AGREEMENT AND PLAN OF MERGER
by and between
HUDSON RIVER BANCORP, INC.
HUDSON RIVER BANK & TRUST COMPANY
and
COHOES BANCORP, INC.
Dated November 24, 2000
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TABLE OF CONTENTS
| ARTICLE I |
| DEFINITIONS AND RULES OF INTERPRETATION |
| | | |
| 1.1 | Definitions | - 2 - |
| 1.2 | Rules of Interpretation | - 10 - |
| | | |
| | | |
| ARTICLE II |
PLAN OF MERGER
|
| 2.1 | The Merger | - 11 - |
| 2.2 | Surviving Corporation | - 11 - |
| 2.3 | Conversion of Cohoes Common Stock | - 12 - |
| 2.4 | Dissenting Shares/Cohoes-Owned Shares | - 12 - |
| 2.5 | Shareholders Rights, Stock Transfers | - 13 - |
| 2.6 | Exchange Procedures | - 13 - |
| 2.7 | Cohoes Options/Cohoes Restricted Shares | - 15 - |
| 2.8 | Closing | - 18 - |
| | | |
| | | |
| ARTICLE III |
UNQUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
|
| 3.1 | Capital Structure | - 18 - |
| 3.2 | Registrations | - 19 - |
| 3.3 | Subsidiaries | - 19 - |
| 3.4 | This Agreement | - 19 - |
| 3.5 | Financial Statements; No Adverse Change | - 20 - |
| 3.6 | Fairness Opinion | - 20 - |
| 3.7 | Interim Events | - 20 - |
| 3.8 | Regulatory Reports | - 21 - |
| 3.9 | Governmental Approvals | - 21 - |
| 3.10 | No Broker's or Finder's Fees | - 21 - |
| 3.11 | Equity Holdings | - 22 - |
| 3.12 | Certain Agreements | - 22 - |
| 3.13 | No Impediments | - 23 - |
| 3.14 | Cohoes Officer Severance Plan | - 23 - |
| 3.15 | Proxy Statement Information | - 23 - |
| 3.16 | Cohoes Restoration Plan | - 23 - |
| 3.17 | Registration Obligations | - 24 - |
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| ARTICLE IV |
QUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
|
| 4.1 | Organization and Good Standing | - 24 - |
| 4.2 | Compliance with Law | - 24 - |
| 4.3 | No Violations | - 25 - |
| 4.4 | Litigation and Other Proceedings | - 25 - |
| 4.5 | Environmental Matters | - 25 - |
| 4.6 | Insurance | - 26 - |
| 4.7 | Labor | - 26 - |
| 4.8 | Indemnification | - 27 - |
| 4.9 | Loan Portfolio | - 27 - |
| 4.10 | Investment Portfolio | - 27 - |
| 4.11 | Defaults | - 27 - |
| 4.12 | Real Estate Loans and Investments | - 28 - |
| 4.13 | Employee Benefit Plans | - 28 - |
| 4.14 | Liquidation Account | - 31 - |
| 4.15 | Tax Matters | - 31 - |
| 4.16 | Derivatives Contracts | - 32 - |
| 4.17 | Properties | - 32 - |
| 4.18 | Material Interests of Certain Persons | - 33 - |
| 4.19 | Disclosures | - 34 - |
| | | |
| | | |
| ARTICLE V |
REPRESENTATIONS AND WARRANTIES
OF HUDSON AND HUDSON BANK
|
| 5.1 | Organization and Good Standing | - 34 - |
| 5.2 | Registrations | - 34 - |
| 5.3 | This Agreement | - 34 - |
| 5.4 | Financial Statements | - 35 - |
| 5.5 | Fairness Opinion | - 35 - |
| 5.6 | Regulatory Reports | - 35 - |
| 5.7 | Governmental Approvals | - 35 - |
| 5.8 | No Impediments | - 36 - |
| 5.9 | Proxy Statement Information | - 36 - |
| 5.10 | Financial Ability | - 36 - |
| | | |
| | | |
| ARTICLE VI |
COVENANTS AND AGREEMENTS
|
| 6.1 | Reasonable Best Efforts | - 37 - |
| 6.2 | Shareholders Meeting | - 37 - |
| 6.3 | Regulatory Matters | - 37 - |
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| 6.4 | Investigation and Confidentiality | - 39 - |
| 6.5 | Press Releases | - 40 - |
| 6.6 | Business of the Parties | - 40 - |
| 6.7 | Certain Actions | - 45 - |
| 6.8 | Current Information | - 47 - |
| 6.9 | Indemnification | - 47 - |
| 6.10 | Environmental Reports | - 50 - |
| 6.11 | Employees and Employee Benefit Plans | - 50 - |
| 6.12 | Litigation Matters | - 54 - |
| 6.13 | Conforming Entries | - 54 - |
| 6.14 | Systems Integration | - 56 - |
| 6.15 | Disclosure Supplements | - 56 - |
| 6.16 | Failure to Fulfill Conditions | - 56 - |
| 6.17 | Proxy Solicitor | - 57 - |
| 6.18 | Previous Transaction Stock Option Agreements | - 57 - |
| 6.19 | Organization of Merger Sub | - 57 - |
| 6.20 | Liquidated Damages | - 57 - |
| | | |
| | | |
| ARTICLE VII |
CONDITIONS PRECEDENT
|
| 7.1 | Conditions Precedent - the Parties | - 58 - |
| 7.2 | Conditions Precedent - Cohoes | - 59 - |
| 7.3 | Conditions Precedent - Hudson | - 60 - |
| | | |
| | | |
| ARTICLE VIII |
TERMINATION, WAIVER, AMENDMENT
AND SPECIFIC PERFORMANCE
|
| 8.1 | Termination | - 61 - |
| 8.2 | Effect of Termination | - 62 - |
| 8.3 | Survival of Representations, Warranties and Covenants | - 62 - |
| 8.4 | Waiver | - 62 - |
| 8.5 | Amendment or Supplement | - 63 - |
| 8.6 | Specific Performance | - 63 - |
| | | |
| | | |
| ARTICLE IX |
MISCELLANEOUS
|
| 9.1 | Expenses | - 64 - |
| 9.2 | Entire Agreement | - 64 - |
| 9.3 | No Assignment | - 64 - |
| 9.4 | Notices | - 65 - |
| 9.5 | Counterparts | - 65 - |
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| EXHIBITS |
| EXHIBIT A - Cohoes Savings Bank General Severance Plan | |
| EXHIBIT B - Voting Agreement | |
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of November 24, 2000, by and between Hudson, Hudson Bank and Cohoes.
WHEREAS, the Boards of the Parties deem it advisable and in the best interests of the respective companies and their shareholders to consummate the Transactions consisting of: (a)
the Merger pursuant to which Merger Sub shall be merged into Cohoes and in connection therewith each share of Cohoes Common Stock outstanding immediately prior to Effective Time (excluding
Dissenting Shares and Cohoes-Owned Shares) shall be canceled in exchange for the right to receive the Merger Consideration, (b) the Liquidation pursuant to which Cohoes shall be liquidated and dissolved by transferring all of its assets and liabilities
to Hudson Bank, and (c) the Bank Merger pursuant to which Cohoes Bank shall merge into Hudson Bank;
WHEREAS, the Board of Directors of the Parties have approved and adopted this Agreement and the Merger;
WHEREAS, Hudson and Cohoes have mutually agreed to terminate the Cohoes Stock Option Agreement as of the date hereof;
WHEREAS, as a material inducement for Hudson and Hudson Bank to enter into this Agreement, the executive officers, directors and emeritus director of Cohoes have entered into the
Voting Agreement pursuant to which they have agreed to vote all of the
shares of Cohoes Common Stock owned, controlled or for which they possess voting power in favor of the Merger and the adoption of this Agreement; and
WHEREAS, the Parties desire to provide for certain undertakings, conditions, representations, warranties and covenants in connection with the Transactions.
NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties and covenants herein contained
and intending to be legally bound hereby, the Parties do agree as follows:
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ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
The following meanings shall apply for purposes of this Agreement.
1.1 Definitions
"Agreement" means this Agreement and Plan of Merger.
"Alternative Proposal" shall mean any bona fide written proposal by any person other than Hudson and Hudson Bank to engage in a merger, consolidation, purchase or lease of
substantially all assets, purchase of securities representing more than 20% of the voting power, or any similar transaction, involving Cohoes or Cohoes Bank.
"Bank Merger" means the merger of Cohoes Bank into Hudson Bank.
"Bank Merger Effective Time" means the time the Plan of Merger is filed in the Office of the Superintendent by the Superintendent.
"Board" means the Board of Directors of an entity, or any committee duly authorized to act on behalf of the Board of Directors of such entity with respect to the relevant matter.
"Cause" means termination because of the employee's personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties or willful violation of any law, rule or regulation (other than traffic violations or similar offenses).
"Certificate" means any certificate which immediately prior to the Effective Time represented shares of Cohoes Common Stock.
"Certificate of Merger" means the certificate of merger to be executed and filed by Merger Sub and Cohoes with the Secretary of State of the State of Delaware pursuant to the DGCL to
make the Merger effective.
"Claim" has the meaning attributed to it in Section 6.9(a).
"Closing" means the closing of the Transactions.
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"Closing Date" means the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cohoes" means Cohoes Bancorp, Inc., a Delaware corporation.
"Cohoes Bank" means Cohoes Savings Bank, a New York chartered savings bank.
"Cohoes ESOP" means the Cohoes Employee Stock Ownership Plan and Trust Agreement, as in effect as of the date hereof.
"Cohoes 401(k) Plan" means the Cohoes Savings Bank 401(k) Retirement Savings Plan and Trust Agreement in RSI Retirement Trust as in effect on the date hereof.
"Cohoes General Severance Plan" means the Cohoes Savings Bank General Severance Plan (for non-officer employees) as adopted on the date hereof in the form of
Exhibit A
hereto.
"Cohoes Officer Severance Plan" means the Cohoes Savings Bank Employee Severance Compensation Plan as in effect on the date hereof.
"Cohoes Option Plan" means the Cohoes 1999 Stock Option and Incentive Plan as the same may be amended pursuant to the Previously Disclosed amendments at the 2000 annual meeting of
shareholders of Cohoes.
"Cohoes Options" means options to purchase shares of Cohoes Common Stock granted under the Cohoes Option Plan.
"Cohoes-Owned Shares" means any shares of Cohoes' Common Stock which are owned beneficially or of record by any Party or any Subsidiary of a Party immediately prior to the Effective
Time, other than shares held in a fiduciary capacity for the benefit of third parties or as a result of debts previously contracted.
"Cohoes Recognition Plan" means the Cohoes 1999 Recognition and Retention Plan as the same may be amended pursuant to the Previously Disclosed amendments at the 2000 annual meeting
of shareholders of Cohoes.
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"Cohoes Restoration Plan" means the Benefit Restoration Plan of Cohoes as in effect on the date hereof.
"Cohoes Restricted Shares" means shares of Cohoes Common Stock awarded under the Cohoes Recognition Plan which are subject to restriction.
"Cohoes Special Bonus" means the special bonus to be paid by Cohoes Savings Bank immediately prior to the Effective Time to each holder of an unvested Cohoes Option who (a) is an
employee or director of Cohoes Savings Bank immediately prior to the Effective Time but specifically excluding Messrs. Robinson, Ahl and Picchi and (b) timely executes and delivers to Hudson
cancellation agreements with respect to his or her Substitute Option and Substitute Restricted Shares.
"Cohoes Stock Option Agreement" means that certain Stock Option Agreement between Cohoes, as issuer, and Hudson, as grantee, dated April 25, 2000, as amended.
"Common Stock" means the common stock of any entity which has only one authorized class of common stock.
"CRA" means the Community Reinvestment Act.
"Delivered" means provided by a Party or any of its Subsidiaries to the other Party or Parties.
"DGCL" means the Delaware General Corporation Law.
"Dissenting Shares" means any shares of Cohoes Common Stock whose holder becomes entitled to fair value of such shares under the DGCL.
"DOL" means the U.S. Department of Labor.
"Effective Time" means the time that the Merger becomes effective under the DGCL.
"Employee Plans" means all stock option, restricted stock, employee stock purchase and stock bonus plans, pension, profit-sharing and retirement plans, deferred compensation,
consultant, bonus and group insurance agreements and all other incentive,health, welfare and benefit plans and arrangements maintained for
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the benefit of any present or former directors or employees of Cohoes or any of its Subsidiaries, whether written or oral.
"Encumbrance" means any lien, claim, charge, restriction, security interest, rights of third parties, or encumbrance.
"Environmental Claim" means any written notice from any Governmental Entity or third party alleging potential liability (including potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries or penalties) arising out of, based on, or resulting from the presence, or release into the
environment, of any Materials of Environmental Concern.
"Environmental Laws" means any federal, state or local law, statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, order, judgment, decree,
injunction or agreement with any Governmental Entity relating to (i) the protection, preservation or restoration of the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface soil, subsurface soil, plant and
animal life or any other natural resource), and/or (ii) the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Materials of Environmental Concern. The term Environmental Law
includes (x) the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. Section 9601, et seq; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901, et seq; the Clean Air Act, as amended, 42 U.S.C. Section 7401, et seq; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251, et seq; the Toxic Substances Control Act, as amended, 15
U.S.C. Section 9601, et seq; the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 1101, et seq; the Safe Drinking Water Act, 42 U.S.C. Section 300f, et seq; and all comparable state and local laws, and (y) any common law (including
common law that may impose strict liability) that may impose liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Materials of Environmental Concern.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliate" has the meaning set forth in Section 4.13(f).
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"ERISA Affiliate Plan" has the meaning set forth in Section 4.13(f).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agent" means an exchange agent designated by Hudson or Hudson Bank and reasonably acceptable to Cohoes.
"Exchange Ratio" means a number equal to the quotient of $19.50 and the average closing sale price of a share of Hudson Common Stock as reported on the Nasdaq Stock Market, or any
other nationally recognized stock exchange, on the most recent trading day prior to the day that the Effective Time occurs.
"FDIA" means the Federal Deposit Insurance Act, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any successor thereto.
"FHLB" means the Federal Home Loan Bank of New York.
"Financial Advisor" means Keefe, Bruyette & Woods, Inc. with respect to Cohoes, and Sandler O'Neill & Partners, L.P. with respect to Hudson and Hudson Bank.
"Financial Statements" means both the Annual Financial Statements and Interim Financial Statements of Cohoes or Hudson, whichever is applicable.
| (a) "Financial Reports" means the consolidated balance sheets, consolidated statements of income and statements of changes in shareholders' equity and cash flows, including any related notes
and schedules.
|
| (b) "Annual Financial Statements" means all the Financial Reports filed by Cohoes or Hudson, whichever is applicable, in its most recent annual report under the Securities Laws.
|
| (c) "Interim Financial Statements" means the Financial Reports filed by Cohoes or Hudson, whichever is applicable, in all of its quarterly reports under the Securities Laws since the filing
of its most recent Annual Financial Statements. |
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"GAAP" means generally accepted accounting principles
applied consistently with prior practices.
"Governmental Entity" means any federal or state court,
administrative agency or commission or other governmental
authority or instrumentality.
"HOLA" means the Home Owners' Loan Act, as amended.
"Hudson" means Hudson River Bancorp, Inc., a Delaware
corporation.
"Hudson Bank" means Hudson River Bank & Trust Company, a
New York chartered savings bank.
"Hudson Proposal" has the meaning set forth in Section
6.7(b).
"Hudson Stock Option Agreement" means that certain Stock
Option Agreement between Hudson, as issuer, and Cohoes, as
grantee, dated April 25, 2000, as amended.
"Indemnified Liabilities" has the meaning attributed to it
in Section 6.9(a).
"Indemnified Parties " has the meaning attributed to it in
Section 6.9(a).
"Insider Loans" means loans from Cohoes or any of its
Subsidiaries to any of its officers, directors or employees or
any associate or related interest of any such person.
