EXHIBIT (a)(1)
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Offer to Purchase For Cash
All Outstanding Shares of Common Stock
of
COHOES BANCORP, INC.
at
$16.50 Net per Share
by
AMBANC HOLDING CO., INC.
The Offer and withdrawal rights will expire at 12:00
midnight, New York time, on Wednesday, September 6,
2000, unless the Offer is extended.
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Ambanc is offering to purchase all of the outstanding shares of common
stock of Cohoes Bancorp, Inc. with the intent to acquire control of, and
ultimately the entire equity interest in, Cohoes. Upon the consummation of the
Offer, Cohoes would be merged into Ambanc and each share of Cohoes common stock
that was not tendered in the Offer would be purchased for $16.50 in cash,
subject to appraisal rights available under Delaware law.
Ambanc believes its Offer provides you with greater value for your
shares of Cohoes common stock than the proposed sale of Cohoes to Hudson River
Bancorp, Inc. announced on April 25, 2000. Ambanc is offering $16.50 per share
in cash. That price represents a 19% premium over the value you would receive
for your shares in the proposed sale to Hudson River, based on the closing price
of Hudson River on August 4, 2000 and based on the terms of that proposed sale
in which you would receive 1.185 shares of Hudson River stock for each share of
Cohoes stock you own.
Ambanc's Offer also provides you with a better value than what has been
offered to you by TrustCo Bank Corp of NY, which is offering shares of its own
common stock in exchange for your shares of Cohoes common stock. TrustCo would
give you shares of TrustCo stock worth $16.00 for each share of Cohoes stock.
You may have already received TrustCo's offer, and you should read it carefully
and decide what represents a more attractive offer for your shares of Cohoes
stock -- $16.00 in TrustCo stock -- or $16.50 in cash from Ambanc.
We are not asking you for a proxy and you are requested not to send us
a proxy. Ambanc is separately soliciting proxies from Cohoes shareholders to
vote against the proposed sale of Cohoes to Hudson River. Such solicitation of
proxies is being made pursuant to proxy solicitation materials being mailed
separately.
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Ambanc's Offer is subject to conditions, including the Cohoes
shareholders not approving the proposed sale of Cohoes to Hudson River
and the valid termination of the stock option granted to Hudson by
Cohoes. The conditions are listed under "Certain Conditions of the
Offer." See page 20
Questions and requests for assistance may be
directed to the Information Agent for
Ambanc's Offer:
D.F. King & Co, Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: 1-800-487-4870
The date of this Offer to Purchase is August 9, 2000
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TABLE OF CONTENTS
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SUMMARY TERM SHEET................................................................................................3
INTRODUCTION......................................................................................................7
THE OFFER.........................................................................................................9
1. Terms of the Offer; Expiration Date............................................................................9
2. Acceptance for Payment and Payment for Shares.................................................................10
3. Withdrawal Rights.............................................................................................11
4. Procedure for Tendering Shares................................................................................12
5. Certain Federal Income Tax Consequences.......................................................................15
6. Price Range of Shares.........................................................................................16
7. Effect of the Offer on the Market for the Shares and Exchange Act Registration................................17
8. Certain Information Concerning Cohoes.........................................................................17
9. Certain Information Concerning Ambanc.........................................................................18
10. Background of the Offer; Contacts with Cohoes................................................................19
11. Purpose of the Offer; Plans for Cohoes.......................................................................20
12. Certain Conditions of the Offer..............................................................................20
13. Appraisal Rights.............................................................................................26
14. Source and Amount of Funds...................................................................................27
15. Dividends and Distributions..................................................................................28
16. Treatment of Cohoes Stock Options and Employee Stock Ownership Plan..........................................28
17. Certain Legal and Regulatory Matters; Approvals..............................................................28
18. Fees and Expenses............................................................................................30
19. Miscellaneous................................................................................................30
SCHEDULE I - DIRECTORS AND OFFICERS OF AMBANC ................................................................32
SCHEDULE II - SCHEDULE OF SHARES OWNED AND TRANSACTIONS IN
SHARES DURING THE PAST 60 DAYS BY AMBANC.........................................................36
SCHEDULE III - SECTION 203 OF THE DELAWARE GENERAL CORPORATION
LAW..............................................................................................37
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FORWARD LOOKING STATEMENTS
This document may contain forward-looking statements concerning the
financial condition and business of Ambanc following the consummation of its
proposed acquisition of Cohoes, the anticipated financial and other benefits of
such proposed acquisition and the plans and objectives of Ambanc's management
following such proposed acquisition. Generally, the words "will," "may,"
"should," "continue," "believes," "expects," "intends," "anticipates" or similar
expressions identify forward-looking statements. We caution that such statements
may be subject to a number of risks and uncertainties and actual results could
differ materially and, therefore, readers should not place undue reliance on any
forward-looking statements. Factors that could cause actual results to differ
materially from those contemplated by the forward-looking statements include,
among others, the following factors:(i) competitive pressure among financial
services companies may increase significantly; (ii) adverse changes in the
interest rate environment may reduce interest margins or adversely affect asset
values of the company; (iii) general economic conditions, whether nationally or
in the market areas in which Ambanc and Cohoes conduct business, may be less
favorable than expected; (iv) legislation or regulatory changes may adversely
affect the businesses in which Ambanc and Cohoes are engaged; or (v) adverse
changes may occur in the securities markets. Ambanc does not undertake, and
specifically disclaims, any obligation to publicly release the results of any
revisions that may be made to any forward-looking statements to reflect the
occurrence of anticipated or unanticipated events or circumstances after the
date of such statements.
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SUMMARY TERM SHEET
This Summary Term Sheet will explain to you the important terms of our
offer. The information here serves only as an introduction and we urge you to
carefully read the remainder of this document and the accompanying Letter of
Transmittal to fully understand our offer.
PRINCIPAL TERMS - See Section 1 "Terms of the Offer; Expiration Date"
o We are offering to buy all of the outstanding shares of common stock of
Cohoes Bancorp, Inc.
o The price we are offering to pay is $16.50 per share in cash, net to you.
That means that you will not have to pay brokerage fees or commissions.
o Our offer will expire at 12:00 midnight, New York City time, on Wednesday,
September 6, 2000, unless we extend the offer.
o If we decide to extend our offer, we will issue a press release giving the
new expiration date no later than 9:00 a.m., New York City time, on the
first business day after the previously scheduled expiration of the offer.
AMBANC'S CAPACITY TO PURCHASE COHOES
o We currently have over $200 million in securities held available-for-sale,
which is more than adequate to pay for the acquisition of Cohoes. See
Section 14 "Source and Amount of Funds."
CONDITIONS OF AMBANC'S OFFER
We are not required to complete our offer and purchase any Cohoes
shares unless:
o the Cohoes shareholders do not approve the proposed sale of Cohoes to
Hudson River Bancorp, Inc. ("Hudson River"), which is scheduled to be voted
on at a special meeting of shareholders on August 17, 2000;
o the Boards of Directors of Cohoes and Hudson River terminate the merger
agreement between Cohoes and Hudson River;
o the stock option agreement between Cohoes and Hudson River is terminated
and Hudson River surrenders to Cohoes the option granted to Hudson River
under that agreement;
o enough shares of Cohoes stock are tendered to us to give us a majority of
the outstanding Cohoes shares (on a fully diluted basis), including the
shares of Cohoes stock that we already own;
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o Cohoes executes a definitive merger agreement with us that will provide for
the merger of Cohoes with and into Ambanc pursuant to which each untendered
Share would be purchased at the same price we paid in our offer -- $16.50
in cash, subject to appraisal rights available under Delaware law;
o We receive all required regulatory approvals to acquire Cohoes; and
o We are satisfied that the anti-takeover provisions in Cohoes Certificate of
Incorporation and Bylaws and the provisions of Section 203 of the Delaware
General Corporation Law will not prevent us from consummating the merger to
acquire any untendered shares at the same price we paid in our offer --
$16.50 in cash, subject to appraisal rights available under Delaware law.
These conditions and other conditions to our offer are described in
Section 12 "Certain Conditions of the Offer," starting on page 20 of this
document.
YOUR BOARD OF DIRECTORS MAY DELAY SATISFACTION OF CERTAIN CONDITIONS TO OUR
OFFER
o Several of the conditions to our offer will require action by the Cohoes
Board of Directors. See Section 12 "Conditions of the Offer." There can be
no assurance that the Cohoes Board will take action to cause the
satisfaction of these conditions.
EXPECTED TIME OF COMPLETION OF OUR OFFER
o One of the conditions to our offer is that the Boards of Directors of
Cohoes and Hudson River terminate the merger agreement between Cohoes and
Hudson River. The timing of completion of our offer will depend on when
that termination occurs. If the Cohoes shareholders do not approve the
proposed sale to Hudson River, the Cohoes Board will have the right to
terminate the merger agreement. If Cohoes terminates the merger agreement
promptly after the Cohoes shareholders fail to approve the proposed sale to
Hudson River, our offer could close in the first quarter of 2001.
o If the Hudson River-Cohoes merger agreement is not terminated until
February 28, 2001, which is the earliest date that Cohoes or Hudson can
otherwise terminate the agreement, our offer could close in the second
quarter of 2001. These schedules assume that the Cohoes Board of Directors
promptly cooperates with us following termination of the Hudson-Cohoes
merger agreement. However, the Cohoes Board may try to delay our offer. By
tendering your shares, you will be sending a message to Cohoes management
and the Cohoes board that you want Cohoes to participate in a combination
with us.
PURPOSE OF OUR OFFER - See Section 11 "Purpose of the Offer; Plans for Cohoes"
o Our purpose in making this offer is to acquire control of, and ultimately
the entire equity interest in, Cohoes. We intend to achieve this by first
offering to purchase all outstanding Shares and then merging Cohoes into
Ambanc by purchasing all untendered Shares at the
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same price paid in the offer -- $16.50 in cash, subject to appraisal rights
available under Delaware law.
o We desire to acquire Cohoes because we believe that the acquisition of
Cohoes will produce substantial benefits for us, including earnings
accretion of approximately 78% resulting from fully implemented cost
reductions and the leverage of excess capital. We expect that an
acquisition of Cohoes would enable us grow our balance sheet, leverage our
capital, increase our market share, penetrate attractive markets and add
growth branches.
PROCEDURES FOR TENDERING - See Section 4 "Procedures for Tendering Shares"
If you wish to accept our offer, this is what you must do:
o If you are a record holder (i.e., a stock certificate has been issued to
you), you must complete and sign the enclosed Letter of Transmittal and
send it with your stock certificate to D.F. King & Co., Inc., who is acting
as the "Depositary" for the offer or follow the procedures described in
this document for book-entry transfer. These materials must reach the D.F.
King before the offer expires. Detailed instructions are contained in the
Letter of Transmittal.
o If you are a record holder but your stock certificate is not available or
you cannot deliver it to the depositary before the offer expires, you may
be able to tender your Cohoes shares using the enclosed notice of
guaranteed delivery. Please call our information agent, D.F. King & Co.,
Inc., toll free at 800-487-4870 for assistance. See Section 4 "Procedures
for Tendering Shares" for further details.
o If you hold your Cohoes shares in "street name" through a broker or bank,
you should contact your broker or bank and give instructions that your
Cohoes shares be tendered before the expiration date of the offer.
WITHDRAWAL RIGHTS
o If, after tendering your Cohoes shares, you decide that you do NOT want to
accept our offer, you can withdraw your shares by instructing the
Depositary. If you tendered by giving instructions to a broker or bank, you
must instruct the broker or bank to arrange for the withdrawal of your
shares. See Section 3 "Withdrawal Rights" for further details.
o You may withdraw your shares at any time before the offer expires. In
addition, you may withdraw your shares at any time after October 10, 2000,
even though this would be after the Expiration Date (unless extended), if
we have not yet accepted and paid for your shares.
DIVIDENDS AND VOTING RIGHTS WITH RESPECT TO TENDERED SHARES
o Until we accept your shares of Cohoes stock for purchase at the completion
of our offer, you will be entitled to receive any dividends paid on your
tendered shares of Cohoes stock and you will continue to have the right to
vote your tendered shares. Once we complete our offer
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and purchases all shares of Cohoes stock tendered by you in the offer and
not withdrawn, we will own those shares and will have all dividend and
voting rights with respect to those shares.
FEDERAL INCOME TAX CONSEQUENCES
o If you tender your shares and we complete the offer and purchases the
shares, that will be a taxable event for you for federal income tax
purposes, and may also be a taxable transaction under applicable state,
local and foreign tax laws. See Section 5 "Certain Federal Income Tax
Consequences" for further details.
IMPORTANT INFORMATION
o Before deciding whether to tender your shares, you should obtain and
carefully review the documents mailed to you by Cohoes and Hudson River and
by TrustCo Bank Corp NY because those documents provide information about
the proposed sale of Cohoes to Hudson River and TrustCo's stock exchange
offer for your Cohoes shares.
STOCK PRICE
o On July 26, 2000, the last day on which Cohoes common stock (symbol: COHB)
was traded prior to our announcement of our intention to commence the
offer, the reported closing price for Cohoes on the Nasdaq was $13.938.
o On August 4, 2000, the reported closing price for Cohoes on the Nasdaq was
$14.375. Based on the closing price of Hudson River (symbol: HRBT) common
stock on August 4, 2000 of $11.6875 and the 1.185 to 1 exchange ratio in
the proposed sale to Hudson River, you would receive an implied value of
$13.85 per Cohoes share if the proposed sale to Hudson River is approved.
You can obtain current stock price quotations for Cohoes and Hudson from a
newspaper, on the Internet or by calling your broker.
QUESTIONS
o If you have questions about our offer, you can call the Information Agent:
D.F. King & Co., Inc.
