<PAGE>
Filed pursuant to rule 424(b)(3).
Registration No. 333-41158
OFFER TO EXCHANGE EACH OUTSTANDING SHARE OF COMMON STOCK
OF
HUDSON RIVER BANCORP, INC.
FOR
SHARES OF TRUSTCO BANK CORP NY COMMON STOCK
AND
$10.20 NET TO THE SELLER IN CASH
MADE BY
TRUSTCO BANK CORP NY
TrustCo is offering, upon the terms and subject to the conditions set
forth herein and in the related letter of transmittal, to acquire each share of
Hudson River Bancorp, Inc. common stock held by you for a combination of shares
of TrustCo common stock and cash totaling $17.00. The stock component of the
exchange consideration will consist of shares of TrustCo stock that have an
aggregate value of $6.80 for each share of Hudson common stock held by you, and
the cash component will be $10.20. Based upon the closing price of TrustCo
common stock on October 27, 2000 (the last trading day prior to the date of this
Prospectus), you would receive, upon completion of our offer, 0.618 shares of
TrustCo common stock for each of your shares of Hudson common stock.
The purpose of this offer is for TrustCo to acquire control of, and
ultimately the entire common equity interest in, Hudson. TrustCo intends, as
soon as possible after consummation of this offer, to have Hudson consummate a
merger with a wholly owned subsidiary of TrustCo in which each outstanding share
of common stock of Hudson, (except for treasury shares and shares of Hudson
stock beneficially owned directly or indirectly by TrustCo for its own account,
including those acquired pursuant to this offer) would be converted into a
number of shares of TrustCo common stock that have an aggregate value of $6.80
plus cash in the amount of $10.20 for each share of Hudson stock held by you.
We expect that if you realize a gain on the exchange, you will be taxed
on such gain up to the amount of the $10.20 per share cash component of the
consideration that you receive in exchange for your shares of Hudson common
stock but will not recognize any loss realized. In addition, we expect that you
will be taxed on any gain realized on the cash received in lieu of fractional
shares of TrustCo common stock. If we complete our offer in a manner in which
the offer does not qualify for the tax treatment described above, you may be
taxed on any gain you realize up to the full $17.00 per share exchange
consideration. See "The Offer--Material Federal Income Tax Consequences" for
a more detailed discussion of federal income tax matters.
Our obligation to exchange TrustCo common stock for Hudson common stock
is subject to the conditions listed under "THE EXCHANGE OFFER--Certain
Conditions of the Exchange Offer."
TrustCo has also offered to acquire control of, and ultimately the
entire common equity interest in, Cohoes Bancorp, Inc., by offering to exchange
$18.00 in TrustCo stock and cash for each outstanding share of Cohoes common
stock. The TrustCo common stock is listed on the Nasdaq National Market under
the symbol "TRST," the Hudson common stock is listed on the Nasdaq under the
symbol "HRBT," and the Cohoes common stock is listed on the Nasdaq under the
symbol "COHB."
<PAGE>
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NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED THE SECURITIES TO BE ISSUED UNDER THIS PROSPECTUS OR DETERMINED IF
THIS PROSPECTUS IS ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE SECURITIES TRUSTCO IS OFFERING THROUGH THIS DOCUMENT ARE NOT
SAVINGS OR DEPOSIT ACCOUNTS OR OTHER OBLIGATIONS OF ANY BANK OR SAVINGS
ASSOCIATION, AND THEY ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
-------------------------------------------------------------------------------
The Information Agent for this offer is:
Georgeson Shareholder Communications Inc.