"IRS" means the Internal Revenue Service or any successor
thereto.
"Knowledge Qualification" means to the best knowledge, after
reasonable investigation, of the Party receiving the benefit of
the qualification.
"Liquidation" means the liquidation and dissolution of
Cohoes pursuant to which all of the assets and liabilities of
Cohoes shall be transferred to Hudson Bank.
"Material Adverse Effect" means, (a) in the case of Cohoes,
any effect that is material and adverse to the condition
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(financial or otherwise), results of operations or business of
Cohoes and Cohoes Bank, taken as a whole, or that materially
impairs the ability of Cohoes or Cohoes Bank to consummate any of
the Transactions, provided, however, that a Material Adverse
Effect shall not be deemed to include the impact of (i) changes
in laws and regulations or interpretations thereof that are
generally applicable to the banking or savings institution
industries, (ii) changes in GAAP that are generally applicable to
the banking or savings institution industries, (iii) expenses
incurred in connection with this Agreement and the Transactions,
(iv) actions or omissions of Cohoes or Cohoes Bank taken with the
prior informed written consent of Hudson or Hudson Bank in
contemplation of the Transactions or (v) changes attributable to
or resulting from changes in general economic conditions
generally affecting financial institutions, including changes in
the prevailing level of interest rates; and (b) in the case of
Hudson Bank, any effect that materially impairs the ability of
Hudson Bank to make payment at the Effective Time of the
aggregate Merger Consideration or otherwise materially impairs
the ability of Hudson or Hudson Bank to consummate any of the
Transactions.
"Materials of Environmental Concern" means pollutants,
contaminants, wastes, toxic substances, petroleum and petroleum
products and any other materials regulated under Environmental
Laws.
"Merger" means the merger of Merger Sub into Cohoes, with
Cohoes being the surviving corporation.
"Merger Consideration" means $19.50, without interest, for
each share of Cohoes Common Stock that is outstanding immediately
prior to the Effective Time (but excluding Dissenting Shares and
Cohoes-Owned Shares).
"Merger Sub" means a Delaware corporation to be formed and
wholly owned by Hudson Bank as a transitory Subsidiary to
effectuate the Merger.
"OTS" means the Office of Thrift Supervision of the U.S.
Department of the Treasury or any successor thereto.
"Party" means Cohoes, Hudson, Hudson Bank or Merger Sub,
after it becomes a party to this Agreement, whichever is
applicable.
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"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Plan of Bank Merger" means the plan of merger to be entered
into by Cohoes Bank and Hudson Bank to effectuate the Bank
Merger.
"Pension Plan" has the meaning set forth in Section 4.13(c).
"Previously Disclosed" means disclosed in a written
disclosure schedule delivered on or prior to the date hereof by
Cohoes to Hudson or Hudson Bank specifically referring to the
appropriate section of this Agreement and describing in
reasonable detail the matters contained therein.
"Previous Transaction Stock Option Agreements" means the
Cohoes Stock Option Agreement and the Hudson Stock Option
Agreement.
"Proxy Statement" means the proxy statement, together with
any supplements thereto, to be delivered to the holders of Cohoes
Common Stock in connection with the solicitation of their
adoption of this Agreement.
"Regulatory Reports" means all reports, including Securities
Documents, which a Party or any of its Subsidiaries is required
to file with any banking or thrift Governmental Entity or the
SEC.
"Rights" means all warrants, options, rights, convertible
securities and other arrangements or commitments which obligate
an entity to issue or dispose of any of its capital stock or
other ownership interests.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended."
"Securities Documents" means all reports, offering
circulars, proxy statements, registration statements and all
similar documents filed, or required to be filed, pursuant to the
Securities Laws.
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"Securities Laws" means the Securities Act; the Exchange
Act; the Investment Company Act of 1940, as amended; the
Investment Advisers Act of 1940, as amended; the Trust Indenture
Act of 1939, as amended; and the rules and regulations of the SEC
promulgated thereunder.
"Subsidiary" when used with respect to any Party means any
entity, whether incorporated or unincorporated, which is
consolidated with such Party for financial reporting purposes.
"Substitute Option" has the meaning set forth in Section
2.7(b).
"Substitute Restricted Shares" has the meaning set forth in
Section 2.7(c).
"Superintendent" means the Superintendent of Banks of the
State of New York.
"Superior Offer" has the meaning set forth in Section
6.7(d).
"Thrift Regulations" means the banking laws of the State of
New York, the FDIA, the HOLA and the rules and regulations
promulgated thereunder.
"Transactions" means the Merger, Liquidation and Bank
Merger.
"Voting Agreement" means that certain agreement entered into
between Hudson and the executive officers, directors and emeritus
directors of Cohoes on the date hereof in the form of
Exhibit B
hereto.
1.2 Rules of Interpretation
The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement. All provisions
of this Agreement are subject to applicable law and to the other
terms and conditions of this Agreement. No provision of this
Agreement shall be construed to require a party or its affiliate
to take any action which would violate applicable law.
The word "accurate" includes the concept "true and
complete."
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The word "agreement" includes every sort of contract,
commitment, or understanding, whether written or oral.
The word "authority" includes the concept "all requisite
power and authority."
The word "authorized" includes the concepts "duly approved
and authorized," "adopted," "advised," and any other similar term
which may be required by law.
All forms of the verb "include" includes the concept
"without limitation."
With respect to any securities, "outstanding" means "issued
and outstanding."
ARTICLE II
PLAN OF MERGER
2.1 The Merger
At the Effective Time, Merger Sub shall be merged into
Cohoes. The separate corporate existence of Merger Sub shall
cease, Cohoes shall be the surviving corporation, and Cohoes
shall continue its corporate existence under the DGCL.
2.2 Surviving Corporation
| (a) The name of the surviving corporation shall be "Cohoes Bancorp, Inc."
|
| (b) The Certificate of Incorporation and Bylaws of
Cohoes as in effect immediately prior to the Effective Time
shall be the Certificate of Incorporation and Bylaws of
Cohoes, as the surviving corporation, at and after the
Effective Time, until thereafter altered, amended or
repealed in accordance with Delaware law.
|
| (c) The directors and officers of Merger Sub
immediately prior to the Effective Time shall be the
directors and officers of Cohoes, as the surviving
corporation, at and after the Effective Time, each to hold
office until his or her successor is elected and qualified
or otherwise in accordance with the Certificate of |
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| Incorporation and Bylaws of Cohoes, as the surviving
corporation. |
2.3 Conversion of Cohoes Common Stock
At the Effective Time, by virtue of the Merger and without
any action on the part of the Parties or the holders of Common
Stock of the Parties, the following shall occur:
| (a) each share of Cohoes Common Stock outstanding
immediately prior to the Effective Time shall cease to be
outstanding and shall be converted into the right to receive
the Merger Consideration, except as provided in Section 2.4;
|
| (b) each share of Hudson Common Stock outstanding
immediately prior to the Effective Time shall remain an
outstanding share of Hudson Common Stock at and after the
Effective Time; and
|
| (c) each share of Merger Sub Common Stock outstanding
immediately prior to the Effective Time shall be converted
into and become one share of Cohoes Common Stock.
|
2.4 Dissenting Shares/Cohoes-Owned Shares
| (a) Any holders of Dissenting Shares shall be entitled
to payment for such shares only to the extent permitted by
and in accordance with the DGCL; provided, however, that if
any holder of Dissenting Shares shall forfeit such right to
payment, such shares shall thereupon be deemed to have been
converted into and to have become exchangeable for, as of
the Effective Time, the right to receive the Merger
Consideration from Hudson Bank without interest. Dissenting
Shares shall not, after the Effective Time, be entitled to
vote for any purpose or receive any dividends or other
distributions and shall be entitled only to such rights as
are afforded in respect of Dissenting Shares pursuant to the
DGCL.
|
| (b) Cohoes shall give Hudson or Hudson Bank (i) prompt
notice of any written objections to the Merger and any
written demands for the payment of the fair value of any
shares, withdrawals of such demands, and any other
instruments served upon or received by Cohoes pursuant to
Section 262 of the DGCL and (ii) the opportunity to |
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| participate in all negotiations and proceedings with respect
to such demands under the DGCL. Cohoes shall not
voluntarily make any payment with respect to any demands for
payment of fair value and shall not, except with the prior
written consent of Hudson or Hudson Bank, settle or offer to
settle any such demands.
|
| (c) Any Cohoes-Owned Shares shall cease to exist at
the Effective Time, the Certificates for such shares shall
as promptly as practicable be canceled, such shares shall
not be converted into the Merger Consideration, and no cash
or other consideration shall be issued or exchanged
therefor. |
2.5 Shareholders Rights, Stock Transfers
At the Effective Time, holders of Certificates shall cease
to be and shall have no rights as shareholders of Cohoes, other
than such rights as they may have under the DGCL. After the
Effective Time, there shall be no transfers on the stock transfer
books of Cohoes of Certificates and if Certificates are presented
for transfer after the Effective Time, they shall be delivered to
the Exchange Agent or Hudson Bank for cancellation against
delivery of the Merger Consideration. No interest shall be paid
on the Merger Consideration.
2.6 Exchange Procedures
| (a) No later than five business days following the
Effective Time, Hudson Bank shall cause the Exchange Agent
to mail or make available to each holder of record any
Certificate a notice and letter of transmittal disclosing
the effectiveness of the Merger and the procedure for
exchanging Certificates for the Merger Consideration. Such
letter of transmittal shall specify that delivery shall be
effected and risk of loss and title shall pass only upon
proper delivery of Certificates to the Exchange Agent.
|
| (b) At or prior to the Effective Time, or at such
other time or times as the Exchange Agent may otherwise
request, Hudson Bank shall deliver to the Exchange Agent for
the benefit of the holders of Certificates (other than the
holders of Dissenting Shares and Cohoes-Owned Shares) an
amount of cash equal to the aggregate Merger Consideration |
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| for payment of the aggregate Merger Consideration to such
holders of Certificates.
|
| (c) Each holder of any outstanding Certificate (other
than holders of Dissenting Shares and Cohoes-Owned Shares)
who surrenders such Certificate to the Exchange Agent will,
upon acceptance thereof by the Exchange Agent, be entitled
to the Merger Consideration. The Exchange Agent shall
accept Certificates upon compliance with such reasonable
terms and conditions as the Exchange Agent may impose to
effect an orderly exchange in accordance with normal
exchange practices. Each outstanding Certificate which is
not surrendered to the Exchange Agent shall, except as
provided in Section 2.4, evidence ownership of only the
right to receive the Merger Consideration without interest.
|
| (d) The Exchange Agent shall not be obligated to
deliver the Merger Consideration until the holder surrenders
a Certificate as provided in this Section 2.6, or, in
default thereof, an appropriate affidavit of loss and
indemnity agreement and/or a bond as may be required in each
case by the Exchange Agent or Hudson Bank. If any check is
to be issued in a name other than that in which the
Certificate is registered, it shall be a condition of the
issuance thereof that the Certificate so surrendered shall
be properly endorsed or accompanied by an executed form of
assignment separate from the Certificate and otherwise in
proper form for transfer and that the person requesting such
exchange pay to the Exchange Agent any transfer or other tax
required by reason of the issuance of a check in any name
other than that of the registered holder of the Certificate
surrendered or otherwise establish to the satisfaction of
the Exchange Agent that such tax has been paid or is not
payable.
|
| (e) Any portion of the cash delivered to the Exchange
Agent by Hudson Bank pursuant to Section 2.6(b) that remains
unclaimed by the former shareholders of Cohoes for six
months after the Effective Time shall be delivered by the
Exchange Agent to Hudson Bank. Any shareholders of Cohoes
who have not theretofore complied with Section 2.6(c) shall
thereafter look only to Hudson Bank for the Merger
Consideration. If outstanding Certificates are not
surrendered or the payment for them is not claimed prior to
the date on which such payment would otherwise escheat to or |
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| become the property of any Governmental Entity, the
unclaimed items shall, to the extent permitted by abandoned
property and any other applicable law, become the property
of Hudson Bank (and to the extent not in its possession
shall be delivered to it), free and clear of all claims or
interest of any person previously entitled to such property.
Neither the Exchange Agent nor any of the Parties shall be
liable to any holder of Cohoes Common Stock represented by
any Certificate for any consideration paid to a public
official pursuant to applicable abandoned property, escheat
or similar laws. Hudson Bank and the Exchange Agent shall
be entitled to rely upon the stock transfer books of Cohoes
to establish the identity of those persons entitled to
receive the Merger Consideration, which books shall be
conclusive with respect thereto.
|
| (f) The Exchange Agent or Hudson Bank shall be
entitled to deduct and withhold from the Merger
Consideration otherwise payable pursuant to this Agreement
to any holder of Certificates such amounts as it is required
to deduct and withhold with respect to the making of such
payment under the Code, or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld
by the Exchange Agent or Hudson Bank, such withheld amounts
shall be treated for all purposes of this Agreement as
having been paid to the holder of the Certificates in
respect of which such deduction and withholding was made. |
2.7 Cohoes Options/Cohoes Restricted Shares
| (a) At the Effective Time, each Cohoes Option granted
pursuant to the Cohoes Option Plan that is then vested,
outstanding and unexercised shall be canceled, and in lieu
thereof the holder of such Cohoes Option shall be paid in
cash an amount equal to the product of (i) the number of
shares of Cohoes Common Stock subject to such vested option
at the Effective Time and (ii) the amount by which the
Merger Consideration exceeds the exercise price per share of
such Cohoes Option, net of any cash which must be withheld
under federal and state income and employment tax
requirements.
|
| (b) At the Effective Time, each Cohoes Option granted
pursuant to the Cohoes Option Plan that is then unvested and
outstanding will be converted into an option (the |
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| "Substitute Option") to purchase shares of Hudson Common
Stock under the same terms and provisions of the Cohoes
Option Plan and the underlying stock option agreement by
which the Cohoes Option is evidenced (including the vesting
schedule), which plan and agreement shall be assumed by
Hudson, except that the Substitute Option shall represent
the right to purchase (when and to the extent it becomes
exercisable and during the exercise period) a number of
shares of Hudson Common Stock (rounded to the nearest whole
share) equal to the product of (i) the number of shares of
Cohoes Common Stock subject to the Cohoes Option being
converted and (ii) the Exchange Ratio. The exercise price
for each share of Hudson Common Stock subject to the
Substitute Option shall be adjusted by dividing the per
share exercise price contained in the Cohoes Option by the
Exchange Ratio (rounded to the nearest cent).
|
| (c) At the Effective Time, all of the Cohoes
Restricted Shares of a holder awarded pursuant to the Cohoes
Recognition Plan that are then outstanding will be converted
into restricted shares of Hudson Common Stock (the
"Substitute Restricted Shares") under the same terms and
provisions of the Cohoes Recognition Plan and the underlying
award agreement by which the Cohoes Restricted Shares are
evidenced (including the vesting schedule), which plan and
agreement shall be assumed by Hudson, except that the
Substitute Restricted Shares shall represent a number of
shares of Hudson Common Stock (rounded to the nearest whole
share) equal to the product of (i) the number of Cohoes
Restricted Shares of the holder and (ii) the Exchange Ratio.
|
| (d) At least 25 days prior to the Effective Time, each
holder of an unvested Cohoes Option will be offered the
opportunity to enter into a cancellation agreement with
Hudson with respect to the Substitute Option to be received
by the holder pursuant to Section 2.7(b). The cancellation
agreement shall provide that Hudson shall pay to the holder
of the Substitute Option on the first business day following
the day the Effective Time occurs, in cancellation of the
Substitute Option of the holder, a cash amount, by check,
equal to (i) the number of options to purchase shares of
Hudson Common Stock that vest on July 2, 2001 multiplied by
the quotient of $7.43750 and the Exchange Ratio (provided
this subpart (i) shall only apply if the Effective Time
occurs prior to July 2, 2001), plus (ii) the number of |
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| options to purchase shares of Hudson Common Stock that vest
on July 2, 2002 multiplied by the quotient of $6.01707 and
the Exchange Ratio, plus (iii) the number of options to
purchase shares of Hudson Common Stock that vest on July 2,
2003 multiplied by the quotient of $4.63411 and the Exchange
Ratio, plus (iv) the number of options to purchase shares of
Hudson Common Stock that vest on July 2, 2004 multiplied by
the quotient of $3.28596 and the Exchange Ratio, less any
cash which must be withheld under applicable federal and
state income and employment tax requirements. In order to
accept the aforesaid offer, the holder of an unvested Cohoes
Option must execute and deliver the cancellation agreement
to Hudson no later than the 15th day after it is provided to
the holder by Hudson, time being of the essence.
