereof; and in connection
therewith, to assume or guarantee performance of any liabilities, obligations or
contracts of corporations, associations, partnerships, firms, syndicates or
individuals.
5. In furtherance of its corporate business, to act as financial or
business agent, general or special, for domestic and foreign corporations,
individuals, partnerships or associations; to promote, or participate as a
partner, member, agent, principal, shareholder, associate, manager or otherwise,
in any business, enterprise or venture and to organize, to the extent permitted
by law, other corporations, firms, partnerships and associations of any type or
kinds, and to wind up, liquidate, reorganize, merge or consolidate any such
corporation, firm, partnership or association or cause the same to be dissolved,
wound up, liquidated, reorganized, merged or consolidated.
6. To purchase, hire, lease or otherwise acquire, manage, improve,
develop, operate, maintain, sell, exchange, assign, transfer, convey, mortgage,
lease or otherwise dispose of, any interest, estate or right in real property,
improved or unimproved, and to erect or cause to be erected thereon buildings or
other structures with their appurtenances, and to rebuild and enlarge, alter and
improve any buildings or other structures now or hereafter erected on any such
real property and otherwise to deal in, establish, promote, reorganize, carry
on, finance, conduct and manage any and all interests in real property.
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Exhibit 3(i)
7. To transact a general real estate agency and brokerage business in
buying, selling and dealing in real estate and real property, and any interest
and estates therein, on commission and renting and managing real estate; and to
carry on any other lawful trade or business incident to or proper or useful in
connection with the promotion, development, purchase, sale, ownership,
construction, maintenance and management of real property.
8. To act as factor or selling agent for manufacturers, merchants, and
others; to buy, sell, make advances against, and otherwise deal in, accounts and
other receivables; to make advances on the security of merchandise or other
personal property, including but not limited to trust receipts, conditional
bills of sale, chattel mortgages, and factor's liens; to make loans, secured and
unsecured; to finance, factor, purchase or make advances on the security of
accounts receivable; to purchase or otherwise acquire, with or without recourse,
commercial paper of all kinds, including without limitation conditional sales
contracts, chattel mortgages, chattel leases, installment paper and trust
receipts.
9. To make loans and advances on personal property and to buy, sell and
deal in, with or without guarantee of payment thereof, securities which are
liens on personal property; to make unsecured loans to corporations, firms or
other persons; to purchase or otherwise acquire, with or without recourse, the
promissory notes or other securities of any person, firm or corporation; to buy,
sell and deal in, with or without guarantee of payment thereof, bonds, mortgages
and other like securities which are liens on real property.
10. To erect, construct, maintain, improve, rebuild, enlarge, alter,
manage and control any and all kinds of buildings, houses, hotels, stores,
offices, warehouses, mills, shops, factories, machinery and plants, and any and
all other structures and erections which may at any time be necessary, useful or
advantageous for the purposes of the Corporation.
11. To carry on business as depositories, warehousemen or custodians of
goods, wares and merchandise, and to issue therefor receipts negotiable or
otherwise.
12. To purchase and acquire bills, notes and accounts receivable.
13. To purchase and acquire bonds and mortgages which are liens on real or
personal property.
14. To make, and enter into, contracts of every name and nature pertaining
to the business herein set forth with any individual, firm, association or
corporation, private, public or municipal, and with the Government or public
authorities of the United States, or of any State or political subdivision
thereof, and with any foreign government.
15. To borrow or raise money for any of the objects and purposes of the
Corporation, to secure the same and the interest thereon, and for that or any
other purpose to mortgage or charge all or any part of the present or
after-acquired property, rights and franchises of the Corporation, and to issue,
sell, pledge, or otherwise dispose of notes, bonds, debentures and other
evidences of indebtedness of the Corporation.
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Exhibit 3(i)
16. In furtherance of its corporate purposes, to guarantee the payment of
dividends or sinking fund payments upon any capital shares of any corporation in
which the Corporation may at any time have an interest; and to become surety in
respect of and to endorse or guarantee the payment, of the principal of or
interest on any notes, debentures, bonds, securities or other obligations issued
by others, and to become surety for or to guarantee the performance of any and
all contracts, leases and obligations of every kind of any other person.
