<PAGE>
This statement is intended to satisfy the requirements for an annual disclosure
statement as contained in Section 350.4(a) of the Federal Deposit Insurance
Corporation regulations. This statement has not been reviewed, or confirmed for
accuracy or relevance, by the Federal Deposit Insurance Corporation.
================================================================================
Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K/A
[X] Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1995
OR
[ ] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the transition period from _______ to _______
Commission File Number: 0-17177
BSB BANCORP, INC.
---------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 16-1327860
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
58-68 Exchange Street, Binghamton, New York 13902
------------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (607) 779-2492
Securities registered pursuant to Section 12(b) of the Act:
Not applicable
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, ($0.01 par value per share)
-----------------------------------------
Title of class
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (Sec. 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference of Part III of this
Form 10-K or any amendment to this Form 10-K. Yes [X] No [ ]
As of March 6 1996, the aggregate value of the 6,198,837 shares of Common Stock
of the Registrant issued and outstanding on such date, excluding 1,089,328
shares held by all affiliates of the Registrant, was approximately $158,070,344.
This figure is based on the closing sales price of $25.50 per share of the
Registrant's Common Stock on March 6, 1996.
Number of shares of Common Stock outstanding as of March 6, 1996 - 6,198,837
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents incorporated by reference and the Part
of the Form 10-K into which the document is incorporated:
(1) Portions of the Registrant's Annual Report to Shareholders for the year
ended December 31, 1995 are incorporated by reference into Part II, Items 5 - 8
of this Form 10-K.
(2) Portions of the definitive Proxy Statement for the Registrant's Annual
Meeting of Shareholders to be held on April 22, 1996 are incorporated by
reference into Part III, Items 10 - 13 of this Form 10-K.
<PAGE>
The registrant hereby amends Item 14, of its Annual Report on Form 10-K,
as filed with the Securities and Exchange Commission ("the SEC") on March 29,
1996, as set forth below, for the purpose of filing the Certificate of
Incorporation of BSB Bancorp, Inc. (the "Company") via the SEC's EDGAR System,
correcting the source of incorporation by reference of the Company's Bylaws,
adding the Rights Agreement, as amended, as an exhibit, and providing a
reference for the filing of the Company's Annual Report to Shareholders for the
Year Ended December 31, 1995.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a)(1) The following financial statements are incorporated by reference
from Item 8 hereof:
Consolidated Statements of Condition at December 31, 1995 and 1994
Consolidated Statements of Income For Each of the Three Years in the
Period Ended December 31, 1995
Consolidated Statements of Shareholders' Equity For Each of the
Three Years in the Period Ended December 31, 1995
Consolidated Statements of Cash Flows For Each of the Three Years in
the Period Ended December 31, 1995
Notes to Consolidated Financial Statements
Independent Auditor's Report
(a)(2) There are no financial statement schedules which are required to be
filed as part of this form since they are not applicable.
(a)(3) See (c) below for all exhibits filed herewith and the Exhibit Index.
(b) Reports on Form 8-K. N/A
(c) Exhibits. The following exhibits are either filed as part of this
annual report on Form 10-K/A, or are incorporated herein by
reference:
<TABLE>
<CAPTION>
No. Exhibit Page
- ------------ ------------------------------------------------------------------ ----
<S> <C> <C>
3.1 Certificate of Incorporation E-
3.2 Bylaws ***
4.1 Specimen stock certificate *
4.2 Rights Agreement, as amended by Amendment No. 1 to
Rights Agreement *****
10.1 Long Term Incentive and Capital Accumulation Plan *
10.2 Employment Contract with William H. Rincker **
10.3 Change of Control Severance Agreement with Arthur C. Smith ****
10.4 Amendment to Employment Contract with Alex S. DePersis ****
10.5 Amendment to Change of Control Severance Agreement
with Edward R. Andrejko ****
10.6 Amendment to Change of Control Severance Agreement
with Larry Denniston ****
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
10.7 Amendment to Change of Control Severance Agreement with Warren O. Hill ****
10.8 Amendment to Change of Control Severance Agreement with Douglas R. Johnson ****
10.9 Amendment to Change of Control Severance Agreement with Fielding Simmons III ****
10.10 Amendment to Change of Control Severance Agreement with Glenn R. Small ****
13 Annual Report to Shareholders for the Year Ended December 31, 1995 ****
21 List of Registrant's Subsidiary ****
23 Consent of Independent Public Accountants ****
</TABLE>
(d) There are no other financial statements and financial statement schedules
which were excluded from the Annual Report which are required to be
included herein.
____________________
* Exhibit is incorporated herein by reference to the identically numbered
exhibit to the Form S-4 Registration Statement filed by the Company with the SEC
on March 2, 1988.
