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8-K - FORM 8-K - FIRST NIAGARA FINANCIAL GROUP INC | c16075e8vk.htm |
Exhibit 3.1
PAGE
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Delaware
The First State
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE RESTATED CERTIFICATE OF FIRST
NIAGARA FINANCIAL GROUP, INC., FILED IN THIS OFFICE ON THE TWENTY-SIXTH DAY OF APRIL,
A.D. 2011, AT 4:14 OCLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER
OF DEEDS.
3549734 8100 110456822 You may verify this certificate online at corp.delaware.gov/authver.shtml |
/s/
Jeffrey W. Bullock Jeffrey W. Bullock, Secretary of State AUTHENTICATION: 8719498 DATE: 04-27-11 |
State of Delaware Secretary of State Division of Corporations Delivered 04:14 PM 04/26/2011 FILED 04:14 PM 04/26/2011 SRV 110456822 3549734 FILE |
RESTATED CERTIFICATE OF INCORPORATION
OF
FIRST
NIAGARA FINANCIAL GROUP, INC.
First
Niagara Financial Group, Inc., a Delaware corporation, hereby certifies as follows:
FIRST: The name of the corporation is First Niagara Financial Group, Inc.
The date of filing of its original certificate of incorporation with the Secretary of
State was July 19, 2002 and the name under which it was originally incorporated was New
First Niagara Financial Group, Inc.
SECOND: This restated certificate of incorporation only restates and integrates and
does not further amend the provisions of the Restated Certificate of Incorporation of said
corporation as heretofore amended or supplemented, and there is no discrepancy between
those provisions and the provisions of this restated certificate of incorporation. This
restated certificate of incorporation has been duly adopted in accordance with the
provisions of Section 245 of the General Corporation Law of the State of Delaware.
THIRD: The text of the certificate of incorporation is hereby restated to read as
herein set forth in full:
FIRST: The name of the Corporation is First Niagara Financial Group, Inc.
(hereinafter referred to as the Corporation),
SECOND: The address of the registered office of the Corporation in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the registered agent at that address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation Law of
Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the Corporation shall have
authority to issue is five hundred and fifty million (550,000,000) consisting of:
1. Fifty million (50,000,000) shares of Preferred Stock, par value one cent
($.01) per share (the Preferred Stock); and
2. Five Hundred million (500,000,000) shares of Common Stock, par value one
cent ($.01) per share (the Common Stock).
B. The Board of Directors is authorized, subject to any limitations prescribed by law,
to provide for the issuance of the shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of Delaware (such certificate being
hereinafter
referred to as a Preferred Stock Designation), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers, preferences, and
rights of the shares of each such series, and any qualifications, limitations or restrictions
thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the Common Stock, without a vote of the holders of the Preferred Stock, or of any
series thereof, unless a vote of any such holders is required pursuant to the terms of any
Preferred Stock Designation.
C. 1. Notwithstanding any other provision of this Certificate of Incorporation, in no event
shall any record owner of any outstanding Common Stock which is beneficially owned, directly or
indirectly, by a person who, as of any record date for the determination of stockholders entitled
to vote on any matter, beneficially owns in excess of 10% of the then-outstanding shares of Common
Stock (the Limit), be entitled, or permitted to any vote in respect of the shares held in excess
of the Limit, except that such restriction and all restrictions set forth in this subsection C
shall not apply to any tax qualified employee stock benefit plan established by a vote of the
majority of the Whole Board of the Corporation, which shall be able to vote in respect to shares
held in excess of the Limit. The number of votes which may be cast by any record owner by virtue of
the provisions hereof in respect of Common Stock beneficially owned by such person owning shares in
excess of the Limit shall be a number equal to the total number of votes which a single record
owner of all Common Stock owned by such person would be entitled to cast subject to this Section C
of this Article FOURTH, multiplied by a fraction, the numerator of which is the number of shares of
such class or series which are both beneficially owned by such person and owned of record by such
record owner and the denominator of which is the total number of shares of Common Stock
beneficially owned by such person owning shares in excess of the Limit.