Call Toll Free: 1-800-487-4870
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This brief introduction does not contain all of the information that
should be important to you. You should carefully read this entire document to
fully understand the offer.
INTRODUCTION
On April 25, 2000, Cohoes Bancorp, Inc. ("Cohoes") and Hudson River
Bancorp, Inc. ("Hudson River") announced that they had entered into a merger
agreement in which Hudson River would be the surviving corporation and each
share of common stock of Cohoes would be exchanged for 1.185 shares of Hudson
River common stock.
Ambanc Holding Co., Inc. ("Ambanc") would also like to acquire Cohoes,
and Ambanc believes it can offer the Cohoes shareholders a better value for
their shares than they would get in the proposed sale to Hudson River. Following
announcement of the proposed sale to Hudson River, Ambanc reviewed its strategic
options for acquiring Cohoes.
On June 15, 2000 Ambanc made an acquisition proposal to the Cohoes
Board of Directors in which Ambanc would purchase the outstanding shares of
Cohoes for $14.75 per share in cash. The Cohoes Board rejected Ambanc's
proposal. On June 23, 2000, Ambanc increased its proposed price to $15.25 per
share in cash. This proposal was also rejected by Cohoes.
Having failed to persuade the Cohoes Board that it could offer the
Cohoes shareholders a better deal than Hudson River was giving them, on July 27,
2000, Ambanc announced its intention to commence a tender offer to purchase each
outstanding share of Cohoes for $16.50 per share in cash.
Ambanc hereby offers to purchase all of the outstanding shares of
common stock, par value $.01 per share of Cohoes (referred to herein as the
"Shares") at $16.50 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in this Offer to
Purchase and in the related Letter of Transmittal (which together constitute the
"Offer"). The purpose of Ambanc's Offer is to allow Ambanc to acquire control of
Cohoes, and ultimately to merge Cohoes into Ambanc. Upon the consummation of
Ambanc's Offer, Cohoes would be merged into Ambanc and each share of Cohoes
common stock that was not tendered in Ambanc's Offer would be purchased for
$16.50 in cash, subject to appraisal rights under Delaware law.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by Ambanc pursuant
to its Offer. Shareholders, however, may incur fees associated with the
tendering of shares in custodial or other beneficiary accounts. Ambanc will pay
all charges and expenses of D.F. King & Co., Inc. in its capacity as both the
"Depositary" and the "Information Agent" incurred in connection with the Offer.
There are no dealer managers in connection with the Offer.
Based on the closing price of Hudson River's common stock on the Nasdaq
on July 26, 2000 (the last trading day before the announcement of Ambanc's
Offer), the$16.50 per Share being offered by Ambanc represents more than a 17%
premium over the implied value of the proposed sale to Hudson River of $14.07
(based on the 1.185 to 1 exchange ratio in that transaction and the $11.875
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closing price of Hudson common stock on July 26, 2000). Because the number of
shares of Hudson River stock that holders would receive in the sale to Hudson
River is fixed, the value holders of Shares would receive in a sale to Hudson
River will change based on changes in the market prices of the Hudson River
stock, however, the value of Ambanc's Offer will remain fixed at $16.50 in cash
per Share.
The total value of Ambanc's Offer is approximately $131,000,000. The
total value offered to holders of Shares under the proposed sale to Hudson River
was approximately $91,000,000 at the time that transaction was announced, based
on the closing price of Hudson River on April 25, 2000, the last trading day
before the merger was announced. Based on the closing price of Hudson River on
August 4, 2000, the sale to Hudson River offers approximately $21,000,000 less
value to the Cohoes shareholders than Ambanc's Offer as of August 4, 2000.
The $16.50 per Share consideration offered pursuant to Ambanc's Offer
also represents a premium over what has been offered to the Cohoes shareholders
by TrustCo Bank Corp of NY ("TrustCo"), which is offering to exchange shares of
its own common stock worth $16.00 for each Share. Again, the total value of
Ambanc's Offer is approximately $131,000,000. THE TRUSTCO OFFER IS VALUED AT
APPROXIMATELY $ 127,000,000 --- $4,000,000 LESS TO COHOES SHAREHOLDERS AT THE
TIME THE TRUSTCO OFFER WAS ANNOUNCED.
The purpose of Ambanc's Offer is to acquire control of, and ultimately
the entire equity interest in, Cohoes and to consolidate the operations of
Cohoes and Ambanc to achieve operational efficiencies and cost savings. Ambanc
would not make the Offer if it could not effect a merger of Ambanc and Cohoes
and, consequently, the Offer is conditioned upon the removal of various
impediments to consummation of such a merger. As soon as practicable after
consummation of the Offer, Ambanc intends to cause to occur: (i) the merger of
Cohoes with and into Ambanc or a subsidiary of Ambanc pursuant to which each
outstanding Share (except for Shares held in Cohoes's treasury and Shares that
Ambanc owns for its own account) would be purchased for $16.50 in cash, subject
to appraisal rights available under Delaware law (the "Ambanc-Cohoes Merger"),
and (ii) the integration of the operations of Cohoes Savings Bank, the
wholly-owned subsidiary of Cohoes, with those of Mohawk Community Bank, the
wholly-owned subsidiary of Ambanc.
The Offer does not entitle Cohoes shareholders to appraisal rights with
respect to the Shares. Cohoes shareholders who have not validly tendered their
Shares in the Offer and do not vote in favor of the Ambanc-Cohoes Merger will
have the right under Delaware law to dissent and demand appraisal of their
Cohoes shares in accordance with Section 262 of the Delaware General Corporation
Law (the "DGCL"). See Section 13 "Appraisal Rights" for further details.
Ambanc reserves the right, following completion or termination of the
Offer, to acquire Shares through open market purchases, privately negotiated
transactions, a merger or other business combination or any combination of the
foregoing.
CONSUMMATION OF THE OFFER IS SUBJECT TO A NUMBER OF CONDITIONS THAT ARE
DESCRIBED IN SECTION 12. AMBANC EXPRESSLY RESERVES THE RIGHT TO WAIVE ANY ONE OR
MORE OF THE CONDITIONS TO THE OFFER.
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THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
THE OFFER
1. TERMS OF THE OFFER; EXPIRATION DATE. Upon the terms and subject to
the conditions of the Offer (including, if the Offer is extended or amended, the
terms and conditions of any extension or amendment), Ambanc will accept for
payment and pay for all of the outstanding Shares tendered on or before the
Expiration Date (as defined below) and not theretofore withdrawn in accordance
with Section 3. The term "Expiration Date" means 12:00 Midnight, New York City
time, on Wednesday, September 6, 2000, unless Ambanc, in its sole discretion,
shall have extended the period of time for which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by Ambanc, shall expire. For purposes of the Offer, a
"business day" means any day other than a Saturday, Sunday or federal holiday
and consists of the time period from 12:01 A.M. through 12:00 Midnight, New York
City time.
If any or all of the conditions set forth in Section 12 are not
satisfied prior to the Expiration Date, Ambanc may elect to (i) extend the Offer
and retain all tendered Shares until the expiration of the Offer, as extended,
subject to the terms of the Offer (including any rights of tendering
shareholders to withdraw their Shares), (ii) terminate the Offer and not accept
for payment any Shares and return all tendered Shares to tendering shareholders
or (iii) waive any or all conditions and, subject to complying with applicable
rules and regulations of the Securities and Exchange Commission (the "SEC"),
accept for payment all Shares validly tendered. Ambanc does not presently intend
to waive any of the conditions, however, Ambanc reserves the right to waive any
or all conditions.
Ambanc expressly reserves the right, in its sole judgment, at any time
or from time to time, and regardless of whether any of the events set forth in
Section 12 shall have occurred or shall have been determined by Ambanc to have
occurred, (i) to extend the period of time during which the Offer is open and
thereby delay acceptance for payment of, and the payment for, any Shares, by
giving oral or written notice of such extension to the Depositary and (ii) to
amend the Offer in any respect by giving oral or written notice of such
amendment to the Depositary. The rights reserved by Ambanc in this paragraph are
in addition to Ambanc's rights to terminate the Offer pursuant to Section 12.
Any such extension, amendment or termination will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be issued not later than 9:00 A.M., New York City time, on the next
business day after the previously scheduled Expiration Date. The manner in which
Ambanc will make such public announcement may, if appropriate, be limited to a
release to the Dow Jones News Service. The reservation by Ambanc of the right to
delay acceptance for payment of or payment for any Shares is subject to the
provisions of applicable law, which require that Ambanc pay the consideration
offered or return the Shares deposited by or on behalf of shareholders promptly
after termination or withdrawal of the Offer.
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If Ambanc decides to increase or decrease the consideration offered in
the Offer, and if at the time that notice of such increase or decrease is first
published, sent or given to holders of Shares in the manner specified above, the
Offer is scheduled to expire at any time earlier than the expiration of a period
ending on the tenth business day from, and including, the date that such notice
is first so published, sent or given, the Offer will be extended until the
expiration of such period of ten business days. If Ambanc waives any material
condition to the Offer, or amends the Offer in any other material respect,
Ambanc will extend the Offer and disseminate additional tender offer materials
to the extent required to comply with the SEC's interpretation of Rules 14d-4(c)
and 14d-6(d) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The minimum period during which an offer must remain open
following material changes in the terms of the offer or information concerning
the offer, other than a change in price, will depend upon the facts and
circumstances, including the relative materiality of the change in terms or
information.
Ambanc previously made a request to Cohoes pursuant to Section 220 of
the DGCL for Cohoes' shareholder lists and security position listings. This
Offer to Purchase, the related Letter of Transmittal and other relevant
materials will be mailed to record holders of Shares, and will be furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the shareholder lists or who
are listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares by Ambanc following
receipt of such lists or listings from Cohoes.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. Upon the terms and
subject to the conditions of the Offer (including, if the Offer is extended or
amended, the terms and conditions of any such extension or amendment), Ambanc
will accept for payment, and will pay for, all Shares validly tendered before
the Expiration Date and not properly withdrawn in accordance with Section 3
(including Shares validly tendered and not withdrawn during any extension of the
Offer, if the Offer is extended, subject to the terms and conditions of such
extension) as soon as practicable after the Expiration Date. In addition, Ambanc
expressly reserves the right, in its sole discretion, to delay the acceptance
for payment of or payment for Shares in order to comply, in whole or in part,
with any other applicable law. Any such delays will be effected in compliance
with Rule 14e-1(c) under the Exchange Act (relating to Ambanc's obligation to
pay for or return tendered Shares promptly after the termination or withdrawal
of the Offer).
The per Share consideration paid to any shareholder pursuant to the
Offer will be the highest per Share consideration paid to any other shareholder
pursuant to the Offer. In all cases, payment for Shares accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) certificates for such Shares (or timely confirmation (a "Book-Entry
Confirmation") of the book-entry transfer of such Shares into the Depositary's
account at The Depository Trust Company (the "Book-Entry Transfer Facility")),
pursuant to the procedures set forth in Section 4, (ii) a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees, or an Agent's Message (as defined below) in connection
with a book-entry transfer, and (iii) any other documents required by the Letter
of Transmittal.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant
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in such Book-Entry Transfer Facility tendering the Shares, that such participant
has received and agrees to be bound by the terms of the Letter of Transmittal
and that Ambanc may enforce such agreement against the participant.
For purposes of the Offer, Ambanc will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Ambanc and not
withdrawn, if, as and when Ambanc gives oral or written notice to the Depositary
of its acceptance for payment of the tenders of such Shares. Payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for the
tendering shareholders for purposes of receiving payment from Ambanc and
transmitting payment to tendering shareholders.
UNDER NO CIRCUMSTANCES WILL AMBANC PAY INTEREST ON THE PURCHASE PRICE
OF THE SHARES TO BE PAID BY AMBANC, REGARDLESS OF ANY DELAY IN MAKING SUCH
PAYMENT.
Upon the deposit of funds with the Depositary for the purpose of making
payments to tendering shareholders, Ambanc's obligation to make such payment
shall be satisfied and tendering shareholders must thereafter look solely to the
Depositary for payment of amounts owed to them by reason of the acceptance for
payment of Shares pursuant to the Offer.
If any tendered Shares are not accepted for payment pursuant to the
terms and conditions of the Offer for any reason or are not paid for because of
an invalid tender, or if certificates are submitted representing more Shares
than are tendered, certificates representing unpurchased or untendered Shares
will be returned, without expense to the tendering shareholder (or, in the case
of Shares tendered by book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility as described in Section 4, such Shares
will be credited to an account maintained within such Book-Entry Transfer
Facility), as soon as practicable following the expiration, termination or
withdrawal of the Offer.
As required by SEC rules, if Ambanc were to vary the terms of the Offer
by increasing the consideration to be paid per Share, Ambanc will pay such
increased consideration for all Shares purchased pursuant to the Offer, whether
or not such Shares have been tendered prior to such increase in consideration.
Ambanc reserves the right to transfer or assign, in whole or from time
to time in part, to one or more direct or indirect subsidiaries of Ambanc, the
right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve Ambanc of its
obligations under the Offer and will in no way prejudice the rights of tendering
shareholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
3. WITHDRAWAL RIGHTS. Except as otherwise provided in this Section 3,
tenders of Shares made pursuant to the Offer are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn at any time before the Expiration Date
and, unless theretofore accepted for payment by Ambanc as provided herein, may
also be withdrawn at any time after October 10, 2000.
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If, for any reason whatsoever, acceptance for payment of any Shares
tendered pursuant to the Offer is delayed, or if Ambanc is unable to accept for
payment or pay for Shares tendered pursuant to the Offer, then, without
prejudice to Ambanc's rights set forth herein, the Depositary may, nevertheless,
on behalf of Ambanc and subject to Rule 14e-1(c) under the Exchange Act, retain
tendered Shares, and such Shares may not be withdrawn except to the extent that
the tendering shareholder is entitled to and duly exercises withdrawal rights as
described in this Section 3. Any such delay will be accompanied by an extension
of the Offer to the extent required by law.