17 State Street, 10th Floor
New York, New York 10004
Toll Free 1-800-223-2064
The date of this Prospectus is October 30, 2000
<PAGE>
TABLE OF CONTENTS
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Page
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SUMMARY TERM SHEET................................................................................................1
QUESTIONS AND ANSWERS ABOUT THE PROPOSED ACQUISITION..............................................................2
WHERE YOU CAN FIND MORE INFORMATION...............................................................................6
PROSPECTUS SUMMARY...............................................................................................10
The TrustCo Exchange Offer (Page 36)....................................................................10
Information about TrustCo and Hudson (Pages 19 and 20)..................................................10
Reasons for the TrustCo Exchange Offer (Page 34)........................................................10
Comparative Market Price Information....................................................................11
Dividend Policy of TrustCo (Page 16)....................................................................12
The Offer (Page 36).....................................................................................13
We Are Offering to Exchange a Combination of Shares of TrustCo Stock and Cash Totaling
$17.00 for Each Share of Hudson Stock..........................................................13
Our Offer is Subject to Certain Conditions.....................................................13
Our Offer is Currently Scheduled to Expire on December 15, 2000................................14
Our Offer May be Extended, Terminated or Amended...............................................14
Tendered Shares May be Withdrawn at any Time Prior to the Exchange of Such Shares..............15
We May Provide a Subsequent Offering Period....................................................15
Procedure for Tendering Shares.................................................................15
No Appraisal Rights in Connection with the Offer (Page 76)..............................................15
TrustCo Will Account for the Merger Using the "Purchase" Method (Page 53)...............................16
Forward-Looking Statements May Prove Inaccurate (Page 23)...............................................16
Offer to Acquire Cohoes (Page 35).......................................................................16
SELECTED HISTORICAL AND PRO FORMA PER SHARE DATA.................................................................16
SELECTED HISTORICAL FINANCIAL INFORMATION FOR TRUSTCO............................................................19
SELECTED HISTORICAL FINANCIAL INFORMATION FOR HUDSON.............................................................20
SELECTED HISTORICAL FINANCIAL INFORMATION FOR COHOES.............................................................21
SELECTED PRO FORMA COMBINED FINANCIAL INFORMATION................................................................23
SUMMARY OF RECENT DEVELOPMENTS...................................................................................27
RISK FACTORS.....................................................................................................29
If we do not successfully integrate TrustCo's and Hudson's operations, the anticipated benefits of
the acquisition of Hudson may not be fully realized................................................29
There is no guarantee that we will achieve our projected cost savings of approximately $15 million
on a pre-tax basis.................................................................................29
There is no guarantee that we will not suffer net revenue run-off as a result of integrating
Hudson's businesses into ours......................................................................29
There can be no assurance that the integration process will not be adversely affected if Hudson's
senior executive management or other employees are uncooperative in that process...................30
Your board of directors may delay satisfaction of certain conditions to our offer.......................30
<PAGE>
There is no guarantee that we will be successful in our attempt to merge with both Hudson and Cohoes....30
The actual value of the TrustCo common stock received by Hudson's security holders in
exchange for shares of Hudson common stock may be more than or less than $6.80
per share at the time of exchange..................................................................31
If TrustCo is able to consummate both the Hudson merger and the Cohoes merger, there
is a risk that TrustCo may encounter difficulty in maintaining its current dividend
level..............................................................................................31
If successful, the offer will result in the creation of goodwill........................................31
If successful, the offer will result in a book value per share dilution.................................32
If completion of our offer does not qualify as a reorganization under the Internal
Revenue Code, you may be taxed on the full amount of the consideration you
receive from us....................................................................................32
BACKGROUND OF THE EXCHANGE OFFER.................................................................................32
Past Contacts...........................................................................................32
Purpose of the Exchange Offer; the TrustCo-Hudson Merger................................................34
Benefits of the Transaction.............................................................................34
Offer to Acquire Cohoes.................................................................................35
THE EXCHANGE OFFER...............................................................................................36
General.................................................................................................36
Extension, Termination and Amendment....................................................................37
Exchange of Shares; Exchange Consideration..............................................................38
Cash in Lieu of Fractional Shares of TrustCo Common Stock...............................................38
Withdrawal Rights.......................................................................................38
Procedure for Tendering Shares..........................................................................39
Material Federal Income Tax Consequences................................................................41
Tax Consequences to Hudson Shareholders if the Exchange Offer and the
TrustCo-Hudson Merger Qualify as a Reorganization..............................................42
Tax Consequences to Hudson Shareholders if the Exchange Offer and the
TrustCo-Hudson Merger Do Not Qualify as a Reorganization.......................................44
Effect of Exchange Offer on Market for Shares...........................................................45
Resale of TrustCo Common Stock..........................................................................45
Certain Legal Matters...................................................................................45
General........................................................................................45
Regulatory Matters.............................................................................46