2. The following definitions shall apply to this Section C of this Article
FOURTH:
(a) | Affiliate shall have the meaning ascribed to
it in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on the date of filing of
this Certificate of Incorporation. |
(b) | Beneficial ownership shall be determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the
Securities Exchange Act of 1934 (or any successor rule or statutory
provision), or, if said Rule 13d-3 shall be rescinded and there shall
be no successor rule or statutory provision thereto, pursuant to said
Rule 13d-3 as in effect on the date of filing of this Certificate of
Incorporation; provided, however, that a person shall, in any event,
also be deemed the beneficial owner of any Common Stock: |
(1) | which such person or any of
its affiliates beneficially owns, directly or indirectly; or |
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(2) | which such person or any of its affiliates has (i) the right to acquire (whether
such right is exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of conversion rights,
exchange rights, warrants, or options or otherwise, or (ii) sole or shared voting or
investment power with respect thereto
pursuant to
any agreement,
arrangement, understanding, relationship or otherwise (but shall not be deemed to be the
beneficial owner of any voting shares solely by reason of a revocable proxy granted for
a particular meeting of stockholders, pursuant to a public solicitation of proxies for
such meeting, with respect to shares of which neither such person nor any such affiliate
is otherwise deemed the beneficial owner); or |
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(3) | which are beneficially owned, directly or indirectly, by any other person with which such
first mentioned person or any of its affiliates acts as a partnership, limited partnership,
syndicate or other group pursuant to any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of capital stock of this
Corporation, |
and provided further, however, that (1) no Director or Officer of this Corporation (or any
affiliate of any such Director or Officer) shall, solely by reason of any or all of such Directors
or Officers acting in their capacities as such, be deemed, for any purposes hereof, to
beneficially own any Common Stock beneficially owned by another such Director or Officer (or any
affiliate thereof), and (2) neither any employee stock ownership plan or similar plan of this
Corporation or any subsidiary of this Corporation, nor any trustee with respect thereto or any
affiliate of such trustee (solely by reason of such capacity of such trustee), shall be deemed,
for any purposes hereof, to beneficially own any Common Stock held
under any such plan. For
purposes of computing the percentage beneficial ownership of Common Stock of a person the
outstanding Common Stock shall include shares deemed owned by such person through application of
this subsection but shall not include any other Common Stock which may be issuable by this
Corporation pursuant to any agreement, or upon exercise of conversion rights, warrants or options,
or otherwise. For all other purposes, the outstanding Common Stock shall include only Common Stock
then outstanding and shall not include any Common Stock which may be issuable by this Corporation
pursuant to any agreement, or upon the exercise of conversion rights, warrants or options, or
otherwise.
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(c) | A person shall mean any individual, firm, corporation, or other
entity. |
3. The Board of Directors shall have the power to construe and apply the provisions of this
section and to make all determinations necessary or desirable to implement such provisions,
including but not limited to matters with respect to (i) the number of shares of Common Stock
beneficially owned by any person, (ii) whether a person is an affiliate of another, (iii) whether a
person has an agreement, arrangement, or understanding with another as to the matters referred to
in the definition of beneficial ownership, (iv) the application of any other definition or
operative provision of this section to the given facts, or (v) any other matter relating to the
applicability or effect of this section.
4. The Board of Directors shall have the right to demand that any person who is reasonably
believed to beneficially own Common Stock in excess of the Limit (or holds of record Common Stock
beneficially owned by any person in excess of the Limit) supply the Corporation with complete
information as to (i) the record owner(s) of all shares beneficially owned by such person who is
reasonably believed to own shares in excess of the Limit, and (ii) any other factual matter
relating to the applicability or effect of this section as may reasonably be requested of such
person.
