EXHIBIT 2.2
AMENDMENT NO. 1 TO STOCK OPTION AGREEMENT
This Amendment No. 1 to the Stock Option Agreement dated as of April 25,
2000 between Cohoes Bancorp, Inc. ("Grantee") and Hudson River Bancorp, Inc.
("Issuer") is dated as of September 28, 2000.
WITNESSETH:
WHEREAS, Grantee and Issuer entered into an Agreement and Plan of Merger
on April 25, 2000 ("Merger Agreement");
WHEREAS, as a condition and an inducement to Grantee to enter into the
Merger Agreement, Issuer granted to Grantee the Option as set forth in the
Stock Option Agreement dated as of April 25, 2000 ("Stock Option Agreement");
WHEREAS, there has occurred an Initial Triggering Event as provided in
Section 2 of the Stock Option Agreement in that another financial institution
has made a public announcement of a bona fide proposal to engage in an
Acquisition Transaction with Issuer;
WHEREAS, the parties desire to limit the total value of the Option so as
not to unduly prejudice any third party;
WHEREAS, Grantee and Issuer are entering into an agreement of this date
terminating the Merger Agreement;
WHEREAS, Grantee and Issuer have agreed to modify and amend the Stock
Option Agreement and the reciprocal stock option agreement held by Issuer and
issued by Grantee thereto;
WHEREAS, the Boards of Directors of Grantee and Issuer have approved
this Amendment No. 1 to the Stock Option Agreement ("Agreement");
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth herein, the parties hereto agree as follows:
1. The Stock Option Agreement is hereby amended to add Section 24 to
read as set forth below.
24. (a) Notwithstanding any other provision of this Agreement, in
no event shall the Grantee's Total Profit (as hereinafter
defined) exceed $3.5 million and, if it otherwise would exceed
such amount, the Grantee, at its sole election, shall either
(a) reduce the number of shares of Common Stock subject to this
Option, (b) deliver to Issuer for cancellation Option Shares
previously purchased by Grantee, (c) pay cash to Issuer, or (d)
any combination thereof, so that Grantee's actually realized
Total Profit shall
not exceed $3.5 million after taking into account the foregoing
actions.
(b) Notwithstanding any other provision of this Agreement,
this Option may not be exercised for a number of shares as
would, as of the date of exercise, result in a Notional
Total Profit (as defined below) of more than $3.5 million;
provided that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent
date.
(c) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) the
amount received by Grantee pursuant to Issuer's repurchase
of the Option (or any portion thereof) pursuant to Section
7, (ii) (x) the amount received by Grantee pursuant to
Issuer's repurchase of Option Shares pursuant to Section 7,
less (y) Grantee's purchase price for such Option Shares,
(iii) (x) the net cash amounts received by Grantee pursuant
to the sale of Option Shares (or any other securities into
which such Option Shares are converted or exchanged) to any
unaffiliated party, less (y) the Grantee's purchase price of
such Option Shares, (iv) any amounts received by Grantee on
the transfer of the Option (or any portion thereof) to any
unaffiliated party, (v) any amount equivalent to the
foregoing with respect to the Substitute Option, and (vi)
any amounts received by Grantee upon the relinquishment of
the Option to Issuer in exchange for cash pursuant to
Section 15.
(d) As used herein, the term "Notional Total Profit" with
respect to any number of shares as to which Grantee may
propose to exercise this Option shall be the Total Profit
determined as of the date of such proposed exercise assuming
that this Option were exercised on such date for such number
of shares and assuming that such shares, together with all
other Option Shares held by Grantee and its affiliates as of
such date, were sold for cash at the closing market price
for the Common Stock as of the close of business on the
preceding trading day (less customary brokerage
commissions).
(e) If Grantee transfers the Option, either in whole or in
part, the Total Profit shall apply to Grantee and all
Holders in the aggregate such that the Total Profit realized
by such persons may not exceed $3.5 million in the
aggregate. All references to Grantee in this Section 24
shall include any and all Holders.
(f) The provisions of this Section 24 shall survive the
occurrence of an Exercise Termination Event.
2. Capitalized terms used in this Agreement and not defined herein
shall have the meanings assigned thereto in the Stock Option Agreement or the
Merger Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of
the date of this Agreement.
ATTEST: COHOES BANCORP, INC.
/s/ Richard A. Ahl By: /s/ Harry L. Robinson
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Richard A. Ahl, Secretary Harry L. Robinson, President
ATTEST: HUDSON RIVER BANCORP, INC.
/s/ Holly Rappleyea By: /s/ Carl A. Florio
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Holly Rappleyea, Secretary Carl A. Florio, President