In order for a withdrawal to be effective, a written, telegraphic or
facsimile transmission notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase. Any notice of withdrawal must specify the name of the person having
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and,
if certificates for Shares have been tendered, the name of the registered holder
of Shares as set forth in the tendered certificate, if different from that of
the person who tendered such Shares. If certificates for Shares ("Certificates")
have been delivered or otherwise identified to the Depositary, then, before the
physical release of such Certificates, the serial numbers shown on such
Certificates must be submitted to the Depositary and the signatures on the
notice of withdrawal must be guaranteed by a firm which is a bank, broker,
dealer, credit union, savings association or other entity which is a member in
good standing of the Securities Transfer Agent's Medallion Program
(collectively, "Eligible Institutions"), unless such Shares have been tendered
for the account of any Eligible Institution. If Shares have been delivered
pursuant to the procedures for book-entry delivery as set forth in Section 4,
any notice of withdrawal must also specify the name and the number of the
account at the appropriate Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. Withdrawal of tenders of Shares may not be rescinded, and any Shares
properly withdrawn will be deemed not to be validly tendered for purposes of the
Offer. Withdrawn Shares may, however, be retendered by repeating one of the
procedures described in Section 4 at any time before the Expiration Date.
All questions as to the form and validity (including time of receipt)
of any notice of withdrawal will be determined by Ambanc, in its sole
discretion, whose determination shall be final and binding. None of Ambanc, the
Depositary, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in any notice of withdrawal
or will incur any liability for failure to give any such notification.
4. PROCEDURE FOR TENDERING SHARES. To tender Shares validly pursuant to
the Offer, a shareholder must cause a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees, or an Agent's Message in connection with a book-entry delivery of
Shares and any other required documents, to be received by the Depositary at one
of its addresses set forth on the back cover of this Offer to Purchase and must
either cause certificates for tendered Shares to be received by the Depositary
at one of such addresses or cause such Shares to be delivered pursuant to the
procedures for book-entry delivery set forth below (and a Book-Entry
Confirmation to be received by the Depositary), in each case before the
Expiration Date, or (in lieu of the foregoing) such shareholder must comply with
the guaranteed delivery procedure set forth below.
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The Depositary will establish accounts with respect to the Shares at
the Book-Entry Transfer Facilities for purposes of the Offer within two business
days after the date of this Offer to Purchase. Any financial institution that is
a participant in any of the Book-Entry Transfer Facilities' systems may make
book-entry delivery of the Shares by causing such Book-Entry Transfer Facility
to transfer such Shares into the Depositary's account in accordance with such
Book-Entry Transfer Facility's procedure for such transfer. However, although
delivery of Shares may be effected through book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message in connection with a
book-entry delivery of Shares, and any other required documents, must, in any
case, be transmitted to and received by the Depositary at one of its addresses
set forth on the back cover of this Offer to Purchase before the Expiration
Date, or the tendering shareholder must comply with the guaranteed delivery
procedure described below.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE
WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY
TO THE DEPOSITARY.
Signatures on all Letters of Transmittal must be guaranteed by an
Eligible Institution, except in cases where Shares are tendered (i) by
registered holders of Shares (which term includes any participant in a
Book-Entry Transfer Facility whose name appears on a security position listing
as the owner of the Shares) who has not completed either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (ii) for the account of an
Eligible Institution. See Instruction 1 of the Letter of Transmittal. If the
Certificates are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made to a person other than the
registered owner of the Certificates surrendered, then the Certificates must be
endorsed or accompanied by duly executed stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
Certificates, with the signature(s) on the Certificates or stock powers
guaranteed as aforesaid. See Instruction 5 of the Letter of Transmittal.
The method of delivery of Shares, the Letter of Transmittal and any
other required documents, including delivery through a Book-Entry Transfer
Facility, is at the option and risk of the tendering shareholder, and delivery
will be deemed made only when actually received by the Depositary. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
Unless an exemption applies under the applicable law and regulations
concerning "backup withholding" of federal income tax, the Depositary will be
required to withhold, and will withhold, 31% of the gross proceeds otherwise
payable to a shareholder or other payee with respect to Shares purchased
pursuant to the Offer if the shareholder does not provide his taxpayer
identification number (social security number or employer identification number)
and certify that such number is correct. Each tendering shareholder should
complete and sign the main signature form and the Substitute Form W-9 included
as part of the Letter of Transmittal, so as to provide the information and
certification necessary to avoid backup withholding, unless an applicable
exemption exists and is proved in a manner satisfactory to Ambanc and the
Depositary.
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If a shareholder desires to tender Shares pursuant to the Offer and
such shareholder's Certificates are not immediately available or such
shareholder cannot deliver the Certificates and all other required documents to
the Depositary before the Expiration Date, such Shares may nevertheless be
tendered, provided that all of the following conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
and
(b) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by Ambanc, is received
by the Depositary, as provided below, on or before the Expiration Date; and
(c) the certificates for all tendered Shares, in proper form
for transfer (or a Book-Entry Confirmation), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message) and all other documents required by the Letter of Transmittal are
received by the Depositary within three NASDAQ trading days after the date of
execution of such Notice of Guaranteed Delivery to the Depositary.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in the
Notice of Guaranteed Delivery.
In all cases, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) Certificates, or a Book-Entry Confirmation of such Shares, (ii) a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof) (or, in the case of a book-entry transfer, an Agent's Message) and
(iii) any other documents required by the Letter of Transmittal. Accordingly,
payment might not be made to all tendering shareholders at the same time, and
will depend upon when Certificates or Book-Entry Confirmations of such Shares
are received by the Depositary.
By executing a Letter of Transmittal as set forth above, the tendering
shareholder irrevocably appoints designees of Ambanc, and each of them, as his
attorneys-in-fact and proxies, in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
shareholder's rights with respect to the Shares tendered by such shareholder and
accepted for payment by Ambanc and with respect to any and all other Shares or
other securities issued or issuable in respect of such Shares on or after the
date of this Offer to Purchase. All such powers of attorney and proxies shall be
considered irrevocable and coupled with an interest in the tendered Shares. Such
appointment will be effective when, and only to the extent that, Ambanc accepts
such Shares for payment. Upon such appointment, all prior proxies given by such
shareholder will be revoked, and no subsequent proxies may be given by such
shareholder (and if given, will not be deemed effective). Ambanc's designees
will be empowered, among other things, to exercise all voting and other rights
of such shareholder as they in their sole discretion may deem proper at any
annual, special or adjourned meeting of the shareholders of Cohoes or any
consent in lieu of any such meeting or otherwise. Ambanc reserves the right to
require that, in order for the Shares to be deemed validly tendered, immediately
upon Ambanc's acceptance for payment of such Shares, Ambanc must
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be able to exercise full voting and other rights of a record and beneficial
holder, including acting by written consent, with respect thereto.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares will be determined
by Ambanc, in its sole discretion, whose determination shall be final and
binding. Ambanc reserves the absolute right to reject any and all tenders
determined by it not to be in proper form or the acceptance for payment of which
may, in the opinion of its counsel, be unlawful. Ambanc also reserves the
absolute right to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any Shares of any particular shareholder whether
or not similar defects or irregularities are waived in the case of other
shareholders. None of Ambanc, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in tenders or shall incur any liability for failure to give any
such notification. Ambanc's interpretation of the terms and conditions of the
Offer (including the Letter of Transmittal and of the instructions thereto) will
be final and binding.
The valid tender of Shares pursuant to one of the procedures described
above will constitute the tendering shareholder's acceptance of the terms and
conditions of the Offer. Ambanc's acceptance for payment of Shares tendered
pursuant to the Offer will constitute a binding agreement between the tendering
shareholder and Ambanc upon the terms and subject to the conditions of the
Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The following summary is a
general discussion of the material federal income tax consequences to
shareholders of Cohoes who tender their Shares pursuant to the Offer. The
discussion is based upon the Internal Revenue Code of 1986, as amended (the
"Code"), applicable Treasury regulations thereunder, administrative procedures,
rulings and decisions in effect on the date hereof, all of which are subject to
change (possibly with retroactive effect) by legislation, administrative action
or judicial decision. No ruling has or will be requested from the Internal
Revenue Service (the "Service") regarding the anticipated tax consequences
described herein. The discussion set forth below does not discuss all aspects of
federal income taxation that may be relevant to a particular shareholder in
light of his personal investment circumstances or to certain types of
shareholders subject to special treatment under the federal income tax laws (for
example, tax-exempt organizations, foreign corporations and individuals who have
received Shares as compensation or who are not citizens or residents of the
United States) and does not discuss any aspect of state, local or foreign
taxation. The discussion is limited to those shareholders who hold the Shares as
capital assets (generally, property held for investment) within the meaning of
Section 1221 of the Code.
SHAREHOLDERS SHOULD CONSULT THEIR INDIVIDUAL TAX ADVISORS CONCERNING
THE SPECIFIC TAX CONSEQUENCES OF THE OFFER, INCLUDING THE APPLICATION AND EFFECT
OF FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
Sale of Shares for Cash. The sale of Shares by tendering shareholders
will be a taxable event for federal income tax purposes, and may also be a
taxable transaction under applicable state, local and foreign tax laws. A
tendering shareholder will generally recognize gain or loss equal to the
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difference between the amount of cash received by the shareholder pursuant to
the Offer and the Shareholder's aggregate tax basis in the Shares tendered
pursuant to the Offer. Gain or loss will be calculated separately for each block
of Shares tendered by the shareholder and purchased pursuant to the Offer.
Gain or loss recognized by a tendering shareholder will be capital gain
or loss if the Shares are held as capital assets. Such capital gain or loss will
be classified as a long-term capital gain or loss to the extent that the
tendered Shares have a holding period of more than twelve months at the time of
their purchase pursuant to the Offer. Long-term capital gains recognized by a
tendering individual shareholder will be subject to tax at a maximum marginal
federal rate of 20%. Short-term capital gains recognized by a tendering
individual shareholder will be subject to tax at a maximum marginal federal rate
of 39.6%. Net capital gains recognized by a tendering corporate shareholder will
be subject to tax at a maximum marginal federal rate of 38%.
Backup Withholding. To prevent "backup withholding" of federal income
tax on payments of cash to a shareholder of Cohoes who exchanges Shares for cash
in the Offer, a shareholder of Cohoes must, unless an exception applies under
the applicable law and regulations, provide the payor of such cash with such
shareholder's correct taxpayer identification number ("TIN") on a Substitute
Form W-9 and certify under penalties of perjury that such number is correct and
that such shareholder is not subject to backup withholding. A Substitute Form
W-9 is included in the Letter of Transmittal. If the correct TIN and
certifications are not provided, a $50 penalty may be imposed on a shareholder
of Cohoes by the Service, and cash received by such shareholder in exchange for
Shares in the Offer may be subject to backup withholding at the rate of 31%.
Amounts paid as backup withholding do not constitute an additional tax and would
be allowable as a credit against the shareholder's federal income tax liability.
6. PRICE RANGE OF SHARES. The Shares are quoted on the Nasdaq under the
symbol "COHB." The following table sets forth, for the periods indicated, the
reported high and low sales prices per Share, and the amount of cash dividends
paid per Share for each such period. This information is derived from Cohoes'
Proxy Statement-Prospectus dated July 3, 2000 relating to the Special Meeting of
Shareholders to be held August 17, 2000 for the purpose of considering the
Hudson-Cohoes Merger (the "Cohoes' Proxy Statement") as filed with the SEC. The
Common Stock of Cohoes did not begin trading until January 1999.
Quarter Ended High Low
------------- ---- ---
March 31, 1999 $13.00 $10.38
June 30, 1999 $12.00 $9.25
September 30, 1999 $13.13 $11.56
December 31, 1999 $12.63 $9.38
March 31, 2000 $10.31 $9.38
June 30, 2000 $14.69 $9.69
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On July 26, 2000, the last day on which the shares were traded prior to
Ambanc's issuance of the press release announcing its intention to commence the
Offer, the reported closing sale price per Share on the Nasdaq was $13.938.
COHOES SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET
QUOTATION FOR THE SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES AND EXCHANGE ACT
REGISTRATION. As of June 22, 2000, according to the Cohoes' Proxy Statement,
there were 7,912,255 Shares outstanding, and there were approximately 4,600
shareholders of record, not including the number of persons or entities whose
stock is held in nominee or "street" name through various brokerage firms or
other financial institutions.
The Shares are quoted on the Nasdaq. The tender of Shares pursuant to
the Offer would reduce the number of Shares that might otherwise trade publicly
and the number of holders of Shares and could adversely affect the liquidity and
market value of the untendered Shares.
If the Offer is consummated and the Shares are accepted for payment,
pending consummation of the Ambanc-Cohoes Merger, the reduction in the number of
Shares that are publicly traded and the reduction in the number of holders of
Shares could adversely affect the liquidity and market value of the remaining
Shares held by persons other than Ambanc and its affiliates and could result in
the delisting of the Shares from Nasdaq. The availability of price quotations
will depend upon the number of holders, the aggregate market value of the Shares
remaining, the interest of securities firms in maintaining a market in the
Shares and other factors.
In the Ambanc-Cohoes Merger, Cohoes would be merged with and into
Ambanc, and Ambanc would be the surviving corporation. Each untendered Share
would be purchased for $16.50 in cash, the same price received in Ambanc's
Offer. The registration of the Shares under Section 12(g) of the Exchange Act
would be terminated.