Anticipated Approvals..........................................................................47
Certain Conditions of the Exchange Offer................................................................47
Minimum Tender Condition.......................................................................47
Regulatory Approval Condition..................................................................48
Removal of Impediments Condition...............................................................48
TrustCo Stockholder Approval Condition.........................................................50
Tax Opinion....................................................................................50
Material Adverse Effect Condition..............................................................50
Termination of the Hudson-Cohoes Option Agreement..............................................51
Definitive TrustCo-Hudson Merger Agreement.....................................................52
Effective Registration Statement...............................................................52
Waiver of Conditions....................................................................................52
Fees and Expenses.......................................................................................52
Accounting Treatment....................................................................................53
Nasdaq Listing..........................................................................................53
Source of Funds.........................................................................................53
Treatment of Hudson Stock Options.......................................................................53
ii
<PAGE>
RECENT DEVELOPMENTS..............................................................................................53
Cohoes and Hudson Stockholder Meetings..................................................................54
Ambanc Tender Offer.....................................................................................54
Termination of Hudson-Cohoes Merger Agreement...........................................................54
TRUSTCO'S DIRECTORS AND EXECUTIVE OFFICERS.......................................................................54
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION...............................................................55
Unaudited Pro Forma Condensed Combined Balance Sheet at June 30, 2000...................................56
TrustCo and Hudson Combined....................................................................56
TrustCo and Cohoes Combined....................................................................57
TrustCo, Hudson and Cohoes Combined............................................................58
Unaudited Pro Forma Condensed Combined Statements of Income for the 12 Months
Ended December 31, 1999..............................................................................59
TrustCo and Hudson Combined....................................................................59
TrustCo and Cohoes Combined....................................................................60
TrustCo, Hudson and Cohoes Combined............................................................61
Unaudited Pro Forma Condensed Combined Statements of Income for the Six Months
Ended June 30, 2000..................................................................................62
TrustCo and Hudson Combined....................................................................62
TrustCo and Cohoes Combined....................................................................63
TrustCo, Hudson and Cohoes Combined............................................................64
Summary of Purchase Accounting Adjustments..............................................................65
DESCRIPTION OF TRUSTCO'S CAPITAL STOCK...........................................................................71
General.................................................................................................71
Common Stock............................................................................................71
Voting Rights..................................................................................71
Dividend Rights................................................................................71
Liquidation Rights.............................................................................71
Other Characteristics..........................................................................71
Transfer Agent.................................................................................71
Preferred Stock.........................................................................................72
DESCRIPTION OF HUDSON'S CAPITAL STOCK............................................................................72
General.................................................................................................72
Common Stock............................................................................................72
Preferred Stock.........................................................................................72
COMPARISON OF SHAREHOLDER RIGHTS.................................................................................72
Stockholder Vote Required for Certain Transactions......................................................73
Business Combinations..........................................................................73
Removal of Directors...........................................................................74
Amendments to Certificate of Incorporation and Bylaws..........................................74
Voting Rights..................................................................................75
Special Meeting of Stockholders; Stockholder Action by Written Consent..................................76
Dissenters' Rights......................................................................................76
Anti-Takeover Statutes and Provisions...................................................................77
Indemnification.........................................................................................78
Limitation of Liability of Directors....................................................................79
Consideration of Non-Stockholder Interests..............................................................79
LEGAL OPINION....................................................................................................80
EXPERTS..........................................................................................................80
iii
<PAGE>
APPENDIX A
APPENDIX B
</TABLE>
This document incorporates important business and financial information
about TrustCo, Hudson and Cohoes from documents filed with the SEC that have not
been included in or delivered with this document. This information is available
at the Internet web site the SEC maintains at http://www.sec.gov, as well as
from other sources. See "WHERE YOU CAN FIND MORE INFORMATION."
You also may request copies of these documents from us, without charge,
upon written or oral request to William F. Terry, Corporate Secretary, TrustCo
Bank Corp NY, 320 State Street, Schenectady, New York, 12305, (518) 377-3311.
In order to receive timely delivery of the documents, you must make
your requests no later than December 8, 2000.
iv
<PAGE>
SUMMARY TERM SHEET
Following is a summary of the most material terms of our offer.
