CERTIFICATE OF INCORPORATION

 

OF

 

SMITHTOWN BANCORP, INC.

 

Under Section 402 of the Business Corporation Law

of the State of New York

 

(as amended through May 9, 2009)

 

 

The undersigned incorporator, being a natural person over the age of eighteen years, for the purpose of forming a corporation pursuant to Section 402 of the Business Corporation Law, does hereby make, sign and acknowledge this certificate stating as follows:

 

FIRST:                   Name.           The name of the corporation is SMITHTOWN BANCORP, INC.

 

SECOND:              Purposes.    The purposes for which it is formed are:

 

1.

To acquire, hold, control and own with full power to vote, deal in andwith, and dispose of the stock of Bank of Smithtown.

 

2. 

To engage in any activities for which corporations may be organizedunder the Business Corporation Law of the State of New York, subject to any restrictions which may be imposed from time to time by the laws of the United States or the State of New York with regard to the activities of a banking holding company.

 

3. 

To do everything necessary, proper, advisable or convenient for theaccomplishment of the purposes hereinabove set forth, and to do all other things incidental thereto or connected therewith, except that the corporation is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained.

 

THIRD:                  Office.     The office of the corporation shall be located in the Town of Smithtown, County of Suffolk, State of New York.

 

FOURTH:              Number of Shares.     The aggregate number of shares which the corporation shall have authority to issue shall be 36,000,000, of which 35,000,000 shall be designated as Common Shares with a par value of one cent ($0.01) each and 1,000,000,000 shall be designated as Preferred Shares with a par value of one cent ($0.01) each.  Preferred Shares may be issued in series from time to time by the board of directors, and the board of directors is expressly authorized to fix by resolution or resolutions the designations and the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, the Preferred Shares, including without limitation the following:

 

(a) 

the distinctive serial designation of such series which shall distinguishit from other series;

 

(b) 

the number of shares included in such series, which number may beincreased or decreased from time to time unless otherwise provided by the board of directors in the resolution or resolutions providing for the issue of such series;

 

(c) 

the dividend rate (or method of determining such rate) payable to theholders of the shares of such series, any conditions upon which such dividends shall be paid and the date or dates upon which dividends shall be payable;

 

(d)

whether dividends on the shares of such series shall be cumulativeand, in the case of shares of any series having cumulative dividend rights, the date or dates or method of determining the date or dates from which dividends on the shares of such series shall be cumulative;

(e)

the amount or amounts which shall be payable out of the assets of thecorporation to the holders of the shares of such series upon voluntary or involuntary liquidation, dissolution or winding up the corporation;

 

(f)

the price or prices at which, the period or periods within which and theterms and conditions upon which the shares of such series may be redeemed, in whole or in part, at the option of the corporation or at the option of the holder or holders thereof or upon the happening of a specified event or events;

 

(g) 

the obligation, if any, of the corporation to purchase or redeem sharesof such series pursuant to a sinking fund or otherwise and the price or prices at which, the period or periods within which and the terms and conditions upon which the shares of such series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(h) 

whether or not the shares of such series shall be convertible or exchangeable, at any time or at items at the option of the holder or holders thereof or at the option of the corporation or upon the happening of a specified event or events, into shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation, and the price or prices or rate or rates applicable thereto; and

 

(i)

the voting rights, if any, of the holders of the shares of such series.

 

FIFTH:                   Preemptive Rights.     Notwithstanding anything to the contrary contained in Section 622 of the Business Corporation Law, the shareholders shall not have preemptive rights.

 

SIXTH:                   Designation of Secretary of State and Mailing Address. The Secretary of State of the State of New York is designated as the agent of the corporation upon whom process in any action or proceeding against the corporation may be served.  The address to which the Secretary of State shall mail a copy of process in any action or proceeding against the corporation which may be served upon him is:

  

Smithtown Bancorp, Inc.