8. CERTAIN INFORMATION CONCERNING COHOES. Cohoes is a Delaware
corporation with its principal executive offices located at 75 Remsen Road,
Cohoes, New York 12047. The telephone number of the principal executive offices
is (518) 233-6500.
Cohoes was formed at the direction of Cohoes Savings Bank in September
1998 for the purpose of becoming a savings and loan holding company and owning
all of the outstanding stock of Cohoes Savings Bank. According to Cohoes' Annual
Report on Form 10-K for the fiscal year ended September 30, 1999, Cohoes' only
business is the business of its primary subsidiary, Cohoes Savings Bank, which
is primarily engaged in banking and lending services, originating primarily
residential mortgage loans, and to a lesser extent, commercial and multi-family
real estate, consumer and commercial business loans. Its deposits are insured up
to applicable limits by the Federal Deposit Insurance Corporation("FDIC").
According to the Cohoes Proxy Statement, at March 31, 2000, the Cohoes'
branch network consisted of 21 locations throughout Albany, Greene, Rensselaer,
Saratoga, Schenectady and Warren
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Counties, New York. As reported in the Cohoes Proxy Statement, as of March 31,
2000, Cohoes had total consolidated assets of $704.4 million, deposits of $491.5
million and shareholders' equity of $121.1 million.
Cohoes is subject to the informational filing requirements of the
Exchange Act and in accordance therewith is obliged to file reports and other
information with the SEC relating to its business, financial condition and other
matters. Such reports and other information may be inspected at the public
reference facilities of the SEC at 450 Fifth Street N.W., Washington, D.C.
20549, and at the regional offices of the SEC at Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies may be obtained, by mail,
upon payment of the SEC's customary charges, or by writing to its principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also
be accessed electronically at the SEC's site on the World Wide Web located at
http://www.sec.gov. Except as otherwise noted in this Offer to Purchase, all of
the information with respect to Cohoes set forth in this Offer to Purchase has
been derived from publicly available information.
9. CERTAIN INFORMATION CONCERNING AMBANC. Ambanc is a Delaware
corporation with its principal executive offices located at 11 Division Street,
Amsterdam, New York 12010. The telephone number of the principal executive
offices is (518) 842-7200. Ambanc was formed at the direction of Amsterdam
Savings Bank, FSB in June 1995 for the purpose of becoming a savings and loan
holding company and owning all of the outstanding stock of Amsterdam Savings
Bank, FSB (now known as Mohawk Community Bank). In November 1998, Ambanc
acquired AFSALA Bancorp. Inc. and its wholly owned subsidiary, Amsterdam Federal
Bank at which time Amsterdam Savings Bank, FSB changed its name to Mohawk
Community Bank.
Ambanc's only business is the business of its primary subsidiary,
Mohawk Community Bank, which is primarily engaged in banking and lending
services, originating primarily one- to four-family residential mortgage loans,
home equity loans and consumer loans, and to a lesser extent, commercial and
multi-family real estate, and commercial business loans. Its deposits are
insured up to applicable limits by the FDIC.
Mohawk Community Bank serves customers through 17 upstate New York
offices, located in Fulton, Montgomery, Schenectady, Saratoga, Albany, Otsego,
Chenango and Schoharie counties. As of March 31, 2000, Ambanc had total
consolidated assets of $721.3 million, deposits of $464.3 million and
shareholders' equity of $75.4 million. Ambanc's common stock is traded on the
Nasdaq under the symbol "AHCI".
Ambanc is subject to the informational filing requirements of the
Exchange Act and in accordance therewith is obliged to file reports and other
information with the SEC relating to its business, financial condition and other
matters. Such reports and other information may be inspected at the public
reference facilities of the SEC at 450 Fifth Street N.W., Washington, D.C.
20549, and at the regional offices of the SEC at Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies may be obtained, by mail,
upon payment of the SEC's customary charges, or by
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writing to its principal office at 450 Fifth Street, N.W., Washington, D.C.
20549. Such material may also be accessed electronically at the SEC's site on
the World Wide Web located at http://www.sec.gov.
Schedule II hereto sets forth the number of Shares beneficially owned
by Ambanc and its directors and executive officers (and associates of such
persons) as of the date of this Offer to Purchase. As of the date of this Offer
to Purchase, Ambanc beneficially owned 304,650 Shares. Except as set forth in
Schedule II hereto, to the knowledge of Ambanc, none of the persons listed in
Schedule I hereto, nor any affiliate, associate or majority-owned subsidiary of
such persons, beneficially owns any equity security of Cohoes. To the knowledge
of Ambanc, none of the persons listed in Schedule I hereto, nor any associates
of such persons) has effected any transaction in any equity security of Cohoes
during the past 60 days. Information with respect to transactions effected in
the Shares by Ambanc during the past 60 days is set forth under Item 8 in the
Schedule TO filed with the SEC by Ambanc on August 9, 2000.
Except as otherwise stated in this Offer to Purchase, (i) there have
not been any contracts, transactions or negotiations between Ambanc, or, to the
knowledge of Ambanc, any of the persons listed in Schedule I hereto, on the one
hand, and Cohoes or any of its directors, officers or affiliates, on the other
hand, concerning a merger, consolidation or acquisition, a tender offer or other
acquisition of securities, an election of directors, or a sale or other transfer
of a material amount of assets, or that are otherwise required to be disclosed
pursuant to the rules and regulations of the SEC, and (ii) neither Ambanc, nor,
to the knowledge of Ambanc, any of the persons listed in Schedule I hereto has
any contract, arrangement, understanding or relationship with any person with
respect to any securities of Cohoes.
10. BACKGROUND OF THE OFFER; CONTACTS WITH COHOES. From time to time,
Ambanc is involved in due diligence investigations, discussions and negotiations
concerning possible business combination transactions with other financial
institutions. Ambanc generally seeks to acquire financial institutions that
would: (i) complement its overall strategic focus; (ii) provide opportunities
for growth in markets where the target financial institution conducts business;
and (iii) improve Ambanc's retail banking franchise.
In August 1998, Ambanc retained Sandler O'Neill & Partner, L.P. to
explore strategic options for Ambanc which could result in the sale or merger of
Ambanc. As part of this process, Cohoes was contacted to ascertain whether it
had any interest in a strategic combination with Ambanc. In the late spring of
1999, Cohoes indicated an interest regarding a possible acquisition of Ambanc.
In furtherance of this possible business combination, the parties entered into a
confidentiality agreement whereupon Ambanc furnished Cohoes with certain
business and other information regarding Ambanc. In June 1999, Cohoes made a
nonbinding expression of interest to acquire Ambanc which, after further
negotiations with Cohoes, was ultimately rejected by the Ambanc Board of
Directors in July, 1999. Subsequently, in September and October 1999, the
Presidents of the two companies informally discussed possible business
combinations and the parties recommenced discussions regarding a possible
acquisition of Ambanc by Cohoes. In December 1999, Cohoes again made a
nonbinding expression of interest to acquire Ambanc. After several weeks of
negotiations and due diligence, Cohoes withdrew its proposal in January 2000.
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On April 25, 2000, Cohoes and Hudson announced that they had entered
into the Hudson Merger Agreement and the Hudson Option Agreement. Following
announcement of the Proposed Hudson Merger, Ambanc reviewed its strategic
options in light of the Proposed Hudson Merger.
On June 15, 2000 Ambanc made an acquisition proposal to the Cohoes
Board of Directors in which Ambanc would acquire Cohoes in a merger in which
each share of Cohoes' common stock would be exchanged for $14.75 in cash. On
June 20, 2000, Cohoes and Hudson River jointly made a nonbinding offer to
acquire Ambanc in an all cash acquisition. On June 23, 2000, representatives of
Ambanc met with representatives of Cohoes and Hudson River to discuss the joint
nonbinding proposal to acquire Ambanc. In addition, on June 23, 2000, Ambanc
revised its proposal to Cohoes and offered to purchase each share of Cohoes'
common stock for $15.25 in cash. On June 26, 2000, Ambanc rejected the
nonbinding proposal from Cohoes and Hudson River. The June 23, 2000, revised
proposal of Ambanc to acquire Cohoes was rejected by Cohoes in July 2000.
On July 27, 2000, Ambanc announced its intention to commence a tender
offer to purchase each outstanding share of Cohoes for $16.50 per share in cash.
11. PURPOSE OF THE OFFER; PLANS FOR COHOES. The purpose of the Offer is
to enable Ambanc to acquire control of, and ultimately the entire equity
interest in, Cohoes. The Offer is intended to facilitate the acquisition of all
of the outstanding Shares. If the Offer is consummated, Cohoes would be merged
with and into Ambanc, with Ambanc being the surviving entity.
Upon completion of the Offer, Ambanc intends to take appropriate
actions to optimize and rationalize the combined entities' assets, operations,
management, personnel, general and administrative functions and corporate
structure. Except as otherwise discussed elsewhere in this Offer to Purchase,
Ambanc does not have any plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, or sale of a material amount of assets, involving Cohoes or any of
its subsidiaries, or any material changes in Cohoes' corporate structure or
business, or any change in its management. Although Ambanc has requested Cohoes
to do so, Cohoes has not provided Ambanc with any access to its books and
records, however, so Ambanc might decide upon such changes once Ambanc completes
such a review. If the Cohoes shareholders reject the proposed sale to Hudson
River, Ambanc expects that Cohoes will have an annual meeting of shareholders in
late 2000 (the "2000 Annual Meeting"), at which directors of Cohoes would be
elected. On August 3, 2000, Ambanc announced that it had submitted the
nominations of two individuals for election to the Board of Directors of Cohoes
at the 2000 Annual Meeting, if held. Further, Ambanc may nominate two additional
nominees at a later date as there would be a total of four board seats up for
election at the 2000 Annual Meeting, if held.
12. CERTAIN CONDITIONS OF THE OFFER.
GENERAL
Notwithstanding any other provisions of the Offer, Ambanc will not be
required to accept for payment or pay for any Shares, may postpone the
acceptance for payment of Shares tendered and may terminate or amend the Offer
as provided herein if any of the following conditions are not
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satisfied: (i) the Minimum Tender Condition, (ii) the Regulatory Approval
Condition, (iii) the Removal of Impediments Condition; (vi) the Material Adverse
Effect Condition; (vii) the termination of the Hudson-Cohoes Merger Agreement;
(viii) the termination of the Hudson-Cohoes Option Agreement and the surrender
by Hudson to Cohoes of the option granted to Hudson thereunder; (ix) the
shareholders of Cohoes do not approve the Hudson-Cohoes Merger; (x) Ambanc and
Cohoes enter into a definitive Ambanc-Cohoes Merger agreement. Ambanc reserves
the absolute right to waive any of the conditions of the Offer other than the
Regulatory Approval Condition.
MINIMUM TENDER CONDITION
The Offer is conditioned upon there being validly tendered and not
withdrawn prior to the Expiration Date a number of Shares which, together with
those Shares beneficially owned by Ambanc would represent at least a majority of
Shares outstanding on a fully diluted basis (i.e., as though all options or
other securities convertible into or exercisable for Shares had been so
converted, exercised or exchanged) on the date the Shares are accepted by Ambanc
pursuant to the Offer. According to the Cohoes' Proxy Statement, there were
7,912,255 Shares outstanding on June 22, 2000. Based on this number, Ambanc
believes that the Minimum Tender Condition would have been satisfied on June 22,
2000 if, in addition to the 304,650 Shares currently owned beneficially by
Ambanc, at least 3,651,478 Shares or 46.15% of the Shares outstanding on June
22, 2000, had been validly tendered pursuant to the Offer and not withdrawn.
According to the Cohoes' Proxy Statement dated September 24, 1999 relating to
the 1999 Annual Meeting of Shareholders (the "Annual Meeting Proxy"), there are
953,522 Shares in the aggregate reserved for issuance pursuant to Cohoes' Stock
Option and Incentive Plan. As reported in the Annual Meeting Proxy, options to
purchase 866,055 Shares had been awarded as of September 1, 1999. These awards
vest over five years, beginning on the anniversary of the date of the grant,
which was July 2, 1999, thus, as of July 2, 2000, 173,011 options were
exercisable under Cohoes' Stock Option and Incentive Plan. The exercise of any
of these options would increase the number of Shares that would need to be
validly tendered pursuant to the Offer and not withdrawn in order for the
Minimum Tender Condition to be satisfied. Ambanc reserves the right (but is not
obligated), subject to the rules and regulations of the SEC, to waive or amend
the Minimum Tender Condition and to purchase fewer than such number of Shares as
would satisfy the Minimum Tender Condition pursuant to the Offer.
REGULATORY APPROVAL CONDITION
The Offer and the Ambanc-Cohoes Merger are subject to certain
governmental approvals. See Section 17. While Ambanc expects to receive the
requisite governmental approvals, Ambanc cannot predict when, or give any
assurance that, such approvals will be received. In any event, the Regulatory
Approval Condition is a non-waivable condition to the Offer.
REMOVAL OF IMPEDIMENTS CONDITION
Cohoes' Certificate of Incorporation provides that certain business
combinations with an interested shareholder require the affirmative vote of the
holders of at least 80% of the voting power of the outstanding shares of stock
of Cohoes entitled to vote in the election of directors. Generally, an
interested shareholder is any person, other than Cohoes or any subsidiary of
Cohoes, that is the
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beneficial owner, directly or indirectly, of more than 10% of the voting power
of the outstanding voting stock of Cohoes. The business combination provisions
relating to interested shareholders also apply to affiliates of interested
shareholders. Business combinations subject to the 80% shareholder approval
requirement include, among other things, any merger or consolidation of Cohoes
or any subsidiary of Cohoes with the interested shareholder or an affiliate of
the interested shareholder. A business combination with an interested
shareholder may avoid the 80% shareholder approval requirement, needing only an
affirmative vote of a majority of the voting power of the outstanding shares of
stock of Cohoes entitled to vote in the election of directors, if the business
combination has been approved by a majority of the disinterested directors of
Cohoes, the fair market value of the consideration received per share by the
holders of Cohoes Common Stock equals or exceeds the higher of certain fair
price determinations, the interested shareholder and its affiliates refrain from
engaging in certain self-dealing transactions with Cohoes prior to consummation
of the business combination, and a proxy or information statement describing the
proposed business combination and complying with the requirements of the 1934
Act has been mailed to shareholders of Cohoes at least 30 days prior to the
consummation of such business combination. Cohoes' Certificate also provides
that, with certain exceptions, a beneficial owner of more than 10% of the voting
stock of Cohoes is prohibited from voting more than 10% of the stock of Cohoes
(the "10% Limit").