5. Except as otherwise provided by law or expressly provided in this section, the presence, in
person or by proxy, of holders of a majority of the shares of capital stock of the Corporation
entitled to vote at the meeting (after giving effect, if required, to the provisions of this
section) shall constitute a quorum at all meetings of the stockholders (unless or except to the
extent that the presence of a larger number may be required by law), and every reference in this
Certificate of Incorporation to a majority or other proportion of capital stock (or the holders
thereof) for purposes of determining any quorum requirement or any requirement for stockholder
consent or approval shall be deemed to refer to such majority or other proportion of the votes (or
the holders thereof) then entitled to be cast in respect of such
capital stock.
6. Any constructions, applications, or determinations made by the Board of Directors pursuant
to this section in good faith and on the basis of such information and assistance as was then
reasonably available for such purpose shall be conclusive and binding upon the Corporation and its
stockholders.
7. In the event any provision (or portion thereof) of this section shall be found to be
invalid, prohibited or unenforceable for any reason, the remaining provisions (or portions thereof)
of this section shall remain in full force and effect, and shall be construed as if such invalid,
prohibited or unenforceable provision had been stricken herefrom or otherwise rendered
inapplicable, it being the intent of this Corporation and its stockholders that such remaining
provision (or portion thereof) of this section remain, to the fullest extent permitted by law,
applicable and enforceable as to all stockholders, including stockholders owning an amount of stock
over the Limit, notwithstanding any such finding.
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FIFTH: The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its Directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors. In addition to the powers and authority expressly
conferred upon them by statute or by this Certificate of Incorporation or the Bylaws of the
Corporation, the Directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
B. The Directors of the Corporation need not be elected by written ballot unless the
Bylaws so provide. Stockholders shall not be permitted to cumulate their votes for the
election of Directors.
C. Any action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing by such
stockholders.
D. Special meetings of stockholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution adopted by a majority of the total number of
authorized directorships (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for adoption) (the
Whole Board) or as otherwise provided in the Bylaws.
SIXTH:
A. The number of Directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Whole Board. At the annual meeting
of stockholders that is held in calendar year 2011, the successors of the directors whose terms
expire at that meeting shall be elected for a term expiring at the annual meeting of stockholders
that is held in calendar year 2014 and until such directors successors shall have been elected and
qualified. Commencing at the annual meeting of stockholders that is held in calendar 2012,
directors shall be elected annually for terms of one year, except that any director in office at
the 2012 annual meeting whose term expires at the annual meeting of stockholders held in calendar
year 2013 or 2014 (a Continuing Classified Director) shall continue to hold office until the end
of the term for which such director was elected and until such directors successor shall have been
elected and qualified. At each annual meeting of stockholders thereafter, all directors shall be
elected for terms expiring at the next annual meeting of stockholders and until such directors
successors shall have been elected and qualified.
B. Subject to the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized number of Directors or
any vacancies in the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause may be filled only by a majority vote of the
Directors then in office, though less than a quorum, and Directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders at which the term of office
of the class to which they have been chosen expires. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent Director.
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C. Advance notice of stockholders nominations for the election of Directors and of business to
be brought by stockholders before any meeting of the stockholders of the Corporation shall be given
in the manner provided in the Bylaws of the Corporation.
D. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any
Director, or the entire Board of Directors, may be removed from office at any time, but only by the
affirmative vote of the holders of at least 80 percent of the voting power of all of the
then-outstanding shares of capital stock of the Corporation entitled to vote generally in the
election of Directors (after giving effect to the provisions of Article FOURTH of this Certificate
of Incorporation (Article FOURTH)), voting together as a single class, provided, however, that
Continuing Classified Directors may be removed from office only for
cause.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or repeal the
Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation by
the Board of Directors shall require the approval of two-thirds of the Whole Board. The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation;
provided, however, that, in addition to any vote of the holders of any class or series of stock of
the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of
the holders of at least 80 percent of the voting power of all of the then-outstanding shares of
the capital stock of the Corporation entitled to vote generally in the election of Directors
(after giving effect to the provisions of Article FOURTH), voting together as a single class,
shall be required to adopt, amend or repeal any provisions of the Bylaws of the Corporation.