** Exhibit is incorporated herein by reference to the identically numbered
exhibit to the Company's Annual Report on Form 10-K filed by the Company with
the SEC on March 26, 1991.
*** Exhibit is incorporated herein by reference to the identically numbered
exhibit to the Company's Annual Report on Form 10-K filed by the Company with
the SEC on March 31, 1995.
**** Exhibit is incorporated herein by reference to the identically numbered
exhibit to the Company's Annual Report on Form 10-K filed by the Company with
the SEC on March 29, 1996.
***** The Rights Agreement is incorporated by reference to Exhibit No. 1 to the
Current Report on Form 8-K filed by the Company with the SEC on June 1, 1989.
Amendment No. 1 to the Rights Agreement is incorporated by reference to Exhibit
No. 4 to the Current Report on Form 8-K filed by the Company with the SEC on
February 6, 1996.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 13 of the Securities Exchange Act
of 1934, BSB Bancorp, Inc. has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
BSB BANCORP, INC.
- -----------------
(Registrant)
By: /s/ Edward R. Andrejko Date: April 5, 1996
-------------------------------- --------------
Edward R. Andrejko
Senior Vice President and
Chief Financial Officer
3
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
BSB BANCORP, INC.
ARTICLE 1. NAME. The name of the Corporation is BSB Bancorp, Inc.
ARTICLE 2. REGISTERED OFFICE; REGISTERED AGENT. The address of the
Corporation's registered office is the Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, in the County of New Castle, in the State of
Delaware. The name of the Corporation's initial registered agent is The
Corporation Trust Company, which is authorized to transact business in the State
of Delaware and whose business address is the same as the registered office of
the Corporation.
ARTICLE 3. PERPETUAL EXISTENCE. The period of duration of the
Corporation shall be perpetual.
ARTICLE 4. PURPOSES. The purpose for which the Corporation is
organized is the transaction of any or all lawful business for which
corporations may be incorporated under the General Corporation Law of Delaware
("Act"). The Corporation shall have all the powers of a corporation organized
under the Act.
ARTICLE 5. AUTHORIZED STOCK. The total number of shares of all
classes of stock which the Company shall have the authority to issue is
12,500,000, consisting of 2,500,000 shares of preferred stock, par value $0.01
per share (hereinafter the "Preferred Stock"), and 10,000,000 shares of common
stock, par value $0.01 per share (hereinafter the "Common Stock"). Except to
the extent required by governing law, rule or regulation, the shares of capital
stock may be issued from time to time by the Board of Directors without further
approval of shareholders. The Corporation shall have the authority to purchase
its capital stock out of funds lawfully available therefor, which funds shall
include, without limitation, the Corporation's unreserved and unrestricted
capital surplus. The consideration for the issuance of the shares shall be paid
in full before their issuance and shall not be less than the par value per
share. Neither promissory notes nor future services shall constitute payment or
part payment for the issuance of shares of the Corporation. The consideration
for the shares shall be cash, tangible or intangible property, labor or services
actually performed for the Corporation or any combination of the foregoing. In
the absence of actual fraud in the transaction, the value of such property,
labor or services, as determined by the Board of Directors of the Corporation,
shall be conclusive. Upon payment of such consideration, such shares shall be
deemed to be fully paid and nonassessable.
A description of the different classes and series (if any) of the
Corporation's capital stock and a statement of the designations, and the
relative rights, preferences, and limitations of the shares of each class of and
series (if any) of capital stock are as follows:
5.1 PREFERRED STOCK. Shares of Preferred Stock may be issued from
time to time in one or more series as may from time to time be determined by the
Board of Directors, each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every particular, except
that there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each such series,
and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding; and the Board of
Directors of the Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the designations,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(1) The distinctive designation of such series, and the number of
shares of Preferred Stock which shall constitute such series, which number may
be increased or decreased (but not below the number of shares then outstanding)
from time to time by like action of the Board of Directors;
1
<PAGE>
(2) The rate and times at which, and the terms and conditions on
which, dividends, if any, on Preferred Stock of such series shall be paid, the
extent of the preference or relation, if any, of such dividends to the dividends
payable on any other class or classes or series of the same or other classes of
stock and whether such dividends shall be cumulative or noncumulative;
(3) The right, if any, of the holders of Preferred Stock of such
series to convert the same into, or exchange the same for, shares of any
other class or classes or of any series of the same or any other class or
classes of stock of the Corporation and terms and conditions of such
conversion or exchange;
(4) Whether or not Preferred Stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions on which, Preferred Stock of such
series may be redeemed;
(5) The rights, if any, of the holders of Preferred Stock of such
series upon the voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or winding up of
the Corporation;
(6) The terms of the sinking fund or redemption or purchase account,
if any, to be provided for the Preferred Stock of such series;
(7) The price or other consideration for which the shares of such
series shall be issued; and
(8) The voting powers, if any, of the holders of such series of
Preferred Stock.