The DGCL contains a statute designed to provide Delaware corporations
with protection against certain takeover attempts. The statute, which is
codified in Section 203 of the DGCL ("Section 203"), among other things,
prohibits Cohoes (a Delaware corporation) from engaging in certain business
combinations (including a merger) with a person who is the beneficial owner of
15% or more of Cohoes' outstanding voting stock (an "Interested Shareholder")
during the three-year period following the date such person became an Interested
Shareholder. This restriction does not apply if: (i) before such person became
an Interested Shareholder, the board of directors approved the transaction in
which the Interested Shareholder becomes an Interested Shareholder or approved
the business combination; or (ii) upon consummation of the transaction which
resulted in the shareholder becoming an Interested Shareholder, the Interested
Shareholder owned at least 85% of the voting stock of Cohoes outstanding at the
time the transaction commenced, excluding for purposes of determining the number
of shares outstanding, those shares owned by (a) persons who are directors and
also officers and (b) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer; or (iii) on or subsequent
to such date, the business combination is approved by the board of directors and
authorized at an annual or special meeting of shareholders, and not by written
consent, by the affirmative vote of at least two-thirds of the outstanding
voting stock which is not owned by the Interested Shareholder. Section 203
provides that a Delaware corporation may exempt itself from the requirements of
the statute by adopting an amendment to the corporation's certificate of
incorporation. Cohoes' Certificate does not exempt Cohoes from the requirements
of Section 203. A copy of Section 203 is attached hereto as Schedule III.
The New York charter of Cohoes Savings Bank, the thrift subsidiary of
Cohoes, contains a provision which currently prevents any person from acquiring,
directly or indirectly, more than ten percent of any class of stock of Cohoes
Savings Bank. Because Cohoes Savings Bank is owned and controlled by Cohoes, the
acquisition of Cohoes Common Stock pursuant to the Offer may be deemed to be an
indirect acquisition of the equity securities of Cohoes Savings Bank which,
accordingly, may result in a violation of the New York charter of Cohoes Savings
Bank. This
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ownership limitation is being maintained on a permissive basis by Cohoes Savings
Bank and may be lawfully removed by amendment to its charter. The charter of
Cohoes Savings Bank could be amended through the adoption of appropriate
resolutions by the board of directors of Cohoes Savings Bank -- who are
substantially the same individuals as the directors of Cohoes -- which
resolutions would thereafter be approved by the Cohoes Board acting on its
behalf as the sole shareholder of Cohoes Savings Bank.
All of the above are impediments to the consummation of the
Ambanc-Cohoes Merger. The Removal of Impediments Condition provides that Ambanc
is not required to purchase shares of Cohoes Common Stock and may terminate,
amend or extend the Offer, unless the above impediments are removed. This can be
satisfied by the Cohoes Board approving the Offer and the Ambanc-Cohoes Merger.
The consideration offered pursuant to the Offer meets the fair price
requirements of the business combination provisions of Cohoes' Certificate and,
except for the required approval of Cohoes' directors, satisfaction of the other
conditions would be within Ambanc's control. Accordingly, the approval of the
Offer and the Ambanc-Cohoes Merger by the Cohoes Board (other than any director
nominated by Ambanc and thereafter elected to the Cohoes Board) would obviate
the 80% vote requirement of Cohoes' Certificate and also make Section 203
inapplicable to the transaction. As part of its approval of the Ambanc-Cohoes
Merger, the Cohoes Board would also have to: (i) make appropriate arrangements
for amendment to the charter of Cohoes Savings Bank to eliminate the 10% or
greater ownership prohibition contained therein; and (ii) make appropriate
arrangements to permit all shares of Cohoes Common Stock tendered pursuant to
the Offer to be voted on the merger of Cohoes into Ambanc pursuant to the second
proviso to the definition of beneficial ownership in Article FOURTH Section
(C)(2)(b) of Cohoes' Certificate.
The exact timing and details of the Ambanc-Cohoes Merger between Ambanc
and Cohoes following the Offer will necessarily depend upon a variety of
factors, including the means and methods employed by the Cohoes Board in
approving the Ambanc-Cohoes Merger. Although Ambanc intends to propose and to
seek consummation of the Ambanc-Cohoes Merger as soon as reasonably practicable
following the Offer, no assurances can be given when such merger will be
effected.
MATERIAL ADVERSE EFFECT CONDITION
The Material Adverse Effect Condition will be deemed satisfied unless,
after June 30, 1999 and prior to the time of acceptance for payment and payment
for any shares of Cohoes Common Stock (whether or not any shares of Cohoes
Common Stock have theretofore been accepted for payment or paid for pursuant to
the Offer) any of the following events occur:
(a) there is threatened, instituted or pending any action or proceeding
before any domestic or foreign court or governmental agency or other regulatory
or administrative agency or commission, including but not limited to any such
investigation, action or proceeding which was in existence on or prior to June
30, 1999: (i) seeking to obtain any material damages from Cohoes; (ii) seeking
to prohibit or restrict Cohoes' ownership or operation of any material portion
of its business or assets, or to compel Cohoes to dispose of or hold separate
all or any material portion of Cohoes' business or assets; (iii) which otherwise
is reasonably likely to materially adversely affect Cohoes or the value of the
Cohoes Common Stock; (iv) which imposes material limitations on the ability of
Ambanc
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effectively to acquire or hold or to exercise full rights of ownership of the
Cohoes Common Stock, including, without limitation, the right to vote the shares
of Cohoes Common Stock acquired by it on all matters properly presented to the
shareholders of Cohoes or any material condition unacceptable to Ambanc; or (v)
which is reasonably likely to enjoin, restrain or prohibit, or result in
material damages in respect of, or which is related to or arises out of, the
Offer or the Ambanc-Cohoes Merger or the consummation of the transactions
contemplated hereby; or
(b) any change (or any condition, event or development involving a
prospective change) has occurred or is threatened in the business, properties,
assets, liabilities, capitalization, shareholders' equity, financial condition,
results of operations or prospects of Cohoes (including, without limitation, the
disposition of assets) which, in the sole judgment of Ambanc, is or may be
materially adverse to Cohoes or to the value of the Cohoes Common Stock, or
Ambanc becomes aware of any fact (including, but not limited to, any such
change, condition, event or development) which, in the sole judgment of Ambanc,
has or may have materially adverse significance with respect to Cohoes or any of
its subsidiaries or to the value of the Cohoes Common Stock; and which, in the
sole judgment of Ambanc, makes it inadvisable to proceed with the Offer.
The foregoing conditions are for the sole benefit of Ambanc and may be
asserted by Ambanc regardless of the circumstances giving rise to any such
conditions (including any action or inaction by Ambanc) or may be waived by
Ambanc in whole or in part. The failure by Ambanc at any time to exercise any of
the foregoing rights will not be deemed a waiver of any such right and each such
right will be deemed a continuing right which may be asserted at any time and
from time to time.
TERMINATION OF THE HUDSON-COHOES MERGER AGREEMENT
The Offer is conditioned, among other things, upon Cohoes terminating
the Hudson-Cohoes Merger Agreement. The Hudson-Cohoes Merger Agreement may be
terminated as follows: (i) by the mutual consent of Cohoes and Hudson; (ii) by a
non-breaching party if the other party has breached in any material respect any
of its covenants, representations or warranties and such breach is not cured
within 30 days after notice of such breach is given to the breaching party;
(iii) by either Cohoes or Hudson if any necessary governmental approval is not
obtained; (iv) by either party if the shareholders of either party do not
approve the Hudson-Cohoes Merger; or (v) by either party if the Hudson-Cohoes
Merger has not occurred by February 28, 2001.
Cohoes and Hudson can, by mutual consent, terminate the Hudson-Cohoes
Merger Agreement. However, if they do not, the Hudson-Cohoes Merger Agreement
can be terminated by Cohoes if the Cohoes shareholders do not approve the
Hudson-Cohoes Merger. See Section 12. Alternatively, Cohoes may terminate the
Hudson-Cohoes Merger Agreement if the Hudson-Cohoes Merger has not occurred by
February 28, 2001.
Ambanc does not know if the Cohoes Board will so terminate the
Hudson-Cohoes Merger Agreement under any of these circumstances. The Cohoes
Board did not retain the right to terminate the Hudson-Cohoes Merger Agreement
in the event of an offer superior to that contained in the Hudson-Cohoes Merger
Agreement.
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TERMINATION OF THE HUDSON-COHOES OPTION AGREEMENT
The Offer is conditioned, among other things, upon the termination of
the Hudson-Cohoes Option Agreement and the surrender by Hudson to Cohoes of the
options granted to Hudson thereunder. The Hudson-Cohoes Option Agreement was
entered into in connection with the Hudson-Cohoes Merger Agreement. Under the
Hudson-Cohoes Option Agreement, Cohoes granted Hudson an unconditional,
irrevocable option to purchase up to 1,574,538 shares of Cohoes Common Stock at
a price per share of $9.8125.
Hudson may exercise the option if, but only if, both an "Initial
Triggering Event" and a "Subsequent Triggering Event" has occurred prior to the
occurrence of an "Exercise Termination Event."
An "Initial Triggering Event" includes any of the following events or
transactions: (i) Cohoes, without Hudson's prior consent, enters into an
agreement to be acquired (i.e., 10% or more of the voting power of the Cohoes
Common Stock), or the Cohoes Board recommends that the Cohoes shareholders
approve such an acquisition transaction with any person other than Hudson; (ii)
any person other than Hudson acquires beneficial ownership (or the right to
acquire beneficial ownership) of 10% or more of the outstanding shares of Cohoes
Common Stock; (iii) any person publicly announces that it has made or intends to
make a proposal to engage in an acquisition transaction with Cohoes; (iv) the
Cohoes Board (without having received Hudson's consent): (a) withdraws its
recommendation to the Cohoes shareholders that they approve the Hudson-Cohoes
Merger; or (b) authorizes, recommends or proposes an agreement to enter into an
acquisition transaction with anyone other than Hudson; or (c) provides
information to or engages in negotiations with a third party relating to a
possible acquisition transaction; (v) any person (other than Hudson) files with
the SEC a registration statement or tender offer materials with respect to a
potential exchange offer than would constitute such an acquisition transaction;
(vi) Cohoes willfully breaches any covenant or obligation contained in the
Hudson-Cohoes Merger Agreement after an overture is made by a third party to
Hudson or its shareholders to engage in a possible acquisition transaction and
such breach would entitle Hudson to terminate the Hudson-Cohoes Merger Agreement
and has not been cured within the time period prescribed in the Hudson-Cohoes
Option Agreement or (vii) any person (other than Hudson and without Hudson's
consent) files an application or notice with any federal or state thrift or bank
regulatory or antitrust authority to engage in such an acquisition transaction.
The Offer, and Ambanc's activities in connection therewith and with the
Ambanc-Cohoes Merger, constitute an "Initial Triggering Event." The exchange
offer made by TrustCo, and its activities and proposed merger with Cohoes in
connection therewith, also constitute an "Initial Triggering Event."
A "Subsequent Triggering Event" means: (i) the acquisition by any
person (other than Hudson) of beneficial ownership of 25% or more of the
outstanding Cohoes Common Stock; or (ii) the occurrence of an "Initial
Triggering Event" described in clause (i) of the immediately preceding paragraph
(but by substituting 25% for 10%). The Offer, and Ambanc's activities in
connection therewith and with the Ambanc-Cohoes Merger, will constitute a
"Subsequent Triggering Event."
An "Exercise Termination Event" means any of the following: (i) such
time as the Hudson-Cohoes Merger becomes effective; (ii) a termination of the
Hudson-Cohoes Merger
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Agreement in accordance with its term; or (iii) the passage of certain
prescribed times after termination of the Hudson-Cohoes Merger Agreement if such
termination follows the occurrence of an "Initial Triggering Event."
Because there has been an Initial Triggering Event, and since the
closing of the Offer and the Ambanc-Cohoes Merger will constitute a Subsequent
Triggering Event, Cohoes and Hudson will need to mutually agree to terminate the
Hudson-Cohoes Option Agreement to satisfy this condition.
STOCKHOLDER DISAPPROVAL OF THE HUDSON-COHOES MERGER
The Offer is conditioned, among other things, upon the Cohoes
shareholders not approving the Hudson-Cohoes Merger. If the Hudson-Cohoes Merger
Agreement is terminated, then this condition will be deemed satisfied. However,
if the Hudson-Cohoes Merger Agreement is not otherwise terminated and if Cohoes
holds a meeting of its shareholders to approve the Hudson-Cohoes Merger, this
condition will be satisfied only if the requisite number of Cohoes shareholders
either vote against such approval or abstain from voting.
To be approved, the Hudson-Cohoes Merger must receive the affirmative
vote of a majority of the outstanding shares of Cohoes Common Stock and a
majority of the outstanding shares of Hudson Common Stock.
