SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(RULE 14D-101)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. ____)
LANDMARK FINANCIAL CORP.
(Name of Subject Company)
TRUSTCO BANK CORP NY
(Name of Persons Filing Statement)
COMMON STOCK, PAR VALUE $.10 PER SHARE
(Title of Class of Securities)
514914100
(CUSIP Number of Class of Securities)
ROBERT T. CUSHING
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
TRUSTCO BANK CORP NY
320 STATE STREET
SCHENECTADY, NEW YORK 12305
(518) 377-3311
(Name, address, and telephone numbers of person authorized to receive
notices and communications on behalf of the persons filing statement)
Copies to:
John K. Pruellage, Esq.
Lewis, Rice & Fingersh, L.C.
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
(314) 444-7600
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
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Item 1. Subject Company Information.
The subject company is Landmark Financial Corp., a Delaware corporation
("Landmark"). Landmark's principal executive offices are located at 211 Erie
Boulevard, Canajoharie, New York 13317. Landmark's telephone number is
(518) 673-2012.
This Statement relates to Landmark's common stock, par value $0.10 per share
(the "Landmark Common Stock"). According to Landmark's Form 10-QSB for the
quarter ended December 31, 1999, 154,208 shares of Landmark Common Stock were
outstanding on that date.
Item 2. Identity and Background of Filing Person.
The filing person is TrustCo Bank Corp NY ("TrustCo"). TrustCo's address is
320 State Street, Schenectady, New York 12305. TrustCo's telephone number is
(518) 377-3311.
This Statement relates to the tender offer made by Investors & Lenders, LLC, a
New York limited liability company ("Investors & Lenders"), to purchase a
minimum of 100,000 shares of Landmark Common Stock at a price of $25.00 per
share. Investors & Lenders' address is 154 Lake Avenue, P.O. Box 588, Saratoga
Springs, New York 12866.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Agreement and Plan of Merger
TrustCo, Landmark Acquisition Co., a Delaware corporation and wholly-owned
subsidiary of TrustCo ("AcquisitionCo"), and Landmark are parties to an
Agreement and Plan of Merger, dated as of February 21, 2000 (the "Merger
Agreement"). The Merger Agreement provides for AcquisitionCo to merge with and
into Landmark, with Landmark being the surviving corporation (the "Merger"). At
the effective time of the Merger, each outstanding share of Landmark Common
Stock (other than shares held by shareholders duly exercising dissenters' rights
and shares held by any direct or indirect subsidiary of Landmark) will be
converted into the right to receive a cash payment of $21.00, and each share of
AcquisitionCo common stock will be converted into one share of Landmark Common
Stock.
The Merger Agreement is attached hereto as Exhibit (e) and is incorporated
herein by reference.
Stock Option Agreement
Landmark and TrustCo have also entered into a Stock Option Agreement, dated as
of February 21, 2000. Pursuant to the Stock Option Agreement, Landmark granted
TrustCo an option to purchase up to 19.9% of the number of shares of Landmark
Common Stock outstanding as of February 21, 2000, at a price of $14.00 per
share, subject to adjustment, upon the occurrence of certain events.
The Stock Option Agreement is attached as an exhibit to the Merger Agreement,
which is attached as Exhibit (e) hereto, and is incorporated herein by
reference.
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Interests of Certain Persons
In the Merger Agreement, TrustCo has agreed to cause Landmark Community Bank, a
wholly-owned subsidiary of Landmark, to enter into an employment agreement with
Gordon E. Coleman, Landmark's President and Chief Executive Officer, pursuant to
which Mr. Coleman will serve as President and Chief Executive Officer of
Landmark Community Bank for a three-year term at annual salary of $125,000 plus
use of a car.
TrustCo has also agreed to cause Landmark Community Bank immediately following
the effective time of the Merger to establish an advisory board of directors
comprised of not more than eight directors of Landmark to serve as advising
directors of Landmark Community Bank for a three year term.
Item 4. The Solicitation or Recommendation.
At a press conference following its annual meeting of shareholders, TrustCo
provided the materials attached hereto as Exhibit (a).
Item 5. Person/Assets, Retained, Employed, Compensated or Used.
None.
Item 6. Interest in Securities of the Subject Company.
Neither TrustCo nor any executive officer, director, affiliate or subsidiary of
TrustCo has engaged in any transactions in the securities of Landmark during the
past 60 days. Please refer to the discussion under Item 3 for a description of
the option granted by Landmark to TrustCo.
Item 7. Purposes of the Transaction and Plans or Proposals.
Not applicable.
Item 8. Additional Information.
None.
Item 9. Exhibits.
The following exhibit is filed as an exhibit hereto:
(a) Materials distributed at press conference.
(e) Agreement and Plan of Merger, dated as of February 21, 2000,
by and among TrustCo Bank Corp NY, Landmark Acquisition Co. and
Landmark Financial Corp. (with Stock Option Agreement, dated as of
February 21, 2000, between TrustCo Bank Corp NY and Landmark
Financial Corp. as an exhibit thereto.)
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
TRUSTCO BANK CORP NY
By:
Robert T. Cushing
Vice President and Chief Financial Officer
Date: May 16, 2000
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Item 9. Exhibit A
[GRAPHIC OMITTED][GRAPHIC OMITTED]
PMIS TENDER OFFER
You've all heard about the PMIS tender offer. I have several questions about
the offer. For now, I'll focus on three:
1. Significant uncertainty relative to regulatory approval.
2. The fact that the offer is limited to 65% of the outstanding shares.
3. Where are the funds coming from? or "Show the Landmark shareholders
the money!"
More specifically:
* As to regulatory approval, it is difficult to believe that the
regulators will approve an arrangement where PMIS benefits
from an insider relationship with an affiliated bank.
Especially since PMIS failed to obtain the necessary
OTS pre-clearance prior to launching the tender offer.
* Why is the PMIS offer limited to 65% of the outstanding shares?
Even if PMIS manages to raise the required funds, what happens
to the owners of the remaining 35% of the shares? Will
minority shareholders in a privately owned company be treated
fairly?
* Lastly, the tender offer documents provide no convincing
source of funds. This, from a firm with a clouded record in the
fund raising arena, having failed to raise more than 41% of a
previous $1.5 million debt offering offered at an attractive
11% rate, according to their own tender offer document.
Our offer is genuine. We want Landmark for the right reasons, and we have the
funds. How can Landmark shareholders be expected to reject a fully funded
offer in favor of an Alice in Wonderland approach?
05/15/00
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AGREEMENT AND PLAN OF MERGER
by and among
TRUSTCO BANK CORP NY,
a New York corporation,
LANDMARK ACQUISITION CO.,
a Delaware corporation,
and
LANDMARK FINANCIAL CORP.,
a Delaware corporation
Dated as of February 21, 2000
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TABLE OF CONTENTS
Page
1. Terms of Merger and Closing..........................................1
1.1. Merger......................................................1
1.2. Merging Corporation.........................................1
1.3. Surviving Corporation.......................................1
1.4. Effect of Merger............................................1
1.5. Conversion of Landmark Common...............................2
1.6. Stock Options and Restricted Stock..........................2
1.7. Closing.....................................................3
1.8. Exchange Procedures; Surrender of Certificates..............3
1.9. Closing Date................................................4
1.10. Closing Deliveries..........................................4
1.11. Disclosure Schedule; Standard...............................6
1.12. Right to Revise Transaction.................................7
2. Representations and Warranties of Landmark...........................7
2.1. Organization and Capital Stock..............................7
2.2. Authorization; No Defaults..................................8
2.3. Subsidiaries................................................8
2.4. Financial Information.......................................9
2.5. Absence of Changes..........................................9
2.6. Regulatory Enforcement Matters..............................9
2.7. Tax Matters.................................................9
2.8. Litigation and Related Matters..............................9
2.9. Employment Agreements......................................10
2.10. Reports....................................................10
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2.11. Employee Matters and ERISA.................................11
2.12. Title to Properties; Insurance.............................12
2.13. Environmental Matters......................................12
2.14. Compliance with Law........................................13
2.15. Brokerage..................................................13
2.16. Trust Administration.......................................13
2.17. Material Contracts and Agreements..........................13
2.18. No Undisclosed Liabilities.................................13
2.19. Statements True and Correct................................13
2.20. State Takeover Laws........................................14
2.21. Fair Lending; Community Reinvestment Act...................14
2.22. Loan Portfolio.............................................14
2.23. Investment Portfolio.......................................14
2.24. Interest Rate Risk Management Instruments..................14
2.25. Year 2000 Compliance.......................................15
2.26. Interim Events.............................................15
3. Representations and Warranties of Trustco and AcquisitionCo.........15
3.1. Organization and Capital Stock.............................15
3.2. Authorization..............................................15
3.3. Subsidiaries...............................................15
3.4. Litigation.................................................16
3.5. Statements True and Correct................................16
3.6. Funds Available............................................16
4. Agreements of Landmark..............................................16
4.1. Business in Ordinary Course................................16
4.2. Breaches...................................................18
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4.3. Submission to Shareholders.................................18
4.4. Consents to Contracts and Leases...........................19
4.5. Consummation of Agreement..................................19
4.6. Environmental Reports......................................19
4.7. Access to Information......................................19
4.8. Subsidiary Bank Name Change................................20
4.9. Plan of Merger.............................................20
5. Agreements of Trustco and AcquisitionCo.............................20
5.1. Regulatory Approvals and Registration Statement;
Other Agreements..............................20
5.2. Breaches...................................................20
5.3. Consummation of Agreement..................................20
5.4. Directors'and Officers'Liability Insurance and
Indemnification.................................21
5.5. Employee Benefits..........................................21
5.6. Advisory Board Composition.................................22
5.7. Access to Information......................................22
6. Conditions Precedent to Merger......................................22
6.1. Conditions to TrustCo's and AcquisitionCo's Obligations....23
6.2. Conditions to Landmark' Obligations........................23
7. Termination or Abandonment..........................................24
7.1. Mutual Agreement...........................................24
7.2. Breach of Agreements.......................................24
7.3. Environmental Reports......................................24
7.4. Failure of Conditions......................................24
7.5. Regulatory Approval Denial; Burdensome Condition...........24
7.6. Shareholder Approval Denial; Withdrawal/Modification
of Board Recommendation...................25
7.7. Regulatory Enforcement Matters.............................25
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7.8. Fall-Apart Date............................................25
8. General.............................................................25
8.1. Confidential Information...................................25
8.2. Publicity..................................................26
8.3. Return of Documents........................................26
8.4. Notices....................................................26
8.5. Liabilities and Expenses...................................26
8.6. Nonsurvival of Representations, Warranties and
Agreements......................................27
8.7. Entire Agreement...........................................27
8.8. Headings and Captions......................................27
8.9. Waiver, Amendment or Modification..........................27
8.10. Rules of Construction......................................27
8.11. Counterparts...............................................27
8.12. Successors and Assigns.....................................28
8.13. Severability...............................................28
8.14. Governing Law; Assignment..................................28
8.15. Enforcement of Agreement...................................28
8.16. Legal Fees, Costs..........................................28
EXHIBIT 1.01 - Form of Landmark Option Agreement
EXHIBIT 1.10(a) - Landmark's Legal Opinion Matters
EXHIBIT 1.10(b) - TrustCo's Legal Opinion Matters
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
February 21, 2000, by and among TRUSTCO BANK CORP NY, a New York corporation
("TrustCo"), LANDMARK ACQUISITION CO., a Delaware corporation ("AcquisitionCo")
and LANDMARK FINANCIAL CORP., a Delaware corporation ("Landmark").
RECITALS
The Boards of Directors of TrustCo, AcquisitionCo (a wholly-owned subsidiary of
TrustCo) and Landmark have approved and deem it advisable and in the best
interests of their respective shareholders to consummate the business
combination transaction provided for herein in which AcquisitionCo shall,
subject to the terms and conditions set forth herein, merge with and into
Landmark (the "Merger").
A. The Boards of Directors of TrustCo, AcquisitionCo and Landmark have
each determined that the Merger and the other transactions
contemplated by this Agreement are consistent with, and in furtherance
of, their respective business strategies and goals.
B. Concurrently with the execution and delivery of this Agreement, and
as a condition and inducement to TrustCo's willingness to enter
into this Agreement, TrustCo and Landmark have executed a Stock
Option Agreement (the "Landmark Option Agreement"), dated as of the
date hereof and in the form attached hereto as Exhibit 1.01, pursuant
to which Landmark has granted TrustCo an option exercisable
upon the occurrence of certain events.
C. TrustCo, AcquisitionCo and Landmark desire to make certain
representations, warranties and agreements in connection with the
Merger and also to prescribe certain conditions to the Merger.
D. In consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth
herein and in the Landmark Option Agreement, TrustCo, AcquisitionCo
and Landmark hereby agree as follows:
1. Terms of Merger and Closing.
1.1. Merger. Pursuant to the terms and provisions set forth
herein and the Delaware General Corporation Law (the "DGCL"), AcquisitionCo
shall merge with and into Landmark.
1.2. Merging Corporation. AcquisitionCo shall be the merging
corporation in the Merger and its corporate identity and existence, separate
and apart from Landmark, shall cease upon consummation of the Merger.
1.3. Surviving Corporation. Landmark shall be the surviving
corporation in the Merger. No changes in the Certificate of Incorporation of
Landmark shall be effected by the Merger.
1.4. Effect of Merger. The Merger shall have all of the effects
provided for herein and under the DGCL.
1.5. Conversion of Landmark Common.
1.5.1. At the Effective Time (as defined in Section
1.9 hereof), by virtue of the Merger and without any action on the part of
TrustCo, AcquisitionCo, Landmark or their respective shareholders, each
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(other than shares of Landmark Common held in the treasury of Landmark or by
any direct or indirect subsidiary of Landmark and the shares held by holders
duly exercising dissenting rights pursuant to Section 262 of the DGCL) shall
be converted into the right to receive cash in the amount of Twenty-One
Dollars ($21.00) (the "Merger Consideration").
1.5.2 At the Effective Time, all of the shares of
Landmark Common, by virtue of the Merger and without action on the part of the
holders thereof, shall no longer be outstanding and shall be canceled and
retired and shall cease to exist, and each holder of any certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Landmark Common (the "Certificates") shall thereafter
cease to have any rights with respect to such shares, except the right of
such holders to receive, without interest, the Merger Consideration upon the
surrender of such Certificate or Certificates in accordance with Section 1.8
hereof or the dissenter's rights described in Section 1.5.5 below, if
applicable.
1.5.3. At the Effective Time, each share of Landmark
Common, if any, held in the treasury of Landmark or by any direct or indirect
subsidiary of Landmark (other than shares held in trust accounts for the
benefit of others or in other fiduciary, nominee or similar capacities and
shares held by Landmark or any of its subsidiaries in respect to a debt
previously contracted) immediately prior to the Effective Time shall be
canceled.
1.5.4. Each share of common stock, par value $1.00 per
share, of AcquisitionCo outstanding immediately prior to the Effective Time
shall be converted into and become one share of Landmark Common.
1.5.5. If holders of Landmark Common are entitled to
dissent from the Agreement and Merger and demand payment of fair market value
of their shares under the DGCL, any issued and outstanding shares of Landmark
Common held by a dissenting holder shall not be converted as described in this
Section 1.5 but from and after the Effective Time shall represent only the
right to receive such consideration as may be determined to be due to such
dissenting holder pursuant to the DGCL; provided, however, that each share of
Landmark Common outstanding immediately prior to the Effective Time and held
by a dissenting holder who shall, after the Effective Time, withdraw his
demand for appraisal with consent of TrustCo or lose his right of appraisal
shall have only the right to receive the Merger Consideration for such shares
in accordance with Section 1.5.1 of this Agreement.
1.6. Stock Options and Restricted Stock.
1.6.1. At the Effective Time, each option to purchase
shares of Landmark Common (each, a "Landmark Stock Option") issued and
outstanding pursuant to the Landmark Financial Corp. 1998 Stock Option Plan
(the "Stock Option Plan"), whether or not such Landmark Stock Option is
vested at the Effective Time, shall, by reason of the Merger, cease to be
outstanding and shall be converted into the right to receive in cash an amount
equal to (i) the difference (if a positive number) between (A) the Merger
Consideration and (B) the exercise price of each such Landmark Stock Option
multiplied by (ii) the number of shares of Landmark Common subject to the
Landmark Stock Option.
1.6.2. At the Effective Time, each share of Landmark
Common granted under the Landmark 1998 Recognition and Retention Plan, whether
or not vested or subject to other restrictions at the Effective Time, shall
cease to be outstanding, shall cease to exist and shall be converted into the
right to receive the Merger Consideration.
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1.7. Closing. The closing of the Merger (the "Closing")shall
take place at a location mutually agreeable to the parties at 10:00 a.m.,
Eastern Time, on the Closing Date described in Section 1.9 hereof.
1.8. Exchange Procedures; Surrender of Certificates.
1.8.1. Trustco Bank, National Association shall act as
Exchange Agent in the Merger (the "Exchange Agent").
1.8.2. As soon as reasonably practicable after the
Effective Time, but in no event later than five (5) business days after the
Closing Date, the Exchange Agent shall mail to each record holder of any
Certificate or Certificates whose shares were converted into the right to
receive the Merger Consideration, a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon proper delivery of the Certificates to the Exchange Agent
and shall be in such form and have such other provisions as TrustCo may
reasonably specify) (each such letter, the "Merger Letter of Transmittal") and
instructions for use in effecting the surrender of the Certificates in exchange
for the Merger Consideration. Upon surrender to the Exchange Agent of a
Certificate, together with a Merger Letter of Transmittal duly executed and any
other required documents, the holder of such Certificate shall be entitled to
receive in exchange therefor solely the Merger Consideration. No interest on the
Merger Consideration issuable upon the surrender of the Certificates shall be
paid or accrued for the benefit of holders of Certificates. If the Merger
Consideration is to be issued to a person other than a person in whose name a
surrendered Certificate is registered, it shall be a condition of issuance that
the surrendered Certificate shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting such issuance shall pay to the
Exchange Agent any required transfer taxes or other taxes or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. At the Effective Time, TrustCo shall deposit the Merger
Consideration into a specially segregated account for the benefit of the holders
of Landmark Common.
