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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
COMMUNITY BANK SYSTEM, INC.(1)
The undersigned Incorporator, in order to form a corporation under the
General Corporation Law of the State of Delaware, certifies as follows:
1. Name. The name of the corporation is: Community Bank System,
Inc.(hereinafter called the "Corporation").
2. Address; Registered Agent. The address of the Corporation's registered
office in the State of Delaware is 100 West Tenth Street, City of Wilmington,
County of New Castle, State of Delaware; and the name of its registered agent at
such address is The Corporation Trust Company.
3. Purposes. The nature of the business and the purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. Number and Classes of Shares; Relative Rights, Preferences and
Limitations.
(a) The total number of shares of all classes of stock which the
Corporation shall have authority to issue is Twenty Million Five hundred
Thousand (20,500,000), of which Twenty Million (20,000,000) shares without par
value shall be Common Stock, and Five Hundred Thousand (500,000) shares of the
par value of One Dollar ($1.00) per share, amounting in the aggregate to Five
Hundred Thousand Dollars ($500,000.00), shall be Preferred Stock.
(b) The Preferred Stock may be issued from time to time in one or more
series for any
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(1) This Certificate of Incorporation has been restated in its entirety to
reflect amendments thereto.
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proper corporate purpose without further action by the stockholders. The
designation, number, preferences and other rights and limitations or
restrictions of the Preferred Stock of each series (other than such as are
stated and expressed herein) shall be such as may be fixed by the Board of
Directors (authority so to do being hereby expressly granted) and stated and
expressed in a resolution or resolutions adopted by the Board of Directors
providing for the initial issue of Preferred Stock of such series. Such
resolution or resolutions shall (i) fix the designation of such series, (ii) fix
the number of shares of stock which shall constitute the initial issue of such
series, (iii) fix the dividend rights of holders of stock of such series,
including the dividend rate or rates thereon, the time or times at which such
dividends shall be paid or payable, whether such dividends shall be cumulative,
and, if so, on what terms, (iv) fix the terms on which stock of such series may
be redeemed, including amounts payable upon redemption if the shares of such
series are to be redeemable, (v) fix the rights of the holders of stock of such
series upon dissolution, liquidation, any distribution of assets or winding up
of the affairs of the Corporation, (vi) fix the terms or amount of the sinking
fund, if any, to be provided for the purchase or redemption of stock of such
series, (vii) fix the terms upon which the stock of such series may be converted
into or exchanged for stock of any other class or classes or of any one or more
series of Preferred Stock, if the shares of such series are to be convertible or
exchangeable, (viii) fix the voting rights, if any, of the stock of such series
and (ix) fix such other powers, preferences, and relative, participating,
optional or other special rights of such series, and the qualifications,
limitations or restrictions of such preferences and/or rights desired to be so
fixed.
Except to the extent otherwise provided in the resolution or resolutions of
the Board of Directors providing for the initial issue of shares of a particular
series or expressly required by law, holders of shares of Preferred Stock of any
series shall not be entitled to vote such shares
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with respect to any matter which is put to a vote of the shareholders. The
number of shares of Preferred Stock which the Corporation shall have authority
to issue may be increased or decreased from time to time by the affirmative vote
of the holders of a majority of the stock of the Corporation entitled to vote,
and the holders of the Preferred Stock, if entitled to vote on any such increase
or decrease, shall not be entitled to vote separately as a class or series of a
class thereon.
All shares of any one series of Preferred Stock shall be identical with
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 shall
accumulate, and all series of Preferred Stock shall rank equally and be
identical in all respects except as specified In the respective resolutions of
the Board of Directors providing for the initial issue thereof. Subject to the
prior and superior rights of the Preferred Stock as set forth in any resolution
or resolutions of the Board of Directors providing for the initial issue of a
particular series of Preferred Stock, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be declared and
paid on the Common Stock from time to time out of any fund legally available
therefor, and the Preferred Stock shall not be entitled to participate in any
such dividend.
No holder of any class, or any series of a class, of stock of the
Corporation shall be entitled as a matter or right, preemptive or otherwise, to
subscribe for or purchase any part of any additional issue of stock of the
Corporation now or hereafter authorized to be issued or any securities of the
Corporation convertible into such stock or any shares of the Corporation held in
the treasury of the Corporation, whether issued for cash or other consideration
or by way of dividend or otherwise.