Ambanc currently holds 304,650 shares of Cohoes Common Stock and
intends to vote such shares against the proposed Hudson-Cohoes Merger. In
addition, Ambanc is soliciting proxies from Cohoes' shareholders to vote against
the proposed Hudson-Cohoes Merger. Ambanc does not know whether it will obtain a
sufficient number of proxies which, together with the shares of Cohoes Common
Stock already owned by Ambanc, will be sufficient to defeat the proposed
Hudson-Cohoes Merger if the matter is ultimately put to Cohoes' shareholders for
approval.
You should be aware that, under the Hudson-Cohoes Merger Agreement,
Cohoes is required to take all action which is necessary to properly call and
convene a meeting of its shareholders to consider and vote upon the
Hudson-Cohoes Merger and the Hudson-Cohoes Merger Agreement. The Cohoes Board is
obligated under the Hudson-Cohoes Merger Agreement to recommend that the Cohoes
shareholders approve the Hudson-Cohoes Merger. The Cohoes Board has no ability
(without otherwise breaching the Hudson-Cohoes Merger Agreement) to recommend
that the Cohoes shareholders vote against the Hudson-Cohoes Merger, even if a
superior offer has been made.
DEFINITIVE AMBANC-COHOES MERGER AGREEMENT
The Offer is conditioned, among other things, upon Ambanc and Cohoes
entering into a definitive agreement with respect to the Ambanc-Cohoes Merger.
Ambanc considers the Offer and the Ambanc-Cohoes Merger to be related steps in
one overall transaction whereby Ambanc acquires all of the issued and
outstanding shares of Cohoes Common Stock. Whether this condition can be
satisfied depends upon the willingness of the Cohoes Board to enter into such a
definitive agreement.
13. APPRAISAL RIGHTS. Ambanc is making the Offer in order to acquire
control of, and ultimately the entire common equity interest in, Cohoes. The
Offer is the first step in Ambanc's
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acquisition of Cohoes, and is intended to facilitate the acquisition of all of
the outstanding Shares. Cohoes shareholders will not have appraisal rights as a
result of the consummation of this Offer. Ambanc intends, as soon as practicable
after completion of the Offer, to seek to merge Cohoes with and into Ambanc or a
wholly owned subsidiary. The purpose of the Ambanc-Cohoes Merger is to acquire
all of the Shares not tendered and purchased pursuant to the offer. In the
Ambanc-Cohoes Merger, each then outstanding Share (except for Shares held in
Cohoes's treasury and Shares that Ambanc owns for its own account) would be
converted into the right to receive $16.50 net in cash. Assuming the minimum
tender condition and certain other conditions described in Section 12 are
satisfied and Ambanc completes the Offer, Ambanc would have sufficient voting
power to effect the Ambanc-Cohoes Merger under Section 251 of the DGCL without
the vote of any other Cohoes shareholder of Cohoes. Although shareholders do not
have appraisal rights as a result of the Offer, Cohoes shareholders at the time
of the Ambanc-Cohoes Merger who do not vote in favor of the Ambanc-Cohoes Merger
will have the right under the DGCL to dissent and demand appraisal of their
Shares in accordance with Section 262 of the DGCL. Under Section 262, dissenting
shareholders who comply with the applicable statutory procedures will be
entitled to receive a judicial determination of the fair value of their Shares
(exclusive of any element of value arising from the accomplishment or
expectation of the Ambanc-Cohoes Merger) and to receive payment of such fair
value in cash, together with a fair rate of interest, if any. The Supreme Court
of the State of Delaware has construed Section 262 of the DGCL and held that the
"accomplishment or expectation" exclusion from the calculation of fair value set
forth in the preceding sentence is narrow and is designed to eliminate use of
pro forma data and projections of a speculative variety relating to the
completion of a merger. The court held that it is appropriate to include in the
calculation of fair value any known elements of value, including those elements
of value which exist on the date of the merger because of a majority acquiror's
interim action in a two-step cash-out transaction. Ambanc can make no assurance
as to the methodology a court would use to determine fair value or how a court
would select which of the elements of value are to be included in such a
determination. Any such judicial determination of the fair value of the Shares
could be based upon factors other than, or in addition to, the price per Share
to be paid in the Ambanc-Cohoes Merger or the market value of the Shares. The
value so determined could be more or less than the value of the consideration
per Share to be paid in the Ambanc-Cohoes Merger.
14. SOURCE AND AMOUNT OF FUNDS. Ambanc estimates that the total amount
of funds required to purchase the Shares in the Offer (excluding the 304,650
Shares beneficially owned by Ambanc as of August 9, 2000) will be approximately
$125,525,482, which will be funded from Ambanc's existing assets, including
securities held as available-for-sale, and/or an advance or dividend from
Ambanc's wholly-owned subsidiary, Mohawk Community Bank, to Ambanc.
As discussed in Section 17, the financial resources of Ambanc following
the Ambanc-Cohoes Merger will be an important factor in obtaining federal
regulatory approval of the Ambanc-Cohoes Merger. Based on certain financial
assumptions regarding Ambanc and Cohoes, Ambanc currently believes that,
following the Ambanc-Cohoes Merger, it will have sufficient financial resources
and regulatory capital to satisfy regulatory requirements. There can be no
assurance, however, that such approvals will be received.
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15. DIVIDENDS AND DISTRIBUTIONS. If, on or after the date of this Offer
to Purchase, Cohoes should split, combine or otherwise change the Shares or its
capitalization, or shall disclose that it has taken any such action, then,
subject to the provisions of Section 12, Ambanc may, in its sole judgment, make
such adjustments as it deems appropriate to reflect such split, combination or
other change in the purchase price and the other terms of the Offer (including,
without limitation, the number and type of securities offered to be purchased,
the amounts payable therefor and the fees payable hereunder).
If, on or after the date of this Offer, Cohoes should declare or pay
any cash or stock dividend or other distribution on or issue any rights with
respect to the Shares, payable or distributable to shareholders of record on a
date before the transfer to the name of Ambanc or its nominee or transferee on
Cohoes' stock transfer records of the Shares accepted for payment pursuant to
the Offer, then, subject to the provisions of Section 12, (i) the purchase price
per Share payable by Ambanc pursuant to the Offer will be reduced by the amount
of any such cash dividend or cash distribution and (ii) the whole of any such
non-cash dividend, distribution or right will be received and held by the
tendering shareholder for the account of Ambanc and shall be required to be
promptly remitted and transferred by each tendering shareholder to the
Depositary for the account of Ambanc, accompanied by appropriate documentation
of transfer. Pending such remittance, Ambanc will be entitled to all rights and
privileges as owner of any such non-cash dividend, distribution or right and may
withhold the entire purchase price or deduct from the purchase price the amount
or value thereof, as determined by Ambanc in its sole discretion.
16. TREATMENT OF COHOES STOCK OPTIONS AND EMPLOYEE STOCK
OWNERSHIP PLAN.
Cohoes maintains an Employee Stock Ownership Plan ("ESOP") for its
employees and a Stock Option and Incentive Plan for directors, advisory
directors and key employees (collectively the "Option Plans"). Each outstanding
and fully vested option under the Option Plans will be canceled prior to the
consummation date of the Ambanc-Cohoes Merger and the holder thereof will
receive from Ambanc, in payment for such option, $16.50 in cash less the
exercise price of the stock option, subject to appraisal rights available under
Delaware law. It is anticipated that the ESOP will be terminated and any
remaining unallocated ESOP shares would be allocated to participants after
repayment of the ESOP loan.
17. CERTAIN LEGAL AND REGULATORY MATTERS; APPROVALS.
GENERAL
Except as set forth below, based upon an examination of publicly
available information filed by Cohoes with the SEC and other publicly available
information with respect to Cohoes, Ambanc is not aware of any license or
regulatory permit which appears to be material to the business of Cohoes and
which is likely to be adversely affected by Ambanc's acquisition of Shares
pursuant to the Offer or, except as disclosed below, of any approval or other
action by any state, federal or foreign government or governmental agency that
would be required prior to the acquisition of Shares pursuant to the Offer.
Ambanc presently intends to take such actions with respect to any approvals as
will enable it to acquire the Shares as expeditiously as possible. In this
regard, Ambanc expressly
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reserves the right to challenge the validity and applicability of any state,
foreign or other statutes or regulations purporting to require approval of the
commencement or consummation of the Offer and the Ambanc-Cohoes Merger.
There can be no assurance that any license, permit, approval or other
action, if needed, would be obtained and, if obtained, there can be no assurance
as to the date of any such license, permit or approval or the absence of any
litigation challenging any such license, permit or approval. Similarly, there
can be no assurance that adverse consequences might not result to Cohoes or to
its business in the event of adverse regulatory action or inaction. Ambanc's
obligation under the Offer to accept for payment and pay for any Shares is
subject to satisfaction of the Regulatory Approval Condition as well as other
conditions which could be triggered by an adverse regulatory development. See
Section 12.
FEDERAL REGULATORY MATTERS
The acquisition of Shares pursuant to the Offer (the "Acquisition") and
the consummation of the Ambanc-Cohoes Merger are subject to the prior approval
by the Office of Thrift Supervision (the "OTS") pursuant to the Home Owners'
Loan Act, as amended (the "HOLA") and the New York State Banking Department (the
"NYBD").
In determining whether to approve the Acquisition and the Ambanc-Cohoes
Merger, the OTS and the NYBD will consider, among other things: (i) competitive
factors; (ii) the financial and managerial resources and future prospects of
Ambanc and Cohoes; (iii) the convenience and needs of the community served by
Ambanc and Cohoes; and (iv) supervisory factors. These factors are discussed
herein.
In reviewing a transaction under the applicable statutes, the OTS will
consider the financial and managerial resources of the companies and their
subsidiary banks and the convenience and needs of the communities to be served.
Under the Community Reinvestment Act of 1977, as amended (the "C.R.A."), the OTS
must also take into account the record of performance of each of Ambanc and
Cohoes in meeting the credit needs of the entire community, including low and
moderate income neighborhoods, served by each company. As of the date of this
Offer, the depository institution subsidiaries of Ambanc and Cohoes each
received C.R.A. ratings of satisfactory in their most recent C.R.A.
examinations.
The HOLA and the OTS regulations also require publication of notice of,
and the opportunity for public comment on, the application submitted by Ambanc
for approval of the Acquisition and authorize the OTS to hold a public hearing
in connection therewith if the OTS determines that such a hearing would be
appropriate. Any such hearing or comments provided by third parties could
prolong the period during which the application is subject to review by the OTS.
Following approval by the OTS, the Acquisition may not be consummated
until 30 days after OTS approval, during which time the United States Department
of Justice ("D.O.J.") may challenge the Acquisition on antitrust grounds and
seek the divestiture of certain assets and liabilities. With the approval of the
OTS and the D.O.J., the waiting period may be reduced to no less than 15 days.
The commencement of an antitrust action by the D.O.J. would stay the
effectiveness of OTS
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approval of the Acquisition unless a court specifically orders otherwise. In
reviewing the Acquisition, the D.O.J. could analyze the effect of the
Acquisition on competition differently from the OTS and, thus, it is possible
that the D.O.J. could reach a different conclusion than the OTS regarding the
competitive effects of the Acquisition. Failure of the D.O.J. to object to the
Acquisition may not prevent the filing of antitrust actions by private persons
or state attorneys general.
In general, the OTS and the D.O.J. will examine the impact of the
Acquisition on competition in various product and geographic markets, including
competition for deposits and loans, especially loans to small and middle market
businesses.
ANTICIPATED APPROVALS
While Ambanc expects to receive the approvals from the OTS and the NYBD
and other relevant agencies required to consummate the Acquisition, Ambanc
cannot predict when, or give any assurance that, such approvals will be
received. It is anticipated that, in any event, the approval process (including
the mandatory waiting periods) could take four months from the date the
applications are filed. Any such approvals may be issued subject to prior
compliance with material conditions, which conditions might be unacceptable to
Ambanc and would entitle Ambanc to terminate the Offer. In any event, the
receipt of all such regulatory approvals and the expiration of all waiting
periods is a non-waivable condition to the Offer.
18. FEES AND EXPENSES. D.F. King & Co., Inc. ("D.F. King") has been
retained by Ambanc to act as its Information Agent in connection with the Offer.
D.F. King may contact holders of Shares by mail, telephone, facsimile, telegraph
and personal interviews and may request brokers, dealers and other nominee
shareholders to forward materials relating to the Offer to beneficial owners of
Shares. Ambanc will pay D.F. King reasonable and customary compensation for its
services in connection with the Offer, plus reimbursement for out-of-pocket
expenses, and will indemnify D.F. King against certain liabilities and expenses
in connection therewith, including liabilities under the federal securities
laws.
In addition, D.F. King been retained as the Depositary for the Offer.
D.F. King has not been retained to make solicitations or recommendations in its
role as Depositary. D.F. King will receive reasonable and customary compensation
for its services as Depositary, will be reimbursed for certain reasonable
out-of- pocket expenses and will be indemnified against certain liabilities and
expenses in connection therewith, including certain liabilities under the
federal securities laws.
Ambanc will not pay any fees or commissions to any broker or dealer or
other person (other than D.F. King in its role as Information Agent) for
soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial
banks and trust companies will be reimbursed by Ambanc for customary mailing and
handling expenses incurred by them in forwarding offering materials to their
customers.