EIGHTH: The Board of Directors of the Corporation, when evaluating any offer of
another person to (A) make a tender or exchange offer for any equity security of the Corporation,
(B) merge or consolidate the Corporation with another corporation or equity or (C) purchase or
otherwise acquire all or substantially all of the properties and assets of the Corporation, may, in
connection with the exercise of its judgment in determining what is in the best interest of the
Corporation and its stockholders, give due consideration to all relevant factors, including,
without limitation, the social and economic effect of acceptance of such offer on: the
Corporations present and future customers and employees and those of its subsidiaries; the
communities in which the Corporation and its subsidiaries operate or are located; the ability of
the Corporation to fulfill its corporate objectives as a savings or bank holding company; and the
ability of its subsidiary bank to fulfill its corporate objectives under applicable statutes and
regulations.
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NINTH:
A. Each person who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a proceeding), by reason of the fact that he or she is or was a
Director or an Officer of the Corporation or is or was serving at the request of the Corporation
as a Director, Officer, employee or agent of another corporation or of a partnership, joint
venture,
trust or other enterprise, including service with respect to an employee benefit plan (hereinafter
an indemnitee), whether the basis of such proceeding is alleged action in an official capacity
as a Director, Officer, employee or agent or in any other capacity while serving as a Director,
Officer, employee or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment), against all expense, liability and
loss (including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith;
provided, however, that, except as provided in Section C hereof with respect to proceedings to
enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article NINTH shall include the
right to be paid by the Corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an advancement of expenses); provided, however,
that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director of Officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a final adjudication) that such indemnitee is not entitled
to be indemnified for such expenses under this Section or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections A and B of this Article
NINTH shall be contract rights and such rights shall continue as to an indemnitee who has ceased to
be a Director, Officer, employee or agent and shall inure to the benefit of the indemnitees heirs,
executors and administrators.
C. If a claim under Section A or B of this Article NINTH is not paid in full by the
Corporation within sixty days after a written claim has been received by the Corporation, except in
the case of a claim for an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expenses of prosecuting or
defending such suit.
In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the Delaware
General Corporation Law. Neither
the failure of the Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the indemnitee
has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor
an actual determination by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct,
shall create a presumption that the indemnitee has not met the applicable standard of conduct or,
in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article NINTH or otherwise shall be on the Corporation
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D. The rights to indemnification and to the advancement of expenses conferred in this Article
NINTH shall not be exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporations Certificate of Incorporation, Bylaws, agreement, vote of
stockholders or disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and any Director,
Officer, employee or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification and to the advancement of expenses to any employee or agent of the
Corporation to the fullest extent of the provisions of this Article NINTH with respect to the
indemnification and advancement of expenses of Directors and Officers of the Corporation.
TENTH: A Director of this Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Directors 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, or (iv) for any transaction from which the Director derived an improper personal
benefit. If the Delaware General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of Directors, then the liability of a Director of
the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation
shall not adversely affect any right or protection of a Director of the Corporation existing at
the time of such repeal or modification.
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ELEVENTH: The Corporation reserves the right to amend or repeal any provision contained in
this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to this reservation; provided, however,
that, notwithstanding any other provision of this Certificate of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to
any vote of the holders of any class or series of the stock of the Corporation required by law or
by this Certificate of Incorporation, the affirmative vote of the holders of at least 80 percent of
the voting power of all of the then-outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of Directors (after giving effect to the provisions of
Article FOURTH), voting together as a single class, shall be required to amend or repeal this
Article ELEVENTH, Section C of Article FOURTH, Sections C or D of Article FIFTH, Article SIXTH,
Article SEVENTH or Article NINTH.
IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by John Minco,
its Secretary this 26th day of April, 2011.
Title: Secretary |
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