- We will exchange all shares of Hudson common stock for shares
of TrustCo common stock and cash.
- Exchange Ratio: For each of your shares of Hudson common
stock, you will receive a combination of TrustCo stock and
cash having an aggregate value of $17.00, comprised of TrustCo
stock with a value of $6.80 and cash in the amount of
$10.20.
- Our offer is subject to several conditions, including:
(1) the tender of enough shares of Hudson stock so that,
after completion of our offer, we own at least a
majority of the outstanding shares of Hudson stock
(on a fully diluted basis);
(2) the valid termination of the stock option agreement
between Hudson and Cohoes;
(3) the execution of a definitive merger agreement
between TrustCo and Hudson and the approval thereof
by Hudson's board of directors and its shareholders;
(4) the execution of a definitive merger agreement
between TrustCo's subsidiary, Trustco Bank, N.A.,
and Hudson's subsidiary, Hudson River Bank & Trust
Company, and the approval thereof by Hudson River
Bank & Trust Company's board of directors and
shareholder;
(5) the receipt of all required regulatory approvals for
this offer and the merger of TrustCo (or its
subsidiary) and Hudson;
(6) the receipt at the time of completion of this
offer of an opinion letter that the offer and a
TrustCo-Hudson merger would be a tax-free
transaction;
(7) the effectiveness of the Registration Statement of
which this Prospectus is a part;
(8) our being satisfied that the provisions of Section
203 of the Delaware General Corporation Law and
certain anti-takeover impediments found in Hudson's
Certificate of Incorporation do not apply to or
otherwise restrict our offer and the proposed
TrustCo-Hudson merger; and
(9) if required under the rules of the Nasdaq Stock
Market, the approval by our stockholders of the
issuance of TrustCo stock in our offer for Hudson and
our offer for Cohoes.
These conditions are described in greater detail in the
Prospectus at pages 47 through 52.
- You will not receive fractional shares but will receive
additional cash instead in an amount equal to the average
closing price of one share of TrustCo stock on the Nasdaq
measured as of a 20-day period ending 5 days before the
closing of our Tender Offer multiplied by the fractional share
of TrustCo common stock that you are entitled to receive.
- Our offer will remain open until December 15, 2000, but we
have a right to extend the offering period.
- As soon as possible following the completion of our offer,
we intend to merge Hudson into a subsidiary of TrustCo and
Hudson River Bank & Trust Company with TrustCo Bank.
1
<PAGE>
QUESTIONS AND ANSWERS ABOUT THE PROPOSED ACQUISITION
Q: WHAT IS TRUSTCO PROPOSING?
A: We are proposing to acquire control of, and ultimately the entire
common equity interest in, Hudson by first offering to exchange all
outstanding shares of Hudson stock for shares of TrustCo stock and
cash. Second, we intend, as soon as possible after completion of
the offer, to merge Hudson with a wholly owned subsidiary of TrustCo.
As a result of the TrustCo-Hudson merger, each share of Hudson stock
which has not been exchanged or accepted for exchange would be
converted into the same number of shares of TrustCo stock and the same
amount of cash as is paid in the offer. We may delay completion of
this offer if the delay will allow us to complete the TrustCo-Hudson
merger within a short time after completion of the offer. We cannot,
however, provide you with any assurances that there will not be any
delays in completion of the TrustCo-Hudson merger or that we will be
able to complete the merger within a short period of time after
completion of the offer.
Q: WHAT WILL I RECEIVE IN EXCHANGE FOR MY SHARES?
A: For each share of Hudson stock validly tendered and not properly
withdrawn by you, you will receive a combination of TrustCo stock and
cash with an aggregate value of $17.00. The stock component of the
exchange consideration will consist of a number of shares of TrustCo
stock having an aggregate value of $6.80 (such number of shares to be
determined by the average closing price of the TrustCo stock on the
Nasdaq over a 20-day period ending 5 days before the closing on our
offer), and the cash component will be $10.20 net. You will not receive
any fractional shares of TrustCo stock. Instead, you will receive
additional cash in an amount equal to the average closing price of one
share of TrustCo stock on the Nasdaq over such 20-day period multiplied
by the fractional share of TrustCo stock you are entitled to receive.