Accordingly, Hudson shall not be obligated to abide by its
offer herein to any holder of an unvested Cohoes Option who
does not timely provide his or her executed cancellation
agreement to Hudson.
|
| (e) At least 25 days prior to the Effective Time, each
holder of Cohoes Restricted Shares will be offered the
opportunity to enter into a cancellation agreement with
Hudson with respect to the Substitute Restricted Shares to
be received by the holder pursuant to Section 2.7(c). The
cancellation agreement shall provide that Hudson shall pay
to the holder of the Substitute Restricted Shares on the
first business day following the day the Effective Time
occurs, in cancellation of the Substitute Restricted Shares
of the holder, a cash amount, by check, equal to (i) the
number of Substitute Restricted Shares that vest on July 2,
2001 multiplied by the quotient of $19.50 and the Exchange
Ratio (provided this subpart (i) shall only apply if the
Effective Time occurs prior to July 2, 2001), plus (ii) the
number of Substitute Restricted Shares that vest on July 2,
2002 multiplied by the quotient of $15.77584 and the
Exchange Ratio, plus (iii) the number of Substitute
Restricted Shares that vest on July 2, 2003 multiplied by
the quotient of $12.14993 and the Exchange Ratio, plus (iv)
the number of Substitute Restricted Shares that vest on July
2, 2004 multiplied by the quotient of $8.61530 and the
Exchange Ratio, plus (v) the amount of the accrued but
unpaid cash dividends on the Cohoes Restricted Shares of the
holder, less any cash which must be withheld under
applicable federal and state income and employment tax
requirements. In order to accept the aforesaid offer, the |
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| holder of Cohoes Restricted Shares must execute and deliver
the cancellation agreement to Hudson no later than the 15th
day after it is provided to the holder by Hudson, time being
of the essence. Accordingly, Hudson shall not be obligated
to abide by its offer herein to any holder of Cohoes
Restricted Shares who does not timely provide his or her
executed cancellation agreement to Hudson.
|
| (f) Notwithstanding the foregoing, each director and
executive officer of Cohoes and Cohoes Bank will execute and
deliver to Hudson within 15 business days of the date hereof
(i) a cancellation agreement with respect to his or her
Substitute Option and (ii) a cancellation agreement with
respect to his or her Substitute Restricted Shares. |
2.8 Closing
Within 30 days following the satisfaction or waiver of all
the conditions set forth in Article VII(other than the delivery
of certificates, opinions and other instruments and documents to
be furnished at Closing), the Closing shall take place on a date
and at a time and place designated in writing by Hudson or Hudson
Bank. The Parties shall use their best efforts to cause all of
the Transactions to be completed on the Closing Date with the
Merger and Liquidation occurring simultaneously and the Bank
Merger occurring immediately thereafter.
ARTICLE III
UNQUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
As of the date hereof, Cohoes represents and warrants to
Hudson and Hudson Bank as follows:
3.1 Capital Structure
| (a) Its authorized capital stock consist of 25,000,000
shares of Cohoes Common Stock of which 7,911,985 are
outstanding (inclusive of Cohoes Restricted Shares) and
1,623,240 are held by it as treasury shares, and 5,000,000
shares of preferred stock, none of which are outstanding or
held as treasury shares of outstanding shares of Cohoes
Common Stock have been duly authorized and validly issued, |
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| are fully paid and nonassessable, and have not been issued
in violation of the preemptive rights of any person.
|
| (b) Its outstanding Rights consist solely of Cohoes
Options. There are outstanding (i) Rights to acquire
858,305 shares of Cohoes Common Stock and 275,262 Cohoes
Restricted Shares. It has Previously Disclosed a schedule of
its Rights and Cohoes Restricted Shares that includes the
name of each optionee and holder of Restricted Shares, the
number of options held by each optionee, the number of
shares of Restricted Shares held by each holder thereof, the
exercise price of each option and the vesting date of each
option and each of the Restricted Shares. |
3.2 Registrations
It is duly registered as a savings and loan holding company
under the HOLA and is registered under the Exchange Act.
3.3 Subsidiaries
It has Previously Disclosed a list of all its Subsidiaries.
All outstanding shares or ownership interests of its Subsidiaries
are validly issued, fully paid, nonassessable and owned
beneficially and of record by it or one of its Subsidiaries free
and clear of any Encumbrance. There are no Rights authorized,
issued or outstanding with respect to any of its Subsidiaries.
All eligible accounts of Cohoes Bank are insured by the FDIC to
the maximum extent permitted by law.
3.4 This Agreement
| (a) It has authority to enter into this Agreement, and
any other documents and instruments that are to be executed
by it in connection with the Transactions and, subject to
any necessary approvals from Governmental Entities and/or
its shareholders, to consummate the Transactions.
|
| (b) Its Board has authorized the execution, delivery
and performance of this Agreement and the consummation of
the Transactions. It has properly executed and delivered
this Agreement. Its obligations under this Agreement are
valid and binding upon it, and this Agreement does not
violate its Certificate of Incorporation, Bylaws, or any |
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| law, judgment or order of any Governmental Entity applicable
to it.
|
| (c) No "business combination," "moratorium," "control
share" or other state anti-takeover statute or regulation
prohibits, restricts or subjects to any material condition
its ability to perform its obligations under this Agreement. |
3.5 Financial Statements; No Adverse Change
Its Financial Statements have been prepared in accordance
with GAAP, fairly present its consolidated financial position,
and contain adequate reserves for losses. Since the period
covered by its most recent Annual Financial Statements prior to
the date hereof, it and its Subsidiaries have conducted their
businesses only in the ordinary course and, except as Previously
Disclosed, it has not suffered a Material Adverse Effect. Except
as disclosed in such Annual Financial Statements or as otherwise
Previously Disclosed, no circumstances exist that could
reasonably be expected to result in a Material Adverse Effect to
it. It and its Subsidiaries have no liabilities, known or
unknown, asserted or unasserted, absolute, contingent or
otherwise, that are required under GAAP to be reflected in
audited financial statements or the notes thereto which are not
reflected in its Annual Financial Statements other than
liabilities incurred in the ordinary course of business since
such date.
3.6 Fairness Opinion
It has received an opinion from its Financial Advisor to the
effect that Merger Consideration is fair, from a financial point
of view, to its shareholders.
3.7 Interim Events
Except as Previously Disclosed, since its most recent
Interim Financial Statements neither it nor any of its
Subsidiaries paid or declared any dividend (other than its
regular quarterly cash dividend) or made any other distribution
to shareholders or taken any action (other than loan
originations) which if taken after the date hereof would require
the prior written consent of Hudson or Hudson Bank hereunder.
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3.8 Regulatory Reports
The Regulatory Reports filed by it and its Subsidiaries
during the past three years, as filed or amended, complied with
applicable requirements of law and, as of their respective dates
or the dates as amended, did not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
3.9 Governmental Approvals
No approval of, or filing with, any Governmental Entity is
required by it or any of its Subsidiaries for the consummation of
the Transactions except for:
| (a) any filings or approvals under the Thrift
Regulations;
|
| (b) the clearance of the Proxy Statement;
|
| (c) the filing of the Certificate of Merger;
|
| (d) the filing of the Plan of Bank Merger; and
|
| (e) any anti-trust filings or approvals.
|
It is not aware of any reasons relating to it or any of its
Subsidiaries why such consents and approvals should not be
granted, free of any conditions or requirements which would be
unduly burdensome to Hudson or Hudson Bank or which would
materially reduce the value of the Transactions to Hudson.
3.10 No Broker's or Finder's Fees
No agent, broker, investment banker, person or firm acting
on behalf of it or any of its Subsidiaries will be entitled to
any fee or commission in connection with the Transactions, except
for its Financial Advisor. It has Previously Disclosed the
engagement letter that it entered into with its Financial Advisor
which sets forth all of the fees and expenses to be paid to its
Financial Advisor in connection with the Transactions.
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3.11 Equity Holdings
Except as Previously Disclosed, neither it nor any of its
Subsidiaries own more than 2% of the capital stock or other
equity securities (including securities convertible or
exchangeable into such securities) of or more than 2% of the
aggregate profit participations in any entity other than a
Subsidiary.
3.12 Certain Agreements
Except as Previously Disclosed or for agreements,
arrangements, commitments and understandings which are not
material in the aggregate, neither it nor any of its Subsidiaries
is a party to, is bound or affected by, or receives or is
obligated to pay benefits (other than those that relate to
benefits which previously have been fully accrued as a liability
or expensed and for which there is no future financial reporting
obligation) under:
| (a) any agreement, arrangement or commitment, including
any agreement, indenture or other instrument, relating to
the borrowing of money(other than in the case of deposits,
FHLB advances and federal funds purchased) or the guarantee
of any obligation;
|
| (b) any agreement, arrangement or commitment relating
to the employment of a consultant or the employment,
election or retention in office of any present or former
director, advisory director, officer or employee;
|
| (c) any agreement, arrangement or understanding
pursuant to which any payment (whether of severance pay or
otherwise) is or may become due to any present or former
director, advisory director, officer or employee;
|
| (d) any agreement, arrangement or understanding
pursuant to which any present or former director, advisory
director, officer, employee or agent is entitled to
indemnification;
|
| (e) any agreement, arrangement or understanding which
limits its or any of its Subsidiaries freedom to compete in
any line of business or with any person; |
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| (f) any agreement, arrangement or understanding which
would be required to be filed as an exhibit to its Annual
Report on Form 10-K under the Exchange Act and which has not
been so filed;
|
| (g) any agreement pursuant to which loans have been
sold, which impose any potential recourse obligations (by
representation, warranty, covenant or other contractual
terms) upon it or any of its Subsidiaries; or
|
| (h) any subservicing agreement. |
3.13 No Impediments
Except as Previously Disclosed, neither it nor any of its
Subsidiaries has taken or agreed to take any action, nor does it
have knowledge of any fact or circumstance, that would materially
impede or delay the consummation of the Transactions or the
ability of the Parties to obtain any approval of any Governmental
Entity required for consummation of the Transactions or to
perform their covenants and agreements under this Agreement.
3.14 Cohoes Officer Severance Plan
All current participants and all persons who may become
participants in the Cohoes Officer Severance Plan prior to the
Effective Time have been Previously Disclosed.
3.15 Proxy Statement Information
None of the information relating to it or any of its
Subsidiaries which is included in the Proxy Statement, as of the
date such Proxy Statement is mailed to its shareholders and up to
and including the date of the meeting of its shareholders to
which such Proxy Statement relates, will contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
provided that information as of a later date shall be deemed to
modify information as of an earlier date.
3.16 Cohoes Restoration Plan
Upon the termination of the Cohoes ESOP and Cohoes 401(k)
Plan as of the Effective Time in accordance with Sections 6.11(e)
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and 6.11(f), none of Cohoes, any Cohoes Subsidiary or any of
their respective successors in interest will have any obligation
to make further contributions to or awards of benefits under the
Cohoes Restoration Plan. No participant in the Cohoes
Restoration Plan will receive any contribution or benefit award
under the Cohoes Restoration Plan as a result of the aforesaid
termination of the Cohoes ESOP and Cohoes 401(k) Plan.
3.17 Registration Obligations
It is not under any obligation, contingent or otherwise,
which will survive the Effective Time to register any of its
securities under the Securities Act or other federal or state
securities laws or regulations.
ARTICLE IV
QUALIFIED REPRESENTATIONS AND WARRANTIES
OF COHOES
As of the date hereof, except as Previously Disclosed and
subject to the standard set forth in Section 9.8, Cohoes as to
itself and separately as to each of its Subsidiaries, represents
and warrants to Hudson and Hudson Bank as follows:
4.1 Organization and Good Standing
It is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has
authority to own, operate and lease its assets and properties and
to carry on its business. It is qualified to do business and is
in good standing in each jurisdiction where the character of its
assets or the nature of its business requires it to be qualified.
It has Delivered accurate copies of its organizational documents,
bylaws and other governing documents as currently in effect. Its
minute books contain complete and accurate records of all
meetings and other actions taken by its shareholders, owners,
Board, or committees of its Board. Its stock ledgers or other
ownership ledgers reflect all transactions in its capital stock
or ownership interests, since its inception.
4.2 Compliance with Law
| (a) It is in compliance with all laws, regulations,
ordinances, rules, judgments, orders or decrees applicable
to its operations and business.
|
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| (b) It has all permits, licenses, certificates of
authority, orders and approvals of, and has made all
filings, applications and registrations with, all
Governmental Entities that are required in order to permit
it to carry on its business as it is presently being
conducted.
|
| (c) It has not received in the last three years any
notification or communication from any Governmental Entity
or the staff thereof asserting that it was not in compliance
with any statutes, regulations or ordinances, threatening to
revoke any license, franchise, permit or authorization; or
threatening or contemplating any enforcement action.
|
| (d) It is not required to give prior notice to any
regulatory agency of the proposed addition of an individual
to its board of directors or the employment of an individual
as a senior executive officer. |
4.3 No Violations
Neither the execution of this Agreement nor the consummation
of the Transactions will result in any violation, breach,
termination, default or loss of a material benefit under, or
permit the acceleration of any obligation under, or require the
consent of a third party under, or result in the creation of any
Encumbrance on any of the property or assets under, any of its
agreements or other instruments.
4.4 Litigation and Other Proceedings
It is not a defendant in nor is any of its property subject
to any pending (or, subject to the Knowledge Qualification,
threatened), claim, action, suit, investigation or proceeding or
subject to any judicial order, judgment or decree.
4.5 Environmental Matters
| (a) It is in compliance with all Environmental Laws. It
has not received any communication alleging that it is not
in such compliance and, subject to the Knowledge
Qualification, there are no present circumstances that would
prevent or interfere with the continuation of such
compliance. |
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| (b) Subject to the Knowledge Qualification, none of the
properties owned, leased or operated by it has been or is in
violation of or liable under any Environmental Law.
|
| (c) Subject to the Knowledge Qualification, there are
no past or present actions, activities, circumstances,
conditions, events or incidents that could reasonably form
the basis of any Environmental Claim or other claim or
action or governmental investigation that could result in
the imposition of any liability against or obligation on the
part of it or any person or entity whose liability or
obligation for any Environmental Claim it has or may have
retained or assumed either contractually or by operation of
law.
|
| (d) It has not conducted (i) any phase one
environmental investigations during the past three years
(other than in connection with loan originations or
purchases) or (ii) any phase two environmental
investigations during the past five years, in each case,
with respect to any properties owned by it, leased by it or
securing loans held by it. |
4.6 Insurance
It is insured for reasonable amounts with financially sound
and reputable insurance companies against such risks as companies
or institutions engaged in a similar business would, in
accordance with good business practice, customarily be insured
and has maintained all insurance required by its agreements and
applicable laws and regulations. It has not, during the past five
years, had an insurance policy canceled or non-renewed or been
denied any insurance coverage for which it has applied.
4.7 Labor
No work stoppage involving it is pending or, subject to the
Knowledge Qualification, threatened. It is not involved in or,
subject to the Knowledge Qualification, threatened with or
affected by, any labor dispute, discrimination or sexual
harassment claims, arbitration, lawsuit or administrative
proceeding involving any of its current or former employees. It
is not a party to any collective bargaining agreement.