5.2 COMMON STOCK. Except as otherwise required by law or by the provisions
of such resolution or resolutions as may be adopted by the Board of Directors
pursuant to Section 5.1 hereof, each holder of Common Stock shall be entitled to
one vote for each share of Common Stock held in his or her name on the books of
the Corporation. Holders of Common Stock shall not be entitled to cumulate
their votes on any matter, including, but not limited to, an election of
directors. Subject to any rights and preferences of the Preferred Stock,
holders of Common Stock are entitled to such dividends as may be declared by the
Board of Directors out of funds lawfully available therefor. Upon any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of Common Stock are entitled to
receive pro rata the remaining assets of the Corporation after the holders of
Preferred Stock have been paid in full any sums to which they may be entitled.
ARTICLE 6. NO PREEMPTIVE RIGHTS. No holder of any shares of capital stock
of the Corporation of any kind, class or series shall have, as a matter of
right, any preemptive or preferential right to subscribe for, purchase or
receive any shares of the capital stock of the Corporation of any kind, class or
series or any other securities or obligations of the Corporation, whether now or
hereafter authorized, or whether issued for cash or other consideration or by
way of a dividend.
ARTICLE 7. BOARD OF DIRECTORS.
7.1 The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Except as otherwise fixed
pursuant to the provisions of Article 5.1 hereof relating to the rights of the
holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation to elect additional directors, the
number of directors of the Corporation that shall constitute the Board of
Directors shall be 14, unless otherwise determined from time to time by
resolution adopted by the affirmative vote of at least a majority of the Board
of Directors.
2
<PAGE>
The names and terms of the persons who are to serve as the initial
directors of the Corporation, until the annual meeting of shareholders of the
Corporation at which such persons' class shall expire pursuant to Article 7.2(a)
hereof, or until their successors be elected and qualified, are as follows:
<TABLE>
<CAPTION>
Name Term
---- ----
<S> <C>
Ferris G. Akel 1989
John J. Consey 1989
William C. Craine 1989
Herbert R. Levine 1989
William H. Rincker 1989
Robert W. Allen 1990
Thomas F. Kelly 1990
Floyd H. Lawson, Jr. 1990
William L. Roberts 1990
James A. Ackerman 1991
Charles G. Brink 1991
Vincent J. Earley 1991
Helen A. Gamble 1991
John V. Smith 1991
</TABLE>
The business address of such directors shall be the same as the
Corporation: the Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
Any action required or which may be taken at a meeting of the Board of
Directors, or of a committee thereof, may be taken by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time.
7.2 (a) The Board of Directors, other than those who may be elected by the
holders of any class or series of stock having preference over the Common Stock
as to dividends or upon liquidation, shall be divided into three classes as
nearly equal in number as the then total number of directors constituting the
Board of Directors permits, with the term of office one class expiring each
year, the terms each being for three years.
(b) Except as otherwise fixed pursuant to the provisions of Article 5.1
hereof relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect directors, any vacancies in the Board of Directors for any reason and any
newly created directorships resulting from any increase in the number of
directors may be filled only by the Board of Directors, acting by vote of a
majority of the directors then in office, although less than a quorum. Any
director so chosen to fill a vacancy shall serve for the unexpired term of his
or her predecessor in office. Any director appointed to the Board of Directors
by reason of an increase in the number of directors shall serve until the term
of the class to which he or she was appointed shall expire. No decrease in the
number of directors shall shorten the term of any incumbent director.
Notwithstanding the foregoing, and except as otherwise required by law, whenever
the holders of any one or more series of Preferred Stock shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the terms of the director or directors elected by such holders shall expire at
the next succeeding annual meeting of shareholders and vacancies created with
respect to any directorship of the directors so elected may be filled in the
manner specified by the terms of such Preferred Stock. Subject to the foregoing,
at each annual meeting of shareholders, the successors to the class of directors
whose term shall then expire shall be elected to hold office for a term expiring
at the third succeeding annual meeting and until their successors shall be
elected and qualified.
(c) Nominations of candidates for election as directors at any annual
meeting of shareholders may be made (a) by, or at the direction of, a majority
of the Board of Directors or (b) by any shareholder entitled to vote at such
annual meeting. Only persons nominated in accordance with the procedures set
forth in this Section 7.2(c) shall be eligible for election as directors at an
annual meeting. The election shall be either by written ballot or voice vote,
at the discretion of the presiding officer of the meeting.