One East Main Street

Smithtown, New York  11787

 

SEVENTH:             Board of Directors:  Number, Classification and Removal.     The Board of Directors shall consist of nine (9) members and shall be divided into three (3) classes of three (3) members each, which classes are hereby designated as Class A, Class B and Class C.  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 Class A director shall expire at the annual meeting of shareholders next ensuing; that of each member then designated as a Class B director shall expire at the annual meeting of shareholders one (1) year thereafter; and that of each member then designated as a Class C director at the annual meeting of shareholders two (2) years thereafter.  At each annual meeting of shareholders held after the election and classification of the first Board of Directors, directors to succeed those whose terms expire at such annual meeting shall be elected to hold office for a term expiring at the third succeeding annual meeting of shareholders.  Any director or the entire Board of Directors of the corporation may be removed at any time by a majority vote of the other members of the Board or by a majority vote of the shares of stock issued and outstanding, but, in either case, only for cause.  Any amendment, change or repeal of this Article SEVENTH shall require approval of the holders of eighty percent (80%) of the outstanding shares of the corporation.

 

EIGHTH:                 Business Combinations.     Except as otherwise expressly provided in this Article EIGHTH:

 

(a)           Any merger or consolidation of the corporation or any sale, lease, exchange or other disposition of all or substantially all of the assets of the corporation to or with any other corporation, person or other entity, shall require the affirmative vote of the holders of at least eighty percent (80%) of the issued and outstanding shares of stock of the corporation if, as of the record date for the determination of the shareholders entitled to notice thereof and to vote thereon, such other corporation, person or entity is the beneficial owner, directly or indirectly, of five percent (5%) or more of the issued and outstanding shares of stock of the corporation;

 

(b)           The provisions of Paragraph (a) above shall not apply to any transaction described therein if:

 

(i)           the Board of Directors of the corporation shall by resolution have approved a memorandum of understanding with such other corporation, person or other entity with respect to such transaction prior to the time such other corporation, person or other entity became the beneficial owner, directly or indirectly, of five percent (5%) or more of the issued and outstanding shares of stock of the corporation; or

 

(ii)           the transaction shall have been approved by a resolution unanimously adopted by the entire Board of Directors of the corporation at any time prior to the record date for the determination of the shareholders entitled to notice thereof and to vote thereon.

 

For the purposes of this Article EIGHTH, a corporation, person or other entity shall be deemed to be the beneficial owner of any shares of capital stock of the corporation (i) which it has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (ii) which are beneficially owned, directly or indirectly (including shares deemed owned through application of clause (i) above, by any other corporation, person, or other entity:  (a) with which it or its “affiliate” or “associate” (as referenced below) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of stock of the corporation or (b) which is its “affiliate” or “associate”  as those terms were defined in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934 as in effect on April 1, 1984.  For the purposes of this Article EIGHTH, the issued and outstanding shares of stock of the corporation shall include shares deemed owned through the application of clauses (i)  and (ii) above but shall not include any other shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise.

 

This Article EIGHTH may not be amended, changed or repealed except by the affirmative vote of the holders of at least eighty percent (80%) of the issued and outstanding shares of stock of the corporation. 

 

IN WITNESS WHEREOF, the undersigned incorporator subscribes this Certificate and affirms it as true under penalties of perjury, this 7th day of May, 2009.

 

Name

Address

 

 

 /s/ Bradley E. Rock                    

One East Main Street

   Bradley E. Rock

Smithtown, New York 11787


 

 

STATE OF NEW YORK

 ) 

 

 

 ) 

ss.:

COUNTY OF SUFFOLK

 ) 

 

 

On this 7th day of May, 2009, before me personally came Bradley E. Rock, to me known and known to me to be the individual described in and who executed the foregoing Certificate of Incorporation, and he duly acknowledged to me that he executed the same.

 

 

/s/ Patricia C. Delaney                         

 

 

 

Patricia C. Delaney

 

Notary Public, State of New York

 

No. 4878862, Suffolk County

 

Term Expires November 10, 2010