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4.8 Indemnification
Subject to the Knowledge Qualification, no action or failure
to take action by any present or former director, advisory
director, officer, employee or agent of it has occurred which
would give rise to a claim or a potential claim by any such
person for indemnification from it.
4.9 Loan Portfolio
Each loan reflected as an asset on its Annual Financial
Statements and each loan originated or acquired thereafter is
evidenced by appropriate and sufficient documentation and
constitutes a legal, valid and binding obligation of the obligor
named therein, enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles or doctrines. All such loans are
free and clear of any Encumbrance, other than the lien of the
FHLB. It has no loan or other asset that has been classified by
examiners or others as "Other Loans of Concern," "Substandard,"
"Doubtful" or "Loss." It has Previously Disclosed a complete
list of the real estate acquired by it through foreclosure,
repossession or deed in lieu thereof which are currently held by
it.
4.10 Investment Portfolio
All investment securities held by it are carried on its
financial books and records in accordance with GAAP. Except for
pledges to secure public and trust deposits, none of its
investment securities are subject to any restriction, whether
contractual or statutory, which materially impairs its ability to
freely dispose of such investment securities at any time, other
than those restrictions imposed on securities held to maturity
under GAAP.
4.11 Defaults
There has not been any default in any obligation to be
performed by it under any agreement and it has not waived any
material right under any agreement. Subject to the Knowledge
Qualification, no other party to any agreement is in default in
any obligation to be performed by such party.
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4.12 Real Estate Loans and Investments
Except for properties acquired by it in settlement of loans,
there are no facts, circumstances or contingencies known to it
which exist and would require a reduction under GAAP in the
present carrying value of any of its real estate investments,
joint ventures, construction loans, other investments or other
loans (either individually or in the aggregate with its other
loans and investments).
4.13 Employee Benefit Plans
| (a) It has Previously Disclosed all Employee Plans
(other than those that relate to benefits which previously
have been fully accrued as a liability or expensed and for
which there is no future financial reporting obligation) and
has heretofore delivered accurate copies of each (including
amendments and agreements relating thereto) together with,
in the case of qualified plans, (i) the most recent
financial reports and actuarial reports prepared with
respect thereto, (ii) the most recent annual reports filed
with any Governmental Entity with respect thereto, and (iii)
all rulings and determination letters and any open requests
for rulings or letters that pertain thereto.
|
| (b) Each Employee Plan has been operated and
administered in accordance with its terms and with
applicable law, including, to the extent applicable, ERISA,
the Code, the Securities Act, the Exchange Act, the Age
Discrimination in Employment Act, and the regulations or
rules promulgated thereunder; and all filings, disclosures
and notices required by ERISA, the Code, the Securities Act,
the Exchange Act, the Age Discrimination in Employment Act
and any other applicable law have been timely made.
|
| (c) Each Employee Plan which is an "employee pension
benefit plan" within the meaning of Section 3(2) of ERISA (a
"Pension Plan") and which is intended to be qualified under
Section 401(a) of the Code has received a favorable
determination letter (including a determination that the
related trust under such Pension Plan is exempt from tax
under Section 501(a) of the Code) from the IRS, and it is
not aware of any circumstances likely to result in
revocation of any such favorable determination letter.
|
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| (d) There is no pending or, subject to the Knowledge
Qualification, threatened legal action, suit or claim
relating to any Employee Plan (other than routine claims for
benefits) or against any related trust thereto or fiduciary
thereof.
|
| (e) It has not engaged in a transaction, or omitted to
take any action, with respect to any Employee Plan that has
or would reasonably be expected to subject it to a tax or
penalty imposed by either Section 4975 of the Code or
Section 502 of ERISA, assuming for purposes of Section 4975
of the Code that the taxable period of any such transaction
expired as of the date hereof.
|
| (f) No liability (other than for payment of premiums
to the PBGC which have been made or will be made on a timely
basis) under Title IV of ERISA has been or is expected to be
incurred by it with respect to any ongoing, frozen or
terminated "single-employer plan", within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly
maintained by it, or any single-employer plan of any entity
(an "ERISA Affiliate") which is considered one employer with
it under Section 4001(a)(14) of ERISA or Section 414(b) or
(c) of the Code (an "ERISA Affiliate Plan").
|
| (g) Neither it nor any ERISA Affiliate has
contributed, or has been obligated to contribute, to a
multiemployer plan under Subtitle E of Title IV of ERISA at
any time since September 26, 1980.
|
| (h) No notice of a "reportable event", within the
meaning of Section 4043 of ERISA for which the 30-day
reporting requirement has not been waived, has been required
to be filed for any Employee Plan or by any ERISA Affiliate
Plan within the 12-month period ending on the date hereof.
The PBGC has not instituted proceedings to terminate any
Pension Plan or ERISA Affiliate Plan and, subject to the
Knowledge Qualification, no condition exists that presents a
risk that such proceedings will be instituted by the PBGC.
|
| (i) There is no pending investigation or enforcement
action by the PBGC, DOL or IRS or any other Governmental
Entity with respect to any Employee Plan.
|
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| (j) All contributions required to be made under the
terms of any Employee Plan or ERISA Affiliate Plan have been
timely made.
|
| (k) Neither any Pension Plan nor any ERISA Affiliate
Plan has an "accumulated funding deficiency" (whether or not
waived) within the meaning of Section 412 of the Code or
Section 302 of ERISA and all required payments to the PBGC
with respect to each Pension Plan or ERISA Affiliate Plan
have been made on or before their due dates.
|
| (l) Neither it nor any ERISA Affiliate (i) has
provided, or would reasonably be expected to be required to
provide, security to any Pension Plan or to any ERISA
Affiliate Plan pursuant to Section 401(a)(29) of the Code,
or (ii) has taken any action, or omitted to take any action,
that has resulted, or would reasonably be expected to
result, in the imposition of an Encumbrance under Section
412(n) of the Code or pursuant to ERISA.
|
| (m) It is not currently a sponsor of or a
participating employer in any Pension Plan that is a defined
benefit plan.
|
| (n) It has no obligation to provide retiree health and
life insurance or other retiree death benefits under any
Employee Plan, other than benefits mandated by Section 4980B
of the Code. There has been no communication to its
employees that would reasonably be expected to promise or
guarantee such employees retiree health or life insurance or
other retiree death benefits.
|
| (o) Except as Previously Disclosed with respect to
parachute payments to be made to Messrs. Robinson and Ahl,
it has neither made any payments, nor is obligated to make
any payments by virtue of the consummation of any of the
Transactions or any termination of employment in connection
therewith, nor is a party to any agreement or any Employee
Plan, that under any circumstances could obligate it or its
successor to make payments or deemed payments that (i) are
not or will not be deductible because of Sections 162(m) or
280G of the Code or (ii) would require Hudson or any of its
Subsidiaries to record any charge or expense therefor (or
any tax gross-up payments) for financial reporting purposes
on a post-acquisition basis. |
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4.14 Liquidation Account
In the case of Cohoes Bank, the liquidation account
established by it in connection with its conversion from mutual
to stock form has been maintained since its establishment in
accordance with applicable laws and the records with respect to
said account are accurate.
4.15 Tax Matters
| (a) It has timely filed all federal, state and local
(and, if applicable, foreign) income, franchise, bank,
excise, real property, personal property and other tax
returns and reports required by applicable law to be filed
by it(including estimated tax returns, income tax returns,
information returns and withholding and employment tax
returns) and has paid, or where payment is not required to
have been made, has set up adequate reserves or accruals for
the payment of, all taxes in respect of the periods covered
by such returns and reports and, as of the Effective Time,
will have paid, or where payment is not required to have
been made will have set up adequate reserves or accruals for
the payment of, all taxes for any subsequent periods ending
on or prior to the Effective Time. It will not have any
liability for any such taxes in excess of the amounts so
paid or reserves or accruals so established.
|
| (b) All federal, state and local (and, if applicable,
foreign) income, franchise, bank, excise, real property,
personal property and other tax returns and reports filed by
it are accurate and complete. It is either not delinquent in
the payment of any tax, assessment or governmental charge or
has requested an extension of time without penalty within
which to file any tax returns or reports in respect of any
fiscal year or portion thereof. Its federal, state and local
tax returns and reports that are open to audit have not been
audited by the applicable tax authorities and no
deficiencies for any tax, assessment or governmental charge
have been proposed, asserted or assessed (tentatively or
otherwise) against it which have not been settled and paid.
There are currently no agreements in effect as to it to
extend the period of limitations for the assessment or
collection of any tax. No audit, examination or deficiency
or refund litigation with respect to any of its returns or |
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| reports is pending or, subject to the Knowledge
Qualification, threatened.
|
| (c) It (i) is not a party to any agreement providing for
the allocation or sharing of taxes, (ii) is not required to
include in income any adjustment pursuant to Section 481(a)
of the Code or by reason of any change in accounting method
(nor does it have any knowledge that the IRS has proposed
any such adjustment or change of accounting method) and
(iii) has not filed a consent pursuant to Section 341(f) of
the Code or agreed to have Section 341(f)(2) of the Code
apply.
|
| (d) It has withheld amounts from its employees,
shareholders, and holders of public deposit accounts in
compliance with the tax withholding provisions of applicable
federal, state and local laws, has filed all federal, state
and local returns and reports for all periods for which such
returns or reports would be due with respect to income tax
withholding, social security, unemployment taxes, income and
other taxes and all payments or deposits with respect to
such taxes have been timely made. |
4.16 Derivatives Contracts
It is not a party to and has not agreed to enter into any
exchange-traded or over-the-counter swap, forward, future,
option, cap, floor or collar financial contract or any other
contract not included in Cohoes' Annual Financial Statement which
is a derivatives contract (including various combinations
thereof) and it does not own any securities that are identified
in OTS Thrift Bulletin No. 65 or otherwise referred to as
structured notes.
4.17 Properties
| (a) All real and personal property owned by it or
presently used by them it is in good condition (ordinary
wear and tear excepted) and are sufficient to carry on its
business in the ordinary course consistent with past
practices. It has good and marketable title free and clear
of all Encumbrances (other than equitable rights of
redemption laws relating to property acquired in
foreclosure) to all of its properties and assets, real and
personal, except |
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| (i) liens for current taxes not yet due or
payable,
|
| (ii) pledges to secure deposits,
|
| (iii) such imperfections of title, easements and
non-monetary Encumbrances affecting real property, if
any, which do not adversely affect the value or use of
such real property, and
|
| (iv) any monetary Encumbrances, reflected in
Cohoes' Annual Financial Statements.
|
| (b) All real and personal property that is leased or
licensed by it is held pursuant to leases or licenses which
are valid and enforceable in accordance with their
respective terms and no such lease or license will terminate
or lapse prior to the Effective Time or thereafter by reason
of completion of the Transactions. All improved real
property owned or leased by it or any of its Subsidiaries is
in compliance in all material respects with all applicable
laws including zoning laws. |
4.18 Material Interests of Certain Persons
| (a) None of its officers, directors or employees or any
"associate" (as such term is defined in Rule 14a-1 under the
Exchange Act) or related interest of any such persons has
any material interest in any material agreement or property
(real or personal, tangible or intangible), used in, or
pertaining to, its business.
|
| (b) Except as set forth in the Cohoes proxy statement
for its most recent annual meeting of the shareholders,
there are no outstanding Insider Loans. All outstanding
Insider Loans were made in the ordinary course of business
and on substantially the same terms as those prevailing at
the time for comparable transactions with third parties and
were, with respect to executive officers and directors,
approved by its Board in accordance with applicable law and
regulations.
|
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4.19 Disclosures
None of the representations and warranties pursuant to
Articles III and IV hereof or any of the information Previously
Disclosed or Delivered by it or on its behalf, contains any
untrue statement of a material fact, or omits to state any
material fact required to be stated or necessary to make any such
information, in light of the circumstances, not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF HUDSON AND HUDSON BANK
As of the date hereof, Hudson and Hudson Bank, jointly and
severally, represent and warrant to Cohoes as follows:
5.1 Organization and Good Standing
It is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has
authority to own, operate and lease its assets and properties and
to carry on its business. It is qualified to do business and is
in good standing in each jurisdiction where the character of its
assets or the nature of its business requires it to be qualified.
It has Delivered accurate copies of its organizational documents,
bylaws and other governing documents as currently in effect.
5.2 Registrations
Hudson is duly registered as a savings and loan holding
company under the HOLA and is registered under the Exchange Act.
5.3 This Agreement
| (a) It has authority to enter into this Agreement, and
any other documents and instruments that are to be executed
by it in connection with the Transactions and, subject to
any necessary approvals from Governmental Entities, to
consummate the Transactions.
|
| (b) Its Board has authorized the execution, delivery
and performance of this Agreement and the consummation of
the Transactions. It has properly executed and delivered
this Agreement. Its obligations under this Agreement are
valid and binding upon it, and this Agreement does not |
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| violate its Certificate of Incorporation or Charter, Bylaws,
or any law, judgment or order of any Governmental Entity
applicable to it.
|
| (c) No "business combination," "moratorium," "control
share" or other state anti-takeover statute or regulation
prohibits, restricts or subjects to any material condition
its ability to perform its obligations under this Agreement. |
5.4 Financial Statements
The Financial Statements of Hudson have been prepared in
accordance with GAAP, fairly present its consolidated financial
position, and contain adequate reserves for losses. It has not
suffered a Material Adverse Effect. No circumstance exists that
could reasonably be expected to result in a Material Adverse
Effect to it.
5.5 Fairness Opinion
It has received an opinion from its Financial Advisor to the
effect that Merger Consideration is fair, from a financial point
of view, to it and its shareholders.
5.6 Regulatory Reports
The Regulatory Reports filed by it and its Subsidiaries
during the past three years, as filed or amended, complied with
applicable requirements of law and, as of their respective dates
or the dates as amended, did not contain any untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
5.7 Governmental Approvals
No approval of, or filing with, any Governmental Entity is
required by it for the consummation of the Transactions except
for:
| (a) any filings or approvals under the Thrift
Regulations;
|
| (b) the filing of the Certificate of Merger; |
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| (c) the filing of the Plan of Bank Merger; and
|
| (d) any anti-trust filings or approvals; |
It is not aware of any reasons relating to it why such
consents and approvals should not be granted, free of any
conditions or requirements which would be unduly burdensome to it
or which would materially reduce the value of the Transactions to
it.
5.8 No Impediments
It has not taken or agreed to take any action, nor does it
have knowledge of any fact or circumstance, that would materially
impede or delay the consummation of the Transactions or the
ability of the Parties to obtain any approval of any Governmental
Entity required for consummation of the Transactions or to
perform their covenants and agreements under this Agreement.
5.9 Proxy Statement Information
None of the information relating to it or any of its
Subsidiaries which is supplied by it in writing for inclusion in
the Proxy Statement, as of the date such Proxy Statement is
mailed to the shareholders of Cohoes and up to and including the
date of the meeting of the shareholders of Cohoes to which such
Proxy Statement relates, will contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, provided that information as of a
later date shall be deemed to modify information as of an earlier
date.
5.10 Financial Ability
At the Effective Time, Hudson Bank will have sufficient cash
funds to pay the aggregate Merger Consideration and will use such
funds for the payment of the Merger Consideration subject to the
completion of the Transactions in accordance with the terms of
this Agreement. Hudson Bank is, and will be immediately
following completion of the Transactions, in material compliance
with all capital, debt, and financial and nonfinancial provisions
applicable to it, under the Thrift Regulations.