3
<PAGE>
Ballots, bearing the names of all the persons who have been nominated for
election as directors at an annual meeting in accordance with the procedures set
forth in this Section 7.2(c), shall be provided for use at the annual meeting.
Nominations, other than those made by, or at the direction of, the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Section 7.2(c). To be timely, a
shareholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the Corporation not less than twenty (20) days
prior to the date of the scheduled annual meeting; provided, however, that if
less than thirty (30) days' notice of the date of the scheduled annual meeting
is given, notice by the shareholder must be so delivered or received not later
than the close of business on the tenth day following the day on which such
notice of the date on which the scheduled annual meeting was mailed, provided
further that the notice by the shareholder must be delivered or received no
later than the close of business on the fifth day preceding the date of the
meeting. Such shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or reelection as a director
and as to the shareholder giving the notice: (i) the name, age, business
address and residence address of such person, (ii) the principal occupation or
employment of such person, (iii) the class and number of shares of Corporation
stock which are Beneficially Owned by such person on the date of such
shareholder notice, and (iv) any other information relating to such person that
is required to be disclosed in solicitations of proxies with respect to nominees
for election as directors, pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended, including, but not limited to, information
required to be disclosed by Items 5(b) and 7 of Schedule 14A and information
which would be required to be filed on Schedule 14B with the Securities and
Exchange Commission (or any successors of such items or schedules); and (b) as
to the shareholder giving the notice: (i) the name and address, as they appear
on the Corporation's books, of such shareholder and any other shareholders known
by such shareholder to be supporting such nominees and (ii) the class and number
of shares of Corporation stock which are beneficially owned by such shareholder
on the date of such shareholder notice and by any other shareholders known by
such shareholder to be supporting such nominees on the date of such shareholder
notice. At the request of the Board of Directors, any person nominated by, or
at the direction of, the Board for election as a director at an annual meeting
shall furnish to the Secretary of the Corporation that information required to
be set forth in a shareholder's notice of nomination which pertains to the
nominee.
The Board of Directors may reject any nomination by a shareholder not
timely made in accordance with the requirements of this Section 7.2(c). If the
Board of Directors, or a designated committee thereof, determines that the
information provided in a shareholder's notice does not satisfy the
informational requirements of this Section 7.2(c) in any material respect, the
Secretary of the Corporation shall promptly notify such shareholder of the
deficiency in the notice. The shareholder shall have an opportunity to cure
the deficiency by providing additional information to the Secretary within such
period of time, not to exceed five (5) days from the date such deficiency notice
is given to the shareholder, as the Board of Directors or such committee shall
reasonably determine, provided that the period of time for curing the deficiency
shall not extend beyond the time for giving such shareholder's notice as set
forth in the preceding paragraph. If the deficiency is not cured within such
period, or if the Board of Directors of such committee reasonably determines
that the additional information provided by the shareholder, together with
information previously provided, does not satisfy the requirements of this
Section 7.2(c) in any material respect, then the Board of Directors may reject
such shareholder's nomination. The Secretary of the Corporation shall notify a
shareholder in writing whether his or her nomination has been made in accordance
with the time and informational requirements of this Section 7.2(c).
Notwithstanding the procedures set forth in this paragraph, if neither the Board
of Directors nor such committee makes a determination as to the validity of any
nominations by a shareholder, the presiding officer of the annual meeting shall
determine and declare at the annual meeting whether a nomination was made in
accordance with the terms of this Section 7.2(c). If the presiding officer
determines that a nomination was made in accordance with the terms of this
Section 7.2(c), he or she shall so declare at the annual meeting and ballots
shall be provided for use at the meeting with respect to such nominee. If the
presiding officer determines that a nomination was not made in accordance with
the terms of this Section 7.2(c), he or she shall so declare at the annual
meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing, and except as otherwise required by law,
whenever the holders of any one or more series of Preferred Stock shall have the
right, voting separately as a class, to elect one or more directors of the
4
<PAGE>
Corporation, the provisions of this Section 7.2(c) shall not apply with respect
to the director or directors elected by such holders of Preferred Stock.
7.3 Subject to the rights of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation to elect
directors, at a meeting of shareholders called expressly for the purpose, any
director (including persons elected by directors to fill vacancies in the Board
of Directors) may be removed for cause by a vote of the holders of a majority of
the shares then entitled to vote at an election of directors. At least 30 days
prior to such meeting of shareholders, written notice shall be sent to the
director whose removal will be considered at the meeting. Cause for removal
shall exist only if the director whose removal is proposed has been convicted of
a felony by a court of competent jurisdiction or has been adjudged by a court of
competent jurisdiction to be liable for gross negligence or misconduct in the
performance of such director's duty to the Corporation and such adjudication is
no longer subject to direct appeal.