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5. Name and Address of Incorporator. The name and mailing address of the
Incorporator are: Edwin J. Lyons, 45-19 Court Street, Canton, New York 13617.
6. Directors; Election and Classification.
(a) Members of the Board of Directors may be elected either by written
ballot or by voice vote.
(b) The Board of Directors shall be divided into three (3) classes.
The number of directors of the first class shall equal one-third (1/3) of the
total number of directors as determined in the manner provided in the By-Laws,
with fractional remainders to count as one (1); the number of directors of the
second class shall equal one-third (1/3) of said total number of directors, or
the nearest whole number thereto; and the number of directors of the third class
shall equal said total number of directors minus the aggregate number of
directors of the first and second classes. At the election of the first Board of
Directors, the class of each of the members then elected shall be designated.
The term of office of each member then designated as a director of the first
class shall expire at the annual meeting of the stockholders next ensuing, that
of each member then designated as a director of the second class at the annual
meeting of stockholders one (1) year thereafter, and that of each member then
designated as a director of the third class at the annual meeting of
stockholders two (2) years thereafter. At each annual meeting of stockholders
held after the election and classification of the first Board of Directors,
directors shall be elected for a full term of three (3) years to succeed those
members whose terms then expire.
7. Adoption, Amendment and/or Repeal of Bylaws. The Board of Directors may
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from time to time (after adoption by the undersigned of the original By-Laws
of the Corporation) adopt, amend or repeal the By-Laws of the Corporation;
provided, that any By-Laws adopted, amended or repealed by the Board of
Directors may be amended or repealed, and any By-Laws may be adopted, by the
stockholders of the Corporation.
8. Compromise and Arrangements. Whenever a compromise or arrangement is
proposed between this Corporation and its creditors, or any class of them,
and/or between this Corporation and its stockholders, or any class of them, any
court of equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof, or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of Title 8 of
the Delaware Code, or on the application of trustees in dissolution or of any
receiver or receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths (3/4) in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
9. Limitation of Directors' Liability. A director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of
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fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the further
elimination of limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Delaware General Corporation Law. Any repeal or modification of this paragraph
by the stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
10. Business Combinations.
(A) A Business Combination (as defined) shall, in addition to any
Board or Shareholder approval required by the Delaware General Corporation Law,
require the affirmative vote of (1) a majority vote of the Board of Directors
and at least three-fourths (3/4) of the votes entitled to be cast by the holders
of all then-outstanding shares of common stock of the Corporation ("Common
Stock"), or (2) at least two-thirds (2/3) of the votes entitled to be cast by
said common stockholders if the Business Combination shall have been approved by
two-thirds (2/3) or more of the Continuing Directors (as defined), whether such
Directors' approval is given prior to or subsequent to the acquisition of
beneficial ownership of the Common Stock that caused the Interested Shareholder
(as defined) to become an Interested Shareholder.
(B) For the purposes of this Article:
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(1) The term "Business Combination" shall mean:
(a) any merger or consolidation of the Corporation or any
Subsidiary (as defined) 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 or with
any Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder involving any assets or securities of the Corporation or any
Subsidiary having an aggregate Fair Market Value of $3,000,000.00 or more; or
(c) 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
(d) 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 otherwise involving an Interested
Shareholder) that 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
beneficially owned by any Interested Shareholder or any Affiliate or Associate
of any Interested Shareholder; or
(e) any agreement, contract, or other arrangement providing
for
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any one or more of the actions specified in the foregoing clauses (a) to (d).
(2) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement, or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting, or disposing of Common Stock.
(3) The term "Interested Shareholder" shall mean any person
(other than the Corporation or any Subsidiary and other than any profit-sharing,
employee stock ownership or other employee benefit plan of the Corporation or
any Subsidiary or any trustee of or fiduciary with respect to any such plan when
acting in such capacity) who:
(a) is the Beneficial Owner of Common Stock representing
three percent or more of the votes entitled to be cast by the holders of all the
outstanding shares of Common Stock; or
(b) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the date in question
was the Beneficial Owner of Common Stock representing three percent or more of
the votes entitled to be cast by the holders of all then outstanding shares of
Common Stock; or
(c) is an assignee of or has otherwise succeeded to any
shares of Common Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have occurred in the course
of transactions not involving a public offering within the meaning of the
Securities Act of 1933.