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ARTICLE VI
COVENANTS AND AGREEMENTS
6.1 Reasonable Best Efforts
Subject to the terms and conditions of this Agreement, each
of the Parties (i) shall use its reasonable best efforts in good
faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary or advisable under
applicable laws and regulations so as to permit and otherwise
enable completion of the Transactions as promptly as reasonably
practicable, and (ii) shall cooperate fully with each other to
that end. Consistent with the foregoing, prior to Closing (or
earlier if necessary to facilitate the Transactions), Cohoes
shall take all necessary action to delete Section 7 of the
Charter of Cohoes Bank.
6.2 Shareholders Meeting
Cohoes shall take all action necessary to properly call and
convene a meeting of its shareholders as soon as practicable
after the date hereof to consider and vote upon the adoption of
this Agreement. The Board of Cohoes has agreed as of the date
hereof to recommend to its shareholders that they vote in favor
of the adoption of this Agreement. The Board of Cohoes will
continue to make such favorable recommendation, provided that the
Board of Cohoes may fail to continue to make such recommendation,
or withdraw, modify or change such recommendation, if it has
determined in good faith, after the receipt of advice from its
outside counsel, that the making of such recommendation would
result in a breach of its fiduciary duties to the shareholders of
Cohoes under applicable Delaware law.
6.3 Regulatory Matters
| (a) The Parties shall promptly cooperate with each
other in the preparation of the Proxy Statement to be filed
by Cohoes with the SEC and after the SEC has cleared the
Proxy Statement, Cohoes shall promptly mail the Proxy
Statement to its shareholders.
|
| (b) The Parties shall cooperate with each other and
use their reasonable best efforts to promptly prepare and
file within 30 days after the date hereof or as soon
thereafter as is reasonably practicable, all necessary |
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| documentation, to effect all applications (including
applications of Merger Sub), notices, petitions and filings,
and to obtain as promptly as practicable all permits,
consents, approvals and authorizations of all Governmental
Entities and third parties which are necessary or advisable
to consummate the Transactions; provided however, nothing
herein shall require the Board of Cohoes to solicit proxies
from Cohoes' shareholders or make any other communications
to such shareholders to vote for adoption of this Agreement,
if such Board has determined pursuant to Section 6.2 that it
can no longer favorably recommend adoption of this Agreement
to the Cohoes' shareholders. Each Party shall have the
right to review in advance, and to the extent practicable
each will consult with the other on, in each case subject to
applicable laws relating to the exchange of information, all
the information which appears in any filing made by another
Party or written materials submitted by another Party to any
third party or any Governmental Entity in connection with
the Transactions. In exercising the foregoing right, each
Party shall act reasonably and as promptly as practicable.
The Parties agree that they will consult with each other
with respect to the obtaining of all permits, consents,
approvals and authorizations of all third parties and
Governmental Entities necessary or advisable to consummate
the Transactions and each Party will keep the other Parties
apprised of the status of matters relating to completion of
the Transactions. The Parties agree that they will use their
reasonable best efforts to cause the Closing Date to occur
by April 30, 2001.
|
| (c) Each Party shall, upon the request of another
Party, furnish to such other Party all information
concerning itself and its Subsidiaries, their respective
present and former directors and officers, the shareholders
of Cohoes and such other matters as may be reasonably
necessary or advisable in connection with any statement,
filing, notice or application made by or on behalf of a
Party or any of its Subsidiaries to any Governmental Entity
in connection with the Transactions.
|
| (d) Each Party shall promptly furnish the other
Parties with copies of written communications received from,
or delivered to, any Governmental Entity in respect of the
Transactions. |
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6.4 Investigation and Confidentiality
| (a) Cohoes shall, and shall cause its Subsidiaries to,
permit Hudson and Hudson Bank and their representatives
reasonable access to their properties and personnel, and
shall disclose and make available to them, upon reasonable
request, all books, papers and records relating to their
assets, stock or other ownership records, properties,
operations, obligations and liabilities, including all books
of account (including the general ledger), tax records,
minute books of meetings of boards of directors (and any
committees thereof) and shareholders, organizational
documents, bylaws, material contracts and agreements,
filings with any Governmental Entity, accountants' work
papers, litigation files, loan files, plans affecting
employees, and any other business activities or prospects in
which Hudson or Hudson Bank may have a reasonable interest,
provided that such access and any such reasonable request
shall be reasonably related to the Transactions and shall
not unduly interfere with the normal operations of Cohoes
and its Subsidiaries. Cohoes shall make its, and shall cause
Cohoes Bank to make its, directors, officers, employees and
agents and authorized representatives (including counsel and
independent public accountants) available to confer with
Hudson or Hudson Bank and its representatives, provided that
such access shall be reasonably related to the Transactions
and shall not unduly interfere with Cohoes' and Cohoes
Bank's normal operations.
|
| (b) All information furnished previously in connection
with the Transactions or pursuant to this Agreement shall be
treated as the sole property of the Party furnishing the
information until completion of the Transactions and, if the
Transactions shall not be completed, the Party receiving the
information shall either destroy or return to the Party
which furnished such information all documents or other
materials containing, reflecting or referring to such
information, shall use its best efforts to keep confidential
all such information, and shall not directly or indirectly
use such information for any competitive or other commercial
purposes. The obligation to keep such information
confidential shall continue for two years from the date the
Transactions are abandoned but shall not apply to (i) any
information which (A) the Party receiving the information
can establish was already in its possession prior to the |
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| disclosure thereof by the Party furnishing the information;
(B) was then generally known to the public; or (C) became
known to the public through no fault of the Party receiving
the information; or (ii) disclosures pursuant to a legal
requirement or in accordance with an order of a court of
competent jurisdiction, provided that the Party which is the
subject of any such legal requirement or order shall use its
best efforts to give the Party, at least ten business days'
prior notice thereof. |
6.5 Press Releases
Hudson and Cohoes shall agree with each other as to the form
and substance of any press release related to this Agreement or
the Transactions, and consult with each other as to the form and
substance of other public disclosures which may relate to the
Transactions provided, however, that nothing contained herein
shall prohibit either of them, following notification to the
other, from making any disclosure which it believes is required
by law or regulation.
6.6 Business of the Parties
| (a) During the period from the date of this Agreement
and continuing until the Effective Time, except as expressly
contemplated or permitted by this Agreement or with the
prior written consent of Hudson or Hudson Bank, Cohoes
shall, and shall cause each of its Subsidiaries to, carry on
its business only in the ordinary course consistent with
past practice. During such period, Cohoes will, and will
cause each of its Subsidiaries to, use all reasonable
efforts to (x) preserve its business organization intact,
(y) keep available the present services of its employees and
(z) preserve the goodwill of its customers and others with
whom it has business relationships. Without limiting the
generality of the foregoing, except with the prior written
consent of Hudson or Hudson Bank (which consent shall not be
unreasonably withheld or delayed with respect to subparts
(vi), (ix) and (xv)) or as expressly contemplated hereby,
between the date hereof and the Effective Time, neither
Cohoes nor any of its Subsidiaries shall:
|
| (i) declare, set aside, make or pay any
dividend or other distribution (whether in cash,
stock or property or any combination thereof) in |
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| respect of its capital stock, except for (A) the
declaration and payment of regular quarterly cash
dividends by Cohoes in an amount not in excess of
$0.08 per outstanding share of Cohoes Common Stock
with usual record and payment dates for such
dividends consistent with the past dividend
practices of Cohoes and (B) the declaration and
payment of cash dividends by Cohoes Bank to Cohoes
to facilitate the payment of any cash dividend by
Cohoes pursuant to clause (A) above or any other
cash payments to be made by Cohoes pursuant to or
as contemplated by this Agreement;
|
| (ii) issue any shares of its capital stock,
other than upon exercise of Cohoes Options
referred to in Section 3.1 hereof; issue, grant,
modify or authorize any Rights other than a
modification pursuant to the Previously Disclosed
amendments to the Cohoes Option Plan approved by
Cohoes' shareholders at Cohoes' 2000 annual
meeting of shareholders; purchase any shares of
its capital stock or ownership interests; or
effect any recapitalization, reclassification,
stock dividend, stock split or like change in
capitalization;
|
| (iii) except for the deletion of Section
7 of the Charter of Cohoes Bank, amend its
Certificate of Incorporation, Charter, Bylaws or
similar organizational documents; or waive or
release any material right or cancel or compromise
any material debt or claim;
|
| (iv) increase the rate of compensation of or
benefits to any of its directors, officers or
employees, or pay or agree to pay any bonus or
severance to, or provide any other new benefit or
incentive to, any of its directors, officers or
employees, except (A) compensation increases and
bonus payments as may be required pursuant to
Previously Disclosed commitments existing on the
date hereof, and in the case of Previously
Disclosed bonuses the amounts accrued therefor
through December, 2000 may be paid in December,
2000 and unpaid amounts accrued immediately before |
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| the Closing may be paid on the Closing Date, (B)
the Cohoes Special Bonus to the persons and in the
amounts Previously Disclosed if such persons are
employees or directors of Cohoes Bank immediately
prior to the Effective Time,(C) as may be required
by law; or (D) merit increases to rank and file
employees consistent with past practices;
|
| (v) enter into or, except as may be required
by law, modify any Employee Plan other than a
modification pursuant to the Previously Disclosed
amendments to the Cohoes Option Plan and the
Cohoes Recognition Plan approved by Cohoes'
shareholders at Cohoes' 2000 annual meeting of
shareholders;
|
| (vi) originate or purchase (A) any brokered
loan not pursuant to a commitment Previously
Disclosed and existing on the date hereof, (B) any
unsecured loan in excess of $50,000,(C) any loan
secured by a first trust or mortgage on a one- to
four-family residential property in excess of
$250,000, (D) any loan secured by a first trust or
mortgage on commercial real property in excess of
$400,000, or (E) any other loan in excess of
$100,000;
|
| (vii) except as otherwise permitted
hereunder, enter into (A) any agreement for the
purchase, sale, transfer, Encumbrance or other
disposition of any properties or assets (other
than real estate acquired in foreclosure (or by
deed in lieu thereof) or repossessed assets, in
each case, with a carrying value on Cohoes'
Financial Reports of less than $300,000
individually),(B) any other transaction,
agreement, arrangement or commitment not made in
the ordinary course of business, (C) any
agreement, indenture or other instrument relating
to the borrowing of money or guarantee of any
obligations, except for deposits, FHLB advances
not to exceed six months to maturity, federal
funds purchased and securities sold under
agreements to repurchase in the ordinary course of
business consistent with past practice, (D) any |
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| agreement, arrangement or commitment relating to
the employment of an employee or consultant, or
amend any such existing agreement, arrangement or
commitment; or (E) any contract, agreement or
understanding with a labor union;
|
| (viii) change any of its methods of
accounting, except as required by changes in laws
or regulations or GAAP, or change any of its
methods of reporting income and deductions for
federal income tax purposes from those employed in
the preparation of its last federal income tax
return, except as required by changes in laws or
regulations;
|
| (ix) enter into or renew any lease of real or
personal property or any service contract; or fail
to give any required notice to prevent a lease or
service contract from being renewed; or make any
capital expenditures in excess of $25,000
individually or $50,000 in the aggregate, other
than pursuant to binding commitments Previously
Disclosed and existing on the date hereof and
expenditures necessary to maintain existing assets
in good repair;
|
| (x) enter into or agree to enter into any
agreement, arrangement or commitment described in
Section 3.12(b) - (h);
|
| (xi) file any applications or make any contract
with respect to branching or site location or
relocation;
|
| (xii) purchase any security or acquire in any
manner whatsoever (other than to realize upon
collateral for a defaulted loan) control over or
any equity interest in any business or entity,
other than marketable securities (which do not
exceed 1% of the securities outstanding within
such class) in the ordinary course of business;
|
| (xiii) except with respect to real estate acquired
in foreclosure (or by deed in lieu thereof) or
repossessed assets, enter or agree to enter into any |
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| agreement or arrangement granting any preferential
right to purchase any of its assets or rights or
requiring the consent of any party to the transfer and
assignment of any such assets or rights;
|
| (xiv) except as necessitated in the
reasonable opinion of Cohoes Bank due to changes
in interest rates, and in accordance with safe and
sound banking practices, change or modify in any
material respect any of its lending, investment,
or deposit gathering policies, except to the
extent required by law or an applicable regulatory
authority;
|
| (xv) enter into any futures contract, option
contract, interest rate caps, interest rate
floors, interest rate exchange agreement or other
agreement for purposes of hedging the exposure of
its interest-earning assets and interest-bearing
liabilities to changes in market rates of
interest;
|
| (xvi) take any action that would cause any of
the representations and warranties of Cohoes
contained in this Agreement not to be true and
correct in any material respect at the Effective
Time or that would cause any of the conditions of
Section 7.1 or 7.3 hereof not to be satisfied;
|
| (xvii) voluntarily take any action that would
materially impede or delay the completion of the
Transactions or the ability of the Parties to perform
their covenants and agreements under this Agreement; or
|
| (xviii) agree to do any of the foregoing.
|
| (b) Except with the prior written consent of Cohoes or
as expressly contemplated hereby, between the date hereof
and the Effective Time, neither Hudson nor Hudson Bank
shall:
|
| (i) take any action that would cause any of its
representations and warranties contained in this
Agreement not to be true and correct in any material
respect at the Effective Time or that would cause any |
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| of the conditions of Section 7.1 or 7.2 hereof not to
be satisfied;
|
| (ii) voluntarily take any action that would
materially impede or delay the completion of the
Transactions or its ability to perform its covenants
and agreements under this Agreement; or
|
| (iii) agree to do any of the foregoing.
|
| (c) Each Party shall promptly notify the other Parties
in writing of the occurrence of any matter or event known to
and directly involving it, that could have, either
individually or in the aggregate, a Material Adverse Effect
upon it. |
6.7 Certain Actions
| (a) Neither Cohoes nor any of its Subsidiaries or any
of their respective officers, directors, employees,
representatives or agents shall solicit or encourage
inquiries or proposals with respect to, furnish any
information relating to, or participate in any negotiations
or discussions concerning, any Alternative Proposal,
provided, however, that the Board of Cohoes may furnish such
information or participate in such negotiations or
discussions if it, after having consulted with and
considered the advice of outside counsel and its Financial
Advisor, has determined in good faith that the failure to do
the same would result in a breach of the fiduciary duties of
such Board to Cohoes' shareholders under applicable Delaware
law. Cohoes will promptly inform Hudson or Hudson Bank
orally and in writing of any such request for information or
of any such negotiations or discussions, as well as instruct
its and its Subsidiaries directors, officers,
representatives and agents to refrain from taking any action
prohibited by this Section 6.7. In no event may Cohoes
provide any information to a third party that it has not
provided to Hudson or Hudson Bank.
|
| (b) In the event that the Board of Cohoes determines
in good faith, after consultation with its Financial Advisor
and upon advice from outside counsel, that it has received a
Superior Offer (as defined below), it shall notify Hudson in
writing of its intent to terminate this Agreement and |
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| concurrently with or after such termination cause Cohoes to
enter into an acquisition agreement with respect to, or
recommend acceptance of, the Superior Offer. Such notice
shall specify all of the terms and conditions of such
Superior Offer and identify the person making such Superior
Offer. Hudson shall have five business days to evaluate and
respond to the Cohoes notice. If Hudson notifies Cohoes in
writing prior to the expiration of the five business day
period provided above that it or Hudson Bank shall increase
the Merger Consideration to an amount at least equal to that
of such Superior Offer (the "Hudson Proposal"), then Cohoes
shall not be permitted to enter into an acquisition
agreement with respect to, or permit its Board to recommend
acceptance to its shareholders of, such Superior Offer.