7.4 In discharging the duties of their respective positions, the Board of
Directors, committees of the Board and individual directors shall, in
considering the best interests of the Corporation, consider the effects of any
action upon the employees of the Corporation and its subsidiaries, the
depositors and borrowers of any banking subsidiary, the communities in which
offices or other establishments of the Corporation or any subsidiary are located
and all other pertinent factors.
ARTICLE 8. SPECIAL MEETINGS OF SHAREHOLDERS. Special meetings of
shareholders shall be called only upon the affirmative vote of a majority of the
Board of Directors and may not be called by shareholders of the Corporation.
ARTICLE 9. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken by the shareholders at a meeting may be taken without a meeting if
consent in writing setting forth the action so taken shall be signed by all of
the shareholders and filed with the Secretary of the Corporation as part of the
corporate records.
ARTICLE 10. SHAREHOLDER PROPOSALS. At an annual meeting of shareholders,
only such new business shall be conducted, and only such proposals shall be
acted upon, as shall have been brought before the annual meeting by, or at the
direction of, (a) the Board of Directors or (b) any shareholder of the
Corporation who complies with all the requirements set forth in this Article 10.
Proposals, other than those made by, or at the direction of, the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation as set forth in this Article 10. To be timely, a shareholder
notice shall be delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than twenty (20) days prior to any annual
meeting of shareholders; provided, that if fewer than thirty (30) days' notice
of the meeting is given to shareholders, such written notice shall be received
by the Corporation not later than the close of the tenth day following the day
on which notice of the meeting was mailed to shareholders, provided further that
the written notice must be received by the Corporation no later than the close
of business on the fifth day preceding the date of the meeting. Such
shareholder's notice shall set forth as to each matter the shareholder proposes
to bring before the annual meeting (a) a brief description of the proposal
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (b) the name and address, as they appear on
the Corporation's books, of the shareholder proposing such business and any
other shareholders known by such shareholder to be supporting such proposal, (c)
the class and number of shares of the Corporation stock which are Beneficially
Owned by the shareholder on the date of such shareholder notice and by any other
shareholders known by such shareholder to be supporting such proposal on the
date of such shareholder notice, and (d) any financial interest of the
shareholder in such proposal.
The Board of Directors may reject any shareholder proposal not timely made
in accordance with the terms of this Article 10. If the Board of Directors, or
a designated committee thereof, determines that the information provided in a
shareholder's notice does not satisfy the information requirements of this
Article 10 in any material respect, the Secretary of the Corporation shall
promptly notify such shareholder of the deficiency in the notice. The
shareholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within such period of time not to exceed
five (5) days from the date such deficiency notice is given to the shareholder,
as the Board of
5
<PAGE>
Directors or such committee shall reasonably determine, provided that
the period of time for curing the deficiency shall not extend beyond the
time for giving such shareholder's notice as set forth in the preceding
paragraph. If the deficiency is not cured within such period, or if the Board
of Directors or such committee determines that the additional information
provided by the shareholder, together with information previously provided, does
not satisfy the requirements of this Article 10 in any material respect, then
the Board of Directors may reject such shareholder's proposal. The Secretary of
the Corporation shall notify a shareholder in writing whether his or her
proposal has been made in accordance with the time and informational
requirements of this Article 10. Notwithstanding the procedures set forth in
this paragraph, if neither the Board of Directors nor such committee makes a
determination as to the validity of any shareholder proposal, the presiding
officer of the annual meeting shall determine and declare at the annual meeting
whether the shareholder proposal was made in accordance with the terms of this
Article 10. If the presiding officer determines that a shareholder proposal was
made in accordance with the terms of this Article 10, he or she shall so declare
at the annual meeting and ballots shall be provided for use at the meeting with
respect to any such proposal. If the presiding officer determines that a
shareholder proposal was not made in accordance with terms of this Article 10,
he or she shall so declare at the annual meeting and any such proposal shall not
be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
ARTICLE 11. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
11.1 INDEMNIFICATION. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation or any predecessor of the
Corporation, or is or was serving at the request of the Corporation or any
predecessor of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines, excise taxes and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding to the full extent authorized by
law.
11.2 ADVANCEMENT OF EXPENSES. Reasonable expenses incurred by an officer,
director, employee or agent of the Corporation, in defending a civil or criminal
action, suit or proceeding described in Article 11.1, shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors only upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that the person is not entitled to be indemnified by
the Corporation.