Because recent market prices for TrustCo common stock exceed $6.80 per
share, you will receive a fraction of a share of TrustCo common stock
for each of your shares of Hudson common stock. Based upon the closing
price of TrustCo common stock on October 27, 2000 (the last trading
day prior to the date of this Prospectus), you would receive, upon
completion of our offer, 0.618 shares of TrustCo common stock for each
of your shares of Hudson common stock. The aggregate number of shares
of TrustCo common stock you will receive will be based upon the number
of shares of Hudson common stock you tender to TrustCo and the market
price of TrustCo common stock. For example, if you tender 100 shares of
Hudson common stock, you would receive, upon completion of our offer, a
whole number of shares of TrustCo common stock equal to approximately
$680, with cash being paid for any remaining fractional share to bring
the total value of the stock component of the exchange consideration to
exactly $680. We would also pay you, for your tender of 100 shares,
cash in the amount of $1,020.
Q: WHAT IS THE STATUS OF HUDSON'S PROPOSED MERGER WITH COHOES?
A: On August 18, 2000, Cohoes announced that its shareholders failed to
approve the proposed merger between Cohoes and Hudson; and on September
28, Cohoes and Hudson announced that they had terminated their merger
agreement.
Q: WHY SHOULD I PARTICIPATE IN YOUR OFFER?
A: The TrustCo offer is $17.00 in TrustCo stock and cash for each share of
Hudson stock. We believe that our proposed offer represents an
opportunity to enhance value for Hudson stockholders by providing,
among other things:
- a premium over the price levels at which we believe Hudson
stock would be trading in the absence of our offer (our offer
represents a 28% premium over the $13.25 per share closing
price of Hudson common stock on October 2, 2000);
2
<PAGE>
- better long-term growth prospects;
- improved cash dividends; and
- TrustCo stock, a stock which has exhibited superior
performance when compared in most respects to Hudson stock
(for example, TrustCo has realized a 23% average annual total
return for the three year period ended December 31, 1999,
although it has shown an annual total return of approximately
8% during the period from July 1998 through September
2000).
Q: HOW DO I PARTICIPATE IN YOUR OFFER?
A: To tender your shares of Hudson stock, you should do the following.
- If you hold shares in your own name, complete and sign the
enclosed letter of transmittal and return it with your share
certificate to ChaseMellon Shareholder Services, the exchange
agent for the offer, at the address specified on the back
cover page of this Prospectus before the expiration date of
the offer.
- If you hold your shares in "street name" through a broker,
instruct your broker to tender your shares before the
expiration date of the offer.
Q: WILL I CONTINUE TO RECEIVE DIVIDENDS AND HAVE VOTING RIGHTS WITH
RESPECT TO HUDSON SHARES THAT I TENDER TO YOU?
A: Yes. Until we accept your shares of Hudson stock for exchange at the
completion of our offer, you will be entitled to receive any dividends
paid on your tendered shares of Hudson stock and you will continue to
have the right to vote your tendered shares. Once we complete our offer
and exchange all shares of Hudson stock tendered by you in the offer
and not withdrawn, you will own TrustCo stock and will have all
dividend and voting rights of a TrustCo stockholder.
Q: WHEN AND HOW CAN I WITHDRAW TENDERED SHARES?
A: Shares of Hudson stock tendered in the offer may be withdrawn by you at
any time prior to the expiration date and also after December 29,
2000 and prior to the exchange of your shares for TrustCo stock.
Your withdrawal will only be effective if the exchange agent
receives a written notice of withdrawal at the address on the back
cover of this Prospectus, or by facsimile at (201) 296-4293. The
written notice must contain your name, address, social security
number, number of shares of Hudson stock to be withdrawn, the
certificate number or numbers for such shares and the name of the
registered holder of the shares, if different from the person who
tendered the shares. All signatures on the notice of withdrawal must
be guaranteed by a financial institution in accordance with the
procedures set forth in this Prospectus under "THE EXCHANGE
OFFER--Withdrawal Rights."
Q: HOW WOULD YOU GO ABOUT COMPLETING YOUR PROPOSED ACQUISITION?