1.8.3. In the event that any Certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed and, if
required by TrustCo in its sole discretion, the posting by such person of a bond
in such amount as TrustCo may determine is reasonably necessary as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent shall issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration deliverable in respect thereof pursuant
hereto.
1.8.4. At or after the Effective Time there shall be
no transfers on the stock transfer books of Landmark of any shares of Landmark
Common. If, after the Effective Time, Certificates are presented for transfer,
they shall be cancelled and exchanged for the Merger Consideration as provided
in, and subject to the provisions of, this Section 1.8.
1.9. Closing Date. At TrustCo's election, the Closing shall
take place no later than the fifteenth day after the receipt of all regulatory
approvals and the expiration of any applicable waiting periods or on such other
date as Landmark and TrustCo may agree (the "Closing Date"). The Merger shall be
effective upon the filing of a Certificate of Merger with the Secretary of State
of Delaware (the "Effective Time"), which the parties shall use their best
efforts to cause to occur on the Closing Date.
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1.10. Closing Deliveries.
1.10.1. At the Closing, Landmark shall deliver to TrustCo
and AcquisitionCo:
1.10.1.1. a certified copy of the Certificate
of Incorporation and Bylaws (or their equivalent) of
Landmark, the Subsidiary Bank (as defined in Section 2.3
hereof) and any direct or indirect subsidiary of Landmark
or the Subsidiary Bank; and
1.10.1.2. a Certificate signed by an
appropriate officer of Landmark stating that, to the best
knowledge and belief of such officer, (A) each of the
representations and warranties contained in Article Two
hereof (subject to the standard in Section 1.11 hereof) is
true and correct at the time of the Closing with the
same force and effect as if such representations and
warranties had been made at Closing, and (B) all of the
conditions set forth in Section 6.1.2 hereof have been
satisfied or waived as provided therein; and
1.10.1.3. a certified copy of the resolutions
of Landmark's Board of Directors and shareholders as
required for valid approval of the execution of this
Agreement and the consummation of the Merger and the
other transactions provided for by this Agreement; and
1.10.1.4. Certificate of the Secretary of the
state of Delaware, dated a recent date, stating that
Landmark is in good standing; and
1.10.1.5. Certificates of Merger prepared by
TrustCo and executed by Landmark, reflecting the terms and
provisions hereof and in proper form for filing with the
Secretary of State of the State of Delaware, in order to
cause the Merger to become effective pursuant to the DGCL;
and
1.10.1.6. a legal opinion from counsel for
Landmark, in form reasonably acceptable to TrustCo's
counsel, opining with respect to the matters listed on
Exhibit 1.10(a) hereto; and
1.10.1.7. the resignation of any directors of
Landmark, the Subsidiary Bank and any of their respective
subsidiaries requested by TrustCo in a notice given to
Landmark no less than 5 days prior to the Closing Date,
which such resignations shall be effective as of the
Effective Time.
1.10.2. At the Closing, TrustCo shall deliver to Landmark:
1.10.2.1. a Certificate signed by an appropriate
officer of TrustCo and AcquisitionCo stating that, to
the best knowledge and belief of such officer, (A) each
of the representations and warranties contained in
Article Three hereof (subject to the standard in Section
1.11 hereof) is true and correct at the time of the
Closing with the same force and effect as if such
representations and warranties had been made at Closing,
and (B) all of the conditions set forth in Section 6.2.2
and Section 6.2.4 hereof (but excluding the approval of
Landmark's shareholders) have been satisfied or waived
as provided therein; and
1.10.2.2. a certified copy of the resolutions
of TrustCo's Board of Directors and of AcquisitionCo's
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Board of Directors and shareholder, as required for
valid approval of the execution of this Agreement and the
consummation of the transactions provided for by this
Agreement; and
1.10.2.3. a legal opinion from counsel for
TrustCo and AcquisitionCo, in form reasonably acceptable
to Landmark's counsel, opining with respect to the matters
listed on Exhibit 1.10(b) hereto; and
1.10.2.4. a certified copy of the Amended and
Restated Certificate of Incorporation and Bylaws of
TrustCo and the Certificate of Incorporation and Bylaws of
AcquisitionCo; and
1.10.2.5. Certificate of the Secretary of State
of the State of New York, dated a recent date, stating
that TrustCo is in good standing and Certificate of the
Secretary of State of the State of Delaware, dated a recent
date, stating that AcquisitionCo is in good standing; and
1.10.2.6. Certificates of Merger executed by
AcquisitionCo, reflecting the terms and provisions hereof
and in proper form for filing with the Secretary of State
of the State of Delaware in order to cause the Merger to
become effective pursuant to the DGCL.
1.11. Disclosure Schedule; Standard.
1.11.1. Landmark has delivered to TrustCo and
AcquisitionCo a confidential schedule (the "Disclosure Schedule"), executed by
Landmark concurrently with the delivery and execution hereof, setting forth,
among other things, items the disclosure of which shall be necessary or
appropriate either in response to an express disclosure requirement contained in
a provision hereof or as an exception to one or more representations or
warranties contained in Article Two hereof; provided, that (a) no such item
shall be required to be set forth in the Disclosure Schedule as an exception to
a representation or warranty if its absence would not be reasonably likely to
result in the related representation or warranty being deemed untrue or
incorrect under the standard established by Section 1.11.2 hereof, and (b) the
mere inclusion of an item in the Disclosure Schedule as an exception to a
representation or warranty shall not be deemed an admission by Landmark that
such item represents a material exception or fact, event or circumstance or that
such item is reasonably likely to result in a Material Adverse Effect (as
defined in Section 1.11.2 hereof.)
1.11.2. No representation or warranty of Landmark
contained in Article Two hereof nor of TrustCo and AcquisitionCo contained in
Article Three hereof shall be deemed untrue or incorrect, and Landmark, TrustCo
and AcquisitionCo, as the case may be, shall not be deemed to have breached a
representation or warranty, as a consequence of the existence of any fact, event
or circumstance unless such fact, events or circumstance, individually or taken
together with all other facts, event or circumstances inconsistent with any
representation or warranty contained in Article Two hereof, in the case of
Landmark, or Article Three hereof, in the case of TrustCo and AcquisitionCo, has
had or is reasonably likely to have a Material Adverse Effect on the party
making such representation or warranty. As used herein, the term "Material
Adverse Effect" means, with respect to Landmark or TrustCo and AcquisitionCo,
any effect that (i) is, or is reasonably expected to be, material and adverse to
the financial condition, results of operations or business of Landmark and its
subsidiaries taken as a whole, or TrustCo and its subsidiaries taken as a whole,
respectively, or (ii) would materially impair the ability of either Landmark or
TrustCo and AcquisitionCo to perform its obligations under this Agreement or
otherwise materially threaten or materially impede the consummation of the
Merger and the other transactions contemplated by this Agreement; provided,
however, that Material Adverse Effect shall not be deemed to include the impact
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of (a) changes in banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, (b) changes in
generally accepted accounting principles or regulatory accounting requirements
applicable to banks and their holding companies generally, (c) any modifications
or changes to valuation or reserve policies and practices in connection with or
in anticipation of the Merger or restructuring charges taken in connection with
the Merger, in each case in accordance with generally accepted accounting
principles, and (d) reasonable costs associated with completing the transactions
contemplated by this Agreement.
1.11.3. Landmark shall be permitted to update and
supplement the Disclosure Schedule so as to disclose exceptions to one or more
representations or warranties contained in Article Two hereof which shall have
arisen between the date hereof and the Closing Date; provided, however, that,
anything herein to the contrary notwithstanding, the exceptions and other
information set forth on any such updated or supplemented Disclosure Schedule
shall not be taken into consideration in determining, for purposes of this
Agreement, whether the condition set forth in Section 6.1 hereof shall have been
satisfied.
1.12. Right to Revise Transaction. TrustCo may, at any time,
change the method of effecting the Merger (including, without limitation, the
provisions of this Article One), if and to the extent TrustCo deems such change
to be desirable, including, without limitation, to provide for the direct merger
of Landmark and TrustCo; provided, however, that no such change shall (A) alter
or change the amount or kind of the Merger Consideration to be received by the
shareholders of Landmark in the Merger, or (B) materially impede or delay
receipt of any approvals referred to in Section 6.1.4 hereof or the consummation
of the transactions contemplated by this Agreement.
2. Representations and Warranties of Landmark.
Subject to Section 1.11 hereof and except as disclosed in a
Section of the Disclosure Schedule corresponding to the relevant Section in this
Article Two, Landmark hereby makes the following representations and warranties:
2.1. Organization and Capital Stock.
2.1.1. Landmark is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the corporate power to own all of its property and assets, to incur all of its
liabilities and to carry on its business as now being conducted. Landmark is a
unitary savings and loan holding company registered with the Office of Thrift
Supervision (the "O.T.S.") under the Home Owners' Loan Act of 1934, as amended
(the "H.O.L.A."). True, complete and correct copies of the Certificate of
Incorporation and Bylaws of Landmark as in effect on the date of this Agreement
are included as exhibits to the Disclosure Schedule.
2.1.2. The authorized capital stock of Landmark consists
only of 400,000 shares of Landmark Common, of which, as of the date hereof,
154,508 shares are issued and outstanding and 100,000 shares of Landmark
preferred stock, of which, as of the date hereof, no shares are issued and
outstanding. All of the issued and outstanding shares of Landmark Common are
duly and validly issued and outstanding and are fully paid and non-assessable
and free of preemptive rights. None of the outstanding shares of Landmark Common
has been issued in violation of any preemptive rights of the current or past
shareholders of Landmark. As of the date hereof, Landmark had outstanding stock
options representing the right to acquire not more than 8,460 shares of Landmark
Common pursuant to the Stock Option Plan.
2.1.3. Except as set forth in Section 2.1.2 above, Section
2.1.3 of the Disclosure Schedule and the Landmark Option Agreement, (i) there
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are no shares of capital stock or other equity securities of Landmark
outstanding and no outstanding options, warrants, rights to subscribe for,
calls, or commitments of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, shares of Landmark Common or other
capital stock of Landmark or contracts, commitments, understandings or
arrangements by which Landmark is or may be obligated to issue additional shares
of its capital stock or options, warrants or rights to purchase or acquire any
additional shares of its capital stock, and (ii) there are no outstanding stock
appreciation, phantom stock or similar rights.
2.1.4. The minute books of Landmark accurately
reflect all corporate actions held or taken by its shareholders and Board of
Directors (including committees of the Board of Directors) since June 1, 1997
and since January 1, 1995 with respect to the Subsidiary Bank. True, complete
and correct copies of the minute books have been made available to TrustCo by
Landmark.
2.2. Authorization; No Defaults. Landmark's Board of Directors
has, by all appropriate action, approved this Agreement, the Landmark Option
Agreement and the Merger and authorized the execution hereof and thereof on its
behalf by its duly authorized officers and the performance by Landmark of its
obligations hereunder. Landmark's Board of Directors has directed that the
agreement of merger (within the meaning of the DGCL) contained in this Agreement
and the transactions provided for by this Agreement, including the Merger, be
submitted to the shareholders of Landmark for approval at the Landmark
Shareholders' Meeting (as defined in Section 4.3 hereof), and, except for the
adoption and approval of this Agreement by the affirmative vote of the holders
of a majority of the outstanding shares of Landmark Common, no other corporate
proceedings on the part of Landmark are necessary to approve this Agreement, the
Landmark Option Agreement and to consummate the transactions contemplated by
this Agreement, including the Merger, and by the Landmark Option Agreement.
Nothing in the Certificate of Incorporation or Bylaws of Landmark, as amended,
or any other agreement, instrument, decree, proceeding, law or regulation
(except as specifically referred to in or contemplated by this Agreement) by or
to which it or any of its subsidiaries are bound or subject would prohibit or
inhibit Landmark from consummating this Agreement and the Merger on the terms
and conditions herein contained. This Agreement and the Landmark Option
Agreement have been duly and validly executed and delivered by Landmark and
constitute a legal, valid and binding obligation of Landmark, enforceable
against Landmark in accordance with their respective terms. Landmark and its
subsidiaries are neither in default under nor in violation of any provision of
their Articles or Certificate of Incorporation or Association, as the case may
be, Bylaws, or any promissory note, indenture or any evidence of indebtedness or
security therefor, lease, contract, insurance policy, purchase or other
commitment or any other agreement or arrangement (however evidenced), whether
written or oral, and there has not occurred any event that, with the lapse of
time or giving of notice or both, would constitute such a default or violation.
2.3. Subsidiaries. Landmark s banking subsidiary; Landmark
Community Bank (the "Subsidiary Bank"), and its other direct or indirect
subsidiaries (collectively, the "subsidiaries") the name and jurisdiction of
incorporation and principal business or purpose of which is disclosed in Section
2.3 of the Disclosure Schedule, are duly organized, validly existing and in good
standing under the laws of the jurisdiction of their respective incorporation
and has the corporate power to own their respective properties and assets, to
incur their respective liabilities and to carry on their respective business as
now being conducted. The Subsidiary Bank is an insured institution (within the
meaning of the Federal Deposit Insurance Act) and its deposits are insured by
the Federal Deposit Insurance Corporation (the "F.D.I.C.") in accordance with
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the Federal Deposit Insurance Act, as amended, up to applicable limits. The
number of issued and outstanding shares of capital stock of each subsidiary is
disclosed in Section 2.3 of the Disclosure Schedule, all of which shares are
owned by Landmark or Landmark's subsidiaries, as the case may be, free and clear
of all liens, encumbrances, rights of first refusal, options or other
restrictions of any nature whatsoever. There are no options, warrants or rights
outstanding to acquire any capital stock of any of Landmark's subsidiaries and
no person or entity has any other right to purchase or acquire any unissued
shares of stock of any of Landmark's subsidiaries, nor does any such subsidiary
have any obligation of any nature with respect to its unissued shares of stock.
Neither Landmark nor any of its subsidiaries is a party to any partnership or
joint venture or owns an equity interest in any other business or enterprise.
True, complete and current copies of the Articles or Certificates of
Incorporation or Association and Bylaws of each direct and indirect subsidiary
of Landmark as in effect on the date of this Agreement and included as exhibits
to the Disclosure Schedule.
2.4. Financial Information. The (i) audited consolidated balance
sheets of Landmark and its subsidiaries as of March 31, 1998 and 1999, and
related consolidated income statements and statements of changes in
shareholders' equity and of cash flows for the three (3) years ended March 31,
1998, together with the notes thereto, included in Landmark's Annual Report on
Form 10-KSB for the fiscal year ended March 31, 1999, as currently on file with
the S.E.C., and the unaudited consolidated balance sheets of Landmark and its
subsidiaries as of December 31, 1999, and the related unaudited consolidated
income statements and statements of changes in shareholders equity and cashflows
for the nine months then ended together with in Landmark's Quarterly Reports on
Form 10-QSB for the quarters June 30, 1999, September 30, 1999 and
December 31, 1999 as currently on file with the Securities and Exchange
Commission ("S.E.C."), and (ii) the year-end and quarterly Thrift Financial
Reports of Landmark Community Bank (the "Subsidiary Bank") for 1998 and for the
quarters ended March 31, 1999, June 30, 1999, September 30, 1999, and
December 31, 1999, as currently on file with the F.D.I.C. (together, the
"Landmark Financial Statements"), have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
as may be disclosed therein and except for regulatory reporting differences
required by the Subsidiary Bank's reports) and fairly present in all material
respects the financial position and the results of operations and changes in
shareholders' equity of Landmark and its subsidiaries as of the dates and for
the periods indicated (subject, in the case of interim financial statements, to
normal recurring year-end adjustments, none of which shall be material). The
books and records of Landmark and its subsidiaries have been, and are being,
maintained in accordance with generally accepted accounting principles and any
other applicable legal and accounting requirements and reflect only actual
transactions.
2.5. Absence of Changes. Since March 31, 1999, there has not been
any change in the financial condition, the results of operations or the business
of Landmark and its subsidiaries taken as a whole which would have a Material
Adverse Effect on Landmark, except as disclosed by Landmark since March 31, 1999
in its periodic reports filed with the S.E.C. under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). Since the date of its most recent
regulatory examination report, there has been no change in the financial
condition, the results of operations or the business of the Subsidiary Bank
which would have a Material Adverse Effect on the Subsidiary Bank, except as
disclosed by Subsidiary Bank since the date of such most recent regulatory
examination report in its Thrift Financial Quarterly Reports filed with the
F.D.I.C. and the O.T.S.
2.6. Regulatory Enforcement Matters. Neither Landmark, the
Subsidiary Bank nor any other subsidiary is subject or is party to, or has
received any notice or advice that it may become subject or party to, any
investigation with respect to, any cease-and-desist order, agreement, consent
agreement, memorandum of understanding or other regulatory enforcement action,
proceeding or order with or by, or is a party to any commitment letter or
similar undertaking to, or is subject to any directive by, or has been a
recipient of any supervisory letter from, or has adopted any board resolutions
at the request of, any Regulatory Agency (as defined below in this Section 2.6)
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that currently restricts the conduct of its business or that affect its capital
adequacy, its credit policies, its management or its business (each, a
"Regulatory Agreement"), nor has Landmark, the Subsidiary Bank or any other
subsidiary been advised by any Regulatory Agency that it is considering issuing
or requesting any such Regulatory Agreement. There is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of Landmark, the Subsidiary Bank or any
other subsidiaries. As used herein, the term "Regulatory Agency" means any
federal or state agency charged with the supervision or regulation of thrifts,
banks or holding companies thereof, or engaged in the insurance of bank
deposits, or any court, administrative agency or commission or other
governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to Landmark or any of its subsidiaries.