17. To carry out all phases of the business of acquiring, manufacturing,
treating, refining, liquefying or otherwise preparing for market, transporting,
marketing, dealing in, buying and selling, exporting and importing, storing, or
otherwise disposing of oil of any and all kinds and grades, natural or
artificial gas of any and all forms, gasoline, other hydrocarbon products,
chemicals, petrochemicals, rock salt, salts, fertilizers, and any and all other
minerals and mineral substances, and the elements, constituents, products,
by-products, mixtures, combinations, compounds, derivatives and blends thereof
but not to sell gas to consumers.
18. To obtain by contract or concession, purchase, or otherwise acquire,
own, use, develop, explore, operate, lease, mortgage, create liens upon, deal
and trade in, sell, lease or otherwise dispose of any and all lands, real
property, mining claims, mineral rights, gas and oil wells, leases, concessions,
licenses, royalty interests, grants, rights of way, land patents, franchises,
deposits, water rights, wells, mines, quarries, claims, easements, tenements,
hereditaments, and interests of every description and nature whatsoever.
19. To build, purchase, lease or otherwise acquire, own, develop, operate,
mortgage, create liens upon, deal in, sell, lease or otherwise dispose of
transportation facilities, including cars, trucks, tank cars, distribution lines
and plants, pumping and compressing stations, terminals, aircraft, tankers and
other vessels or ships of any kind, and any and all related facilities and any
and all kinds of refineries, tanks and other storage facilities.
20. To purchase or acquire from any of the officers, directors or
shareholders of the Corporation any property, interests or capital shares, and
other assets belonging to them or any of them which the Board of Directors of
this Corporation may deem it advisable to acquire.
21. To purchase, receive, take or otherwise acquire, own, hold, sell,
lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal
in and with its own shares.
22. To sell or exchange all or any part of the property, assets, goodwill
and undertakings of the Corporation and to accept in payment or exchange
therefor lawful moneys, or the capital shares, bonds or other securities of any
other corporation, either domestic or foreign.
42
Exhibit 3(i)
23. To carry out all or any part of the foregoing objects, or any other
business or object permitted by law, as principals or agents, or in conjunction
with any other persons, firm, association or corporation, and in any part of the
world, and to do all such acts and other things as are incidental or conducive
to the attainment of the above objects and the welfare of the business to be
conducted.
For the accomplishment of the aforesaid purposes and in furtherance
thereof the Corporation shall have and may exercise all of the powers conferred
by the Business Corporation Law upon corporations formed thereunder subject to
any limitations contained in Article 2 of said law and in accordance with the
provisions of the statutes of the State of New York.
ARTICLE THIRD: The office of the Corporation in the State of New York is
to be located in the City and County of New York.
ARTICLE FOURTH: (1) The aggregate number of shares which the Corporation
shall have authority to issue is 50,644,389 divided into 644,389 Preferred
Shares of the par value of $5.00 per share, and 50,000,000 Common Shares of the
par value of $1.00 per share.
(2) The Corporation may issue its shares having par value and its
authorized shares without par value, from time to time, for such consideration
as from time to time may be fixed by the Board of Directors. The shares having
par value shall not be issued for a consideration less than the aggregate par
value thereof.
(3) No holder of shares of any class of the Corporation, whether now or
hereafter authorized, shall be entitled, as such, as a matter of right to any
right, whether preferential, preemptive or otherwise, to subscribe for or
purchase any shares of any class of the Corporation, whether now or hereafter
authorized, or any bonds, notes, obligations, options, warrants or other
securities which the Corporation may at any time issue and whether or not the
same shall be convertible into or exercisable for the purchase of shares of any
class of the Corporation.