19. MISCELLANEOUS. The Offer is being made to all holders of Shares.
Ambanc is not aware of any state where the making of the Offer is prohibited by
administrative or judicial action pursuant to a state statute. If Ambanc becomes
aware of any state where the making of the Offer is
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so prohibited, Ambanc will make a good faith effort to comply with any such
statute or seek to have such statute declared inapplicable to the Offer. If,
after such good faith effort, Ambanc cannot comply with any applicable statute,
the Offer will not be made to (nor will tenders be accepted from or on behalf
of) the holders of Shares in such state. In any jurisdiction the securities,
blue sky or other laws of which require the Offer to be made by a licensed
broker or dealer, the Offer shall be deemed to be made on behalf of Ambanc by
one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
Although neither Ambanc nor the Information Agent has any knowledge
that would indicate that any of the information contained herein that has been
derived from the Cohoes' Proxy Statement is untrue, neither Ambanc nor the
Information Agent takes responsibility for the accuracy or completeness of the
information derived from the Cohoes' Proxy Statement, or for any failure by
Cohoes to disclose events which may have occurred or may affect the significance
or accuracy of any such information but which are unknown to Ambanc or the
Information Agent.
Ambanc has not authorized anyone to give any information or make any
representation about this Offer that is different from, or in addition to, that
contained in this Offer to Purchase or in the Letter of Transmittal. Therefore,
if anyone does give you information of this sort, you should not rely on it.
The information contained in this Offer to Purchase speaks only as of
the date of this document unless the information specifically indicates that
another date applies.
Ambanc has filed with the SEC a Statement on Schedule TO, pursuant to
Rule 14d-3 under the Exchange Act, furnishing certain additional information
with respect to the Offer, and may file amendments thereto. Such Statement and
any amendments thereto, including exhibits, may be examined and copies may be
obtained from the principal office of the SEC in Washington, D.C. in the manner
set forth in Section 9.
AMBANC HOLDING CO., INC.
August 9, 2000
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF AMBANC
The following information sets forth the name and present principal
occupation and five-year employment history of each of the directors and
executive officers of Ambanc. Each of the directors and executive officers is a
citizen of the United States. Unless otherwise noted, the business address of
each of the directors and executive officers of Ambanc named below is 11
Division Street, Amsterdam, New York 12010.
DIRECTORS
John J. Daly. Mr. Daly is the Vice President and was a former owner of
Alpin Haus, Inc., a retail company located in Amsterdam, New York, which
specializes in the sale of recreational vehicles. Mr. Daly has been associated
with Alpin Haus since 1963.
Marvin R. LeRoy, Jr. Mr. LeRoy is Executive Director of the Alzheimer's
Association, Northeastern New York. He served as Town/County Supervisor for
Saratoga County representing the Town of Clifton Park, New York from 1992 until
he retired in 1999. Previously, he has served as Development Officer for
Skidmore College in Saratoga Springs, Executive Director of the Kenwood Child
Development Center in Albany, Executive Director of the Amsterdam City Center
(YMCA) and served in numerous capacities for Montgomery County, New York. Mr.
LeRoy is also active in the community, having served on over 25 boards and
councils throughout the Capital District, and has been named to "Who's Who in
America" since 1995.
Lawrence B. Seidman. Mr. Seidman has been a director of the Company
since March 2000. Since March 1999, Mr. Seidman has been the President, General
Counsel and a Director of Menlo Acquisition Corporation. Mr. Seidman is also
Manager of Seidman & Associates, L.L.C., President of Veteri Place Corp., the
sole General Partner of Seidman Investment Partnership, LP, Seidman Investment
Partnership II, LP, Manager, of Federal Holdings, L.L.C. and business consultant
to certain partnerships and individuals, including, but not limited to,
Kerrimatt, LP.
Mr. Seidman and certain affiliates (the "Seidman Group") were
defendants in a civil proceeding filed in federal district court by IBS
Financial Corp. in November 1996 in connection with a proxy contest, state law
matters and disclosure required under the federal securities laws. Following an
appeal of the district court decision, the Third Circuit Court of Appeals, in
February 1998, reversed in part and remanded in part the lower court decision.
The Court of Appeals determined that a Schedule 13D filed by the Seidman Group
had failed to adequately disclose information about persons in control of the
Seidman Group. Pending the remand, an amended Schedule 13D was filed to provide
additional disclosures about members of the Seidman Group. Thereafter, the
federal district court entered a Judgment After Remand which directed the
inclusion of these disclosures in the Schedule 13D.
In November 1995, the acting director of the Office of Thrift
Supervision ("OTS") issued a cease and desist order against Mr. Seidman ("C&D")
after finding that Mr. Seidman recklessly
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engaged in unsafe and unsound practices in the business of a federally insured
institution unrelated to IBS Financial Corp. The C&D actions complained of were
Mr. Seidman's alleged obstruction of an OTS investigation. The C&D ordered him
to cease and desist from (i) any attempts to hinder the OTS in the discharge of
its regulatory responsibilities, including the conduct of any OTS examination or
investigation; and (ii) any attempts to induce any person to withhold material
information from the OTS related to the performance of its regulatory
responsibilities. The C&D also provides that, for a period of no less than three
(3) years, if Mr. Seidman becomes an institution- affiliated party of any
insured depository institution subject to the jurisdiction of the OTS, to the
extent that his responsibilities include the preparation or review of any
reports, documents, or other information that would be submitted or reviewed by
the OTS in the discharge of its regulatory functions, then all such reports,
documents, and other information shall, prior to submission to, or review by the
OTS, be independently reviewed by the Board of Directors or a duly appointed
committee of the Board to ensure that all material information and facts have
been fully and adequately disclosed. In addition, a civil money penalty in the
amount of $20,812 was assessed.
Dr. Ronald S. Tecler. Dr. Tecler became a director of the Company and
the Bank following the merger with AFSALA Bancorp, Inc. ("AFSALA"). The Company
acquired AFSALA in November 1998. Prior to the merger, Dr. Tecler had been a
director of Amsterdam Federal Bank since 1994 and a director of AFSALA since
1996. Dr. Tecler is the majority stockholder of a professional corporation
engaged in the practice of dentistry in Amsterdam, New York and has practiced
dentistry since 1965. Dr. Tecler is the Chairman of the Board of the Amsterdam
Urban Renewal Agency, President and a board member of Industries for Amsterdam,
Inc., a board member of the Twin Rivers Boy Scouts Council, a member of the
Council on peer Review and Quality Assurance New York State Dental Association,
and is active in the Amsterdam Rotary Club and the St. Mary's Hospital of
Amsterdam Foundation.
James J. Bettini, Sr. Mr. Bettini is Executive Vice President of
Operations of Farm Family Holding Co., parent company of Farm Family Insurance,
where he has been employed since 1979. He is past president of the Albany
Association of Chartered Property and Casualty Underwriters, and served on the
Amsterdam City Zoning Board of Appeals and the Amsterdam Golf Commission.
Seymour Holtzman. Since 1990, Mr. Holtzman has served as Chairman and
Chief Executive Officer of each of the following companies: Jewelcor Management
& Consulting, Inc., a management and consulting firm in Wilkes-Barre,
Pennsylvania; C.D. Peacock, Inc., a jewelry company based in Chicago, Illinois;
Central European Capital Investors, Inc., an investment company operating in
eastern Europe; and S.A. Peck & Co., a mail order jewelry company based in
Chicago, Illinois. Mr. Holtzman has over 35 years of management experience, and
has been an investor in the banking and thrift industries since 1972. A
philanthropist, Mr. Holtzman has been honored as "Humanitarian of the Year" by
the Cardinal Cushing School and Training Center in Boston, Massachusetts and
"Man of the Year" by the B'nai B'rith Youth Services. Mr. Holtzman is a director
of Designs, Inc. and the Chairman of the Board of Directors of Little
Switzerland, Inc.
Allan R. Lyons. Mr. Lyons is the owner of 21st Century Strategic
Investment Planning, a company that Mr. Lyons began operating following his
retirement in December 1999 as the Chairman of the Board and Chief Executive
Officer of Piaker & Lyons, Vestal, New York. Mr.
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Lyons had served as Chairman of the firm's personal financial planning committee
and executive committee. Mr. Lyons had worked for Piaker & Lyons since 1964, and
had become an executive of the firm in 1968. Mr. Lyons is a member of the
American Institute of CPAs, the New York State Society of CPAs, and the
International Association for Financial Planning. He is on the board of advisors
of the Binghamton University School of Management, is a corporate member of
United Health Services, and serves on the endowment committee of the United
Jewish Appeal of Broome County. Mr. Lyons is a director of Officeland Inc.,
Retail Entertainment Group, Inc. and Franklin Credit Management Corporation.
Charles E. Wright. Since 1976, Mr. Wright has been President of W.W.
Custom Clad, Inc., Canajoharie, New York, a metal finishing company specializing
in powder coatings. Prior to that time, Mr. Wright was a sales representative
for the Industrial Coatings Division of Schenectady International in the New
York and New England regions and a teacher and vocational guidance counselor at
Canajoharie High School. Mr. Wright is a trustee of the Arkell Hall Foundation
in Canajoharie and the Foundation of St. Mary's Hospital in Amsterdam.
William L. Petrosino. Mr. Petrosino is a longtime local businessman in
the wholesale beverage industry, operating beverage companies in the Amsterdam,
South Glens Falls, Queensburg, and Schenectady, New York areas. He has served as
a director of the Company since May 1999. He also owns and operates warehouse
rental space in Montgomery and Fulton Counties, as well as residential rental
properties in the Amsterdam area. Mr. Petrosino is a member of the Board of
Directors of Amsterdam Memorial Hospital. He is a former Chairman of the Board
of Directors of the Fulton-Montgomery-Schoharie Private Industry Council, and of
the Workforce Development Board. Mr. Petrosino also previously served as
Chairman of the Amsterdam City Planning Board and as a member of the board of
directors of the Montgomery County Economic Development Zone.
Lauren T. Barnett. Mr. Barnett became Chairman of the Board of the
Company in 1998. Mr. Barnett served as Interim President and Chief Executive
Officer of the Company and the Bank from July 1998 until the Company's merger
with AFSALA Bancorp, Inc. ("AFSALA") in November 1998. Since 1957, Mr. Barnett
has been the President of Barnett Agency, Inc., an insurance agency located in
Amsterdam, New York. Mr. Barnett is also a licensed real estate broker.
Dr. Daniel J. Greco. Dr. Greco became a director of the Company and the
Bank following the merger with AFSALA. Prior to the merger, Dr. Greco had been a
director of Amsterdam Federal Bank, a subsidiary of AFSALA, since 1980, and a
director of AFSALA since its formation in 1996. Dr. Greco is a former school
teacher and the retired superintendent of the Greater Amsterdam School District.
Dr. Greco serves on the Board of Directors of the Amsterdam Memorial Hospital
and Industries for Amsterdam, Inc. and is active in the Rotary Club, the Elks
Club, and the Boy Scouts of America.
John M. Lisicki. Mr. Lisicki became President and Chief Executive
Officer of the Company and the Bank upon consummation of the merger with AFSALA
in November 1998. Prior to the merger, Mr. Lisicki had served as President and
Chief Executive Officer of Amsterdam Federal Bank since 1983 and as President
and Chief Executive Officer of AFSALA since 1996. Mr. Lisicki is a
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current member, Treasurer and past Chairman of the Board of Trustees of
Amsterdam Memorial Hospital, a member of the Board and former President of
Industries for Amsterdam, a member of the Board and former Vice President of the
Amsterdam Free Library, a member of the Board of the Sarah J. Sanford Home for
Elderly Women, former President of the Foundation of Liberty Enterprises, as
well as a member of its Board of Directors, and a former board member of Hospice
Foundation, the Amsterdam City Center and the Advisory Board of St. Mary's
Hospital.
Charles S. Pedersen. Since 1985, Mr. Pedersen has been a manufacturers'
representative for various international fiberglass and related product
companies. Mr. Pedersen's office is located in Amsterdam, New York.
John A. Tesiero, Jr. Mr. Tesiero became a director of the Company and
the Bank following the merger with AFSALA. Prior to the Merger, Mr. Tesiero had
served as a director of Amsterdam Federal Bank since 1994 and of AFSALA since
1996. Mr. Tesiero is the sole owner and President and Chief Executive Officer of
Cranesville Block Co., Inc., a construction supply business selling ready mix
concrete, concrete block, sand, gravel and stone, located in Amsterdam, New
York.
EXECUTIVE OFFICERS
Benjamin Ziskin has been the Senior Vice President of the Company and
the Bank since November 1998. Mr. Ziskin served as Treasurer of Amsterdam
Federal Bank from 1985 to 1993 and was appointed Vice President of Amsterdam
Federal Bank in 1989 and of AFSALA upon its formation in 1996.
James J. Alescio is Senior Vice President, Chief Financial Officer and
the Treasurer of the Company and the Bank, positions he has held with the
Company since November 1998. Mr. Alescio served as Assistant Treasurer of
Amsterdam Federal Bank from 1984 to 1987 and was appointed Treasurer and Chief
Financial Officer of Amsterdam Federal Bank in 1993 and of AFSALA upon its
formation.
Thomas Nachod is Senior Vice President of the Company and the Bank. Mr.
Nachod joined the Company in December 1998. Prior to joining the Company, he
held the position of Senior Vice President at ALBANK. In addition, Mr. Nachod
previously worked in a variety of rolls at KeyBank, as well as having served as
Chief Executive Officer of two banks, Connecticut Community Bank in Greenwich,
Connecticut and Fidelity Bank of Scottsdale, Arizona.
Robert Kelly is Vice President, Secretary and General Counsel to the
Company, positions he has held with the Company since its incorporation in June
1995. Mr. Kelly has been Vice President and General Counsel to the Bank since
July 1994. In January 1995 he was appointed Secretary of the Bank. Prior to
joining the Bank in 1994, Mr. Kelly was self-employed in the general practice of
law in the State of New York.