Such notice by Hudson shall specify the new Merger
Consideration. Cohoes shall have five business days to
evaluate the Hudson Proposal.
|
| (c) In the event the Superior Offer involves
consideration to Cohoes' shareholders consisting of
securities, in whole or in part, a Hudson Proposal shall be
deemed to be at least equal to the Superior Offer, if the
Hudson Proposal offers cash Merger Consideration that equals
or exceeds the consideration being offered to Cohoes'
shareholders in the Superior Offer valuing any securities
forming a part of the Superior Offer at its cash equivalent
based upon (a) the average trading price of such securities
for the 20 trading days immediately preceding the date of
the Hudson Proposal or (b) the written valuation of such
securities by a nationally recognized investment banking
firm selected by Hudson(who shall not be Hudson's Financial
Advisor) if such securities are not traded on a nationally
recognized exchange or will be newly issued securities that
are not of a class then trading on a nationally recognized
exchange. Any written valuation shall be attached as an
Exhibit to the Hudson Proposal.
|
| (d) In the event that the Board of Cohoes determines
in good faith, upon the advice of its Financial Advisor and
outside counsel, that the Hudson Proposal is not at least
equal to the Superior Offer, Cohoes can terminate this
Agreement in order to execute an acquisition agreement with
respect to, or to allow its Board to adopt a resolution
recommending acceptance to the Cohoes' shareholders of, the
Superior Offer as provided in Section 8.1(g). For purposes |
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| of this Agreement, a "Superior Offer" means any bona fide
proposal, including a tender offer, made by a third party to
acquire, directly or indirectly, for consideration
consisting of cash and/or securities, more than 40% of the
voting power of the shares of Cohoes or Cohoes Bank Common
Stock then outstanding or all or substantially all the
assets of Cohoes or Cohoes Bank and provides consideration
to the Cohoes' shareholders which the Board of Cohoes
determines in its good faith judgment (based on the advice
of its Financial Advisor) to be materially more favorable
than the Merger Consideration and for which third-party
financing, to the extent required, is then firmly committed. |
6.8 Current Information
During the period from the date hereof to the Effective
Time, Cohoes shall, upon the request of Hudson, cause one or more
of its designated representatives to confer on a monthly or more
frequent basis with representatives of Hudson regarding Cohoes'
consolidated financial condition, operations and business and
matters relating to the completion of the Transactions. As soon
as reasonably available, but in no event more than two business
days after filing, Cohoes will deliver to Hudson or Hudson Bank
all reports and documents including Securities Documents filed by
it or Cohoes Bank with the SEC or under the Thrift Regulations
subsequent to the date hereof. Within 45 days after the end of
each month, Cohoes will deliver to Hudson or Hudson Bank an
unaudited consolidated balance sheet and an unaudited
consolidated statement of income, without related notes, for such
month prepared in accordance with GAAP.
6.9 Indemnification
| (a) After the Effective Time, Hudson shall indemnify,
defend and hold harmless each person who is now, or who has
been at any time before the date hereof or who becomes
before the Effective Time, an officer or director of Cohoes
or any of its Subsidiaries(the "Indemnified Parties")
against all losses, claims, damages, costs, expenses
(including attorney's fees), liabilities or judgments or
amounts that are paid in settlement (which settlement shall
require the prior written consent of Hudson, which consent
shall not be unreasonably withheld) of or in connection with
any claim, action, suit, proceeding or investigation,
whether civil, criminal, or administrative (each a "Claim"), |
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| in which an Indemnified Party is, or is threatened to be
made, a party or a witness based in whole or in part on or
arising in whole or in part out of the fact that such person
is or was a director or officer of Cohoes or any of its
Subsidiaries if such Claim pertains to any matter or fact
arising, existing or occurring before the Effective Time
(including, without limitation, the Transactions, regardless
of whether such Claim is asserted or claimed before, or at
or after, the Effective Time (the "Indemnified
Liabilities"), to the fullest extent permitted under
applicable state law or the Thrift Regulations, whichever is
applicable, in effect as of the date hereof or as amended
applicable to a time before the Effective Time and under the
Certificate of Incorporation, Charter or Bylaws of Cohoes or
any of its Subsidiaries, whichever is applicable, as in
effect on the date hereof. Hudson shall pay expenses in
advance of the final disposition of any such action or
proceeding to each Indemnified Party to the fullest extent
permitted by applicable state law or the Thrift Regulations,
whichever is applicable, in effect on the date hereof or as
amended applicable to a time before the Effective Time upon
receipt of any undertaking required by applicable state law
or the Thrift Regulations. Any Indemnified Party wishing to
claim indemnification under this Section 6.9(a), upon
learning of any Claim, shall notify Hudson (but the failure
so to notify Hudson shall not relieve it from any liability
which it may have under this Section 6.9(a)except to the
extent such failure materially prejudices Hudson) and shall
deliver to Hudson any undertaking required by applicable
state law or the Thrift Regulations, whichever is
applicable. Hudson shall ensure, to the extent permitted
under applicable state law or the Thrift Regulations,
whichever is applicable, that all limitations of liability
existing in favor of the Indemnified Parties as provided in
the Certificate of Incorporation, Charter or Bylaws of
Cohoes or any of its Subsidiaries(as the case may be), as in
effect on the date hereof, or allowed under applicable state
law or the Thrift Regulations, whichever is applicable, as
in effect on the date hereof or as such law or regulation
may be amended applicable to a time before the Effective
Time, with respect to Indemnified Liabilities shall survive
the consummation of the Transactions.
|
| (b) From and after the Effective Time, the directors,
and officers of Cohoes and its Subsidiaries who become |
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| directors or officers of Hudson or its Subsidiaries, shall
have indemnification rights having prospective application
with respect to acts or omissions occurring after the
Effective Time. The prospective indemnification rights
shall consist of such rights to which directors and officers
of Hudson or its Subsidiaries, whichever is applicable, are
entitled to under the provisions of the Certificate of
Incorporation, Charter or Bylaws of Hudson or its
Subsidiaries, whichever is applicable, as in effect from
time to time after the Effective Time, and the provisions of
applicable state law and the Thrift Regulations, whichever
is applicable, as in effect from time to time after the
Effective Time.
|
| (c) For a period of six years from and after the
Effective Time, Hudson shall cause to be maintained in
effect the current policies of directors' and officers'
liability insurance maintained by Cohoes and its
Subsidiaries (provided that Hudson may substitute therefor
policies from a financially capable insurer of at least the
same coverage and amount containing terms and conditions
which are substantially no less advantageous, or in the
event such coverage is provided through Hudson's insurer it
may be on terms and conditions (other than coverage and
amounts) consistent with Hudson's current coverage), or in
lieu thereof single limit tail coverage for such period
(which shall be purchased by Cohoes immediately prior to
Closing upon the request of Hudson), with respect to claims
arising from facts or events which occurred before the
Effective Time. Following the Effective Time, the directors
and officers of Hudson and its Subsidiaries shall be covered
by the directors' and officers' liability insurance
maintained by Hudson and/or its Subsidiaries, whichever is
applicable.
|
| (d) The obligations of Hudson provided under paragraphs
(a), (b) and (c) of this Section 6.9 are intended to be
enforceable against Hudson directly by the Indemnified
Parties and shall be binding on all successors and permitted
assigns of Hudson. |
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6.10 Environmental Reports
If requested by Hudson or Hudson Bank within 20 days of the
date hereof (or within 10 days after Hudson or Hudson Bank is
informed of the permitted acquisition or lease of any real
property by Cohoes or any of its Subsidiaries after the date
hereof), Cohoes shall provide to Hudson or Hudson Bank, as soon
as reasonably practicable, but not later than 30 days from the
receipt by Cohoes of the request of Hudson or Hudson Bank
therefor, a report of a phase one environmental investigation on
real property owned or leased by Cohoes or any of its
Subsidiaries (but excluding space in office or retail and similar
establishments leased by Cohoes or any of its Subsidiaries for
automatic teller machines or bank branch facilities or other
office uses where the space leased comprises less than 20% of the
total space leased to all tenants of such property). If required
by the phase one environmental investigation in Hudson's or
Hudson Bank's reasonable opinion, Cohoes shall provide to Hudson
or Hudson Bank, within 45 days of the receipt by Cohoes of the
request of Hudson or Hudson Bank therefor, a report of a phase
two environmental investigation on properties requiring such
additional study. Hudson or Hudson Bank shall have ten days from
its receipt of the phase one environmental investigation to
request a phase two environmental investigation. The costs of
the phase one and phase two environmental investigations, if any,
shall be borne by Hudson or Hudson Bank.
6.11 Employees and Employee Benefit Plans
| (a) Full time employees of Cohoes and its Subsidiaries
who remain employed after the Effective Time will be
eligible to participate in benefit plans of Hudson and its
Subsidiaries that are generally available to their full-time
employees on a uniform and non-discriminatory basis in
accordance with and subject to the terms and provisions of
such benefit plans, with credit for years of service with
Cohoes and its Subsidiaries for the purpose of determining
eligibility for participation, vesting and entitlement to
vacation time and sick pay (but not for the purpose of
accrual or restoration of benefits under any existing or
future benefit plan of Hudson or any of its Subsidiaries
where benefits are calculated on an actuarial basis,
including any qualified or non-qualified defined benefit |
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| plan or restoration plan). Contributions to (and accrual of
benefits, to the extent applicable, if any, under) benefit
plans of Hudson and its Subsidiaries on behalf of continuing
full-time employees of Cohoes and its Subsidiaries shall
only relate to qualifying compensation earned by such
employees after the Effective Time subject to the terms and
provisions of such benefit plans. Notwithstanding anything
contained above, continuing full time employees of Cohoes
and its Subsidiaries shall not be eligible to participate in
the Hudson Bank benefit restoration plan or any qualified
plan of Hudson or any of its Subsidiaries, including the
Hudson Bank retirement plan, Hudson Bank savings plan and
Hudson employee stock ownership plan until the plan year
commencing in 2002, except that, to the extent permitted by
the Code and any other applicable law, continuing full time
employees of Cohoes and its Subsidiaries who are not
participants in the Cohoes ESOP immediately prior to the
Effective Time and otherwise meet the eligibility
requirements of the Hudson employee stock ownership plan
(after taking into account their past service credit with
Cohoes and its Subsidiaries) shall be permitted to
participate in the Hudson employee stock ownership plan as
of the first entry date in such plan on or following the
date of the Effective Time. Hudson shall amend its employee
stock ownership plan to accomplish the foregoing, to the
extent such amendments are consistent with the Code and any
other applicable law. Hudson shall use its best efforts to
cause any and all pre-existing condition limitations (to the
extent such limitations did not apply to a pre-existing
condition under the corresponding Cohoes group health plan)
and eligibility waiting periods under its group health plans
to be waived with respect to such participants and their
eligible dependents.
|
| (b) Hudson or Hudson Bank agrees to honor the Cohoes
Officer Severance Plan, the Cohoes General Severance Plan,
the Cohoes Option Plan, the Cohoes Recognition Plan, and the
terms of all Previously Disclosed employment and change in
control severance agreements to which Cohoes or Cohoes Bank
is a party; provided however, in the case of the employment
agreements of Harry L. Robinson and Richard A. Ahl, such
individuals shall accept a reduction in their monetary
benefits upon termination of their employment by virtue of
(i) their monetary benefits being calculated from and after
July 2, 2001 (as if such date were the employment
termination date) and (ii)Harry L. Robinson and Richard A.
Ahl shall take an additional reduction in monetary benefits |
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| in the amounts of $300,000 and $150,000, respectively. It
is acknowledged by the Parties that the employment of Messrs
Robinson and Ahl will be terminated on the day next
following the date on which the Effective Time occurs, and
that any subsequent employment of such individuals by Hudson
or Hudson Bank shall be at will. Cohoes covenants that the
amounts Previously Disclosed are the sole amounts of
monetary benefits to be received by Messrs. Robinson and Ahl
pursuant to their employment agreements upon a termination
of their employment at or following the Effective Time,
other than any adjustments to be made with respect to the
tax gross up payments under Section 12 of their respective
employment agreements; and that Messrs. Robinson and Ahl
have agreed in writing to accept the Previously Disclosed
monetary benefits in full satisfaction of all monetary
obligations under their respective employment agreements
(other than any adjustments to be made with respect to the
tax gross up payments under Section 12 of their respective
employment agreements) and to take a tax filing position on
their federal income tax returns with respect to parachute
payments consistent with the tax filing position taken by
Hudson on its federal income tax return with respect
thereto. Hudson or Hudson Bank, whichever is applicable,
hereby expressly assumes at the Effective Time the Cohoes
Officer Severance Plan, the Cohoes General Severance Plan,
the Cohoes Option Plan, the Cohoes Recognition Plan, and
every such employment (subject to the foregoing provisions)
and change in control severance agreement which by its terms
requires express assumption by a successor. Such express
assumption shall occur by virtue of Hudson's and Hudson
Bank's execution of this Agreement without any further
action required by them upon the completion of the
Transactions.
|
| (c) In the sole discretion of Hudson or Hudson Bank
payments made by it in full and complete satisfaction of
obligations under Section 6.11(b) shall be subject to the
recipient's delivery to it of (i) a written acknowledgment
signed by such recipient that the payment or payments and
benefits to be made to him or her is in full and complete
satisfaction of all liabilities and obligations thereunder
of Cohoes, Cohoes Bank, Hudson and Hudson Bank and their
respective affiliates, directors, officers, employees and
agents and (ii) a written release signed by such recipient
releasing such parties from further liability in connection |
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| with such obligations and from all other matters relating to
the recipient's employment.
|
| (d) Cohoes and its Subsidiaries shall take all
necessary action to cause the Cohoes ESOP to be terminated
as of the Effective Time. The Merger Consideration received
by the Cohoes ESOP trustee in connection with the Merger
with respect to the unallocated shares of Cohoes Common
Stock shall be first applied by the Cohoes ESOP trustee to
the full repayment of the Cohoes ESOP loan. The balance of
the Merger Consideration (if any) received by the Cohoes
ESOP trustee with respect to the unallocated shares of
Cohoes Common Stock shall be allocated to the accounts of
all participants in the Cohoes ESOP who have accounts
remaining under the Cohoes ESOP (whether or not such
participants are then actively employed) and beneficiaries
in proportion to the account balances of such participants
and beneficiaries as they exist as of the Effective Time as
earnings, to the maximum extent permitted under the Code and
applicable law. As soon as practicable after the date
hereof, Cohoes shall file or cause to be filed all necessary
documents with the IRS for a determination letter for
termination of the Cohoes ESOP as of the Effective Time. As
soon as practicable after receipt of a favorable
determination letter for termination from the IRS, the
account balances in the Cohoes ESOP shall be distributed to
participants and beneficiaries or transferred to an eligible
individual retirement account as a participant or
beneficiary may direct. Prior to the Effective Time, no
prepayments shall be made on the Cohoes ESOP loan and
contributions to the Cohoes ESOP and payments on the Cohoes
ESOP loan shall be made consistent with past practices on
the regularly scheduled payment dates.
|
| (e) Cohoes and its Subsidiaries shall take all
necessary action to cause the Cohoes 401(k) Plan to be
terminated as of the Effective Time. As soon as practicable
after the date hereof, Cohoes shall file or cause to be
filed all necessary documents with the Internal Revenue
Service for a determination letter for termination of the
Cohoes 401(k) Plan as of the Effective Time. As soon as
practicable after receipt of the favorable determination
letter for termination from the IRS, the account balances in
the Cohoes 401(k) Plan shall be distributed to participants
and beneficiaries or transferred to an eligible individual |
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| retirement account as a participant or beneficiary may
direct. From the date hereof through the Closing Date,
Cohoes and its Subsidiaries shall be permitted to make
accrued employer profit sharing contributions and 401(k)
matching contributions to the Cohoes 401(k) Plan on a
periodic or monthly basis.
|
| (f) At the Effective Time, Hudson shall cause Harry L.
Robinson to be added to its Board with the official title of
Vice Chairman. If the initial term of Harry L. Robinson's
directorship at Hudson is for a period of less than three
years, then the Hudson Board agrees, subject to their
fiduciary duties, to nominate him as part of the management
slate of directors for one additional three year term and if
he is so elected, he shall continue to serve as Vice
Chairman of the Board. The provisions hereof shall not be
binding upon any successor of Hudson.
|
| (g) At the Bank Merger Effective Time, Hudson, as the
sole shareholder of Hudson Bank, shall cause Harry L.