ARTICLE FIFTH: The relative rights, preferences and limitations of the
shares of each class and each series thereof, insofar as the same are to be
fixed in the Certificate of Incorporation, shall be as follows:
Section One: Preferred Shares
A. Dividends. The holders of Preferred Shares (which may be issued from
time to time in one or more series, having such number of shares and such
designation, relative voting, dividend, conversion, liquidation and other
rights, preferences and limitations as may be fixed by the Board of Directors
before issuance thereof pursuant to ARTICLE SIXTH) of each series shall be
entitled to receive, as and when declared by the Board of Directors out of funds
or other assets legally available therefor, dividends or other distributions
payable in cash, shares, bonds or property fixed by the Board of Directors with
respect to each such series and no more. The first dividend or distribution with
respect to shares of any particular series not issued on a dividend date may be
fixed
43
Exhibit 3(i)
by the Board of Directors at less than the regular periodic dividend or
distribution. If a dividend or other distribution declared on any Preferred
Shares shall be in arrears, the holders thereof shall not be entitled to any
interest or sum of money in lieu of interest thereon. So long as any Preferred
Shares remain outstanding, no dividend whatever shall be paid or declared, nor
shall any distribution be made, on any junior shares other than a dividend
payable in junior shares, unless all dividends or other distributions declared
on the Preferred Shares for all past dividend periods shall have been paid or
distributed or assets sufficient for the payment or distribution thereof set
apart. Subject to the foregoing provisions, and not otherwise, such dividends
(payable in cash, shares, bonds or other property) as may be determined by the
Board of Directors may be declared and paid or distributed on any junior shares
from time to time out of the remaining surplus of the Corporation legally
available for the payment of dividends, and the Preferred Shares shall not be
entitled to participate in any such dividends, whether payable in cash, shares,
bonds or other property.
B. Dissolution, Liquidation and Winding-Up. Upon any dissolution,
liquidation or winding-up of the Corporation, whether voluntary or involuntary,
and upon any distribution of the assets of the Corporation other than by way of
dividends, the holders of each series of Preferred Shares shall be entitled,
before any distribution or payment is made upon any junior shares, to be paid
the amount of cash, shares, bonds or other property to which each such
outstanding series of Preferred Shares shall be entitled in accordance with the
provisions thereof; the holders of Preferred Shares shall not be entitled to any
further payment or distribution. After such payment or distribution to holders
of Preferred Shares of the full amount of cash, shares, bonds or other property
to which they shall be entitled, or after an amount sufficient to pay the
aggregate amount to which the holders of Preferred Shares shall be so entitled
shall have been deposited by the Corporation with a bank or trust company doing
business in the Borough of Manhattan, City and State of New York, having
capital, surplus and undivided profits aggregating at least $25,000,000
according to its last published statement of condition, in trust for the account
of the holders of the Preferred Shares, the holders of Preferred Shares as such
shall have no right or claim to any of the remaining net assets of the
Corporation which may be distributed to the holders of junior shares. Neither
the consolidation or merger of the Corporation into or with any other
corporation or corporations, nor the sale or transfer by the Corporation of all
or any part of its assets, nor the reduction of the capital stock or stated
capital of the Corporation shall be deemed to be a dissolution, liquidation,
distribution of assets or winding-up for purposes hereof.
C. Redemption. In the event that any series of Preferred Shares shall be
made redeemable, by action of the Board of Directors as contemplated in ARTICLE
SIXTH hereof, the Corporation, at the option of the Board of Directors, may
redeem at any time or times, and from time to time, all or any part of the
Preferred Shares, or all or any part of any one or more series of Preferred
Shares outstanding, upon notice duly given as hereinafter specified in this
ARTICLE FIFTH, by paying or distributing to the holder of each share the then
applicable redemption price fixed by the Board of Directors pursuant to ARTICLE
SIXTH. In case of redemption of a part, but not all, of any series of Preferred
Shares at the time outstanding, the Corporation shall designate by lot the
shares so to be redeemed in such manner as shall be determined by the Board of
Directors.
44
Exhibit 3(i)
D. Voting Rights. Except as otherwise expressly provided in the
certificate filed pursuant to law with respect to any series of Preferred
Shares, or as otherwise required by law, the Preferred Shares shall not have any
right to vote for the election of directors or for any other purpose and the
Preferred Shares shall not be entitled to notice of any meeting of shareholders
unless required by law.
E. Definitions. The term "junior shares" shall mean the Common Shares and
any other shares ranking junior to the Preferred Shares in respect of the
payment of dividends or other distributions in cash, shares, bonds or other
property, or of payment or distribution in liquidation.