2.7. Tax Matters.
2.7.1. Each of Landmark and its subsidiaries has filed
with the appropriate governmental agencies all foreign, federal, state and local
Tax (as defined below in this Section 2.7) returns, declarations, estimates,
information returns, statements and reports (collectively, "Tax Returns")
required to be filed by it. Neither Landmark nor its subsidiaries are
(a) delinquent in the payment of any Taxes shown on such Tax Returns or on any
assessments received by it for such Taxes, (b) subject to any agreement
extending the period for assessment or collection of any Tax, or (c) a party to
any action or proceeding with, nor has any claim been asserted or threatened
against any of them by, any governmental authority for assessment or collection
of Taxes or for the refund of Taxes previously paid. The income Tax Returns of
Landmark and its subsidiaries have not been audited by the Internal Revenue
Service (the "I.R.S.") and comparable state agencies at any time during the past
15 years. To our best knowledge, the reserve for Taxes in the financial
statements of Landmark for the fiscal year ended March 31, 1999 and the quarter
ended December 31, 1999, is adequate to cover all of the liabilities for Taxes
of Landmark and its subsidiaries that may become payable in future years with
respect to any transactions consummated prior to December 31, 1999. As used
herein, the term "Taxes" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental, customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated or
other tax of any kind whatsoever, including any interest, penalty or addition
thereto, whether disputed or undisputed.
2.7.2. Any amount that could be received (whether in cash
or property or the vesting of property) as a result of any of the transactions
contemplated by this Agreement by any employee, officer or director of Landmark
or any of its affiliates who is a "Disqualified Individual" (as such term is
defined in proposed Treasury Regulation Section 1.280G-1) under any employment,
severance or termination agreement, other compensation arrangement or Landmark
Employee Plan (as defined in Section 2.11.3 hereof) currently in effect would
not be characterized as an "excess parachute payment" (as such term is defined
in Section 280G(b)(1) of the Code).
2.7.3. Landmark has not been subject to any disallowance of
a deduction under Section 162(m) of the Code nor does Landmark reasonably
believe that such a disallowance is reasonably likely to be applicable for any
tax year of Landmark ended on or before the Closing Date.
2.8. Litigation and Related Matters. Section 2.8 of the Disclosure
Schedule describes all litigation, claims or other proceedings or investigations
of any nature pending or, to the knowledge of Landmark, threatened, against
Landmark or any of its subsidiaries, or of which the property of Landmark or any
of its subsidiaries is or would be subject. There is no injunction, order,
judgment, decree or regulatory restriction imposed upon Landmark, or any of its
subsidiaries or the assets of Landmark or any of its subsidiaries. Since
January 1, 1995, Landmark, the Subsidiary Bank and/or its subsidiaries (as
applicable) have continuously maintained fidelity bonds insuring them against
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acts of dishonesty in such amounts as are customary, usual and prudent for
organizations of their size and business. There are no facts which would form
the basis of a claim or claims under such bonds. Neither Landmark nor any of its
subsidiaries has reason to believe that its respective fidelity coverage would
not be renewed by the carrier on substantially the same terms as the existing
coverage, except for possible premium increases unrelated to Landmark's and its
subsidiaries' past claim experience.
2.9. Employment Agreements. Section 2.9 of the Disclosure
Schedule lists each agreement, arrangement, commitment or contract (whether
written or oral) for the employment, election, retention or engagement, or with
respect to the severance, of any present or former officer, employee, agent,
consultant or other person or entity to which Landmark or any of its
subsidiaries is a party or bound by and which, by its terms, is not terminable
by Landmark or such subsidiary on thirty (30) days written notice or less
without the payment of any amount by reason of such termination. Copies of each
written (and summaries of each oral) agreement, arrangement, commitment or
contract listed in Section 2.9 of the Disclosure Schedule have been previously
made available to TrustCo by Landmark.
2.10. Reports. Other than as is set forth in Section 2.10 of the
Disclosure Schedule, since January 1, 1995, Landmark, the Subsidiary Bank and/or
each of their subsidiaries has filed all reports and statements, together with
any amendments required to be made with respect thereto, if any, that it was
required to file with (i) the O.T.S., (ii) the F.D.I.C., (iii) the S.E.C.,
(iv) any state securities authorities, and (v) any other Regulatory Agency with
jurisdiction over Landmark or any of its subsidiaries, and have paid all fees
and assessments due and payable in connection therewith. As of their respective
dates, each of such reports and documents, as amended, including any financial
statements, exhibits and schedules thereto, complied with the relevant statutes,
rules and regulations enforced or promulgated by the regulatory authority with
which they were filed, and did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2.11. Employee Matters and ERISA.
2.11.1. Neither Landmark nor any of its subsidiaries has
entered into any collective bargaining agreement with any labor organization
with respect to any group of employees of Landmark or any of its subsidiaries
and, to the knowledge of Landmark, there is no present effort nor existing
proposal to attempt to unionize any group of employees of Landmark or any of its
subsidiaries.
2.11.2. (i) Landmark and its subsidiaries are and have
been in compliance with all applicable laws respecting employment and employment
practices, terms and conditions of employment and wages and hours, including,
without limitation, any such laws respecting employment discrimination and
occupational safety and health requirements, and neither Landmark nor any of its
subsidiaries is engaged in any unfair labor practice, (ii) there is no unfair
labor practice complaint against Landmark or any subsidiary pending or, to the
knowledge of Landmark, threatened before the National Labor Relations Board,
(iii) there is no labor dispute, strike, slowdown or stoppage actually pending
or, to the knowledge of Landmark, threatened against or directly affecting
Landmark or any subsidiary, and (iv) neither Landmark nor any subsidiary has
experienced any work stoppage or other labor difficulty during the past five (5)
years.
2.11.3. Section 2.11.3 of the Disclosure Schedule describes
each employee benefit plan, as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and each
nonqualified employee benefit plan, deferred compensation, bonus, stock and
incentive plan, and each other employee benefit and fringe benefit program for
the benefit of former or current employees of Landmark or any subsidiary (the
"Landmark Employee Plans") which Landmark and its subsidiaries maintain,
contribute to or participate in or have any liability under. No present or
former employee of Landmark or any subsidiary has been charged with breaching,
or, to the knowledge of Landmark, has breached, a fiduciary duty under any of
the Landmark Employee Plans. Neither Landmark nor any of its subsidiaries
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participates in, nor has it in the past five (5) years participated in, nor has
it any present or future obligation or liability under, any multiemployer plan
(as defined at Section 3(37) of ERISA). Section 2.11.3 of the Disclosure
Schedule describes all plans that provide health, major medical, disability or
life insurance benefits to former employees of Landmark or any subsidiary that
Landmark and any subsidiary maintain, contribute to, or participate in.
2.11.4. Neither Landmark nor any of its subsidiaries
maintain, nor have any of them maintained for the past ten years, any Landmark
Employee Plans subject to Title IV of ERISA or Section 412 of the Code. No
reportable event (as defined in Section 4043 of ERISA) has occurred with respect
to any Landmark Employee Plans as to which a notice would be required to be
filed with the Pension Benefit Guaranty Corporation. No claim is pending, and
Landmark has not received notice of any threatened or imminent claim with
respect to any Landmark Employee Plan (other than a routine claim for benefits
for which plan administrative review procedures have not been exhausted) for
which Landmark or any of its subsidiaries would be liable after December 31,
1999, except as reflected on the Landmark Financial Statements. All liabilities
of the Landmark Employee Plans have been funded on the basis of consistent
methods in accordance with sound actuarial assumptions and practices, and no
Landmark Employee Plan, at the end of any plan year, or at December 31, 1999,
had or has had an accumulated funding deficiency. No actuarial assumptions have
been changed since the last written report of actuaries on such Landmark
Employee Plans. All insurance premiums (including premiums to the Pension
Benefit Guaranty Corporation) have been paid in full, subject only to normal
retrospective adjustments in the ordinary course. Landmark and its subsidiaries
have no contingent or actual liabilities under Title IV of ERISA. No accumulated
funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of
the Code) has been incurred with respect to any of the Landmark Employee Plans,
whether or not waived. No reportable event (as defined in Section 4043 of ERISA)
has occurred with respect to any of the Landmark Employee Plans as to which a
notice would be required to be filed with the Pension Benefit Guaranty
Corporation. After December 31, 1999, Landmark and its subsidiaries do not have
any liabilities for excise taxes under Sections 4971, 4975, 4976, 4977, 4979 or
4980B of the Code or for a fine under Section 502 of ERISA with respect to any
Landmark Employee Plan. All Landmark Employee Plans have been operated,
administered and maintained in accordance with the terms thereof and in
compliance with the requirements of all applicable laws, including, without
limitation, ERISA and the Code.
2.11.5. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by this
Agreement (either alone or upon the occurrence of any additional acts or events)
would, except as set forth in Section 2.11.5 of the Disclosure Schedule,
(i) result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute or otherwise) becoming due to any
director, officer or employee of Landmark or any of its affiliates from Landmark
or any of its affiliates under any Landmark Employee Plan or otherwise,
(ii) increase any benefits otherwise payable under any Landmark Employee Plan,
or (iii) result in any acceleration of the time of payment or vesting of any
such benefits.
2.11.6. Copies of each Landmark Employee Plan described in
Section 2.11.3 of the Disclosure Schedule, and all amendments or supplements
thereto, have been previously made available to TrustCo by Landmark. Section
2.11.6 of the Disclosure Schedule lists, for each Landmark Employee Plan, all of
the following with respect thereto: (i) summary plan descriptions, (ii) lists of
all current participants and all participants with benefit entitlements,
(iii) contracts relating to plan documents, (iv) actuarial valuations for any
defined benefit plan, (v) valuations for any plan as of the most recent date,
(vi) determination letters from the I.R.S., (vii) the most recent annual report
filed with the I.R.S., (viii) registration statements and prospectuses, and
(ix) trust agreements. Copies of each of the documents described in the
preceding sentence have been previously made available to TrustCo by Landmark.
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2.12. Title to Properties; Insurance. (i) Landmark and its
subsidiaries have marketable title, insurable at standard rates, free and clear
of all liens, charges and encumbrances (except Taxes which are a lien but not
yet payable and liens, charges or encumbrances reflected in the Landmark
Financial Statements and easements, rights-of-way, and other restrictions and
imperfections not material in nature, and further excepting in the case of Other
Real Estate Owned (as such real estate is internally classified on the books of
Landmark or its subsidiaries) rights of redemption under applicable law) to all
of their owned real properties, (ii) all leasehold interests for real property
and personal property used by Landmark and its subsidiaries in their businesses
are held pursuant to lease agreements which are valid and enforceable in
accordance with their terms, (iii) all such properties comply with all
applicable private agreements, zoning requirements and other governmental laws
and regulations relating thereto and there are no condemnation proceedings
pending or, to the knowledge of Landmark, threatened with respect to such
properties, (iv) Landmark and its subsidiaries have valid title or other
ownership rights under licenses to all intangible personal or intellectual
property necessary to conduct the business and operations of Landmark and its
subsidiaries as presently conducted, free and clear of any claim, defense or
right of any other person or entity, subject only to rights of the licensors
pursuant to applicable license agreements, which rights do not adversely
interfere with the use of such property, (v) all insurable properties owned or
held by Landmark and its subsidiaries are adequately insured by financially
sound and reputable insurers in such amounts and against fire and other risks
insured against by extended coverage and public liability insurance, as is
customary with bank holding companies of similar size, and there are presently
no claims pending under such policies of insurance and no notices have been
given by Landmark or any of its subsidiaries under such policies, and (vi) all
tangible properties used in the businesses of Landmark and its subsidiaries are
in good condition, reasonable wear and tear excepted, and are useable in the
ordinary course of business consistent with past practices. Section 2.12 of the
Disclosure Schedule sets forth, for each policy of insurance maintained by
Landmark and its subsidiaries, the amount and type of insurance, the name of the
insurer and the amount of the annual premium.
2.13. Environmental Matters.
2.13.1. As used herein, the term "Environmental Laws" shall
mean all local, state and federal environmental, health and safety laws and
regulations and common law standards in all jurisdictions in which Landmark and
its subsidiaries have done business or owned, leased or operated property,
including, without limitation, the Federal Resource Conservation and Recovery
Act, the Federal Comprehensive Environmental Response, Compensation and
Liability Act, the Federal Clean Water Act, the Federal Clean Air Act, and the
Federal Occupational Safety and Health Act.
2.13.2. To their best knowledge, neither the conduct nor
operation of Landmark or its subsidiaries nor any condition of any property
presently or previously owned, leased or operated by any of them violates or
violated or, to the knowledge of Landmark, may violate, Environmental Laws in a
manner or to any extent exposing Landmark or its subsidiaries to liability or
potential liability and no condition has existed or event has occurred with
respect to any of them or any such property that, with notice or the passage of
time, or both, would constitute or, to the knowledge of Landmark, may
constitute, a violation of Environmental Laws in a manner or to any extent that
would obligate (or potentially obligate) Landmark or its subsidiaries to remedy,
stabilize, neutralize or otherwise alter the environmental condition of any such
property. Neither Landmark nor any of its subsidiaries has received any notice
from any person or entity that Landmark or its subsidiaries or the operation or
condition of any property ever owned, leased or operated by any of them are or
were in violation of any Environmental Laws in a manner or to any extent
exposing Landmark or its subsidiaries to liability or potential liability or
that any of them are responsible (or potentially responsible) for the cleanup or
other remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on or beneath any such property and, to the
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knowledge of Landmark, Landmark and its subsidiaries and the operation and
condition of any property ever owned, leased or operated by any of them are not
and were not in violation of any Environmental Laws in a manner or to any extent
exposing Landmark or its subsidiaries to liability or potential liability and
none of them are responsible (or potentially responsible) for the cleanup or
other remediation of any pollutants, contaminants, or hazardous or toxic wastes,
substances or materials at, on or beneath any such property. Section 2.13.2 of
the Disclosure Schedule lists each property presently owned, leased or operated
by Landmark or any of its subsidiaries which, to the knowledge of Landmark,
contains any pollutants, contaminants, or hazardous or toxic wastes, substances
or materials at, on or beneath any such property or which otherwise violates or
may violate any Environmental Laws.
2.14. Compliance with Law. Landmark and its subsidiaries have
all licenses, franchises, permits and other governmental authorizations that are
legally required to enable them to conduct their respective businesses and are
in compliance with all applicable laws and regulations.
2.15. Brokerage. There are no existing claims or agreements for
brokerage commissions, finders' fees, or similar compensation in connection with
the transactions contemplated by this Agreement payable by Landmark or its
subsidiaries, other than agreements with R.P. Financial, L.C., which copies of
such agreements are attached as exhibits to the Disclosure Schedule.
2.16. Trust Administration. During the applicable statute of
limitations period, (i) the Subsidiary Bank has properly administered all
Individual Retirement Accounts for which it acts as a trustee or custodian, in
accordance with the terms of the governing documents and applicable law, and
(ii) neither the Subsidiary Bank nor any director, officer or employee of the
Subsidiary Bank has committed any breach of trust with respect to any such
account.
2.17. Material Contracts and Agreements. Neither Landmark nor
any of its subsidiaries is a party to, or is bound by, any material contract (as
defined in Item 601(b)(10) of Regulation S-K of the S.E.C.) (other than loans or
loan commitments and funding transactions in the ordinary course of business of
Landmark's subsidiaries) that has not been filed or incorporated by reference in
periodic reports filed by Landmark with the S.E.C. under the Exchange Act and
listed in Section 2.17 of the Disclosure Schedule. Section 2.17 of the
Disclosure Schedule also lists (i) each agreement restricting the nature or
geographic scope of any line of business or activity of Landmark or its
subsidiaries, (ii) each agreement, indenture or other instrument relating to the
borrowing of money by Landmark or any of its subsidiaries or the guarantee by
Landmark or any of its subsidiaries of any such obligation, other than
instruments relating to transactions entered into in the ordinary course of
business, and (iii) each agreement, indenture or other instrument which has been
filed or incorporated by reference in the periodic reports referred to above.
Copies of each of the contracts and agreements listed in Section 2.17 of the
Disclosure Schedule have been previously furnished to TrustCo by Landmark.
2.18. No Undisclosed Liabilities. Landmark and its subsidiaries
do not have any liability, whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including
any liability for Taxes (and there is no past or present fact, situation,
circumstance, condition or other basis for any present or future action, suit or
proceeding, hearing, charge, complaint, claim or demand against Landmark or its
subsidiaries giving rise to any such liability), except (i) for liabilities set
forth in the Landmark Financial Statements, and (ii) normal fluctuation in the
amount of the liabilities referred to in clause (i) above occurring in the
ordinary course of business of Landmark and its subsidiaries since the date of
the December 31 balance sheet included in the Landmark Financial Statements.
2.19. Statements True and Correct. None of the information
supplied or to be supplied by Landmark or its subsidiaries for inclusion in
(i) the Proxy Statement (as defined in Section 4.3 hereof), and (ii) any other
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documents to be filed with the S.E.C., Nasdaq or any other Regulatory Agency in
connection with the transactions contemplated by this Agreement shall, at the
respective times such documents are filed, and, with respect to the Proxy
Statement, when first mailed to the shareholders of Landmark and at the time of
its Shareholders' Meeting, contain any untrue statement of a material fact, or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not
misleading. All documents that Landmark shall be responsible for filing with the
S.E.C., Nasdaq or any other Regulatory Agency in connection with the
transactions contemplated by this Agreement shall comply as to form in all
material respects with the provisions of applicable law and the applicable rules
and regulations thereunder.