Robinson, Duncan S. MacAffer and two other current directors
of Cohoes Bank selected by the President of Hudson Bank
after consultation with Messrs. Robinson and MacAffer, to be
elected as directors of Hudson Bank, with Mr. Robinson
having the official title of Vice Chairman. Subject to its
fiduciary duties, Hudson shall cause such individuals to be
re-elected as directors of Hudson Bank so that their service
as directors does not cease prior to the expiration of three
years from the Effective Time. The provisions of this
paragraph shall only apply during the period that Hudson
possesses voting control of Hudson Bank and such provisions
shall not be binding upon any successor of Hudson or Hudson
Bank. |
6.12 Litigation Matters
Cohoes will consult with Hudson or Hudson Bank about any
proposed settlement, or any disposition of, any litigation to
which Cohoes or any of its Subsidiaries is a party.
6.13 Conforming Entries
| (a) Cohoes recognizes that Hudson and its Subsidiaries
may have adopted different loan, accrual and reserve
policies (including loan classifications and levels of |
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| reserves for possible loan losses). Subject to applicable
law, from and after the date hereof to the Closing, Cohoes
and Hudson shall consult and cooperate with each other with
respect to conforming the loan, accrual and reserve policies
of Cohoes and its Subsidiaries to those policies of Hudson
and its Subsidiaries, as specified in each case in writing
from Hudson to Cohoes, based upon such consultation and
subject to the conditions in Section 6.13(c) below.
|
| (b) Subject to applicable law, Cohoes and Hudson shall
consult and cooperate with each other with respect to
determining, as specified in a written notice from Hudson to
Cohoes, based upon such consultation and subject to the
conditions in Section 6.13(c) below, the amount and the
timing for recognizing for financial accounting purposes of
Cohoes' expenses of the Transactions and the restructuring
charges relating to or to be incurred in connection with the
Transactions.
|
| (c) Subject to applicable law, Cohoes and its
Subsidiaries shall (i) establish and take such reserves and
accruals at such time as Hudson shall reasonably request to
conform the loan, accrual and reserve policies of Cohoes and
its Subsidiaries to the policies of Hudson and its
Subsidiaries, and (ii) establish and take such accruals,
reserves and charges in order to implement such policies and
to recognize for financial accounting purposes such expenses
of the Transactions and restructuring charges related to or
to be incurred in connection with the Transactions, in each
case at such times as are reasonably requested by Hudson,
but in no event prior to five days before the Closing Date;
provided, however, that on the date such reserves, accruals
and charges are to be taken, Hudson shall certify to Cohoes
that all conditions to Hudson's obligation to consummate the
Transactions set forth in Sections 7.1 and 7.3 hereof (other
than the delivery of certificates, opinions and other
instruments and documents to be delivered at the Closing by
Cohoes, the delivery of which shall continue to be
conditions to Hudson's obligation to consummate the
Transactions) have been satisfied or waived; and provided,
further, that Cohoes and its Subsidiaries shall not be
required to take any such action that is not consistent with
GAAP and regulatory accounting principles. |
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| (d) No reserves, accruals or charges taken in
accordance with this Section may be a basis to assert a
violation or a breach of a representation, warranty or
covenant of Cohoes herein. |
6.14 Systems Integration
During the period from the date hereof to the Effective
Time, Cohoes shall cause its and Cohoes Bank's directors,
officers and employees to, and shall make all reasonable efforts
to cause Cohoes Bank's data processing service providers to,
cooperate and assist Hudson Bank in connection with an electronic
and systematic conversion of all applicable data regarding Cohoes
Bank to Hudson Bank's system of electronic data processing. In
furtherance of the foregoing, Cohoes shall cause Cohoes Bank to
make reasonable arrangements during normal business hours to
permit representatives of Hudson Bank to train Cohoes Bank
employees in Hudson Bank's system of electronic data processing.
6.15 Disclosure Supplements
From time to time prior to the Closing, each Party shall
promptly supplement or amend any materials Previously Disclosed
or Delivered pursuant hereto with respect to any matter hereafter
arising which, if existing, occurring or known at the date of
this Agreement, would have been required to be set forth or
described in materials Previously Disclosed or Delivered or which
is necessary to correct any information in such materials which
has been rendered materially inaccurate thereby. No such
supplement or amendment to such materials shall be deemed to have
modified the representations, warranties and covenants of the
disclosing Party for the purpose of determining whether the
conditions set forth in Article VII hereof have been satisfied.
6.16 Failure to Fulfill Conditions
If a Party determines that a condition to its obligations to
consummate the Transactions may not be fulfilled, it will
promptly notify the other Parties. Each Party will promptly
inform the other Parties of any facts applicable to it that would
be likely to prevent or materially delay approval of any of the
Transactions by any Governmental Entity or third party or which
would otherwise prevent or materially delay completion of any of
the Transactions.
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6.17 Proxy Solicitor
Cohoes may, and if requested by Hudson or Hudson Bank shall,
retain a proxy solicitor in connection with its meeting of
shareholders held to vote on the adoption of this Agreement.
6.18 Previous Transaction Stock Option Agreements
Hudson and Cohoes do hereby agree to terminate the Cohoes
Stock Option Agreement. Accordingly, upon the execution of this
Agreement, the Cohoes Stock Option Agreement shall terminate and
have no further force and effect. The Hudson Stock Option
Agreement shall continue in full force and effect in accordance
with its terms.
6.19 Organization of Merger Sub
Hudson Bank shall cause Merger Sub to be organized under the
DGCL. The Board of Merger Sub shall approve this Agreement and
the Merger, whereupon Merger Sub shall become a party to, and be
bound by, this Agreement, and Hudson Bank shall adopt and ratify
this Agreement in its capacity as the sole shareholder of Merger
Sub.
6.20 Liquidated Damages
Due to expenses, direct and indirect, incurred by Hudson and
Hudson Bank in negotiating and executing this Agreement and in
taking steps to effect the Transactions, the loss by them of
other opportunities, and as material inducement for Hudson
agreeing to terminate the Cohoes Stock Option Agreement as
provided in Section 6.18, Cohoes shall pay to Hudson and Hudson
Bank, collectively, agreed upon cash liquidated damages of $4.7
million, within 5 days after written demand for payment is made
by Hudson and Hudson Bank, following the occurrence of any of the
events set forth below:
| (a) Cohoes terminates this Agreement pursuant to
Section 8.1(g);
|
| (b) the termination of this Agreement by Cohoes for
any reason (other than a termination by Cohoes pursuant to
Section 8.1(b) or (c)) prior to the date of the meeting of
the shareholders of Cohoes to vote on this Agreement; or |
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| (c) the entering into a definitive agreement by Cohoes
or Cohoes Bank relating to an Alternative Proposal or the
consummation of an Alternative Proposal involving Cohoes or
Cohoes Bank within 18 months after the occurrence of any of
the following: (i) the termination of this Agreement by
Hudson pursuant to Section 8.1(b) or 8.1(f); (ii) the
failure of the shareholders of Cohoes to adopt this
Agreement at the Cohoes' shareholders meeting held to vote
on this Agreement; or (iii) August 31, 2001 if prior thereto
the Cohoes' shareholders meeting has not been held to vote
on the adoption of this Agreement. |
If demand for payment of cash liquidated damages is made
pursuant to this Section 6.20 and payment is timely made, then
neither Hudson nor Hudson Bank will have any other rights or
claims against Cohoes, its Subsidiaries, and their respective
officers, directors, attorneys and financial advisors under this
Agreement, it being agreed that the acceptance of cash liquidated
damages under this Section 6.20 will constitute the sole and
exclusive remedy of Hudson and Hudson Bank against Cohoes, its
Subsidiaries and their respective officers, directors, attorneys
and financial advisors.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent - the Parties
The respective obligations of both Parties to effect the
Merger shall be subject to the satisfaction of the following
conditions at or prior to the Closing unless waived by the
Parties to the extent permitted by Section 8.4.
| (a) The shareholders of Cohoes shall have adopted this
Agreement in accordance with all legal requirements.
|
| (b) All approvals and consents from any Governmental
Entity, the approval or consent of which is required for the
completion of the Transactions, shall have been received and
all statutory waiting periods in respect thereof shall have
expired; and the Parties shall have procured all other
approvals, consents and waivers of each person (other than
the Governmental Entities referred to above) whose approval,
consent or waiver is necessary to the completion of the
Transactions; provided, however, that the approvals and
consents referred to in this Section 7.1(b) shall not be |
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| deemed to have been received if, individually or in the
aggregate, they shall include any conditions or requirements
that, in the reasonable opinion of the Hudson Board, are
unduly burdensome or would materially reduce the value of
the Transactions to Hudson.
|
| (c) None of Hudson, Hudson Bank, Cohoes or Cohoes Bank
shall be subject to any statute, rule, regulation,
injunction or other order or decree which shall have been
enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits, restricts or makes
illegal completion of any of the Transactions.
|
| (d) No proceeding initiated by any Government Entity
seeking an order, injunction or decree issued by any court
or agency of competent jurisdiction or other legal restraint
or prohibition preventing the completion of any of the
Transactions shall be pending or threatened. |
7.2 Conditions Precedent - Cohoes
The obligations of Cohoes to effect the Merger shall be
subject to satisfaction of the following conditions at or prior
to the Closing unless waived by Cohoes to the extent permitted by
Section 8.4.
| (a) The representations and warranties of Hudson and
Hudson Bank made herein shall be true and correct as of the
date hereof and in all material respects as of the Closing
as though made anew at the Closing (as if the Closing Date
was the date hereof for such purpose).
|
| (b) Hudson and Hudson Bank shall have performed in all
material respects all obligations and complied in all
material respects with all covenants and agreements required
to be performed and complied with by it pursuant to this
Agreement on or prior to the Closing.
|
| (c) Hudson and Hudson Bank shall have delivered to
Cohoes a certificate, dated the Closing Date and signed by
their respective Chief Executive Officers, to the effect
that the conditions set forth in Sections 7.2(a) and 7.2(b)
have been satisfied.
|
| (d) Hudson and Hudson Bank shall have furnished Cohoes
with such certificates of their officers or others and such |
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| other documents to evidence fulfillment of the conditions
set forth in Section 7.1 as such conditions relate to Hudson
and Hudson Bank as Cohoes may reasonably request. |
7.3 Conditions Precedent - Hudson
The obligations of Hudson, Hudson Bank and Merger Sub to
effect the Merger shall be subject to satisfaction of the
following conditions at or prior to the Closing unless waived by
Hudson to the extent permitted by Section 8.4.
| (a) Between the date hereof and the Closing, Cohoes
shall not have been affected by any event or change which
has had or caused, or is reasonably likely to have or cause,
a Material Adverse Effect.
|
| (b) The representations and warranties of Cohoes set
forth herein shall be true and correct as of the date hereof
and (other than the representations and warranties in
Section 3.1 with respect to the effects of any exercise of
Rights or vesting of Restricted Shares) in all material
respects as of the Closing as though made anew at the
Closing (as if the Closing Date was the date hereof for such
purpose), except that in each case the representations and
warranties under Article IV shall be subject to the standard
set forth in Section 9.8.
|
| (c) Cohoes shall have performed in all material
respects all obligations and complied in all material
respects with all covenants and agreements required to be
performed and complied with by it pursuant to this Agreement
on or prior to the Closing.
|
| (d) Cohoes shall have delivered to Hudson Bank a
certificate, dated the Closing Date and signed by its Chief
Executive Officer, to the effect that the conditions set
forth in Sections 7.3(a) through 7.3(c) have been satisfied.
|
| (e) Cohoes shall have furnished Hudson Bank with such
certificates of its officers or others and such other
documents to evidence fulfillment of the conditions set
forth in Section 7.1 as such conditions relate to Cohoes and
its Subsidiaries as Hudson Bank may reasonably request.
|
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| (f) Each director and executive officer of Cohoes and
Cohoes Bank shall have executed and delivered cancellation
agreements to Hudson as provided in Section 2.7(f). |
ARTICLE VIII
TERMINATION, WAIVER, AMENDMENT
AND SPECIFIC PERFORMANCE
8.1 Termination
This Agreement may be terminated by a written instrument
prior to the Effective Time:
| (a) by the mutual consent of the Boards of Hudson and
Cohoes;
|
| (b) by the Board of the non-breaching Party if the
other Party has breached in any material respect any of its
covenants, agreements or representations and warranties (but
in the case of representations and warranties under Article
IV subject to the standard set forth in Section 9.8) herein,
and such breach has not been cured within 30 days after
written notice (and for purposes hereof Hudson and Hudson
Bank shall be deemed to be one Party);
|
| (c) by the Board of either Hudson or Cohoes, (i) if any
Governmental Entity of competent jurisdiction shall have
issued a final nonappealable order prohibiting the
completion of the Transactions or (ii) if application for
any necessary prior approval of a Governmental Entity is
denied or withdrawn at the request or recommendation of the
Governmental Entity, provided that such denial or request or
recommendation for withdrawal is not due to the terminating
Party's breach of any provision of this Agreement;
|
| (d) By the Board of either Hudson or Cohoes if the
shareholders of Cohoes fail to adopt this Agreement at the
Cohoes' shareholders meeting held to vote on this Agreement;
|
| (e) by the Board of either Hudson or Cohoes if the
Effective Time has not occurred by the close of business on
August 31, 2001, provided that the terminating Party is not
then in breach of any of its covenants, agreements or
representations and warranties (but in the case of
representations and warranties under Article IV subject to
the standard set forth in Section 9.8) herein; |
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| (f) by the Board of Hudson if the Cohoes Board either
(i) fails to recommend, or fails to continue its
recommendation, that the shareholders of Cohoes vote in
favor of the adoption of this Agreement, or (ii) modifies,
withdraws or changes in any manner adverse to Hudson or
Hudson Bank its recommendation that the shareholders of
Cohoes vote in favor of the adoption of this Agreement; or
|
| (g) by the Board of Cohoes if Cohoes has received a
Superior Offer which is not timely matched by Hudson and
Hudson Bank pursuant to Section 6.7, and the Board of Cohoes
has made a determination to accept such Superior Offer
subject to approval thereof by the Cohoes' shareholders, and
simultaneously with the termination of this Agreement
pursuant to this paragraph Cohoes enters into an acquisition
agreement with respect to the Superior Offer if the Superior
Offer is for a merger or the Board of Cohoes adopts a
binding resolution to recommend to the shareholders of
Cohoes that they accept the Superior Offer if the Superior
Offer is for a tender offer. |
8.2 Effect of Termination
In the event that this Agreement is terminated it shall
become void and have no effect, except for:
| (a) the provisions relating to confidentiality set
forth in Section 6.4,
|
| (b) the provision relating to press releases set forth
in Section 6.5,
|
| (c) The provision relating to cash liquidated damages
set forth in Section 6.20; and
|
| (d) except as provided in Section 6.20, a termination
pursuant to Section 8.1(b) shall not relieve the breaching
Party from any liability or damages if such termination
arises out of its willful breach of any provision of this
Agreement; in such event the non-breaching Party shall be
entitled to such monetary remedies and relief against the
breaching Party as are available at law (and for purposes
hereof Hudson and Hudson Bank shall be deemed to be one
Party). |
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8.3 Survival of Representations, Warranties and Covenants
All representations, warranties, agreements and covenants in
this Agreement or in any other document or instrument delivered
pursuant hereto or in connection herewith shall expire on, and be
terminated and extinguished at, the Effective Time other than
agreements or covenants contained herein or therein that by their
terms are to be performed after the Effective Time. No such
representations, warranties, agreements or covenants shall be
deemed to be terminated or extinguished so as to deprive Hudson
or Hudson Bank or any of its affiliates of any defense at law or
in equity which otherwise would be available against the claims
of any person, including any shareholder or former shareholder.