A: We have taken several steps in furtherance of our offer, including the
following.
- We have commenced our offer by mailing this Prospectus and the
related letter of transmittal to Hudson stockholders.
- We will file applications with the Federal Reserve Board,
the Office of the Comptroller of Currency (the "OCC") and the
New York State Banking Department ("NYBD") to obtain the
regulatory approvals necessary to complete the offer and a
TrustCo-Hudson merger and the merger of TrustCo Bank and
Hudson River Bank & Trust Company.
3
<PAGE>
- If required by the rules of the Nasdaq Stock Market due to the
number of shares of TrustCo stock to be issued in our proposed
acquisition of Cohoes, we will, we will file with the SEC
proxy materials to be used for soliciting the approval by our
stockholders of that issuance of our shares.
Q: HOW LONG WILL IT TAKE TO COMPLETE YOUR PROPOSED OFFER?
A: We believe that the offer could close in the latter part of the
first quarter of 2001. This schedule assumes that the Hudson board of
directors promptly cooperates with us. However, the Hudson board may
try to delay our offer. By tendering your shares, you will be sending a
message to Hudson management and the Hudson board that you want Hudson
to participate in a combination with us. This schedule also assumes
that the conditions to our offer (including, for example, the need for
regulatory approvals) are satisfied in a timely manner. Due to the
potential for delays, we may be required to extend the time period
during which our offer is open and delay completion of the offer for
several months.
Q: WHAT ARE THE CONDITIONS TO YOUR OFFER?
A: Our offer is subject to several conditions, including:
- tender of enough shares of Hudson stock so that, after
completion of our offer, we own at least a majority of the
outstanding shares of Hudson stock (on a fully diluted basis);
- the valid termination of the stock option agreement between
Hudson and Cohoes;
- the execution of a definitive merger agreement between TrustCo
and Hudson and the approval thereof by Hudson's board of
directors and its shareholders;
- the execution of a definitive merger agreement
between TrustCo's subsidiary, Trustco Bank, N.A., and
Hudson's subsidiary, Hudson River Bank & Trust Company and
the approval thereof by Hudson River Bank & Trust Company's
board of directors and shareholder:
- the receipt of all required regulatory approvals for our offer
and the merger of TrustCo (or its subsidiary) and Hudson; and
Hudson River Bank & Trust Company and TrustCo Bank;
- the receipt at the time of completion of our offer of an
opinion that the offer and a TrustCo-Hudson merger would
qualify as a tax-free transaction;
- the effectiveness of the Registration Statement of which this
Prospectus is a part;
- our being satisfied that the provisions of Section 203 of the
Delaware General Corporation Law and certain anti-takeover
impediments found in Hudson's Certificate of Incorporation do
not apply to or otherwise restrict our offer and the proposed
TrustCo-Hudson merger; and
- if required under the rules of the Nasdaq Stock Market, the
approval by our stockholders of the issuance of TrustCo stock
in our offer for Hudson.
These conditions and other conditions to our offer are discussed in
this Prospectus under "THE EXCHANGE OFFER--Certain Conditions of the
Exchange Offer." The conditions must be satisfied or waived on or prior
to the expiration of our offer.
Q: WILL I BE TAXED ON THE TRUSTCO SHARES OR THE CASH THAT I RECEIVE?
A: We expect that if you realize a gain on the exchange, you will be taxed
on such gain up to the amount of the $10.20 per share cash component of
the consideration that you receive in exchange for your shares of
Hudson common stock but will not recognize any loss realized. In
addition, we expect that you will be taxed on any gain realized on the
cash received in lieu of fractional shares of TrustCo common stock.
4
<PAGE>
We have based these expected tax consequences on our conclusion that
the exchange of Hudson common stock for TrustCo common stock and cash
and the consummation of the merger of Hudson into a wholly owned
subsidiary of TrustCo qualify as a reorganization within the meaning of
the Internal Revenue Code. If these transactions do not qualify as a
reorganization, you may be taxed on any gain you realize on the
exchange up to the full $17.00 per share exchange consideration. Our
receipt of an opinion of counsel at the time we complete the exchange
offer that the offer qualifies as a reorganization is a condition to
completion of this offer, although we may waive this condition. We may
delay completion of the offer if the delay will facilitate
qualification of the offer and TrustCo-Hudson merger as a
reorganization. See "THE OFFER - Material Federal Income Tax
Consequences" for a more detailed discussion of the federal income tax
consequences of the transactions we propose.