2.20. State Takeover Laws. The transactions contemplated by this
Agreement are not subject to any applicable state takeover law.
2.21. Fair Lending; Community Reinvestment Act. With the
exception of routine investigation of consumer complaints, neither Landmark nor
any of its subsidiaries has been advised by any Regulatory Agency that it is or
may be in violation of the Equal Credit Opportunity Act or the Fair Housing Act
or any similar federal or state statute. Each of Landmark's depository
institution subsidiaries received a Community Reinvestment Act ("CRA") rating of
"Outstanding" or "Satisfactory" in its most recent CRA examination.
2.22. Loan Portfolio. (i) All loans and discounts shown on the
Landmark Financial Statements or which were entered into after the date of the
most recent balance sheet included in the Landmark Financial Statements were and
shall be made for good, valuable and adequate consideration in the ordinary
course of the business of Landmark and its subsidiaries, in accordance with
sound banking practices, and are not subject to any known defenses, set-offs or
counter-claims, including without limitation any such as are afforded by usury
or truth in lending laws, except as may be provided by bankruptcy, and solvency
or similar laws or by general principles of equity, (ii) the notes or other
evidence of indebtedness evidencing such loans in all forms of pledges,
mortgages and other collateral documents and security agreement are and shall be
in force, valid, true and genuine and what they purport to be, and
(iii) Landmark and its subsidiaries have complied with and shall prior to the
effective date comply with, all laws and regulations relating to such loans.
2.23. Investment Portfolio. All investment securities held by
Landmark or its subsidiaries, as reflected in the consolidated balance sheets of
Landmark included in the Landmark financial statements, are carried in
accordance with generally accepted accounting principles, specifically,
including but not limited to, FAS 115.
2.24. Interest Rate Risk Management Instruments. Section 2.24
of the Disclosure Schedule describes all interest rate swaps, caps, floors,
option agreements or other interest rate risk management arrangements or
agreements, whether entered into for the account of Landmark or its subsidiaries
or for the account of a customer of Landmark or one of its subsidiaries. All
such arrangements and agreements disclosed in Section 2.24 of the Disclosure
Schedule were entered into in the ordinary course of business and in accordance
with prudent banking practice and applicable rules, regulations and policies and
with counter parties believed to be financially responsible at the time and are
legal, valid and binding obligations of Landmark or one of its subsidiaries in
force in accordance with their terms (subject to the provisions of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforceability of creditors rights generally and equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion), and are in full force and effect.
Landmark and each of its subsidiaries have duly performed all of their
obligations thereunder to the extent that such obligations to perform have
accrued; and, to Landmark's knowledge, there are no breaches, violations or
defaults or allegations or assertions of such by any party thereunder.
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2.25. Year 2000 Compliance. Landmark and the Subsidiary Bank
are Year 2000 Compliant. The term "Year 2000 Compliant" as used herein, means
that computer applications, imbedded microchips and other systems are able to
perform Date Sensitive Functions prior to and after December 31, 1999. The term
"Date Sensitive Functions" as used herein, includes all functions of computer
applications, imbedded microchips, and other systems which involve the
generation of random numbers based on dates, the implementation of another
function as a consequence of a date, or the processing or generation of any
other information in which dates are significant.
2.26. Interim Events. Since September 30, 1999, neither Landmark
nor its subsidiaries have paid or declared any dividend or made any other
distribution to shareholders or taken any action which if taken after the date
hereof would have required the prior written consent of TrustCo pursuant to
Section 4.1.2 hereof.
3. Representations and Warranties of Trustco and AcquisitionCo.
Subject to Section 1.11 hereof, TrustCo and AcquisitionCo hereby make
the following representations and warranties:
3.1. Organization and Capital Stock. TrustCo is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and has the corporate power to own all of its property and
assets, to incur all of its liabilities and to carry on its business as now
being conducted. TrustCo is a bank holding company registered with the Federal
Reserve Board under the B.H.C.A. AcquisitionCo is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power to own all of its property and assets, to incur all
of its liabilities and to carry on its business as now being conducted.
3.2. Authorization. The Board of Directors of TrustCo and
the Board of Directors and shareholder of AcquisitionCo have, by all appropriate
action, approved this Agreement and the Merger and authorized the execution
hereof on its behalf by its duly authorized officers and the performance by
TrustCo and AcquisitionCo of their respective obligations hereunder. Nothing in
the Amended and Restated Certificate of Incorporation or Bylaws of TrustCo, the
Certificate of Incorporation or Bylaws of AcquisitionCo or any other agreement,
instrument, decree, proceeding, law or regulation (except as specifically
referred to in or contemplated by this Agreement) by or to which TrustCo or any
of its subsidiaries are bound or subject would prohibit or inhibit TrustCo or
AcquisitionCo from entering into and consummating this Agreement and the Merger
on the terms and conditions herein contained. This Agreement has been duly and
validly executed and delivered by TrustCo and AcquisitionCo and constitutes a
legal, valid and binding obligation of TrustCo and AcquisitionCo, enforceable
against TrustCo and AcquisitionCo in accordance with its terms and, no other
corporate acts or proceedings are required to be taken by TrustCo or
AcquisitionCo to authorize the execution, delivery and performance of this
Agreement. Except for the requisite approval of the Federal Reserve Board, no
notice to, filing with, authorization by, or consent or approval of, any federal
or state bank regulatory authority is necessary for the execution and delivery
of this Agreement or consummation of the Merger by TrustCo and AcquisitionCo.
3.3. Subsidiaries. Each of TrustCo's significant subsidiaries
(as such term is defined in Rule 1-02 of Regulation S-X promulgated by the
S.E.C.) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the corporate power to own its
respective properties and assets, to incur its respective liabilities and to
carry on its respective business as now being conducted.
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3.4. Litigation. There is no litigation, claim or other
proceeding pending or, to the knowledge of TrustCo, threatened, against TrustCo
or any of its subsidiaries, or of which the property of TrustCo or any of its
subsidiaries is or would be subject, and there is no injunction, order,
judgment, decree or regulatory restriction imposed upon TrustCo, or any of its
subsidiaries or the assets of TrustCo or any of its subsidiaries, which would
have a Material Adverse Effect on TrustCo.
3.5. Statements True and Correct. None of the information
supplied or to be supplied by TrustCo for inclusion in (i) the Proxy Statement,
and (ii) any other documents to be filed with the S.E.C., Nasdaq, or any other
Regulatory Agency in connection with the transactions contemplated by this
Agreement shall, at the respective times such documents are filed, and, with
respect to the Proxy Statement, when first mailed to the shareholders of
Landmark at the time of the Landmark Shareholders' Meeting, contain any untrue
statement of a material fact, or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they are made, not misleading. All documents that TrustCo shall be
responsible for filing with the S.E.C., Nasdaq or any other Regulatory Agency in
connection with the transactions contemplated by this Agreement shall comply as
to form in all material respects with the provisions of applicable law and the
applicable rules and regulations thereunder.
3.6. Funds Available. TrustCo has, and at the Effective Time
shall have, sufficient funds to pay the Merger Consideration and satisfy its
other obligations under the Agreement.
4. Agreements of Landmark.
4.1. Business in Ordinary Course.
4.1.1. Landmark shall not declare or pay any dividend or
make any other distribution to shareholders, whether in cash, stock or other
property, after the date hereof, except with the prior written consent of
TrustCo. Landmark shall, and shall cause each of its subsidiaries to,
(1) continue to carry on after the date hereof its respective business and the
discharge or incurrence of obligations and liabilities, only in the usual,
regular and ordinary course of business, as heretofore conducted, (2) use
reasonable best efforts to maintain and preserve intact its respective business
organization, employees and advantageous business relationships and retain the
services of its officers and key employees, and (3) by way of amplification and
not limitation, Landmark and each of its subsidiaries shall not, without the
prior written consent of TrustCo (which shall not be unreasonably withheld):
4.1.2.1. issue any Landmark Common, preferred
stock or other capital stock or any options, warrants, or other rights to
subscribe for or purchase Landmark Common or any other capital stock or any
securities convertible into or exchangeable for any capital stock of Landmark or
any of its subsidiaries (except for (i) the issuance of Landmark Common pursuant
to the valid exercise of Landmark Stock Options which are outstanding on the
date hereof, and (ii) the issuance of Landmark Common pursuant to the Landmark
Option Agreement); or
4.1.2.2. directly or indirectly redeem, purchase
or otherwise acquire any Landmark Common or any other capital stock of Landmark
or effect a reclassification, recapitalization, split-up, exchange of shares,
readjustment or other similar change in or to any capital stock or otherwise
reorganize or recapitalize Landmark; or
4.1.2.3. directly or indirectly redeem, purchase
or otherwise acquire any capital stock of subsidiaries of Landmark or effect a
reclassification, recapitalization, split-up, exchange of shares, readjustment
or other similar change in or to any capital stock or otherwise reorganize or
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recapitalize any subsidiary of Landmark (other than any of the foregoing all of
the parties to which shall consist exclusively of Landmark and the wholly-owned
subsidiaries of Landmark); or
4.1.2.4. change its Certificate or Articles of
Incorporation or Association, as the case may be, or Bylaws; or
4.1.2.5. grant any increase, other than ordinary
and normal increases consistent with past practices, in the compensation payable
or to become payable to officers or salaried employees, grant any stock options
or, except as required by law or as required by existing contractual obligations
which shall have been described in Section 2.11 of the Disclosure Schedule,
adopt or make any material change in any bonus, insurance, pension, or other
Landmark Employee Plan, agreement, payment or arrangement made to, for or with
any of such officers or employees; or
4.1.2.6. borrow or agree to borrow any amount
of funds in excess of $500,000, or directly or indirectly guarantee or agree to
guarantee any obligations of others, except letters of credit issued in the
ordinary course of business pursuant to Section 4.1.2.7 and the renewal or
refinancing of any existing advances from or other indebtedness owed to the
Federal Home Loan Bank of New York; or
4.1.2.7. make or commit to make any new loan or
letter of credit or any new or additional discretionary advance under any
existing line of credit in principal amounts in excess of $100,000 or that would
increase the aggregate credit outstanding to any one borrower (or group of
affiliated borrowers) to more than $250,000, other than as set forth in Section
4.1.2.7 of the Disclosure Schedule (excluding for this purpose any accrued
interest or overdrafts), without the prior written consent of TrustCo, acting
through its Senior Vice President and Chief Financial Officer or such other
designee as TrustCo may give notice of to Landmark; or
4.1.2.8. purchase or otherwise acquire any
investment security for its own account, except in a manner and pursuant to
policies consistent with past practice; or
4.1.2.9. materially increase or decrease the rate
of interest paid on time deposits, or on certificates of deposit, except in a
manner and pursuant to policies consistent with past practices; or
4.1.2.10. enter into any agreement, contract or
commitment of a material nature out of the ordinary course of business having a
term in excess of three (3) months or obligation in excess of $10,000; or expend
or commit to expend more than $135,000 for legal fees and reasonable expenses of
counsel not to exceed $5,000 in connection with the transaction contemplated
herein; or
4.1.2.11. except in the ordinary course of
business, place on any of its assets or properties any mortgage, pledge, lien,
charge, or other encumbrance of any kind; or
4.1.2.12. except in the ordinary course of business,
cancel or accelerate any material indebtedness owing to Landmark or its
subsidiaries or any claims which Landmark or its subsidiaries may possess or
waive any material rights with respect thereto; or
4.1.2.13. sell or otherwise dispose of any real
property or any amount of any tangible or intangible personal property other
than in the ordinary course of business and other than properties acquired in
foreclosure or otherwise in the ordinary collection of indebtedness to Landmark
and its subsidiaries; or
4.1.2.14. foreclose upon or otherwise take title to
or possession or control of any real property without first obtaining a phase
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one environmental report thereon which indicates that the property is free of
pollutants, contaminants or hazardous or toxic waste materials; provided,
however, that Landmark and its subsidiaries shall not be required to obtain such
a report with respect to single family, non-agricultural residential property of
one acre or less to be foreclosed upon unless it has reason to believe that such
property might contain any such waste materials or otherwise might be
contaminated; or
4.1.2.15. commit any act or fail to do any act which
would cause a breach of any agreement, contract or commitment and which would
have a Material Adverse Effect on Landmark; or
4.1.2.16. purchase any real or personal property or
make any other capital expenditure; or
4.1.2.17. take any action which would adversely
effect or delay the ability of either TrustCo or Landmark to obtain any
necessary approvals of any Regulatory Agency or other governmental authority
required for the transactions contemplated by this Agreement or to perform its
covenants and agreements under this Agreement or the Landmark Option Agreement.
4.1.3. Landmark and its subsidiaries shall not, without
the prior written consent of TrustCo, engage in any transaction or take any
action that would render untrue (under the standard of Section 1.11 hereof) any
of the representations and warranties of Landmark contained in Article Two
hereof, if such representations and warranties were given as of the date of such
transaction or action.
4.1.4. Landmark shall promptly notify TrustCo in writing
of the occurrence of any matter or event known to and directly involving
Landmark, other than any changes in conditions that affect the banking industry
generally, that would have, either individually or in the aggregate, a Material
Adverse Effect on Landmark.
4.1.5. Landmark and its subsidiaries shall not, and shall
not authorize or permit any of their respective officers, directors, employees
or agents to, on or before the earlier of the Closing Date or the date of
termination of this Agreement, directly or indirectly solicit, initiate or
encourage or (subject to the fiduciary duties of its directors as advised by
counsel) hold discussions or negotiations with or provide any information to any
person in connection with any proposal from any person for the acquisition of
all or any substantial portion of the business, assets, shares of Landmark
Common or other securities of Landmark or its subsidiaries. Landmark shall
promptly (which for this purpose shall mean within twenty-four (24) hours)
advise TrustCo of its receipt of any such proposal or inquiry concerning any
such proposal, the substance of such proposal or inquiry, and the identity of
such person.
4.2. Breaches. Landmark shall, in the event it has knowledge of
the occurrence, or impending or threatened occurrence, of any event or condition
which would cause or constitute a breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to herein, give prompt
written notice thereof to TrustCo and use its best efforts to prevent or
promptly remedy the same.
4.3. Submission to Shareholders. Landmark shall cause to be
duly called and held, on a date selected by Landmark in consultation with
TrustCo, a special meeting of its shareholders (the "Landmark Shareholders'
Meeting") for submission of this Agreement and the Merger for approval of such
Landmark shareholders as required by the DGCL. In connection with the Landmark
Shareholders' Meeting, (i) Landmark shall prepare and file a Proxy Statement
(the "Proxy Statement") with the S.E.C. and Landmark shall mail it to its
shareholders, (ii) TrustCo shall furnish Landmark all information concerning
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itself that Landmark may reasonably request in connection with such Proxy
Statement, and (iii) the Board of Directors of Landmark (subject to compliance
with its fiduciary duties as advised by counsel) shall recommend to its
shareholders the approval of this Agreement and the Merger contemplated by this
Agreement and use its best efforts to obtain such shareholder approval. Landmark
shall deliver drafts of the Proxy Statement to TrustCo for its review and
comment.
4.4. Consents to Contracts and Leases. Landmark shall use its
best efforts to obtain all necessary consents with respect to all interests of
Landmark and its subsidiaries in any material leases, licenses, contracts,
instruments and rights which require the consent of another person for their
transfer or assumption pursuant to the Merger, if any.
4.5. Consummation of Agreement. Landmark shall use its best
efforts to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the Merger and the
other transactions contemplated hereby in accordance with the terms and
provisions hereof and to effect the transition and integration of the business
and operations of Landmark and its subsidiaries with the business and operations
of TrustCo and its subsidiaries. Landmark shall furnish to TrustCo in a timely
manner all information, data and documents in the possession of Landmark
requested by TrustCo as may be required to obtain any necessary regulatory or
other approvals of the Merger and shall otherwise cooperate fully with TrustCo
to carry out the purpose and intent of this Agreement.
4.6. Environmental Reports. Landmark shall provide to TrustCo,
as soon as reasonably practical, but not later than forty-five (45) days after
the date hereof, a report of a phase one environmental investigation on the real
property identified on Section 2.13.2 of the Disclosure Schedule, if any, and
within ten (10) days after the acquisition or lease of any real property
acquired or leased by Landmark or its subsidiaries after the date hereof (but
excluding space in office or retail and similar establishments leased by
Landmark or its subsidiaries for automatic teller machines or bank branch
facilities or other office uses where the leased space comprises less than 20%
of the total space leased to all tenants of such property), except as otherwise
provided in Section 4.1.2.14 hereof. If required by the phase one investigation
in TrustCo's reasonable opinion, Landmark shall provide to TrustCo, within sixty
(60) days of the receipt by Landmark of the request of TrustCo therefor, a
report of a phase two investigation on properties requiring such additional
study. TrustCo shall have fifteen (15) business days from the receipt of any
such phase two investigation report to notify Landmark of any dissatisfaction
with the contents of such report. Should the cost of taking all remedial or
other corrective actions and measures (i) required by applicable law or
reasonably likely to be required by applicable law, or (ii) recommended or
suggested by such report or reports or prudent in light of serious life, health
or safety concerns, in the aggregate, exceed the sum of $100,000 as reasonably
estimated by an environmental expert retained for such purpose by TrustCo and
reasonably acceptable to Landmark, or if the cost of such actions and measures
cannot be so reasonably estimated by such expert to be such amount or less with
any reasonable degree of certainty, then TrustCo shall have the right pursuant
to Section 7.3 hereof, for a period of fifteen (15) business days following
receipt of such estimate or indication that the cost of such actions and
measures can not be so reasonably estimated, to terminate this Agreement, which
shall be TrustCo's sole remedy in such event.