Section Two: General Provisions Concerning Redemption
In case of redemption of any class of shares of the Corporation, or any
part thereof, notice of such redemption shall be mailed, postage prepaid, at
least thirty (30) days prior to the date fixed for such redemption to the
holders of record of the shares so to be redeemed at their respective addresses
as the same shall appear on the books of the Corporation. If such notice of
redemption shall have been duly given or if the Corporation shall have given to
the bank or trust company hereinafter referred to irrevocable authorization
promptly to give such notice, and if on or before the redemption date specified
therein the funds necessary for such redemption shall have been deposited by the
Corporation with a bank or trust company, designated in such notice, doing
business in the Borough of Manhattan, City and State of New York, having
capital, surplus and undivided profits aggregating at least $25,000,000
according to its last published statement of condition, in trust for the
pro-rata benefit of the holders of the shares so called for redemption, then,
notwithstanding that any certificate for shares so called for redemption shall
not have been surrendered for cancellation, from and after the time of such
deposit all shares so called for redemption shall no longer be deemed to be
outstanding and all rights with respect to such shares shall forthwith cease and
terminate, except only the right of the holders thereof to receive from such
bank or trust company at any time after the time of such deposit the funds so
deposited without interest, and the right to exercise privileges of exchange or
conversion, if any, on or before the date fixed for redemption or such earlier
date as may be fixed for the expiration thereof. Any interest accrued on such
funds shall belong to the Corporation and be paid to it from time to time. Any
funds so deposited by the Corporation which shall not be required for such
redemption because of the exercise of any such right of conversion or exchange
subsequent to the time of such deposit, shall be released or repaid to the
Corporation forthwith. Any funds so deposited and unclaimed at the end of six
years from such redemption date shall be released or repaid to the Corporation,
after which the holders of the shares to be called for redemption shall look
only to the Corporation for payment thereof.
ARTICLE SIXTH: Preferred Shares may be issued from time to time in one or
more series and the Board of Directors may fix from time to time before issuance
thereof, by filing a certificate under Section 805 of the Business Corporation
Law, the number of shares in any or all series of such class and any or all of
the designations, relative voting, dividend, liquidation and other rights
(including the right to convert into shares of any class or into shares of any
series of any class, except into a class of shares having rights
45
or preferences as to dividends or distribution of assets upon liquidation which
are prior or superior in rank to those of the shares being converted),
preferences and limitations of the shares in any and all series, subject to the
limitation that, if the stated dividends and amounts payable on liquidation are
not paid in full, the shares of all series of Preferred Shares shall share
ratably in the payment of dividends including accumulations, if any, in
accordance with the sums which would be payable on said shares if all dividends
were declared and paid in full; and in any distribution of assets other than by
way of dividends in accordance with the sums which would be payable on such
distribution if all sums payable were discharged in full.
ARTICLE SEVENTH: The Secretary of State of the State of New York is hereby
designated as agent of the Corporation upon whom process against the Corporation
may be served. The post office address to which the Secretary of State shall
mail a copy of any process served upon him is C/O THE CORPORATION, 650 FIFTH
AVENUE, NEW YORK, NEW YORK 10019.
ARTICLE EIGHTH: The duration of the Corporation shall be perpetual.
ARTICLE NINTH: The following provisions are inserted for the regulation
and conduct of the affairs of the Corporation and it is expressly provided that
they are intended to be in furtherance and not in limitation or exclusion of the
powers conferred by statute.
(a) The Board of Directors by resolution adopted by a majority of the
entire Board may designate from among its members one or more committees each
consisting of three or more directors. Each such committee to the extent
provided in such resolution or the By-Laws, and except as otherwise limited by
statute, shall have all the authority of the Board of Directors. The Board may
designate one or more directors as alternate members of any such committee who
may replace any absent member or members at any meeting of such committee. Each
such committee shall serve at the pleasure of the Board.
(b) The Corporation may have one or more offices within or without the
State of New York and may keep the books of the Corporation, subject to the
provisions of the laws of the State of New York, at such place or places within
or without the State of New York as the Board of Directors shall from time to
time determine.
(c) The Board of Directors shall from time to time decide whether and to
what extent and at what times and under what conditions and requirements the
accounts and books of the Corporation, or any of them, except the stock book,
shall be open to the inspection of the shareholders, and no shareholder shall
have any right to inspect any books or documents of the Corporation except as
conferred by the laws of the State of New York or authorized by the Board of
Directors.