11.3 OTHER RIGHTS AND REMEDIES. The indemnification provided by this
Article 11 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under this
Certificate, any insurance or other agreement, vote of shareholders or
disinterested directors or otherwise, both as to actions in their official
capacity and as to actions in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person, provided that no indemnification shall be made to
or on behalf of an individual if a judgment or other final adjudication
establishes that his or her act or omissions (i) were in breach of his or her
duty of loyalty to the Corporation or its shareholders, (ii) were not in good
faith or involved a knowing violation of law or (iii) resulted in the receipt of
an improper personal benefit.
11.4 LIMITATION OF LIABILITY. No director of the Corporation shall be
personally liable to the Corporation or its shareholders for monetary damages
for breach of the director's fiduciary duty, provided that this provision shall
not eliminate or limit the liability of a director (1) for any breach of the
director's duty of loyalty to the Corporation or its shareholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the General Corporation Law
of Delaware (or any successor to such section) for any unlawful dividend, stock
purchase or stock payment, or (4) for any transaction from which the director
derived an improper personal benefit. No amendment to, or repeal of, this
Article 11 shall apply to, or have any effect on, the
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liability or alleged liability of any director of the Corporation for, or with
respect to, any acts or omissions of such director occurring prior to such
amendment.
11.5 INSURANCE. Upon resolution passed by the Board, the Corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against him or her or incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Certificate.
11.6 MODIFICATION. The duties of the Corporation to indemnify and to
advance expenses to a director or officer provided in this Article 11 shall be
in the nature of a contract between the Corporation and each such director or
officer, and no amendment or repeal of any provision of this Article 11 shall
alter, to the detriment of such director or officer, the right of such person to
the advance of expenses or indemnification related to a claim based on an act or
failure to act which took place prior to such amendment or repeal.
ARTICLE 12. LIMITATION OF ACQUISITION OF CONTROL. For a period of three
years from the effective date of Binghamton Savings Bank's conversion to the
stock form of ownership, no Person shall directly or indirectly acquire
beneficial ownership of more than 10% of any class of an equity security of the
Corporation. This limitation shall not apply to the purchase of shares by
underwriters in connection with a public offering.
For purposes of this Article 12, the following definitions apply:
(1) The term "Person" includes an individual, a group acting in concert, a
corporation, a partnership, an association, a joint stock company, a trust, an
incorporated organization or similar company, a syndicate or any other group
formed for the purpose of acquiring, holding or disposing of the equity
securities of the Corporation.
(2) The term "acquire" includes every type of acquisition, whether affected
by purchase, exchange, operation of law or otherwise.
ARTICLE 13. PROHIBITION OF CUMULATIVE VOTING. Shareholders shall not be
permitted to cumulate their votes for the election of directors.
ARTICLE 14. CERTAIN BUSINESS COMBINATIONS. A. Vote Required for Certain
Business Combinations. In addition to any affirmative vote of holders of a
class or series of capital stock of the Corporation required by law or this
Certificate of Incorporation and except as otherwise expressly provided in
Subsection B of this Article 14, a Business Combination (as hereinafter defined)
with or upon a proposal by a Related Person (as hereinafter defined) shall
require the affirmative vote of the holders of a majority (or such greater
proportion as may be required under applicable law) of the Voting Stock (as
hereinafter defined), voting together as a single class, including an
Independent Majority of Shareholders (as hereinafter defined).
B. Conditions Requiring Such Vote. The provisions of Subsection A of this
Article 14 shall not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative vote as is
required by law, regulation and any other provision of this Certificate of
Incorporation of the Corporation, if all of the conditions specified in any one
of the following paragraphs (i), (ii) or (iii) are met:
(i) Approval by directors. The Business Combination has been approved
by a vote of majority by the Whole Board of Directors (as hereinafter
defined) of the Corporation at any time at which the Person involved who
theretofore was or thereafter became a Related Person was not such a
Related Person or by a majority of the Whole Board of Directors, including
a majority of the Continuing Directors (as hereinafter defined), after any
time at which the Person involved became a Related Person; or
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(ii) Combination with Subsidiary. The Business Combination is solely
between the Corporation and a Subsidiary of the Corporation and such
Business Combination does not have the direct or indirect effect set forth
in Subsection (C)(ii)(e) of this Article 14; or
(iii) Price and procedural conditions. All of the following
conditions shall have been met:
(a) The aggregate amount of cash and fair market value (as of the
date of the consummation of the Business Combination) of consideration
other than cash to be received per share of Common Stock in such
Business Combination by holders thereof shall be at least equal to the
highest of the following: (1) the highest per share price, including
any brokerage commissions, transfer taxes and soliciting dealers' fees
(with appropriate adjustments for recapitalizations,
reclassifications, stock splits, reverse stock splits and stock
dividends), paid by the Related Person for any shares of common stock
acquired by it, including those shares acquired by the Related Person
before the date on which the Related Person became a Related Person
(such date being market value of the common stock of the Corporation
(as determined by the Continuing Directors) on the date the Business
Combination is first proposed (the "Announcement Date").