4.7. Access to Information. Landmark shall permit TrustCo
reasonable access in a manner which shall avoid undue disruption or interference
with Landmark's normal operations to its properties and shall disclose and make
available to TrustCo all books, documents, papers, records and computer systems
documentation and files relating to its assets, stock ownership, properties,
operations, obligations and liabilities, including, but not limited to, all
books of account (including the general ledger), tax records, minute books of
directors' and shareholders' meetings, organizational documents, material
contracts and agreements, loan files, filings with any regulatory authority,
accountants' workpapers (if available and subject to the respective independent
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accountants' consent), litigation files (but only to the extent that such review
would not result in a material waiver of the attorney-client or attorney work
product privileges under the rules of evidence), Employee Benefit Plans, and any
other business activities or prospects in which TrustCo may have a reasonable
and legitimate interest in furtherance of the transactions contemplated by this
Agreement. TrustCo shall hold any such information which is nonpublic in
confidence in accordance with the provisions of Section 8.1 hereof.
4.8. Subsidiary Bank Name Change. Upon the request of TrustCo,
Landmark shall cause the Subsidiary Bank to execute such amendments to its
charter to change its name to Trustco Savings Bank (or such substantially
similar name as Trustco may determine) subject to the conditions of this
Agreement with Trustco Bank, N.A. and take all other actions and cooperate with
TrustCo and AcquisitionCo in causing such name change to be effective no earlier
than the Effective Time.
4.9. Plan of Merger. At the request of TrustCo, Landmark shall
enter into a separate Certificate of Merger reflecting the terms hereof for
purposes of any filing requirement of the DGCL.
5. Agreements of Trustco and AcquisitionCo.
5.1. Regulatory Approvals and Registration Statement; Other
Agreements.
5.1.1. TrustCo and AcquisitionCo shall file all regulatory
applications required in order to consummate the Merger, including but not
limited to the necessary applications for the prior approval of the Federal
Reserve Board and any other federal and state regulatory authorities as
applicable. TrustCo shall keep Landmark reasonably informed as to the status of
such applications and make available to Landmark from time to time copies of
such applications and any supplementally filed materials.
5.1.2. Neither TrustCo nor AcquisitionCo shall (i) between
the date hereof and the Effective Time, commit any act or fail to do any act
which would cause a breach of any agreement, contract or commitment and which
would have a Material Adverse Effect on TrustCo, (ii) without the prior written
consent of Landmark, engage in any transaction or take any action that would
render untrue (under the standard of Section 1.11 hereof) any of the
representations and warranties of TrustCo and AcquisitionCo contained in Article
Three hereof (except for any such representations and warranties made only as of
a specified date), if such representations and warranties were given as of the
date of such transaction or action. TrustCo and AcquisitionCo shall promptly
notify Landmark in writing of the occurrence of any matter or event known to and
directly involving TrustCo or AcquisitionCo, which would not include any changes
in conditions that affect the banking industry generally, that would have,
either individually or in the aggregate, a Material Adverse Effect on TrustCo.
5.2. Breaches. TrustCo and AcquisitionCo shall, in the event
either has knowledge of the occurrence, or impending or threatened occurrence,
of any event or condition which would cause or constitute a breach (or would
have caused or constituted a breach had such event occurred or been known prior
to the date hereof) of any of their respective representations or agreements
contained or referred to herein, give prompt written notice thereof to Landmark
and use its best efforts to prevent or promptly remedy the same.
5.3. Consummation of Agreement. TrustCo and AcquisitionCo shall
use their respective best efforts to perform and fulfill all conditions and
obligations on their respective parts to be performed or fulfilled under this
Agreement and to effect the Merger in accordance with the terms and conditions
of this Agreement.
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5.4. Directors' and Officers' Liability Insurance and
Indemnification.
5.4.1. For a period of three (3) years after the Effective
Time, TrustCo shall cause to be maintained in effect the current policies of
directors' and officers' liability insurance maintained by Landmark (provided
that TrustCo may substitute therefor policies of comparable coverage with
respect to claims arising from facts or events which occurred before the
Effective Time); provided, however, that in no event shall TrustCo be obligated
to expend, in order to maintain or provide insurance coverage pursuant to this
Section 5.4.1, any amount per annum in excess of 150% of the amount of the
annual premiums paid as of the date hereof by Landmark for such insurance (the
"Maximum Amount"). If the amount of the annual premiums necessary to maintain or
procure such insurance coverage exceeds the Maximum Amount, TrustCo shall use
all reasonable efforts to maintain the most advantageous policies of directors'
and officers' insurance obtainable for an annual premium equal to the Maximum
Amount. Notwithstanding the foregoing, prior to the Effective Time, TrustCo may
request Landmark to, and Landmark shall, purchase insurance coverage, on such
terms and conditions as shall be acceptable to TrustCo, extending for a period
of three (3) years Landmark's directors' and officers' liability insurance
coverage in effect as of the date hereof (covering past or future claims with
respect to periods before the Effective Time) and such coverage shall satisfy
TrustCo's obligations under this Section 5.4.1.
5.4.2. For the applicable statute of limitations period,
TrustCo shall indemnify, defend and hold harmless the present and former
officers, directors, employees and agents of Landmark and its subsidiaries
(each, an "Indemnified Party") against all losses, expenses, claims, damages or
liabilities arising out of actions (not including, however, such intentional or
willful acts of an Indemnified Party) or omissions occurring on or prior to the
Effective Time (including, without limitation, the transactions contemplated by
this Agreement and the Landmark Option Agreement) to the full extent then
permitted under the DGCL and by Landmark's Certificates of Incorporation as in
effect on the date hereof (and, with respect to predecessors of Landmark, the
applicable laws, articles of incorporation and bylaws pertaining thereto),
including provisions relating to advances of expenses incurred in the defense of
any action or suit.
5.5. Employee Benefits.
5.5.1. TrustCo shall, with respect to each employee of
Landmark or its subsidiaries at the Effective Time who shall continue in
employment with TrustCo or its subsidiaries (each a "Continued Employee"),
provide the benefits described in this Section 5.5. Each Continued Employee
shall be entitled, as a new employee of a subsidiary of TrustCo, to participate
in such employee benefit plans, as defined in Section 3(3) of ERISA, or any
non-qualified employee benefit plans or deferred compensation, stock option,
bonus or incentive plans, or other employee benefit or fringe benefit programs
that may be in effect generally for employees of all of TrustCo's subsidiaries
(the "TrustCo Employee Plans"), if such Continued Employee shall otherwise be
eligible or, if required, selected for participation therein under the terms
thereof and otherwise shall not be participating in a similar plan maintained by
Landmark after the Effective Time. Landmark employees shall be eligible to
participate in TrustCo Employee Plans on the same basis as similarly situated
employees of other TrustCo subsidiaries. All such participation shall be subject
to such terms of such TrustCo Employee Plans as may be in effect from time to
time. This Section 5.5 is not intended to give Continued Employees any rights or
privileges superior to those of other employees of TrustCo's subsidiaries
(except as provided in the following sentence with respect to credit for past
service). TrustCo may terminate or modify all Landmark Employee Plans except
insofar as benefits thereunder shall have vested at the Effective Time and
cannot be modified and TrustCo's obligation under this Section 5.5 shall not be
deemed or construed so as to provide duplication of similar benefits but,
subject to that qualification, TrustCo shall, for purposes of vesting and any
age or period of service requirements for commencement of participation with
respect to any TrustCo Employee Plans in which Continued Employees may
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participate (but not for benefit accruals under any defined benefit plan),
credit each Continued Employee with his or her term of service with Landmark and
its subsidiaries and its and their predecessors.
5.5.2. Notwithstanding anything to the contrary, TrustCo
shall acknowledge and assume, upon consummation of the Merger, the obligations
of Landmark under its severance agreements, supplemental retirement plans and
arrangements, deferred compensation plans and arrangements, and related trusts
including, without limitation, all of the same maintained or provided by any
subsidiary of Landmark, as such obligations are described in Section 2.11.3 of
the Disclosure Schedule.
5.5.3. Trustco shall cause the Subsidiary Bank to enter
into an employment agreement with Gordon E. Coleman to serve in the capacity of
President and Chief Executive Officer of the Subsidiary Bank. The employment
agreement will have a term of 3 years and provide for annual compensation of
$125,000 per year and the use of a car.
5.6. Advisory Board Composition. Immediately following the
Effective Time, TrustCo shall cause the Subsidiary Bank to establish an advisory
board of directors and shall offer not more than eight (8) of the directors of
Landmark as of the Effective Time the opportunity to serve as advisory directors
of the Subsidiary Bank for the three (3) year period following the Effective
Time. The Chairman of the advisory board shall receive fees of $600/month of
service; the vice chairman shall receive fees of $300/month of service; other
members of the advisory board shall receive fees of $200/month of service.
5.7. Access to Information. TrustCo shall permit Landmark
reasonable access in a manner which shall avoid undue disruption or interference
with TrustCo's normal operations to its properties and shall disclose and make
available to Landmark all books, documents, papers and records relating to its
assets, stock ownership, properties, operations, obligations and liabilities,
including, but not limited to, all books of account (including the general
ledger), tax records, minute books of directors' and shareholders' meetings,
organizational documents, material contracts and agreements, loan files, filings
with any regulatory authority, accountants' workpapers (if available and subject
to the respective independent accountants' consent), litigation files (but only
to the extent that such review would not result in a material waiver of the
attorney-client or attorney work product privileges under the rules of
evidence), plans affecting employees, and any other business activities or
prospects in which Landmark may have a reasonable and legitimate interest in
furtherance of the transactions contemplated by this Agreement. Landmark shall
hold any such information which is nonpublic in confidence in accordance with
the provisions of Section 8.1 hereof.
6. Conditions Precedent to Merger.
6.1. Conditions to TrustCo's and AcquisitionCo's Obligations. The
obligations of TrustCo and AcquisitionCo to effect the Merger shall be subject
to the satisfaction (or waiver by TrustCo and AcquisitionCo) prior to or on the
Closing Date of the following conditions:
6.1.1. The representations and warranties made by
Landmark in this Agreement shall be true and correct (subject to the standard in
Section 1.11 hereof) on and as of the Closing Date with the same effect as
though such representations and warranties had been made or given on and as of
the Closing Date (except for any such representations and warranties made only
as of a specified date which shall be true and correct (subject to the standard
in Section 1.11 hereof) as of such date); and
6.1.2. Landmark shall have performed and complied in all
material respects with all of its obligations and agreements required to be
performed on or prior to the Closing Date under this Agreement; and
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6.1.3. No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition (an "Injunction")
preventing the consummation of the Merger shall be in effect, nor shall any
proceeding by any Regulatory Agency or other person seeking any of the foregoing
be pending. There shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the
Merger which makes the consummation of the Merger illegal; and
6.1.4. All necessary regulatory approvals, consents,
authorizations and other approvals, including the requisite approval of this
Agreement and the Merger by the shareholders of Landmark, required by law for
consummation of the Merger shall have been obtained and all waiting periods
required by law shall have expired, and no regulatory approval shall have
imposed any condition, requirement or restriction which the Board of Directors
of TrustCo and AcquisitionCo reasonably determine in good faith would so
materially adversely impact the economic or business benefits of the
transactions contemplated by this Agreement to TrustCo and its shareholders as
to render inadvisable the consummation of the Merger (any such condition,
requirement or restriction, a "Burdensome Condition"); and
6.1.5. TrustCo and AcquisitionCo shall have received all
documents required to be received from Landmark on or prior to the Closing Date,
all in form and substance reasonably satisfactory to TrustCo and AcquisitionCo;
and
6.1.6 Landmark's Board of Directors shall have passed a
resolution (i) to terminate Landmark's employee stock ownership plan (the
"Landmark ESOP") as of the close of business on the date immediately preceding
the Closing Date (the "Termination Date"), (ii) to amend the Landmark ESOP to
provide that no additional contributions will be made and no additional
employees will become participants after the Termination Date, and (iii) to
apply for a determination letter from the Internal Revenue Service with respect
to the termination of the Landmark ESOP.
6.2. Conditions to Landmark's Obligations. The obligations of
Landmark to effect the Merger shall be subject to the satisfaction (or waiver by
Landmark) prior to or on the Closing Date of the following conditions:
6.2.1. The representations and warranties made by TrustCo
and AcquisitionCo in this Agreement shall be true and correct (subject to the
standard in Section 1.11 hereof) on and as of the Closing Date with the same
effect as though such representations and warranties had been made or given on
and as of the Closing Date (except for any such representations and warranties
made only as of a specified date which shall be true and correct (subject to the
standard in Section 1.11 hereof) as of such date); and
6.2.2. TrustCo and AcquisitionCo shall have performed and
complied in all material respects with all of their respective obligations and
agreements hereunder required to be performed on or prior to the Closing Date
under this Agreement; and
6.2.3. No Injunction preventing the consummation of the
Merger shall be in effect, nor shall any proceeding by any Regulatory Agency or
any other person seeking any of the foregoing be pending. There shall not be any
action taken, or any statute, rule, regulation or order enacted, entered,
enforced or deemed applicable to the Merger which makes the consummation of the
Merger illegal; and
6.2.4. All necessary regulatory approvals, consents,
authorizations and other approvals, including the requisite approval of this
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Agreement and the Merger by the shareholders of Landmark and AcquisitionCo,
required by law for consummation of the Merger shall have been obtained and all
waiting periods required by law shall have expired; and
6.2.5. Landmark shall have received all documents required
to be received from TrustCo and AcquisitionCo on or prior to the Closing Date,
all in form and substance reasonably satisfactory to Landmark; and
6.2.6. Landmark's financial advisors shall not have
withdrawn its opinion, to the effect that the terms of the Merger are fair to
the shareholders of Landmark from a financial point of view, on or before the
date of the Shareholder's Meeting.
7. Termination or Abandonment.
7.1. Mutual Agreement. This Agreement may be terminated by
the mutual written agreement of TrustCo, AcquisitionCo and Landmark at any time
prior to the Closing Date, regardless of whether approval of this Agreement and
the Merger by the shareholders of Landmark and AcquisitionCo shall have been
previously obtained.
7.2. Breach of Agreements. In the event that there is a breach in
any of the representations and warranties (subject to the standard in Section
1.11 hereof) or a material breach of any of the agreements of TrustCo,
AcquisitionCo or Landmark, which breach is not cured within thirty (30) days
after written notice to cure such breach is given to the breaching party by the
non-breaching party, then the non-breaching party, regardless of whether
Landmark shareholder approval of this Agreement and the Merger shall have been
previously obtained, may terminate and cancel this Agreement by providing
written notice of such action to the other party hereto.
7.3. Environmental Reports. TrustCo may terminate this
Agreement to the extent provided by Section 4.6 hereof and this Section 7.3 by
giving timely written notice thereof to Landmark.
7.4. Failure of Conditions. In the event any of the conditions
to the obligations of either party are not satisfied or waived on or prior to
the Closing Date, and if any applicable cure period provided in Section 7.2
hereof has lapsed, then such party may, regardless of whether approval of this
Agreement and the Merger by the shareholders of Landmark and AcquisitionCo has
been previously obtained, terminate and cancel this Agreement by delivery of
written notice of such action to the other party on such date.
7.5. Regulatory Approval Denial; Burdensome Condition. If any
regulatory application filed pursuant to Section 5.1.1 hereof should be finally
denied or disapproved by the respective regulatory authority, then this
Agreement thereupon shall be deemed terminated and canceled; provided, however,
that a request for additional information or undertaking by TrustCo, as a
condition for approval, shall not be deemed to be a denial or disapproval so
long as TrustCo diligently provides the requested information or undertaking. In
the event that an application is denied pending an appeal, petition for review,
or similar such act on the part of TrustCo (hereinafter referred to as the
"appeal") then the application shall be deemed denied unless TrustCo prepares
and timely files such appeal and continues the appellate process for purposes of
obtaining the necessary approval. TrustCo may terminate this Agreement if its
Board of Directors shall have reasonably determined in good faith that any of
the requisite regulatory approvals imposes a Burdensome Condition, and TrustCo
shall deliver written notice of such determination to Landmark not later than
thirty (30) days after receipt by TrustCo of notice of the imposition of such
Burdensome Condition from the applicable Regulatory Agency (unless an appeal of
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such determination is being pursued by TrustCo, in which event the foregoing
notice shall be given within thirty (30) days of the termination of any such
appeal by TrustCo or the denial of such appeal by the appropriate Regulatory
Agency).
7.6. Shareholder Approval Denial; Withdrawal/Modification of
Board Recommendation. If this Agreement and the relevant transactions
contemplated by this Agreement, including the Merger, are not approved by the
requisite vote of the shareholders of Landmark at the Landmark Shareholders'
Meeting, then either party may terminate this Agreement. TrustCo may terminate
this Agreement if Landmark's Board of Directors shall have failed to approve or
recommend this Agreement or the Merger, or shall have withdrawn or modified in
any manner adverse to TrustCo its approval or recommendation of this Agreement
or the Merger, or shall have resolved or publicly announced an intention to do
either of the foregoing.
7.7. Regulatory Enforcement Matters. In the event that Landmark
or any of its subsidiaries shall, after the date hereof, become a party or be
subject to any new or amended written agreement, memorandum of understanding,
cease and desist order, imposition of civil money penalties or other regulatory
enforcement action or proceeding with a Regulatory Agency, which would have a
Material Adverse Effect on Landmark, then TrustCo may terminate this Agreement.
7.8. Fall-Apart Date. If the Closing Date does not occur on
or prior to October 31, 2000, then this Agreement may be terminated by either
party by giving written notice thereof to the other, unless the failure of the
Closing to occur by such date shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
of such party set forth in this Agreement.