Q: WHO CAN I CALL WITH QUESTIONS ABOUT THE OFFER?
A: You can contact our information agent, Georgeson Shareholder
Communications Inc. toll-free at 1-800-223-2064.
5
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
TrustCo and Hudson file annual, quarterly and special reports, proxy
statements and other information with the SEC under the Securities Exchange Act
of 1934, as amended (the "1934 Act"). You may read and copy this information at
the following locations of the SEC:
<TABLE>
<S> <C> <C>
Public Reference Room North East Regional Office Midwest Regional Office
450 Fifth Street, N.W. 7 World Trade Center 500 West Madison Street
Room 1024 Suite 1300 Suite 1400
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661-2511
</TABLE>
You may also obtain copies of this information by mail from the
Public Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like TrustCo
and Hudson, who file electronically with the SEC. The address of that site is
http://www.sec.gov.
We filed a Registration Statement on Form S-4 to register with the
SEC the shares of TrustCo common stock to be issued pursuant to our offer.
This Prospectus is a part of that Registration Statement. As allowed by SEC
rules, this Prospectus does not contain all the information you can find in
the Registration Statement or the exhibits to the Registration Statement. In
addition, on the day that we commence the offer we will file with the SEC a
statement on Schedule TO pursuant to rule 14d-3 under the 1934 Act to furnish
certain information about our offer. You may obtain copies of the Form S-4
or, once filed, the Schedule TO (and any amendments to those documents) in
the manner described above.
The SEC allows us to "incorporate by reference" information into
this Prospectus, which means that we can disclose important information to
you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this
Prospectus, except for any information superseded by information contained
directly in this Prospectus. This Prospectus incorporates by reference the
documents set forth below that TrustCo and Hudson have previously filed with
the SEC. These documents contain important information about TrustCo and
Hudson and their financial condition.
The following documents listed below that TrustCo, Hudson and Cohoes
have previously filed with the SEC are incorporated by reference:
<TABLE>
<CAPTION>
TRUSTCO SEC FILINGS PERIOD
<S> <C>
Annual Report on Form 10-K Year ended December 31, 1999, as filed on
March 24, 2000
Quarterly Report on Form 10-Q Quarter ended March 31, 2000, as filed on May 9,
2000
Quarter ended June 30, 2000, as filed on
August 14, 2000
The description of TrustCo common stock
set forth in TrustCo's registration
statements filed by TrustCo pursuant to
Section 12 of the 1934 Act, including
any amendment or report filed for purposes
of updating any such description.
6
<PAGE>
The portions of TrustCo's proxy Filed on May 3, 2000
statement for the annual meeting of
stockholders held on May 15, 2000 that
have been incorporated by reference in
the 1999 TrustCo Form 10-K.
Current Reports on Form 8-K Filed on:
- June 7, 2000
- May 16, 2000
- April 18, 2000
- August 15, 2000
- October 17, 2000
HUDSON SEC FILINGS PERIOD
Annual Report on Form 10-K Year ended March 31, 2000, as filed on June 20,
2000
Quarterly Report on Form 10-Q Quarter ended June 30, 2000, as filed on
August 10, 2000
The description of Hudson common Filed on May 4, 1998
stock set forth in Hudson's registration
statement on Form 8-A filed pursuant to
Section 12 of the 1934 Act, including
any amendment or report filed with the
SEC for the purpose of updating this
description.
Current Reports on Form 8-K Filed on:
- May 5, 2000
- October 6, 2000
COHOES SEC FILINGS PERIOD
Annual Report on Form 10-K Year ended June 30, 2000, as filed on
September 28, 2000
The description of Cohoes common stock Filed on November 4, 1998
set forth in Cohoes' registration
statement on Form 8-A filed pursuant to
Section 12 of the 1934 Act, including
any amendment or report filed with the
SEC for the purpose of updating this
description.