8.4 Waiver
Each Party hereto by written instrument approved by its
Board and signed by an executive officer of such Party, may at
any time (whether before or after approval of this Agreement by
the shareholders of Cohoes) extend the time for the performance
of any of the obligations or other acts of the other Party hereto
and may waive (i) any inaccuracies of the other Party in the
representations or warranties contained in this Agreement or any
document delivered pursuant hereto, (ii) compliance with any of
the covenants, undertakings or agreements of the other Party,
(iii) to the extent permitted by law, satisfaction of any of the
conditions precedent to its obligations contained herein or (iv)
the performance by the other Party of any of its obligations set
forth herein.
8.5 Amendment or Supplement
This Agreement may be amended at any time by mutual written
agreement of the Parties approved by their Boards and signed by
an executive officer of each Party, provided that any such
amendment after the adoption of this Agreement by shareholders of
Cohoes shall not either modify the form or decrease the amount of
the Merger Consideration or otherwise materially adversely affect
such shareholders without the approval of the shareholders to the
extent required by applicable law.
8.6 Specific Performance
The Parties acknowledge and agree that the Transactions
contemplated herein are unique and that any remedy at law for
breach is inadequate to compensate the aggrieved Party or
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Parties. Accordingly, each Party shall have the right to seek
specific performance of this Agreement and the other Parties'
duties, obligations, covenants and agreements herein in order to
cause the Transactions to be consummated. To this end, each
Party, to the extent permitted by law, irrevocably waives any
defense it might have based on the adequacy of a remedy at law
which might be asserted as a bar to specific performance or any
other equitable relief. Notwithstanding the foregoing, neither
Hudson nor Hudson Bank shall be entitled to seek specific
performance under any circumstances where it is entitled to
receive liquidated damages pursuant to Section 6.20 upon
termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses
Each Party hereto shall bear and pay all costs and expenses
incurred by it in connection with this Agreement and the
Transactions, including fees and expenses of its Financial
Advisor, counsel and accountants.
9.2 Entire Agreement
This Agreement together with any other documents or
instruments executed by the Parties relating to the subject
matter hereto concurrently with or on the same day as the
execution of this Agreement contains the entire agreement among
the Parties with respect to the Transactions and supersedes all
prior arrangements or understandings with respect thereto,
written or oral, other than documents referred to herein which
are to be executed after the date hereof. The terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the Parties hereto and their respective successors.
Nothing in this Agreement, expressed or implied, is intended to
confer upon any person, other than the Parties, and their
respective successors, any rights, remedies, obligations or
liabilities other than as set forth in Article II and in Sections
6.9 and 6.11 hereof.
9.3 No Assignment
None of the Parties hereto may assign any of its rights or
obligations under this Agreement to any other person.
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9.4 Notices
All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if
delivered personally, telecopied (with confirmation) or sent by
overnight mail service or by registered or certified mail (return
receipt requested), postage prepaid, addressed as follows:
If to Cohoes:
Cohoes Bancorp, Inc.
75 Remsen Street
Cohoes, New York 12047
Attention: Harry L. Robinson
President and Chief Executive Officer
With a required copy to:
Elias, Matz, Tiernan & Herrick, L.L.P.
734 15
th Street, N.W.
Washington, DC 20005
Attn: Raymond A. Tiernan, Esq.
Gerald F. Heupel, Jr., Esq.
If to Hudson, Hudson Bank or Merger Sub:
Hudson River Bancorp, Inc.
One Hudson City Center
Hudson, New York 12534
Attention: Carl A. Florio
President and Chief Executive Officer
With a required copy to:
Silver, Freedman & Taff, L.L.P.
1100 New York Avenue, N.W., 7
th Floor East
Washington, D.C. 20005
Attn: Robert L. Freedman, P.C.
9.5 Counterparts
This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an
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original instrument, but all such counterparts together shall
constitute but one agreement.
9.6 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to
agreements made and entirely to be performed within such
jurisdiction. The Parties hereby designate Wilmington, Delaware
to be the proper jurisdiction and venue for any suit or action
arising out of this Agreement.
9.7 Severability
Any term, provision, covenant or restriction contained in
this Agreement held to be invalid, void or unenforceable, shall
be ineffective to the extent of such invalidity, voidness or
unenforceability, but neither the remaining terms, provisions,
covenants or restrictions contained in this Agreement nor the
validity or enforceability thereof in any other jurisdiction
shall be affected or impaired thereby. Any term, provision,
covenant or restriction contained in this Agreement that is so
found to be so broad as to be unenforceable shall be interpreted
to be as broad as is enforceable.
9.8 Standard of Breach
None of the representations or warranties contained in
Article IV shall be deemed untrue or incorrect, and Cohoes shall
not be deemed to have breached its representations or warranties
therein as a consequence of the existence of any fact,
circumstance or event, which would not, either individually or
taken together with all other facts, circumstances or events,
have a Material Adverse Effect on it.
9.9 Alternative Structure
Notwithstanding any provision of this Agreement to the
contrary, Hudson may at any time modify the structure of the
acquisition of Cohoes set forth herein, subject to the prior
written consent of Cohoes which consent shall not be unreasonably
withheld or delayed, provided that (i) the Merger Consideration
to be paid to the holders of Cohoes Common Stock is not thereby
changed in kind or reduced in amount as a result of such
modification and (ii) such modification will not materially delay
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or jeopardize receipt of any required approvals of Governmental
Entities.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized officers and
attested by their officers thereunto duly authorized, all as of
the day and year first above written.
|
|
COHOES BANCORP, INC. |
| | | | |
| | | | |
| Attest: |
|
|
|
| | | | |
| | | | |
/s/ Richard A. Ahl
|
|
By: |
/s/ Harry L. Robinson
|
| Name: Richard A. Ahl |
|
Name: Harry L. Robinson |
| Title: Secretary |
|
Title: President |
| | | | |
| | | | |
| | | | |
| | | | |
|
|
HUDSON RIVER BANCORP, INC. |
| | | | |
| | | | |
| Attest: |
|
|
|
| | | | |
| | | | |
/s/ Holly Rappleyea
|
|
By: |
/s/ Carl A. Florio
|
| Name: Holly Rappleyea |
|
Name: Carl A. Florio |
| Title: Secretary |
|
Title: President |
| | | | |
| | | | |
| | | | |
| | | | |
|
|
HUDSON RIVER BANK & TRUST COMPANY |
| | | | |
| | | | |
| Attest: |
|
|
|
| | | | |
| | | | |
/s/ Holly Rappleyea
|
|
By: |
/s/ Carl A. Florio
|
| Name: Holly Rappleyea |
|
Name: Carl A. Florio |
| Title: Secretary |
|
Title: President |
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HUDSON RIVER ACQUISITION CORP., Merger Sub, has joined as a Party
to this Agreement on this __ day of ___________, 2001.
|
|
HUDSON RIVER ACQUISITION CORP. |
| | | | |
| | | | |
| Attest: |
|
|
|
| | | | |
| | | | |
|
|
By: |
|
| Name: Holly Rappleyea |
|
Name: Carl A. Florio |
| Title: Secretary |
|
Title: President |
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Exhibit A
Cohoes Savings Bank General Severance Plan
1. Definitions. Whenever used herein, the following terms shall have the meanings set forth
below:
| a. "Bank" means Cohoes Savings Bank or any successor thereto.
|
| b. "Change in Control," for purposes of determining whether there has been a change
in control of the Bank or the Holding Company, means the definition of change in control set forth
in 12 C.F.R. Section 574 et. seq. as interpreted by the Board of Directors of the Bank, as it is constituted
prior to the Change in Control.
|
| c. "Eligible Employee" means any Employee who, on the date of the Change in
Control or within one year thereafter, is either (i) involuntarily terminated by the Bank other than
for Just Cause, or (ii) voluntarily terminated solely by reason of the Bank demanding that such
Employee permanently relocate to an office that is more than 15 miles away from the Employee's
then current employment location and the Employee refuses to relocate.
|
| d. "Employee" means any non-officer who has been employed by the Bank for at least
one year, on a full-time basis, immediately prior to the Change in Control, excluding any employee
who is covered by an employment contract or change in control severance agreement with, or any
other severance plan of, the Holding Company or the Bank.
|
| e. "Holding Company" means Cohoes Bancorp, Inc. or any successor thereto.
|
| f. "Just Cause," with respect to termination of employment, means an act or acts of
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any law, rule, or regulation
(other than traffic violations or similar offenses) or final cease-and-desist order. In determining
incompetence, acts or omissions shall be measured against standards generally prevailing in the
savings institution industry, as determined by the Board of Directors of the Bank in its sole
discretion. |
2. Severance Benefit to Eligible Employees. Subject to the provisions of Paragraphs 3 and 4
below, each Eligible Employee shall be entitled to receive a severance benefit in cash, by check, within five
business days after his or her termination of employment in an amount equal to the Eligible Employee's
regular salary for a two-week period (as in effect immediately prior to the Change in Control) multiplied by
the total number of whole years of his or her full time employment with the Bank as of his or her date of
employment termination, but not to exceed aggregate severance of more than 26 weeks regular salary (i.e.,
13 whole years of full-time employment).
3. Reduction of Severance Benefits to Non-Branch Eligible Employees. If the aggregate
amount of the severance benefits to be paid to non-branch Eligible Employees (assuming that all non-branch
Employees become Eligible Employees on the date of the Change in Control) would exceed $260,000, then
the Board of Directors of the Bank shall, prior to the Change in Control, amend the methodology set forth
in Paragraph 2 above for determining severance benefits so that the potential aggregate amount thereof to
non-branch Eligible Employees utilizing the assumption above does not exceed $260,000. Notwithstanding
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the foregoing, no adjustment shall be made pursuant to this Paragraph 3 relating to merit increases awarded
after November 24, 2000 in the ordinary course of business consistent with past practices which result in the
aggregate severance benefits payable hereunder exceeding $260,000.
4. Written Acknowledgement and Release. As a condition to receiving payment pursuant to
Paragraph 2 above, as the same may be adjusted pursuant to Paragraph 3 above, the Eligible Employee shall
deliver to the Bank a written Acknowledgement and Release signed by the Eligible Employee stating (a) that
the severance payment to be made to the Eligible Employee pursuant to Paragraph 2 above is in full and
complete satisfaction of all liabilities and obligations of the Holding Company, the Bank and their respective
affiliates, directors, officers, employees and agents and (ii) that the parties named in subpart (a) immediately
above shall not have any other liabilities or obligation to the Eligible Employee relating to the Eligible
Employee's employment by the Bank, the Holding Company or any of their respective affiliates.
5. Governing Law. This plan shall be governed by the laws of the State of New York.
6. Termination or Amendment. This plan may be amended or terminated at any time, in the
full discretion of the Board of Directors of the Bank, prior to the Change in Control. This plan may not be
terminated or amended at the time of or after the occurrence of the Change in Control.
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Exhibit B
Form of Voting Agreement
November 24, 2000
Hudson River Bancorp, Inc.
Hudson River Bank & Trust Company
One Hudson City Center
Hudson, New York 12534
Dear Ladies and Gentlemen:
The undersigned understands that you (collectively, "Buyer") and Cohoes Bancorp, Inc.
("Cohoes") are entering into an Agreement and Plan of Merger (the "Merger Agreement") providing for,
among other things, the merger of a wholly-owned subsidiary of Buyer into Cohoes (the "Merger"), in
which the outstanding shares of common stock of Cohoes will be exchanged for cash.
The undersigned is a stockholder of Cohoes and is entering into this agreement to induce Buyer
to enter into the Merger Agreement and to consummate the transactions contemplated thereby.
The undersigned confirms its agreement with Buyer as follows:
1. The undersigned represents, warrants and agrees that Schedule I annexed hereto sets
forth the shares of the capital stock of Cohoes of which the undersigned is the record or beneficial owner,
or over which he has voting control other than shares of Cohoes capital stock he or she holds in a
fiduciary capacity (the "Shares"), and that the undersigned is on the date hereof the lawful owner of the
Shares, free and clear of all liens, charges, encumbrances, voting agreements and commitments of every
kind, except as disclosed in Schedule I. Except as Previously Disclosed (as such term is defined in the
Merger Agreement) or as set forth in Schedule I, the undersigned does not own or hold any rights to
acquire any additional shares of the capital stock of Cohoes (by exercise of stock options or otherwise) or
any interest therein or any voting rights with respect to any additional shares.
2. Except as required by law, the undersigned agrees that the undersigned will not, and will
not permit any company, trust or other entity controlled by the undersigned to, contract to sell, sell or
otherwise transfer or dispose of any of the Shares or any interest therein or securities convertible
thereunto or any voting rights with respect thereto, other than subsequent to the stockholder meeting of
Cohoes held in connection with the vote on the Merger Agreement or pursuant to a gift where the donee
has agreed in writing to abide by the terms of this agreement in a form reasonably satisfactory to Buyer.
3. The undersigned agrees that all of the Shares, together with any additional shares of
capital stock of Cohoes of which the undersigned is the record or beneficial owner, or over which he or
she has voting control other than shares of Cohoes capital stock he or she holds in a fiduciary capacity, at
the record date for any meeting of stockholders of Cohoes called to consider and vote to adopt the
Merger Agreement, will be voted by the undersigned in favor thereof.
4. The undersigned represents and warrants to Buyer that (i) the undersigned has all
necessary power and authority to enter into this agreement and (ii) this agreement is the legal, valid and
binding agreement of the undersigned, and is enforceable against the undersigned in accordance with its
terms.
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November 24, 2000
Page 2
5. This agreement shall automatically terminate (i) upon termination of the Merger
Agreement in accordance with its terms; (ii) at the Effective Time (as defined in the Merger Agreement)
or (iii) by mutual consent of the parties hereto.
6. This agreement may be amended, modified or supplemented at any time by the written
approval of such amendment, modification or supplement by the undersigned and Buyer.
7. This agreement evidences the entire agreement between the parties hereto with respect to
the matters provided for herein and there are no agreements, representations or warranties with respect to
the matters provided for herein other than those set forth herein.
8. The parties agree that if any provision of this agreement shall under any circumstances
be deemed invalid or inoperative, this agreement shall be construed with the invalid or inoperative
provisions deleted and the rights and obligations of the parties shall be construed and enforced
accordingly.
9. This agreement may be executed in two counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
10. The validity, construction, enforcement and effect of this agreement shall be governed by
the laws of the State of Delaware.
11. This agreement shall inure to the benefit of Buyer, and shall be binding upon the
undersigned and his or her executors, personal representatives, administrators, heirs, legatees, guardians
and other legal representatives. This agreement shall survive the death or incapacity of the undersigned.
12. Nothing in this agreement shall be construed to give Buyer any rights to exercise or
direct the exercise of voting power as owner of the Shares, either beneficially or otherwise, for any
purpose.
13. The undersigned agrees that in the event of his or her breach Buyer shall be entitled to
such remedies and relief against the undersigned as are available at law or in equity. The undersigned
acknowledges that there is not an adequate remedy at law to compensate Buyer for a violation of this
agreement, and irrevocably waives, to the extent permitted by law, any defense that he or she might have
based on the adequacy of a remedy at law which might be asserted as a bar to specific performance,
injunctive relief, or other equitable relief. The undersigned agrees to the granting of injunctive relief
without the posting of any bond and further agrees that if any bond shall be required, such bond shall be
in a nominal amount.
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November 24, 2000
Page 3
Please confirm that the foregoing correctly states the understanding between the undersigned and
Buyer by signing and returning to Buyer a counterpart hereof.
Accepted as of this __ day
of November, 2000
Hudson River Bancorp, Inc.
and
Hudson River Bank & Trust Company
By:______________________________
Carl A. Florio
President
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| Schedule I
|
| |
|
|
|
Number of shares of Cohoes common stock
beneficially owned |
|
|
Number of vested options to acquire shares of
Cohoes common stock | |