8. General.
8.1. Confidential Information. The parties acknowledge the
confidential and proprietary nature of the "Information" (as described below in
this Section 8.1) which has heretofore been exchanged and which shall be
received from each other hereunder and agree to hold and keep the same
confidential. Such Information shall include any and all financial, technical,
commercial, marketing, customer or other information concerning the business,
operations and affairs of a party that may be provided to the other,
irrespective of the form of the communications, by such party's employees or
agents. Such Information shall not include information which is or becomes
generally available to the public other than as a result of a disclosure by a
party or its representatives in violation of this Agreement. The parties agree
that the Information shall be used solely for the purposes contemplated by this
Agreement and that such Information shall not be disclosed to any person other
than employees and agents of a party who are directly involved in evaluating the
transaction. The Information shall not be used in any way detrimental to a
party, including use directly or indirectly in the conduct of the other party's
business or any business or enterprise in which such party may have an interest,
now or in the future, and whether or not now in competition with such other
party.
8.2. Publicity. TrustCo and Landmark shall cooperate with each
other in the development and distribution of all news releases and other public
disclosures concerning this Agreement and the Merger and shall not issue any
news release or make any other public disclosure without the prior consent of
the other party, unless it reasonably believes such is required by law upon the
advice of counsel or is in response to published newspaper or other mass media
reports regarding the transactions contemplated by this Agreement, in which such
latter event the parties shall give reasonable notice, and to the extent
practicable, consult with each other regarding such responsive public
disclosure.
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8.3. Return of Documents. Upon termination of this Agreement
without the Merger becoming effective, each party (i) shall deliver to the other
originals and all copies of all Information made available to such party,
(ii) shall not retain any copies, extracts or other reproductions in whole or in
part of such Information, and (iii) shall destroy all memoranda, notes and other
writings prepared by any party based on the Information.
8.4. Notices. Any notice or other communication shall be in
writing and shall be deemed to have been given or made on the date of delivery,
in the case of hand delivery, or three (3) business days after deposit in the
United States Registered Mail, postage prepaid, or upon receipt if transmitted
by facsimile telecopy or any other means, addressed (in any case) as follows:
8.4.1. if to TrustCo and AcquisitionCo:
TrustCo Bank Corp NY
320 State Street
Schenectady, New York 12305
Attention: Robert A. McCormick, President
and Chief Executive Officer
Facsimile: 518/381-3668
with a copy to:
Lewis, Rice & Fingersh, L.C.
500 N. Broadway, Ste. 2000
St. Louis, Missouri 63102
Attention: John K. Pruellage, Esq.
Facsimile: 314/444-7788
and
(a) if to Landmark:
Landmark Financial Corp.
211 Erie Blvd.
Canajoharie, New York 13317
Attention: Gordon E. Coleman, President
and Chief Executive Officer
Facsimile: 518/673-2081
with a copy to:
Luse, Lehman, Gorman, Pomerenk & Schick, P.C.
5335 Wisconsin Avenue, N.W.; Suite 400
Washington, D.C. 20015
Attention: Alan Schick, Esq.
Facsimile: 202/362-2902
or to such other address as any party may from time to time designate by notice
to the others.
8.5. Liabilities and Expenses. Except as provided in the Landmark
Option Agreement, in the event that this Agreement is terminated pursuant to the
provisions of Article Seven hereof, no party hereto shall have any liability to
any other party for costs, expenses, damages or otherwise; provided, however,
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that, notwithstanding the foregoing, in the event that this Agreement is
terminated pursuant to Article Seven hereof on account of a willful breach of
any of the representations and warranties set forth herein or any willful breach
of any of the agreements set forth herein, then the non-breaching party shall be
entitled to recover appropriate damages from the breaching party, including,
without limitation, reimbursement to the non-breaching party of its costs, fees
and expenses (including attorneys', accountants' and advisors' fees and
expenses) incident to the negotiation, preparation, execution and performance of
this Agreement and related documentation; provided, however, that nothing in
this proviso shall be deemed to constitute liquidated damages for the willful
breach by a party of the terms of this Agreement or otherwise limit the rights
of the non-breaching party.
8.6. Nonsurvival of Representations, Warranties and Agreements.
Except for, and as provided in, this Section 8.6 and the Landmark Option
Agreement, no representation, warranty or agreement contained herein shall
survive the Effective Time or the earlier termination of this Agreement;
provided, however, that no such representation, warranty or covenant shall be
deemed to be terminated or extinguished so as to deprive TrustCo or Landmark (or
any director, officer or controlling person thereof) of any defense in law or
equity which otherwise would be available against the claims of any person,
including, without limitation, any shareholder or former shareholder of either
TrustCo or Landmark, the aforesaid representations, warranties and covenants
being material inducements to the consummation by TrustCo and Landmark of the
transactions contemplated herein. The agreements set forth in Section 5.4,
Section 5.5, and Section 5.6 hereof shall survive the Effective Time and the
agreements set forth in Section 8.1, Section 8.2, Section 8.3, Section 8.5 and
Section 8.16 hereof and this Section 8.6 shall survive the Effective Time or the
earlier termination of this Agreement.
8.7. Entire Agreement. This Agreement and the Landmark Option
Agreement constitute the entire agreement between the parties and supersede and
cancel any and all prior discussions, negotiations, undertakings, agreements in
principle or other agreements between the parties relating to the subject matter
hereof.
8.8. Headings and Captions. The captions of Articles and Sections
hereof are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
8.9. Waiver, Amendment or Modification. The conditions of this
Agreement which may be waived may only be waived by notice to the other party
waiving such condition. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. This Agreement may be amended or modified by the
parties hereto, at any time before or after shareholder approval of this
Agreement; provided, however, that after any such approval no such amendment or
modification shall alter the amount or change the form of the Merger
Consideration contemplated by this Agreement to be received by shareholders of
Landmark. This Agreement not be amended or modified except by a written document
duly executed by the parties hereto.
8.10. Rules of Construction. Unless the context otherwise
requires: (i) a term has the meaning assigned to it, (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles, (iii) "or" is not exclusive, (iv) words in the
singular may include the plural and in the plural include the singular, and
(v) "knowledge" of a party means the actual or constructive knowledge of any
director or executive officer of such party or any of its subsidiaries.
8.11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same instrument. For purposes of executing this Agreement,
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a document (or signature page thereto) signed and transmitted by facsimile
machine or telecopier is to be treated as an original document. The signature of
any party thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At the request
of any party, any facsimile or telecopy document shall be re-executed in
original form by the parties who executed the facsimile or telecopy document. No
party may raise the use of a facsimile machine or telecopier or the fact that
any signature was transmitted through the use of a facsimile or telecopier
machine as a defense to the enforcement of this Agreement or any amendment or
other document executed in compliance with this Section 8.11.
8.12. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. There shall be no third party beneficiaries hereof.
8.13. Severability. In the event that any provisions of this
Agreement or any portion thereof shall be finally determined to be unlawful or
unenforceable, such provision or portion thereof shall be deemed to be severed
from this Agreement, and every other provision, and any portion of a provision,
that is not invalidated by such determination, shall remain in full force and
effect. To the extent that a provision is deemed unenforceable by virtue of its
scope but may be made enforceable by limitation thereof, such provision shall be
enforceable to the fullest extent permitted under the laws and public policies
of the State whose laws are deemed to govern enforceability. It is declared to
be the intention of the parties that they would have executed the remaining
provisions without including any that may be declared unenforceable.
8.14. Governing Law; Assignment. This Agreement shall be governed
by the laws of the State of New York, except to the extent that the DGCL must
govern the Merger procedures, and applicable federal laws and regulations. This
Agreement may not be assigned by either of the parties hereto.
8.15. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction and such right shall be in
addition to any other remedy to which they shall be entitled at law or in
equity.
8.16. Legal Fees, Costs. Except as otherwise provided herein, all
legal and other costs and expenses incurred by Landmark in connection with this
Agreement and the transactions contemplated hereby are to be paid by Landmark,
and all legal and other costs and expenses incurred by TrustCo in connection
with this Agreement and the transactions contemplated hereby are to be paid by
TrustCo. Notwithstanding the foregoing, however, TrustCo shall reimburse
Landmark for the reasonable fees and expenses of its financial advisor in
connection with the fairness opinion to be obtained from such advisor up to a
maximum amount of $20,000.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
LANDMARK FINANCIAL CORP.
By /s/ Gordon E. Coleman
Gordon E. Coleman
President and Chief Executive Officer
TRUSTCO BANK CORP NY
By /s/ Robert A. McCormick
Robert A. McCormick
President and Chief Executive Officer
LANDMARK ACQUISITION CO.
By /s/ Robert A. McCormick
Robert A. McCormick
President
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EXHIBIT 1.01
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this "Agreement"), is made as of the 21st day
of February, 2000, between TRUSTCO BANK CORP NY, a New York corporation
("Grantee"), and LANDMARK FINANCIAL CORP., a Delaware corporation ("Issuer").
RECITALS
A. Grantee, Landmark Acquisition Co. and Issuer are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Plan"),
which is being executed by the parties hereto simultaneously with the execution
of this Agreement.
B. As a condition and inducement to Grantee's entering into the
Plan and in consideration therefor, Issuer has agreed to grant Grantee the
Option (as defined below).
C. In consideration of the foregoing and the mutual covenants
and agreements set forth herein and in the Plan, the parties hereto agree as
follows:
Section 1. Grant of Option.
(a) Issuer hereby grants to Grantee an unconditional, irrevocable
option (the "Option") to purchase, subject to the terms hereof, up to 19.9%
fully paid and nonassessable shares of Common Stock, par value $0.10 per share
(the "Common Stock"), of Issuer at a price per share equal to $14 per share (the
"Initial Price"); provided, however, that in the event Issuer issues or agrees
to issue (other than pursuant to options and warrants to issue Common Stock or
shares of convertible stock convertible into shares of Common Stock in effect or
outstanding as of the date hereof) any shares of Common Stock at a price less
than the Initial Price (as adjusted pursuant to Section 5(b) hereof), such price
shall be equal to such lesser price (such price, as adjusted as hereinafter
provided, the "Option Price"). The number of shares of Common Stock that may be
received upon the exercise of the Option and the Option Price are subject to
adjustment as herein set forth.
(b) In the event that any additional shares of Common Stock are
issued or otherwise become outstanding after the date of this Agreement (other
than pursuant to this Agreement and the Plan and other than pursuant to an event
described in Section 5(a) hereof), the number of shares of Common Stock subject
to the Option shall be increased so that, after such issuance, such number
together with any shares of Common Stock previously issued pursuant hereto,
represents the same proportion of the number of shares of Common Stock then
issued and outstanding as such proportion before the event referred to above
(without giving effect to any shares subject or issued pursuant to the Option).
Nothing contained in this Section 1(b) or elsewhere in this Agreement shall be
deemed to authorize Issuer to issue shares in breach of any provision of the
Plan.
Section 2. Exercise of Option.
(a) Timing of Exercise, Termination. Grantee may exercise the
Option, in whole or part, at any time and from time to time following the
occurrence of a Purchase Event (as defined below); provided that the Option
shall terminate and be of no further force and effect upon the earliest to occur
of (i) the time immediately prior to the Effective Time, (ii) 12 months after
the first occurrence of a Purchase Event, (iii) 18 months after the termination
of the Plan following the occurrence of a Preliminary Purchase Event (as defined
below), (iv) termination of the Plan in accordance with the terms thereof prior
Ex.-1.01-1
<PAGE>
to the occurrence of a Purchase Event or a Preliminary Purchase Event (other
than a termination of the Plan by Grantee pursuant to Section 7.2 thereof due to
a willful breach by Issuer of any representation, warranty or agreement
contained therein or by Grantee and Issuer pursuant to Section 7.1 thereof if
Grantee shall at that time have been entitled to terminate the Plan pursuant to
Section 7.2 thereof due to a willful breach by Issuer of any representation,
warranty or agreement contained therein) or (v) 18 months after the termination
of the Plan by Grantee pursuant to Section 7.2 thereof due to a willful breach
by Issuer of any representation, warranty or agreement contained therein or by
Grantee and Issuer pursuant to Section 7.1 thereof if Grantee shall at that time
have been entitled to terminate the Plan pursuant to Section 7.2 thereof due to
a willful breach by Issuer of any representation, warranty or agreement
contained therein. The events described in clauses (i) - (v) in the preceding
sentence are hereinafter collectively referred to as an "Exercise Termination
Event."
(b) Preliminary Purchase Event. The term "Preliminary Purchase
Event" shall mean any of the following events or transactions occurring after
the date hereof:
(i) Issuer or any of its subsidiaries (each, an "Issuer
Subsidiary"), without having received Grantee's prior written consent,
shall have entered into an agreement to engage in an Acquisition
Transaction (as defined below) with any Person (the term "Person" for
purposes of this Agreement having the meaning assigned thereto in
Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations thereunder)
other than Grantee or any of its subsidiaries (each a "Grantee Subsidiary")
or the Board of Directors of Issuer shall have recommended that the
shareholders of Issuer approve or accept any Acquisition Transaction with
any Person other than Grantee or any Grantee Subsidiary. For purposes of
this Agreement, "Acquisition Transaction" shall mean (x) a merger or
consolidation, or any similar transaction, involving Issuer or any Issuer
Subsidiary that is a significant subsidiary as defined in Rule 1-02 of
Regulation S-X by the Securities and Exchange Commission (and the term
"significant subsidiary" shall include, wherever used in this Agreement,
any bank or other financial institution subsidiary of Issuer), (y) a
purchase, lease or other acquisition of all or substantially all of the
assets of or assumption of all or substantially all the deposits of Issuer
or any Issuer Subsidiary that is a significant subsidiary, or (z) a
purchase or other acquisition (including by way of merger, consolidation,
share exchange or otherwise) of securities representing 10% or more of the
voting power of Issuer or any Issuer Subsidiary that is a significant
subsidiary, provided that the term "Acquisition Transaction" does not
include any internal merger or consolidation, transfer or lease of assets
or voting securities involving only Issuer and/or Issuer Subsidiaries;
(ii) Any Person (other than Grantee or any Grantee
Subsidiary, or any Issuer Subsidiary acting in a fiduciary capacity in
the ordinary course of business) shall have acquired Beneficial Ownership
(the term "Beneficial Ownership" for purposes of this Agreement having the
meaning assigned thereto in Section 13(d) of the Exchange Act and the rules
and regulation thereunder) or the right to acquire Beneficial Ownership, of
shares of Common Stock such that, upon the consummation of such
acquisition, such Person would have Beneficial Ownership, in the aggregate,
of 15% or more of the then outstanding shares of Common Stock;
(iii) Any Person other than Grantee or any Grantee
Subsidiary shall have made a bona fide proposal to Issuer or its
shareholders, by public announcement or written communication that is or
becomes the subject of public disclosure, to engage in an Acquisition
Transaction (including, without limitation, any situation in which any
Person other than Grantee or any Grantee Subsidiary shall have commenced
(as such term is defined in Rule 14d-2 under the Exchange Act) or shall
have filed a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to, a tender offer or exchange
Ex.-1.01-2
<PAGE>
offer to purchase any shares of Common Stock such that, upon consummation
of such offer, such Person would own or control 15% or more of the then
outstanding shares of Common Stock (such an offer being referred to herein
as a "Tender Offer" or an "Exchange Offer", respectively));
(iv) After a proposal is made by a third party to Issuer
or its shareholders to engage in an Acquisition Transaction, or such
third party states its intention to make such a proposal if the Plan
terminates and/or the Option expires, Issuer shall have willfully breached
any covenant or obligation contained in the Plan and such willful breach
would entitle Grantee to terminate the Plan (without regard to the cure
period provided for therein unless such cure is promptly effected without
jeopardizing consummation of the Merger pursuant to the terms of the Plan);
(v) The holders of Common Stock shall not have approved
the Plan by the requisite vote at the meeting of such stockholders held
for the purpose of voting on the Plan, or such meeting shall not have been
held or shall have been canceled prior to termination of the Plan, in each
case after it shall have been publicly announced that any Person (other
than Grantee or any Grantee Subsidiary) shall have (A) made, or disclosed
an intention to make, a proposal to engage in an Acquisition Transaction,
(B) commenced a Tender Offer or filed a registration statement under the
Securities Act with respect to an Exchange Offer, or (C) filed an
application (or given a notice) with, whether in draft or final form, the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") or any other governmental authority or regulatory or administrative
agency or commission (each, a "Governmental Authority"), for approval to
engage in an Acquisition Transaction;
(vi) Any Person (other than Grantee or any Grantee
Subsidiary), other than in connection with a transaction to which
Grantee has given its prior written consent, shall have filed an
application or notice with the Federal Reserve Board or other Governmental
Authority for approval to engage in an Acquisition Transaction; or
(vii) Issuer's Board of Directors shall have withdrawn
or modified (or publicly announced its intention to withdraw or
modify) in any manner adverse in any respect to Grantee its recommendation
that the stockholders of Issuer approve the transactions contemplated by
the Plan, or Issuer or any significant Issuer Subsidiary shall have
authorized, recommended, proposed (or publicly announced its intention to
authorize, recommend or propose) an agreement to engage in an Acquisition
Transaction between the Issuer or any significant Issuer Subsidiary with
any person other than Grantee or a Grantee Subsidiary.
(c) Purchase Event. The term "Purchase Event" shall mean either
of the following events or transactions occurring after the date hereof:
(i) The acquisition by any Person (other than Grantee
or any Grantee Subsidiary or any Issuer Subsidiary acting in a fiduciary
capacity in the ordinary course of business (provided that the foregoing
exception shall not apply to any Person for whom or which such Issuer
Subsidiary is acting in such fiduciary capacity)) of Beneficial Ownership
of shares of Common Stock, such that, upon the consummation of such
acquisition, such Person would have Beneficial Ownership, in the aggregate,
of 20% or more of the then outstanding shares of Common Stock; or
(ii) The occurrence of a Preliminary Purchase Event
described in Section 2(b)(i) hereof except that the percentage referred to
in clause (z) shall be 20%.