(d) The Board of Directors shall have power from time to time to fix and
determine and vary the amount of the working capital of the Corporation and to
direct and determine the use and disposition of any surplus or net profits over
and above stated capital, and in its discretion the Board of Directors may use
and apply any such surplus or
46
Exhibit 3(i)
accumulated profits in purchasing or acquiring bonds or other obligations of the
Corporation or of its own capital shares, to such extent and in such manner and
upon such terms as the Board of Directors shall deem expedient, and any such
capital shares so purchased or acquired may be resold (except as otherwise
provided in the Certificate of Incorporation as from time to time amended)
unless such shares shall have been retired in the manner provided by law.
(e) Subject to the provisions of the Business Corporation Law, any and all
directors may be removed for cause or without cause by vote of the shareholders
entitled to vote. Except as otherwise provided by said Law or by the Certificate
of Incorporation, any director or directors may be removed for cause by the
vote, at a meeting of the Board, of a majority of the directors present at the
time of the vote, if a quorum be then present. In the event any vacancies occur
in the Board by reason of the removal of directors by shareholders without
cause, such vacancies may be filled by the vote, at any meeting of the Board, of
a majority of the directors present at the time of the vote, provided a quorum
be then present.
(f) The Board of Directors may issue from time to time bonds of the
Corporation, both convertible and non-convertible, in one or more series and may
fix from time to time before issuance thereof the designations, principal
amounts, relative rights and limitations of any and all series thereof and the
Board of Directors may confer upon the holders of any or all series of bonds the
right to vote in the election of directors and on any other matters on which
shareholders may vote and may otherwise limit or define the respective voting
powers of any and all series thereof.
(g) (i) No contract or other transaction between the Corporation and one
or more of its directors, or between the Corporation and any other corporation,
firm, association or other entity in which one or more of its directors are
directors or officers, or are financially interested, shall be either void or
voidable for this reason alone or solely by reason of the fact that such
director or directors are present at the meeting of the Board, or of a committee
thereof, which authorizes such contract or transaction, or that his or their
votes are counted for such purpose:
(1) If the fact of such common directorship, officership or
financial interest is disclosed or known to the Board or committee, and
the Board or committee authorizes such contract or transaction by a vote
sufficient for such purpose without counting the vote or votes of such
interested director or directors;
(2) If such common directorship, officership or financial interest
is disclosed or known to the shareholders entitled to vote thereon, and
such contract or transaction is approved by vote of the shareholders; or
(3) If the contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a committee or the
shareholders.
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Exhibit 3(i)
(ii) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board or of a committee which
authorizes such contract or transaction.
(iii) The Board shall have authority to fix the compensation of directors
for services in any capacity.
(h) The By-Laws of the Corporation may be amended, repealed or adopted by
vote of the holders of shares at the time entitled to vote in the election of
any directors. The By-Laws may also be amended, repealed or adopted by the Board
of Directors provided, however, that any By-Law adopted or amended by the Board
may be amended or repealed by the shareholders entitled to vote thereon.
ARTICLE TENTH: No director of the Corporation shall be personally liable
to the Corporation or its shareholders for damages for any breach of duty in
such capacity, provided that nothing contained in this Article shall eliminate
or limit:
(a) The liability of any director if a judgment or other final
adjudication adverse to him establishes that his acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation of law or that
he personally gained in fact a financial profit or other advantage to which he
was not legally entitled or that his acts violated Section 719 of the New York
Business Corporation Law, or
(b) The liability of any director for any act or omission prior to the
adoption of the amendment including this paragraph in the Certificate of
Incorporation of the Corporation.
IN WITNESS WHEREOF, we have made, subscribed and acknowledged this Amended
and Restated Certificate of Incorporation this 26th day of October, 2004 and we
affirm the statements contained therein are true under the penalties of perjury.
/s/ Louis J. Cappelli
---------------------------
Louis J. Cappelli, Chairman
/s/ Monica Lercher
---------------------------
Monica Lercher, Secretary
Subscribed and sworn to before me this 26th day of October, 2004.
/s/ Vivian Rivera
---------------------
NOTARY PUBLIC
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