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SCHEDULE II
SHARES OWNED BY AMBANC
AND BY DIRECTORS AND EXECUTIVE OFFICERS OF AMBANC
AND THEIR ASSOCIATES
As of August 9, 2000, Ambanc beneficially owned 304,650 Shares, or 3.8%
of the outstanding Shares.1 Director Allan R. Lyons beneficially owned 7,600
Shares, or approximately 0.1%; Director William L. Petrosino beneficially owned
4,000 Shares, or 0.05%; and Senior Vice President Thomas Nachod beneficially
owned 1,000 Shares, or 0.01%. No other director or executive officer and no
associate of any director or executive officer beneficially owns any Shares.
-----------
1 Based on 7,912,255 Shares outstanding at June 22, 2000, as disclosed Cohoes'
Proxy Statement for its Special Meeting of Shareholders to be held August 17,
2000 for the purpose of considering the Hudson- Cohoes Merger (the "Cohoes'
Proxy Statement") as filed with the SEC on July 18, 2000.
TRANSACTIONS IN SHARES DURING THE PAST 60 DAYS BY AMBANC
AND BY DIRECTORS AND EXECUTIVE OFFICERS OF AMBANC
Information regarding transactions in the Shares during the past 60
days is included in the Schedule TO filed with the SEC by Ambanc on August 9,
2000 under Item 8 "Interest in Securities of the Subject Company," which sets
forth information regarding all transactions in the Shares effected during the
past 60 days, including (1) the date of each transaction, (2) the number of
Shares involved in each transaction, and (3) the price paid per Share in each
transaction, exclusive of commissions. All of the transactions were effected
through a registered broker.
Except as disclosed under Item 8 "Interest in Securities of the Subject
Company" of the Schedule TO filed by Ambanc with the SEC on August 9, 2000,
there were no transactions effected in the Shares during the past 60 days.
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SCHEDULE III
SECTION 203 OF THE DELAWARE GENERAL BUSINESS CORPORATION LAW
203 BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS.
(a) Notwithstanding any other provisions of this chapter, a corporation
shall not engage in any business combination with any interested
stockholder for a period of 3 years following the time that such
stockholder became an interested stockholder, unless:
(1) prior to such time the board of directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an interested stockholder, or
(2) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned (i) by persons who are directors and also
officers and (ii) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer, or
(3) at or subsequent to such time the business combination is approved
by the board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least66-2/3% of the outstanding voting stock which is not owned by the
interested stockholder.
(b) The restrictions contained in this section shall not apply if:
(1) the corporation's original certificate of incorporation contains a
provision expressly electing not to be governed by this section;
(2) the corporation, by action of its board of directors, adopts an
amendment to its bylaws within 90 days of the effective date of this section,
expressly electing not to be governed by this section, which amendment shall not
be further amended by the board of directors.
(3) the corporation, by action of its stockholders, adopts an amendment
to its certificate of incorporation or bylaws expressly electing not to be
governed by this section, provided that, in addition to any other vote required
by law, such amendment to the certificate of incorporation or bylaws must be
approved by the affirmative vote of a majority of the shares entitled to vote.
An amendment adopted pursuant to this paragraph shall be effective immediately
in the case of a corporation that both (i) has never had a class of voting stock
that falls within any of the three categories set out in subsection
(b)(4)hereof, and (ii) has not elected by a provision in its original
certificate of incorporation or any amendment thereto to be governed by this
section. In all other cases, an amendment adopted pursuant to this paragraph
shall not be effective until 12 months after the adoption of such amendment and
shall not apply to any business combination between such
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corporation and any person who became an interested stockholder of such
corporation on or prior to such adoption. A bylaw amendment adopted pursuant to
this paragraph shall not be further amended by the board of directors;
(4) the corporation does not have a class of voting stock that is (i)
listed on a national securities exchange, (ii) authorized for quotation on The
Nasdaq Stock Market or (iii) held of record by more than 2,000 stockholders,
unless any of the foregoing results from action taken, directly or indirectly,
by an interested stockholder or from a transaction in which a person becomes an
interested stockholder;
(5) a stockholder becomes an interested stockholder inadvertently and
(i) as soon as practicable divests itself of ownership of sufficient shares so
that the stockholder ceases to be an interested stockholder and (ii) would not,
at any time within the 3 year period immediately prior to a business combination
between the corporation and such stockholder, have been an interested
stockholder but for the inadvertent acquisition of ownership;
(6) the business combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required hereunder of a proposed transaction which (i) constitutes one of
the transactions described in the second sentence of this paragraph; (ii) is
with or by a person who either was not an interested stockholder during the
previous 3 years or who became an interested stockholder with the approval of
the corporation's board of directors or during the period described in paragraph
(7) of this subsection (b); and (iii) is approved or not opposed by a majority
of the members of the board of directors then in office (but not less than 1)who
were directors prior to any person becoming an interested stockholder during the
previous 3 years or were recommended for election or elected to succeed such
directors by a majority of such directors. The proposed transactions referred to
in the preceding sentence are limited to (x) a merger or consolidation of the
corporation (except for a merger in respect of which, pursuant to Section 251(f)
of the chapter, no vote of the stockholders of the corporation is required); (y)
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), whether as part of a dissolution or
otherwise, of assets of the corporation or of any direct or indirect
majority-owned subsidiary of the corporation (other than to any direct or
indirect wholly-owned subsidiary or to the corporation) having an aggregate
market value equal to 50% or more of either that aggregate market value of all
of the assets of the corporation determined on a consolidated basis or the
aggregate market value of all the outstanding stock of the corporation; or (z) a
proposed tender or exchange offer for 50% or more of the outstanding voting
stock of the corporation. The corporation shall give not less then 20 days
notice to all interested stockholders prior to the consummation of any of the
transactions described in clauses (x) or (y) of the second sentence of this
paragraph; or
(7) The business combination is with an interested stockholder who
became an interested stockholder at a time when the restrictions contained in
this section did not apply by reason of any paragraphs (1) through (4) of this
subsection (b), provided, however, that this paragraph (7) shall not apply if,
at the time such interested stockholder became an interested stockholder, the
corporation's certificate of incorporation contained a provision authorized by
the last sentence of this subsection (b).
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Notwithstanding paragraphs (1), (2), (3) and (4) of this subsection, a
corporation may elect by a provision of its original certificate of
incorporation or any amendment thereto to be governed by this section; provided
that any such amendment to the certificate of incorporation shall not apply to
restrict a business combination between the corporation and an interested
stockholder of the corporation if the interested stockholder became such prior
to the effective date of the amendment.
(c) As used in this section only, the term:
(1) "affiliate" means a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(2) "associate," when used to indicate a relationship with any person,
means (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock, (ii) any
trust or other estate in which such person has at least a 20% beneficial
interest or as to which such person serves as trustee or in a similar fiduciary
capacity, and (iii) any relative or spouse of such person, or any relative of
such spouse, who has the same residence as such person.
(3) "business combination," when used in reference to any corporation
and any interested stockholder of such corporation, means:
(i) any merger or consolidation of the corporation or any direct or
indirect majority - owned subsidiary of the corporation with (A)
the interested stockholder, or (B) with any other corporation,
partnership, unincorporated association or other entity if the
merger or consolidation is caused by the interested stockholder
and as a result of such merger or consolidation subsection (a) of
this section is not applicable to the surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions),
except proportionately as a stockholder of such corporation, to
or with the interested stockholder, whether as part of a
dissolution or otherwise, of assets of the corporation or of any
direct or indirect majority-owned subsidiary of the corporation
which assets have an aggregate market value equal to 10% or more
of either the aggregate market value of all the assets of the
corporation determined on a consolidated basis or the aggregate
market value of all the outstanding stock of the corporation;
(iii)any transaction which results in the issuance or transfer by the
corporation or by any direct or indirect majority-owned
subsidiary of the corporation of any stock of the corporation or
of such subsidiary to the interested stockholder, except (A)
pursuant to the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into stock of
such corporation or any such subsidiary which securities were
outstanding prior to the time that the interested stockholder
became such, (B) pursuant to a merger under Section 251(g) of
this title; (C)pursuant to a dividend or distribution paid or
made, or the exercise, exchange or conversion of
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securities exercisable for, exchangeable for or convertible into
stock of such corporation or any such subsidiary which security
is distributed, pro rata to all holders of a class or series of
stock of such corporation subsequent to the time the interested
stockholder became such, (D)pursuant to an exchange offer by the
corporation to purchase stock made on the same terms to all
holders of said stock, or (E) any issuance or transfer of stock
by the corporation, provided however, that in no case under
(C)-(E) above shall there be an increase in the interested
stockholder's proportionate share of the stock of any class or
series of the corporation or of the voting stock of the
corporation;
(iv) any transaction involving the corporation or any director
indirect majority -owned subsidiary of the corporation which has
the effect, directly or indirectly, of increasing the
proportionate share of the stock of any class or series, or
securities convertible into the stock of any class or series, of
the corporation or of any such subsidiary which is owned by the
interested stockholder, except as a result of immaterial changes
due to fractional share adjustments or as a result of any
purchase or redemption of any shares of stock not caused,
directly or indirectly, by the interested stockholder; or
(v) any receipt by the interested stockholder of the benefit,
directly or indirectly (except proportionately as a stockholder
of such corporation) of any loans, advances, guarantees, pledges,
or other financial benefits (other than those expressly permitted
in subparagraphs (i)-(iv) above)provided by or through the
corporation or any direct or indirect majority owned subsidiary.
(4) "control," including the term "controlling," "controlled by"
and"under common control with," means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting stock, by contract, or
otherwise. A person who is the owner of 20% or more of the outstanding voting
stock of any corporation, partnership, unincorporated association or other
entity shall be presumed to have control of such entity, in the absence of proof
by a preponderance of the evidence to the contrary. Notwithstanding the
foregoing, a presumption of control shall not apply where such person holds
voting stock, in good faith and not for purpose of circumventing this section,
as an agent, bank, broker, nominee, custodian or trustee for one or more owners
who do not individually or as a group have control of such entity.
(5) "interested stockholder" means any person (other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation) that (i) is the owner of 15% or more of the outstanding voting
stock of the corporation, or (ii) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within the 3-year period immediately prior to the
date on which it is sought to be determined whether such person is an interested
stockholder; and the affiliates and associates of such person; provided,
however, that the term "interested stockholder" shall not include (x) any person
who (A) owned shares in excess of the 15% limitation set forth herein as of, or
acquired such shares pursuant to a tender offer commenced prior to, December
23,1987, or pursuant to an exchange offer announced
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prior to the aforesaid date and commenced within 90 days thereafter and either
(I) continued to own shares in excess of such 15% limitation or would have but
for action by the corporation or (II) is an affiliate or associate of the
corporation and so continued (or so would have continued but for action by the
corporation) to be the owner of 15%or more of the outstanding voting stock of
the corporation at any time within the 3-year period immediately prior to the
date on which it is sought to be determined whether such a person is an
interested stockholder or (B) acquired said shares from a person described in
(A) above by gift, inheritance or in a transaction in which no consideration was
exchanged; or (y) any person whose ownership of shares in excess of the 15%
limitation set forth herein is the result of action taken solely by the
corporation provided that such person shall be an interested stockholder if
thereafter such person acquires additional shares of voting stock of the
corporation, except as a result of further corporate action not caused, directly
or indirectly, by such person. For the purpose of determining whether a person
is an interested stockholder, the voting stock of the corporation deemed to be
outstanding shall include stock deemed to be owned by the person through
application of paragraph (8) of this subsection but shall not include any other
unissued stock of such corporation which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(6) "person" means any individual, corporation, partnership,
unincorporated association or other entity.
(7) "Stock" means, with respect to any corporation, capital stock and,
with respect to any other entity, any equity interest.
(8) "Voting stock" means, with respect to any corporation, stock of any
class or series entitled to vote generally in the election of directors and,
with respect to any entity that is not a corporation, any equity interest
entitled to vote generally in the election of the governing body of such entity.
(9) "owner" including the terms "own" and "owned" when used with
respect to any stock means a person that individually or with or through any of
its affiliates or associates:
(i) beneficially owns such stock, directly or indirectly; or
(ii) has (A) the right to acquire such stock (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; provided, however, that a person shall not
be deemed the owner of stock tendered pursuant to a tender or
exchange offer made by such person or any of such person's
affiliates or associates until such tendered stock is accepted
for purchase or exchange; or (B) the right to vote such stock
pursuant to any agreement, arrangement or understanding;
provided, however, that a person shall not be deemed the owner of
any stock because of such person's right to vote such stock if
the agreement, arrangement or understanding to vote such stock
arises solely from a revocable proxy or consent given in response
to a proxy or consent solicitation made to 10or more persons; or
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<PAGE>
(iii)has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting (except voting pursuant to a
revocable proxy or consent as described in item (B) of clause
(ii) of this paragraph), or disposing of such stock with any
other person that beneficially owns, or whose affiliates or
associates beneficially own, directly or indirectly, such stock.
(d) No provision of a certificate of incorporation or bylaw shall
require, for any vote of stockholders required by this section a
greater vote of stockholders than that specified in this section.
(e) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all matters with respect to
this section. (Last amended by Ch. 79, L. `95, eff. 7-1-95.)
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<PAGE>
The Depositary for the Offer is:
D.F. King & Co., Inc.
Telephone Number:
(781) 799-4433
By Mail: By Facsimile: By Hand or Overnight Delivery
-------- ------------- -----------------------------
D.F. King & Co., Inc. D.F. King & Co., Inc. D.F. King & Co., Inc.
P.O. Box 859208 (781) 356-4987 165 Bay State Drive
Braintree, MA 02185-9208 Braintree, MA 02184
Confirm Facsimile by Telephone: (781) 799-4433
Questions and requests for assistance may be directed to D.F. King &
Co., Inc. at the address and telephone number set forth below. Requests for
additional copies of this Offer to Purchase, the Letter of Transmittal and other
tender offer materials may be directed to D.F. King & Co., Inc. or to brokers,
dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: 800-487-4870