Ex.-1.01-3
<PAGE>
(d) Notice by Issuer. Issuer shall notify Grantee promptly in
writing of the occurrence of any Preliminary Purchase Event or Purchase Event;
provided, however, that the giving of such notice by Issuer shall not be a
condition to the right of Grantee to exercise the Option.
(e) Notice of Exercise. In the event that Grantee is entitled to
and wishes to exercise the Option, it shall send to Issuer a written notice (the
"Option Notice" and the date of which being hereinafter referred to as the
"Notice Date") specifying (i) the total number of shares of Common Stock it will
purchase pursuant to such exercise, (ii) the aggregate purchase price as
provided herein, and (iii) a period of time (that shall not be less than three
business days nor more than thirty business days) running from the Notice Date
(the "Closing Date") and a place at which the closing of such purchase shall
take place; provided, that, if prior notification to or approval of the Federal
Reserve Board or any other Governmental Authority is required in connection with
such purchase (each, a "Notification" or an "Approval," as the case may be), (a)
Grantee shall promptly file, or cause to be filed, the required notice or
application for approval ("Notice/Application"), (b) Grantee shall expeditiously
process, or cause to be expeditiously processed, the Notice/Application, and (c)
for the purpose of determining the Closing Date pursuant to clause (iii) of this
sentence, the period of time that otherwise would run from the Notice Date shall
instead run from the later of (x) in connection with any Notification, the date
on which any required notification periods have expired or been terminated, and
(y) in connection with any Approval, the date on which such approval has been
obtained and any requisite waiting period or periods shall have expired. For
purposes of Section 2(a) hereof, any exercise of the Option shall be deemed to
occur on the Notice Date relating thereto. On or prior to the Closing Date,
Grantee shall have the right to revoke its exercise of the Option in the event
that the transaction constituting a Purchase Event that gives rise to such right
to exercise shall not have been consummated.
(f) Payments. At the closing referred to in Section 2(e) hereof,
Grantee shall pay to Issuer the aggregate Option Price for the shares of Common
Stock specified in the Option Notice in immediately available funds by wire
transfer to a bank account designated by Issuer; provided, however, that failure
or refusal of Issuer to designate such a bank account shall not preclude Grantee
from exercising the Option.
(g) Delivery of Common Stock. At such closing, subject to any
requisite Notification and/or Approval having been made or given and being in
full force and effect, and only following payment as set forth in Section 2(e)
hereof, Issuer shall deliver to Grantee a certificate or certificates
representing the number of shares of Common Stock specified in the Option Notice
and, if the Option should be exercised in part only, a new Option evidencing the
rights of Grantee thereof to purchase the balance of the shares of Common Stock
purchasable hereunder.
(h) Common Stock Certificates. Certificates for Common Stock
delivered at a closing hereunder shall be endorsed with a restrictive legend
substantially as follows:
The transfer of the shares represented by this certificate is subject
to resale restrictions arising under the Securities Act of 1933, as
amended, and to certain provisions of an agreement between TrustCo
Bank Corp NY and Landmark Financial Corp. ("Issuer") dated as of the
____ day of February, 2000. A copy of such agreement is on file at
the principal office of Issuer and will be provided to the holder
hereof without charge upon receipt by Issuer of a written request
therefor.
It is understood and agreed that: (i) the reference to the resale restrictions
of the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if Grantee shall have delivered
to Issuer a copy of a letter from the staff of the Securities and Exchange
Commission, or an opinion of counsel, in form and substance reasonably
satisfactory to Issuer, to the effect that such legend is not required for
purposes of the Securities Act; (ii) the reference to the provisions of this
Ex.-1.01-4
<PAGE>
Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference; and (iii) the
legend shall be removed in its entirety if the conditions in the preceding
clauses (i) and (ii) are both satisfied. In addition, such certificates shall
bear any other legend as may be required by law.
(i) Holder of Record. Upon the giving by Grantee to Issuer
of an Option Notice and the tender of the applicable purchase price in
immediately available funds on the Closing Date, subject to any requisite
Notification and/or Approval having been made or given and being in full force
and effect, Grantee shall be deemed to be the holder of record of the number of
shares of Common Stock specified in the Option Notice, notwithstanding that the
stock transfer books of Issuer shall then be closed or that certificates
representing such shares of Common Stock shall not then actually be delivered to
Grantee. Issuer shall pay all expenses and any and all United States federal,
state and local taxes and other charges that may be payable in connection with
the preparation, issue and delivery of stock certificates under this Section 2
in the name of Grantee.
Section 3. Issuer's Covenants.
(a) Available Shares. Issuer agrees that it shall at all times
until the termination of this Agreement have reserved for issuance upon the
exercise of the Option that number of authorized and reserved shares of Common
Stock equal to the maximum number of shares of Common Stock at any time and from
time to time issuable hereunder, all of which shares shall, upon issuance
pursuant hereto, be duly authorized, validly issued, fully paid, nonassessable,
and delivered free and clear of all claims, liens, encumbrances and security
interests and not subject to any preemptive rights.
(b) Compliance. Issuer agrees that it shall not, by amendment of
its articles of incorporation or through reorganization, consolidation, merger,
dissolution or sale of assets, or by any other voluntary act, avoid or seek to
avoid the observance or performance of any of the covenants, stipulations or
conditions to be observed or performed hereunder by Issuer.
(c) Certain Actions, Applications and Arrangements. Issuer
shall promptly take all action as may from time to time be required (including
(i) complying with all premerger notification, reporting and waiting period
requirements specified in 15 U.S.C. sec.18a and regulations promulgated
thereunder, and (ii) in the event, under the Bank Holding Company Act of 1956,
as amended (the "B.H.C. Act"), or the Change in Bank Control Act of 1978, as
amended, or any state banking law, prior approval of or notice to the Federal
Reserve Board or to any other Governmental Authority is necessary before the
Option may be exercised, cooperating with Grantee in preparing such applications
or notices and providing such information to each such Governmental Authority as
it may require) in order to permit Grantee to exercise the Option and Issuer
duly and effectively to issue shares of Common Stock pursuant hereto, and to
protect the rights of Grantee against dilution.
Section 4. Exchange of Option. This Agreement and the Option
granted hereby are exchangeable, without expense, at the option of Grantee, upon
presentation and surrender of this Agreement at the principal office of Issuer,
for other agreements providing for Options of different denominations entitling
the holder thereof to purchase, on the same terms and subject to the same
conditions as are set forth herein, in the aggregate the same number of shares
of Common Stock purchasable hereunder. The terms "Agreement" and "Option" as
used in this Section 4 include any agreements and related options for which this
Agreement and the Option granted hereby may be exchanged. Upon receipt by Issuer
Ex.-1.01-5
<PAGE>
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Agreement, if mutilated, Issuer shall execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
Section 5. Adjustments. The number of shares of Common Stock
purchasable upon the exercise of the Option shall be subject to adjustment from
time to time as follows:
(a) In the event of any change in the Common Stock by reason
of stock dividends, split-ups, mergers, recapitalizations, combinations,
subdivisions, conversions, exchanges of shares or the like, the type and number
of shares of Common Stock purchasable upon exercise hereof shall be
appropriately adjusted and proper provision shall be made so that, in the event
that any additional shares of Common Stock are to be issued or otherwise to
become outstanding as a result of any such change (other than pursuant to an
exercise of the Option), the number of shares of Common Stock that remain
subject to the Option shall be increased so that, after such issuance and
together with shares of Common Stock previously issued pursuant to the exercise
of the Option (as adjusted on account of any of the foregoing changes in the
Common Stock), it represents the same proportion of the number of shares of
Common Stock then issued and outstanding as such proportion before the
applicable event described in this Section 5(a).
(b) Whenever the number of shares of Common Stock purchasable
upon exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which shall be equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which shall be equal to the
number of shares of Common Stock purchasable after the adjustment.
Section 6. Registration Rights.
(a) Upon the occurrence of a Purchase Event that occurs prior
to an Exercise Termination Event, Issuer shall, at the request of Grantee
(whether on its own behalf or on behalf of any subsequent holder of the Option
(or part thereof) or any holder of the shares of Common Stock issued pursuant
hereto), promptly prepare, file and keep current a registration statement under
the Securities Act covering any shares issued and issuable pursuant to the
Option and shall use its best efforts to cause such registration statement to
become effective and remain current in order to permit the sale or other
disposition of any shares of Common Stock issued upon total or partial exercise
of the Option (the "Option Shares") in accordance with any plan of disposition
requested by Grantee. Issuer shall use its best efforts to cause such
registration statement first to become effective and then to remain effective
for such period not in excess of 180 days from the day such registration
statement first becomes effective. Grantee shall have the right to demand two
such registrations at Issuer's expense. The foregoing notwithstanding, if, at
the time of any request by Grantee for registration of Option Shares as provided
above, Issuer is in the process of registration with respect to an underwritten
public offering of shares of Common Stock, and if in the good faith judgment of
the managing underwriter or managing underwriters, or, if none, the sole
Ex.-1.01-6
<PAGE>
underwriter or underwriters, of such offering, the offering or inclusion of the
Option Shares would interfere materially with the successful marketing of the
shares of Common Stock offered by Issuer, the number of Option Shares otherwise
to be covered in the registration statement contemplated hereby may be reduced;
provided, however, that after any such required reduction, the number of Option
Shares to be included in such offering for the account of Grantee shall
constitute at least 25% of the total number of shares of Common Stock held by
Grantee and Issuer covered in such registration statement; provided further,
however, that if such reduction occurs, then Issuer shall file a registration
statement for the balance as promptly as practicable thereafter as to which no
reduction shall thereafter occur. In addition, if Issuer proposes to register
its Common Stock or any other securities on a form that would permit the
registration of the Option Shares for public sale under the Securities Act
(whether proposed to be offered for sale by Issuer or any other Person) it shall
give prompt written notice to Grantee of its intention to do so, specifying the
relevant terms of such proposal, including the proposed maximum offering price
thereof. Upon the written notice of Grantee (whether on its own behalf or on
behalf of any subsequent holder of the Option (or part thereof) or any holder of
the shares of Common Stock issued pursuant hereto) delivered to Issuer within
20 business days after the giving of any such notice, which request shall
specify the number of Option Shares desired to be disposed by Grantee, Issuer
shall use its best efforts to effect, in connection with its proposed
registration, the registration under the Securities Act of the Option Shares set
forth in such request. Grantee shall provide all information reasonably
requested by Issuer for inclusion in any registration statement to be filed
hereunder. In connection with any such registration, Issuer and Grantee shall
provide each other with representations, warranties, indemnities and other
agreements customarily given in connection with such registrations. If requested
by Grantee in connection with such registration, Issuer and Grantee shall become
a party to any underwriting agreement relating to the sale of such shares, but
only to the extent of obligating themselves in respect of representations,
warranties, indemnities and other agreements customarily included in such
underwriting agreements.
(b) In the event that Grantee requests Issuer to file a
registration statement following the failure to obtain any approval required to
exercise the Option as described in Section 9 hereof, the closing of the sale or
other disposition of the Common Stock or other securities pursuant to such
registration statement shall occur substantially simultaneously with the
exercise of the Option.
(c) Except where applicable state law prohibits such payments,
Issuer shall pay all expenses (including without limitation registration fees,
qualification fees, blue sky fees and expenses (including the fees and expenses
of counsel), legal expenses, including the reasonable fees and expenses of one
counsel to the holders whose Option Shares are being registered, printing
expenses and the costs of special audits or "cold comfort" letters, expenses of
underwriters, excluding discounts and commissions but including liability
insurance if Issuer so desires or the underwriters so require, and the
reasonable fees and expenses of any necessary special experts) in connection
with each registration pursuant to this Section 6 (including the related
offerings and sales by holders of Option Shares) and all other qualifications,
notification or exemptions pursuant to this Section 6.
(d) In connection with any registration under this Section 6,
Issuer hereby indemnifies Grantee, and each officer, director and controlling
person of Grantee, and each underwriter thereof, including each person, if any,
who controls such holder or underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, losses, claims, damages and liabilities
caused by any untrue, or alleged untrue, statement contained in any registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission, or alleged omission, to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged untrue statement
that was included by Issuer in any such registration statement or prospectus or
notification or offering circular (including any amendments or supplements
thereto) in reliance upon and in conformity with, information furnished in
writing to Issuer by such indemnified party expressly for use therein, and
Issuer and each officer, director and controlling person of Issuer shall be
indemnified by such Grantee, or by such underwriter, as the case may be, for all
such expenses, losses, claims, damages and liabilities caused by any untrue, or
alleged untrue, statement, that was included by Issuer in any such registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) in reliance upon, and in conformity with,
information furnished in writing to Issuer by such holder or such underwriter,
as the case may be, expressly for such use.
Ex.-1.01-7
<PAGE>
Promptly upon receipt by a party indemnified under this Section 6(d) of
notice of the commencement of any action against such indemnified party in
respect of which indemnity or reimbursement may be sought against any
indemnifying party under this Section 6(d), such indemnified party shall notify
the indemnifying party in writing of the commencement of such action, but the
failure so to notify the indemnifying party shall not relieve it of any
liability which it may otherwise have to any indemnified party under this
Section 6(d). In case notice of commencement of any such action shall be given
to the indemnifying party as above provided, the indemnifying party shall be
entitled to participate in and, to the extent it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory
to such indemnified party. The indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be paid by the indemnified party unless (i) the
indemnifying party either agrees to pay the same, (ii) the indemnifying party
fails to assume the defense of such action with counsel reasonably satisfactory
to the indemnified party, or (iii) the indemnified party has been advised by
counsel that one or more legal defenses may be available to the indemnifying
party that may be contrary to the interests of the indemnified party. No
indemnifying party shall be liable for the fees and expenses of more than one
separate counsel for all indemnified parties or for any settlement entered into
without its consent, which consent may not be unreasonably withheld.
If the indemnification provided for in this Section 6(d) is unavailable to
a party otherwise entitled to be indemnified in respect of any expenses, losses,
claims, damages or liabilities referred to herein, then the indemnifying party,
in lieu of indemnifying such party otherwise entitled to be indemnified, shall
contribute to the amount paid or payable by such party to be indemnified as a
result of such expenses, losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of Issuer, Grantee
and the underwriters in connection with the statements or omissions which
resulted in such expenses, losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The amount paid or payable by a
party as a result of the expenses, losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim; provided, however, that in no case shall Grantee be
responsible, in the aggregate, for any amount in excess of the net offering
proceeds attributable to its Option Shares included in the offering. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Any obligation by any Grantee
to indemnify shall be several and not joint with other holders of Option Shares.
Section 7. Option Repurchase.
(a) Upon the occurrence of a Purchase Event that occurs prior to
an Exercise Termination Event, (i) at the request (the date of such request
being the "Request Date") of Grantee, delivered within 30 days of the Purchase
Event (or such later period as may be provided pursuant to Section 9 hereof),
Issuer shall repurchase the Option from Grantee at a price (the "Option
Repurchase Price") equal to the amount by which (A) the market/offer price (as
defined below) exceeds (B) the Option Price, multiplied by the number of shares
for which the Option may then be exercised, and (ii) at the request (the date of
such request being the "Request Date") of the owner of Option Shares from time
to time (the "Owner"), delivered within 30 days of a Purchase Event (or such
later period as may be provided pursuant to Section 9 hereof), Issuer shall
repurchase such number of the Option Shares from the Owner as the Owner shall
designate at a price (the "Option Share Repurchase Price") equal to the
market/offer price multiplied by the number of Option Shares so designated. The
Ex.-1.01-8
<PAGE>
term "market/offer price" shall mean the highest of (i) the price per share of
Common Stock at which a tender offer or exchange offer therefor has been made
after the date hereof and on or prior to the Request Date, (ii) the price per
share of Common Stock paid or to be paid by any third party pursuant to an
agreement with Issuer (whether by way of a merger, consolidation or otherwise),
(iii) the highest closing price for shares of Common Stock within the 90-day
period ending on the Request Date as reported on The Nasdaq Stock Market's
National Market (as reported in The Wall Street Journal or, if not reported
therein, in another mutually agreed upon authoritative source), or (iv) in the
event of a sale of all or substantially all of Issuer's assets, the sum of the
price paid in such sale for such assets and the current market value of the
remaining assets of Issuer as determined by a nationally-recognized independent
investment banking firm mutually selected by Grantee or the Owner, as the case
may be, on the one hand, and Issuer, on the other hand, divided by the number of
shares of Common Stock of Issuer outstanding at the time of such sale. In
determining the market/offer price, the value of consideration other than cash
shall be determined by a nationally-recognized independent investment banking
firm mutually selected by Grantee or Owner, as the case may be, on the one hand,
and Issuer, on the other hand, whose determination shall be conclusive and
binding on all parties.
(b) Grantee or the Owner, as the case may be, may exercise its
right to require Issuer to repurchase the Option and/or any Option Shares
pursuant to this Section 7 by surrendering for such purpose to Issuer, at its
principal office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that Grantee or
the Owner, as the case may be, elects to require Issuer to repurchase the Option
and/or the Option Shares in accordance with the provisions of this Section 7. As
immediately as practicable, and in any event within five business days after the
surrender of the Option and/or certificates representing Option Shares and the
receipt of such notice or notices relating thereto, Issuer shall deliver or
cause to be delivered to Grantee the Option Repurchase Price or to the Owner the
Option Share Repurchase Price or the portion thereof that Issuer is not then
prohibited from so delivering under applicable law and regulation or as a
consequence of administrative policy.