(b) The aggregate amount of cash and fair market value (as of the
date of the consummation of the Business Combination) of consideration
other than cash to be received per share of any class or series of
preferred stock in such Business Combination by holders thereof shall
be at least equal to the highest of the following: (1) the highest
per share price, including any brokerage commissions, transfer taxes
and soliciting dealers' fees (with appropriate adjustments for
recapitalizations, reclassifications, stock splits, reverse stock
splits and stock dividends), paid by the Related Person for any shares
of such class or series of preferred stock acquired by it, including
those shares acquired by the Related Person before the Determination
Date; (2) the fair market value of such class or series of preferred
stock of the Corporation (as determined by the Continuing Directors)
on the Announcement Date; and (3) the highest preferential amount per
share of such class or series of preferred stock to which the holders
thereof would be entitled in the event of voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation (regardless of whether the Business Combination to be
consummated constitutes such an event).
(c) The consideration to be received by holders of a particular
class or series of outstanding common or preferred stock shall be in
cash in the same form as the Related Person has previously paid for
shares of such class or series of stock. If the Related Person has
paid for shares of any class or series of stock with varying forms of
consideration, the form of consideration given for such class or
series of stock in the Business Combination shall be either cash or
the form used to acquire the largest number of shares of such class or
series of stock previously acquired by it.
(d) No Extraordinary Event (as hereinafter defined) occurs after
the Related Person has become a Related Person and prior to the
consummation of the Business Combination.
(e) A proxy or information statement describing the proposed
Business Combination and complying with the disclosure requirements of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) is mailed to public shareholders 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 pursuant to such Act or subsequent provisions)
and shall contain at the front thereof in a prominent place a
recommendation, if any, of the Continuing Directors, of the
advisability or inadvisability of the Business Combination and of any
investment banking firm selected by a majority of the Continuing
Directors, as to the fairness of the Business Combination from the
point of view of the shareholders of the Corporation other than the
Related Person.
C. Certain Definitions. For purposes of this Article 14:
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(i) A "person" shall mean any individual, corporation, partnership,
bank, association, joint stock company, trust, unincorporated organization
or similar company, or a group of "persons" acting or agreeing to act
together in the manner set forth in Rule 13d-5 under the Securities
Exchange Act of 1934, as in effect on January 31, 1986.
(ii) "Business Combination" shall mean any of the following
transactions, when entered into by the Corporation or a Subsidiary of the
Corporation with, or upon a proposal by, a Related Person:
(a) the merger or consolidation of the Corporation or any
Subsidiary of the Corporation; or
(b) the sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one or a series of transactions) of any assets
of the Corporation or any Subsidiary of the Corporation having an
aggregate fair market value of more than 10% of the total consolidated
assets of the Corporation and its Subsidiaries as of the end of the
Corporation's most recent fiscal year prior to the time the
determination is being made; or
(c) the issuance or transfer by the Corporation or any Subsidiary
of the Corporation (in one or a series of transactions) of securities
of the Corporation or any Subsidiary in exchange for cash or property
(including stock or other securities) having an aggregate fair market
value of more than 10% of the total consolidated assets of the
Corporation and its Subsidiaries as of the end of the Corporation's
most recent fiscal year prior to the time the determination is being
made; or
(d) the adoption of a plan or proposal for the liquidation or
dissolution of the Corporation; or
(e) a reclassification of securities (including a reverse stock
split), recapitalization, consolidation or any other transaction,
whether or not involving a Related Person, which has the direct or
indirect effect of increasing the voting power, whether or not then
exercisable, of a Related Person in any class or series of capital
stock of the Corporation or any Subsidiary of the Corporation; or
(f) any agreement, contract or other arrangement providing
directly or indirectly for any of the foregoing.
(iii) "Related Person" shall mean any person (other than the
Corporation, a Subsidiary, or any profit sharing, employee stock ownership
or other employee benefit plan of the Corporation or a Subsidiary, or any
trustee of a fiduciary with respect to any such plan acting in such
capacity) that is the direct or indirect beneficial owner (as defined in
Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, as in
effect on January 31, 1986) of more than ten percent (10%) of the
outstanding Voting Stock of the Corporation and any Affiliate or Associate
of any such person.