(4) A person shall be a "Beneficial Owner" of any Common Stock
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(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly;
(b) which such person or any of its Affiliates or Associates
has, directly or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii) the right to
vote pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Common Stock.
For the purposes of determining whether a person is an
Interested Shareholder pursuant to this paragraph (B) (4), the number of shares
of Common Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of paragraphs (B)(5) and
(B)(6), but shall not include any other shares of Common Stock that may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(5) An "Affiliate" is a person that directly or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the person specified.
(6) The term "Associate" used to indicate a relationship with any
person means;
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(a) any corporation or organization (other than the
Corporation or a majority-owned subsidiary of the Corporation) of which such
person is an officer or partner or is, directly or indirectly, the beneficial
owner of ten percent or more of any class of equity securities;
(b) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as trustee or
in a similar fiduciary capacity; and
(c) any relative or spouse of such person, or any relative
of such spouse, who has the same home as such person or who is a director or
officer of the Corporation or any of its parents or subsidiaries.
(7) The term "Subsidiary" means any corporation of which a
majority of any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the definition of
Interested Shareholder set forth in paragraph (B) (4), the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is beneficially owned by the Corporation.
(8) The term "Continuing Director" means any member of the Board
of Directors of the Corporation (the "Board"), while such person is a member of
the Board, who is not an Affiliate or Associate or representative of an
Interested Shareholder and who was a member of the Board prior to the time that
the Interested Shareholder became an Interested Shareholder, and any successor
of a Continuing Director, while such successor is a member of the Board, who is
not an Affiliate or Associate or representative of the Interested Shareholder
and who is recommended or elected to succeed the Continuing Director by a
majority of Continuing Directors.
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(9) The term "Fair Market Value" means:
(a) in the case of cash, the amount of such cash;
(b) in the case of stock, the highest closing sale 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 listed on such Exchange, on the principal United States
securities exchange registered under the Act on which such stock is listed, or,
if such stock is not listed on any such exchange, 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 National Association of Securities
Dealers, Inc. Automated Quotations System or any similar system then in use, or
if no such quotations are available, the fair market value on the date in
question of a share of such stock as determined by a majority of the Continuing
Directors in good faith; and
(c) 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 Continuing Directors.
(C) The Board shall have the power and duty to determine for the
purposes of this Article, on the basis of information known to them after
reasonable inquiry,
(1) whether a person is an Interested Shareholder;
(2) the number of shares of Common Stock or other
securities beneficially owned by any person;
(3) whether a person is an Affiliate or Associate of
another; and
(4) whether the assets that are the subject of any
Business Combination have or the consideration to be received for the issuance
or transfer of
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securities by the Corporation or any Subsidiary in any Business Combination has,
an aggregate Fair Market Value of $3,000,000.00 or more.
Any such determination made in good faith shall be
binding and conclusive on all parties.
(D) Nothing contained in this Article shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
11. Amendments to Articles. Notwithstanding any other provisions of this
Certificate of Incorporation or the Bylaws of the Corporation, the affirmative
vote required to amend or repeal, or adopt any provisions inconsistent with,
Articles 6, 9, 10, or this Article 11 shall consist of (1) a majority vote of
the Board of Directors and of the holders of at least three-fourths (3/4) of the
votes entitled to be cast by the holders of all then-outstanding shares of
Common Stock, or (2) at least two-thirds (2/3) of the votes entitled to be cast
by said common stockholders if the amendment, repeal, or adoption shall have
been approved by at least two-thirds (2/3) of the Continuing Directors within
the meaning of paragraph (B)(8) of Article 10.
12. Prohibition on Action by Consent in Lieu of Meeting. All action which
is required by law or which may be taken at any annual or special meeting of the
stockholders of the Corporation shall be taken at a meeting and may not be taken
by consent or consents in lieu of a meeting.
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IN WITNESS WHEREOF, this Certificate has been signed on this 11th day of
April, 1983, and the signature of the undersigned shall constitute the
affirmation and acknowledgment of the undersigned, under penalties of perjury,
that the Certificate is the act and deed of the undersigned and that the facts
stated in the Certificate are true.(2)
/s/ Edwin J. Lyons
Edwin J. Lyons, Incorporator
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(2) This Certificate of Incorporation has been restated in its entirety to
reflect amendments thereto. This paragraph and the signature below are
those set forth on the original Certificate of Incorporation.
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