(c) Issuer hereby undertakes to use its best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish any repurchase contemplated by
this Section 7. Nonetheless, to the extent that Issuer is prohibited under
applicable law or regulation, or as a consequence of administrative policy, from
repurchasing the Option and/or the Option Shares in full, Issuer shall
immediately so notify Grantee and/or the Owner and thereafter deliver or cause
to be delivered, from time to time, to Grantee and/or the Owner, as appropriate,
the portion of the Option Repurchase Price and the Option Share Repurchase
Price, respectively, that it is no longer prohibited from delivering, within
five business days after the date on which Issuer is no longer so prohibited;
provided, however, that if Issuer at any time after delivery of a notice of
repurchase pursuant to Section 7(b) is prohibited under applicable law or
regulation, or as a consequence of administrative policy, from delivering to
Grantee and/or the Owner, as appropriate, the Option Repurchase Price and the
Option Share Repurchase Price, respectively, in full Grantee or Owner may revoke
its notice of repurchase of the Option or the Option Shares either in whole or
in part whereupon, in the case of a revocation in part, Issuer shall promptly
(i) deliver to Grantee and/or the Owner, as appropriate, that portion of the
Option Purchase Price or the Option Share Repurchase Price that Issuer is not
prohibited from delivering after taking into account any such revocation, and
(ii) deliver, as appropriate, either (A) to Grantee, a new Agreement evidencing
the right of Grantee to purchase that number of shares of Common Stock equal to
the number of shares of Common Stock purchasable immediately prior to the
delivery of the notice of repurchase less the number of shares of Common Stock
covered by the portion of the Option repurchased, or (B) to the Owner, a
certificate for the number of Option Shares covered by the revocation.
(d) Issuer shall not enter into any agreement with any party
(other than Grantee or a Grantee Subsidiary) for an Acquisition Transaction
unless the other party thereto assumes all the obligations of Issuer pursuant to
this Section 7 in the event that a Grantee or Owner elects, in its sole
discretion, to require such other party to perform such obligations.
Ex.-1.01-9
<PAGE>
Section 8. Substitute Option.
(a) Grant of Substitute Option. In the event that prior to an
Exercise Termination Event, Issuer shall enter into an agreement (i) to
consolidate or merge with any Person, other than Grantee or a Grantee
Subsidiary, and shall not be the continuing or surviving corporation of such
consolidation or merger, (ii) to permit any Person, other than Grantee or a
Grantee Subsidiary, to merge into Issuer and Issuer shall be the continuing or
surviving corporation, but, in connection with such merger, the then outstanding
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property or the then
outstanding shares of Common Stock shall after such merger represent less than
50% of the outstanding shares and share equivalents of the merged company, or
(iii) to sell or otherwise transfer all or substantially all of its or any
significant Issuer Subsidiary's assets to any Person, other than Grantee or a
Grantee Subsidiary, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of Grantee, of either (x) the Acquiring Corporation
(as defined below), or (y) any Person that controls the Acquiring Corporation
(the Acquiring Corporation and any such controlling Person being hereinafter
referred to as the "Substitute Option Issuer").
(b) Exercise of Substitute Option. The Substitute Option shall
be exercisable for such number of shares of the Substitute Common Stock (as is
hereinafter defined) as is equal to the market/offer price (as defined in
Section 7 hereof), multiplied by the number of shares of the Common Stock for
which the Option was theretofore exercisable, divided by the Average Price (as
is hereinafter defined). The exercise price of the Substitute Option per share
of the Substitute Common Stock (the "Substitute Purchase Price") shall then be
equal to the product of the Option Price multiplied by a fraction in which the
numerator is the number of shares of Common Stock for which the Option was
theretofore exercisable and the denominator is the number of shares for which
the Substitute Option is exercisable.
(c) Terms of Substitute Option. The Substitute Option shall
otherwise have the same terms as the Option, provided, however, that if the
terms of the Substitute Option cannot, for legal reasons, be the same as the
Option, such terms shall be as similar as possible and in no event less
advantageous to Grantee.
(d) Substitute Option Definitions. The following terms have the
meanings indicated:
(i) "Acquiring Corporation" shall mean (i) the continuing
or surviving corporation of a consolidation or merger with
Issuer (if other than Issuer), (ii) Issuer in a merger in which Issuer
is the continuing or surviving Person, and (iii) the transferee of all
or any substantial part of Issuer's assets (or the assets of any
significant Issuer Subsidiary);
(ii) "Substitute Common Stock" shall mean the common
stock issued by the Substitute Option Issuer upon exercise of the
Substitute Option; and
(iii) "Average Price" shall mean the average closing price
of a share of the Substitute Common Stock for the one year
immediately preceding the consolidation, merger or sale in question,
but in no event higher than the closing price of the shares of the
Substitute Common Stock on the day preceding such consolidation,
merger or sale; provided, however, that if such closing price is not
ascertainable due to an absence of a public market for the Substitute
Ex.-1.01-10
<PAGE>
Common Stock, "Average Price" shall mean the higher of (i) the price
per share of Substitute Common Stock paid or to be paid by any third
party pursuant to an agreement with the issuer of the Substitute
Common Stock and (ii) the book value per share, calculated in
accordance with generally accepted accounting principles, of the
Substitute Common Stock immediately prior to exercise of the
Substitute Option; provided, further, that if Issuer is the issuer of
the Substitute Option, the Average Price shall be computed with
respect to a share of common stock issued by Issuer, the Person
merging into Issuer or by any company which controls or is controlled
by such merging Person, as Grantee may elect.
(e) Cap on Substitute Option. In no event, pursuant to any
of the foregoing paragraphs, shall the Substitute Option be exercisable for more
than that proportion of the outstanding Substitute Common Stock equal to the
proportion of the outstanding Common Stock of Issuer which Grantee had the right
to acquire immediately prior to the issuance of the Substitute Option. In the
event that the Substitute Option would be exercisable for more than the
proportion of the outstanding Substitute Common Stock referred to in the
immediately preceding paragraph but for this clause (e), the Substitute Option
Issuer shall make a cash payment to Grantee equal to the excess of (i) the value
of the Substitute Option without giving effect to the limitation in this
clause (e) over (ii) the value of the Substitute Option after giving effect to
the limitation in this clause (e). This difference in value shall be determined
by a nationally recognized investment banking firm mutually selected by Grantee,
on the one hand, and Issuer, on the other hand.
Section 9. Extension of Exercise Right. Notwithstanding Section 2,
Section 6, Section 7 and Section 11 hereof, if Grantee has given the notice
referred to in one or more of such Sections, the exercise of the rights
specified in any such Section shall be extended (a) if the exercise of such
rights requires obtaining regulatory approvals (including any required waiting
periods) to the extent necessary to obtain all regulatory approvals for the
exercise of such rights, and (b) to the extent necessary to avoid liability
under Section 16(b) of the Exchange Act by reason of such exercise; provided,
however, that in no event shall any closing date occur more than 6 months after
the related Notice Date, and, if the closing date shall not have occurred within
such period due to the failure to obtain any required approval by the Federal
Reserve Board or any other Governmental Authority despite the best efforts of
Issuer or the Substitute Option Issuer, as the case may be, to obtain such
approvals, the exercise of the Option shall be deemed to have been rescinded as
of the related Notice Date. In the event (a) Grantee receives official notice
that an approval of the Federal Reserve Board or any other Governmental
Authority required for the purchase and sale of the Option Shares shall not be
issued or granted, or (b) a closing date has not occurred within 6 months after
the related Notice Date due to the failure to obtain any such required approval,
Grantee shall be entitled to exercise the Option in connection with the resale
of the Option Shares pursuant to a registration statement as provided in Section
6.
Section 10. Issuer's Representations and Warranties. Issuer hereby
represents and warrants to Grantee as follows:
(a) Corporate Authority. Issuer has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of Issuer and no other corporate
proceedings on the part of Issuer are necessary to authorize this Agreement or
to consummate the transactions so contemplated. This Agreement has been duly
executed and delivered by Issuer.
(b) Availability of Shares. Issuer has taken all necessary
corporate action to authorize and reserve and to permit it to issue, and at all
times from the date hereof through the termination of this Agreement in
accordance with its terms shall have reserved for issuance upon the exercise of
the Option, that number of shares of Common Stock equal to the maximum number of
shares of Common Stock at any time and from time to time issuable hereunder, and
Ex.-1.01-11
<PAGE>
all such shares, upon issuance pursuant hereto, shall be duly authorized,
validly issued, fully paid, non-assessable, and shall be delivered free and
clear of all claims, liens, encumbrances and security interests and not subject
to any preemptive rights.
(c) No Violations. The execution, delivery and performance of
this Agreement does not or shall not, and the consummation by Issuer of any of
the transactions contemplated hereby shall not, constitute or result in (A) a
breach or violation of, or a default under, its articles of incorporation or
by-laws, or the comparable governing instruments of any of the Issuer
Subsidiaries, or (B) a breach or violation of, or a default under, any
agreement, lease, contract, note, mortgage, indenture, arrangement or other
obligation of it or any of the Issuer Subsidiaries (with or without the giving
of notice, the lapse of time or both) or under any law, rule, ordinance or
regulation or judgment, decree, order, award or governmental or non-governmental
permit or license to which it or any of the Issuer Subsidiaries is subject, that
would, in any case give any other person the ability to prevent or enjoin
Issuer's performance under this Agreement in any material respect.
Section 11. Assignment. Neither of the parties hereto may assign
any of its rights or delegate any of its obligations under this Agreement or the
Option created hereunder to any other Person without the express written consent
of the other party, except that Grantee may assign this Agreement to a wholly
owned subsidiary of Grantee and Grantee may assign its rights hereunder in whole
or in part after the occurrence of a Preliminary Purchase Event; provided,
however, that until the date at which the Federal Reserve Board has approved an
application by Grantee under the B.H.C. Act to acquire the shares of Common
Stock subject to the Option, other than to a wholly owned subsidiary of Grantee,
Grantee may not assign its rights under the Option except in (i) a widely
dispersed public distribution, (ii) a private placement in which no one party
acquires the right to purchase in excess of 2% of the voting shares of Issuer,
(iii) an assignment to a single party (e.g., a broker or investment banker) for
the purpose of conducting a widely dispersed public distribution on Grantee's
behalf, or (iv) any other manner approved by the Federal Reserve Board. The term
"Grantee," as used in this Agreement, shall also be deemed to refer to Grantee's
permitted assigns. Any attempted assignment prohibited by this Section 11 is
void and without effect.
Section 12. Filings and Consents. Each of Grantee and Issuer shall
use its reasonable efforts to make all filings with, and to obtain consents of,
all third parties and Governmental Authorities necessary to the consummation of
the transactions contemplated by this Agreement, including, without limitation,
making application if necessary, for listing of the shares of Common Stock
issuable hereunder on any exchange or quotation system and applying to the
Federal Reserve Board under the B.H.C. Act and to state banking authorities for
approval to acquire the shares issuable hereunder.
Section 13. Remedies. The parties hereto acknowledge that damages
would be an inadequate remedy for a breach of this Agreement by either party
hereto and that the obligations of the parties shall hereto be enforceable by
either party hereto through injunctive or other equitable relief. Both parties
further agree to waive any requirement for the securing or posting of any bond
in connection with the obtaining of any such equitable relief and that this
provision is without prejudice to any other rights that the parties hereto may
have for any failure to perform this Agreement.
Section 14. Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court or a federal or
state regulatory agency of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions and covenants and
restrictions contained in this Agreement shall remain in full force and effect,
and shall in no way be affected, impaired or invalidated.
Section 15. Notices. All notices, requests, claims, demands and
other communications hereunder shall be deemed to have been duly given when
Ex.-1.01-12
<PAGE>
delivered in Person, by cable, telegram, telecopy or telex, or by registered or
certified mail (postage prepaid, return receipt requested) at the respective
addresses of the parties set forth in the Plan.
Section 16. shall be deemed to be an original, but all of which
shall constitute one and the same agreement and shall be effective at the time
of execution.
Section 17. Expenses. Except as otherwise expressly provided herein,
each of the parties hereto shall bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
Section 18. Entire Agreement. Except as otherwise expressly
provided herein or in the Plan, this Agreement contains the entire agreement
between the parties with respect to the transactions contemplated hereunder and
supersedes all prior arrangements or understandings with respect thereof,
written or oral. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors except as assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein.
Section 19. Definitions. Capitalized terms used in this Agreement
and not defined herein but defined in the Plan shall have the meanings assigned
thereto in the Plan.
Section 20. Effect on Plan. Nothing contained in this Agreement
shall be deemed to authorize Issuer or Grantee to breach any provision of the
Plan.
Section 21. Selections. In the event that any selection or
determination is to be made by Grantee hereunder and at the time of such
selection or determination there is more than one Grantee, such selection shall
be made by a majority in interest of such Grantees.
Section 22. Further Assurances. In the event of any exercise of the
option by Grantee, Issuer and such Grantee shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
Section 23. Voting. Except to the extent Grantee exercises the
Option, Grantee shall have no rights to vote or receive dividends or have any
other rights as a shareholder with respect to shares of Common Stock covered
hereby.
Section 24. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Ex.-1.01-13
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Stock Option
Agreement to be executed on its behalf by their officers thereunto duly
authorized, all as of the date first above written.
LANDMARK FINANCIAL CORP.
By /s/ Gordon E. Coleman
Gordon E. Coleman
President and Chief Executive Officer
TRUSTCO BANK CORP NY
By /s/ Robert A. McCormick
Robert A. McCormick
President and Chief Executive Officer
Ex.-1.01-14
<PAGE>
EXHIBIT 1.10(a)
LANDMARK'S LEGAL OPINION MATTERS
1. The due incorporation, valid existence and good standing
of Landmark under the laws of the State of Delaware, its power and authority to
own and operate its properties and to carry on its business as now conducted,
and its power and authority to enter into the Agreement, to merge with TrustCo
in accordance with the terms of the Agreement and to consummate the transactions
contemplated by the Agreement.
2. The due incorporation or organization, valid existence and
good standing of the Subsidiary Bank and its power and authority to own and
operate its properties.
3. The due and proper performance of all corporate acts and
other proceedings necessary or required to be taken by Landmark to authorize the
execution, delivery and performance of the Agreement, the due execution and
delivery of the Agreement by Landmark, and the Agreement as a valid and binding
obligation of Landmark, enforceable against Landmark in accordance with its
terms (subject to the provisions of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally from time to time in effect, and
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion).
4. The execution of the Agreement by Landmark, and the
consummation of the Merger and the other transactions contemplated therein, does
not violate or cause a default under Landmark's Certificate of Incorporation or
Bylaws, or any statute, regulation or rule or, to their knowledge, any judgment,
order or decree against Landmark or its subsidiaries, or any material agreement
binding upon Landmark or its subsidiaries.
5. The receipt of all required consents, approvals (including
the requisite approval of the shareholders of Landmark), orders or
authorizations of, or registrations, declarations or filings with or notices to,
any court, administrative agency or commission or other governmental authority
or instrumentality, domestic or foreign, or any other person or entity required
to be obtained or made by Landmark or its subsidiaries in connection with the
execution and delivery of the Agreement or the consummation of the transactions
contemplated therein.
6. To the best knowledge of such counsel, the nonexistence of
any material actions, suits, proceedings, orders, investigations or claims
pending against Landmark or the Subsidiary Bank which, if adversely determined,
would have a material adverse effect upon their respective properties or assets
or the transactions contemplated by the Agreement.
Ex.-1.10(a)a-1
<PAGE>
EXHIBIT 1.10(b)
TRUSTCO'S LEGAL OPINION MATTERS
1. The due incorporation, valid existence and good standing
of TrustCo under the laws of the State of New York, its power and authority to
own and operate its properties and to carry on its business as presently
conducted and its power and authority to enter into the Agreement and to
consummate the transactions contemplated thereby. The due incorporation, valid
existence and good standing of AcquisitionCo under the laws of the State of
Delaware, its power and authority to own and operate its properties and to carry
on its business as presently conducted and its power and authority to enter into
the Agreement to merge with Landmark in accordance with the terms of the
Agreement and to consummate the transactions contemplated thereby.
2. The due and proper performance of all corporate acts and
other proceedings required to be taken by TrustCo and AcquisitionCo to authorize
the execution, delivery and performance of the Agreement, their respective due
execution and delivery of the Agreement, and the Agreement as a valid and
binding obligation of each of TrustCo and AcquisitionCo enforceable against
TrustCo and AcquisitionCo in accordance with its terms (subject to the
provisions of bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally from time to time in
effect, and equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial discretion).
3. The execution and delivery of the Agreement by TrustCo and
AcquisitionCo and the consummation of the transactions contemplated therein, as
neither conflicting with, in breach of or in default under, resulting in the
acceleration of, creating in any party the right to accelerate, terminate,
modify or cancel, or violate, any provision of the Certificates of Incorporation
or Bylaws, as amended, of either or TrustCo or AcquisitionCo, or any statute,
regulation, rule, judgment, order or decree binding upon TrustCo or
AcquisitionCo which would be materially adverse to the business of TrustCo and
its subsidiaries taken as a whole.
4. To the best knowledge of such counsel, the receipt of all
required consents, approvals, orders or authorizations of, or registrations,
declarations or filings with or without notices to, any court, administrative
agency or commission or other governmental authority or instrumentality,
domestic or foreign, or any other person or entity required to be obtained or
made by or with respect to TrustCo and AcquisitionCo in connection with the
execution and delivery of the Agreement or the consummation of the transactions
contemplated by the Agreement.
5. To the best knowledge of such counsel, the nonexistence of
any material actions, suits, proceedings, orders, investigations or claims
pending against TrustCo, AcquisitionCo or any of their respective subsidiaries
which, if adversely determined, would have a material adverse effect upon their
respective properties or assets or the transactions contemplated by the
Agreement.
Ex.-1.10(b)-1
<PAGE>