(iv) "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is not affiliated with a Related Person
and who was a member of the Board of Directors of the Corporation
immediately prior to the time that the Related Person became a Related
Person, and any successor to a Continuing Director who is not affiliated
with the Related Person and is recommended to succeed a Continuing Director
by a majority of Continuing Directors who are then members of the Board of
Directors of the Corporation.
(v) "Whole Board of Directors" shall mean the total number of
directors which the Corporation would have if there were no vacancies.
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(vi) "Independent Majority of Shareholders" means the holders of a
majority of the outstanding Voting Shares that are not Beneficially Owned
or controlled, directly or indirectly, by a Related Person.
(vii) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as in effect on January 31, 1986.
(viii) "Extraordinary Event" shall mean, as to any Business
Combination and Related Person, any of the following events that are not
approved by a majority of all Continuing Directors:
(a) any failure to declare and pay at the regular date therefor
any full quarterly dividend (whether or not cumulative) on outstanding
preferred stock; or
(b) any reduction in the annual rate of dividends paid on the
common stock (except as necessary to reflect any subdivision of the
common stock); or
(c) any failure to increase the annual rate of dividends paid on
the common stock as necessary to reflect any reclassification
(including any reverse stock split), recapitalization, reorganization
or any similar transaction that has the effect of reducing the number
of outstanding shares of the common stock; or
(d) the receipt by the Related Person, after the Determination
Date, of a direct or indirect benefit (except proportionately as a
shareholder) from any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Corporation or any Subsidiary, whether in anticipation
of or in connection with the Business Combination or otherwise.
(ix) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for the purposes of the definition of
Related Person set forth in Subsection C(iii) of this Article 14, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the
Corporation.
(x) "Voting Stock" shall mean all outstanding shares of the common or
preferred stock of the Corporation entitled to vote generally in the
election of directors.
(xi) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash" as used in Subsections
B(iii)(a) and B(iii)(b) of this Article 14 shall include the shares of
common stock and/or the shares of any other class or series of preferred
stock retained by the holders of such shares.
D. Certain Determinations. A majority of the Whole Board of Directors,
including a majority of all Continuing Directors shall have the power to make
all determinations with respect to this Article 14, including, without
limitation, the transactions that are Business Combinations, the persons who are
Related Persons, the time at which a Related Person became a Related Person, and
the fair market value of any assets, securities or other property, and any such
determinations shall be conclusive and binding.
E. No Effect on Fiduciary Obligations of Related Persons. Nothing
contained in this Article 14 shall be construed to relieve any Related Person
from any fiduciary obligations imposed by law.
ARTICLE 15. ELECTION NOT TO BE GOVERNED BY SECTION 203. Pursuant to
Section 203(b)(1) of the Act, the Corporation elects not to be governed by the
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terms of Section 203 of the Act, entitled "Business Combinations With Interested
Stockholders."
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ARTICLE 16. AMENDMENT OF CERTIFICATE. For a period of three years from
the effective date of Binghamton Savings Bank's conversion to the stock form of
ownership, no amendment, addition, alteration, change, or repeal of this
Certificate of Incorporation shall be made, unless such is first proposed by a
majority of the Board of Directors of the Corporation, and thereafter approved
by the shareholders by two-thirds of the total votes eligible to be cast at a
legal meeting; provided, however, that any such amendment, addition, alteration,
change or repeal that is recommended to shareholders by the favorable vote of
75% of the Board of Directors shall only require approval by the shareholders by
a majority of the total votes eligible to be cast at a legal meeting.
Thereafter, any amendment, addition, alteration, change or repeal of this
Certificate of Incorporation shall require the approval by the shareholders by
two-thirds of the total votes eligible to be cast at a legal meeting; provided,
however, that any such amendment, addition, alteration, change, or repeal that
is either proposed or ratified by a vote of 75% of the Board of Directors shall
only require approval by the shareholders by a majority of the total votes
eligible to be cast at a legal meeting. Any amendment, addition, alteration,
change or repeal so acted upon shall be effective upon filing pursuant to the
Act.
ARTICLE 17. AMENDMENT OF BYLAWS. The Bylaws of the Corporation may be
altered, amended or repealed by the affirmative vote of a majority of the votes
cast by the Board of Directors, or by the affirmative vote of a majority of the
votes cast by shareholders of the Corporation at a regular or special meeting of
the shareholders.
ARTICLE 18. INCORPORATOR. The name and mailing address of the sole
incorporator of the Corporation is as follows:
NAME ADDRESS
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William H. Rincker 58-68 Exchange Street
Binghamton, New York 13902
Executed in duplicate by the incorporator this 25th day of February, 1988.
By: /s/ William H. Rincker
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