</TABLE>
7
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Current Reports on Form 8-K Filed on:
- October 4, 2000
All documents filed by TrustCo, Cohoes and Hudson pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act from the date of this Prospectus to
the date that shares of Hudson stock are accepted for exchange pursuant to our
offer (or the date that our offer is terminated) shall also be deemed to be
incorporated herein by reference.
DOCUMENTS INCORPORATED BY REFERENCE ARE AVAILABLE FROM US WITHOUT
CHARGE UPON REQUEST TO WILLIAM F. TERRY, CORPORATE SECRETARY, TRUSTCO BANK CORP
NY, 320 STATE STREET, SCHENECTADY, NEW YORK 12305, (518) 377-3311. IN ORDER TO
ENSURE TIMELY DELIVERY, ANY REQUEST SHOULD BE SUBMITTED NO LATER THAN
DECEMBER 8, 2000. IF YOU REQUEST ANY INCORPORATED DOCUMENTS FROM US, WE WILL
MAIL THEM TO YOU BY FIRST CLASS MAIL, OR ANOTHER EQUALLY PROMPT MEANS (INCLUDING
E-MAIL), WITHIN ONE BUSINESS DAY AFTER WE RECEIVE YOUR REQUEST.
Please note that, although TrustCo is incorporating by reference
certain financial statements of both Cohoes and Hudson, TrustCo is not
incorporating by reference the audit report on Hudson's financial statements.
TrustCo has used its best efforts to obtain Hudson's permission and cooperation
for the incorporation by reference of Hudson's financial statements and to
obtain the consent of Hudson's auditors for the inclusion of its report on the
financial statements. TrustCo has not, however, obtained such permission or
consent from Hudson or its auditors. Although an audit report was issued on both
Cohoes' and Hudson's annual financial statements which have been incorporated by
reference and is included in Cohoes' and Hudson's respective filings, Hudson's
auditor has not consented to the use of its report in this Registration
Statement. As a general matter, an auditor will not consent to the use in a
registration statement of its report with respect to a company if the auditor
has not reviewed the registration statement and performed certain accounting
procedures with respect to the company to determine whether the information
contained in the audit report remains true. The implication of not obtaining the
consent of Hudson's auditors is that Hudson's auditors will not have performed
procedures to ensure that no facts or changed circumstances were brought to the
attention of the auditors that would render the audit report inaccurate as of
the date it was rendered.
This Prospectus contains certain forward-looking statements concerning
the financial condition, results of operations and business of TrustCo following
the consummation of its proposed acquisition of Hudson and Cohoes, the
anticipated financial and other benefits of such proposed acquisitions and the
plans and objectives of TrustCo's management following such proposed
acquisitions, including, without limitation, statements relating to the cost
savings expected to result from the proposed acquisitions, anticipated results
of operations of the combined company following the proposed acquisitions and
projected earnings per share of the combined company following the proposed
acquisitions. Generally, the words "will," "may," "should," "continue,"
"believes," "expects," "intends," "anticipates" or similar expressions identify
forward-looking statements. These forward-looking statements involve certain
risks and uncertainties. Factors that could cause actual results to differ
materially from those contemplated by the forward-looking statements include,
among others, the following factors: (i) cost savings expected to result from
the proposed acquisitions may not be fully realized or realized within the
expected time frame; (ii) operating results following the proposed acquisitions
may be lower than expected; (iii) competitive pressure among financial services
companies may increase significantly; (iv) costs or difficulties related to the
integration of the businesses of TrustCo, Hudson and/or Cohoes may be greater
than expected; (v) adverse changes in the interest rate environment may reduce
interest margins or adversely affect asset values of the combined company; (vi)
general economic conditions, whether nationally or in the market areas in which
TrustCo, Hudson and Cohoes conduct business, may be less favorable than
expected; (vii) legislation or regulatory changes may adversely affect the
businesses in which TrustCo, Hudson and Cohoes are engaged; or (viii) adverse
changes may occur in the securities markets.
We have not authorized anyone to give any information or make any
representation about our offer that is different from, or in addition to, that
contained in this Prospectus or in any of the materials that we have
incorporated into this Prospectus. Therefore, if anyone does give you
information of this sort, you should not rely on it. If you are in a
jurisdiction where offers to exchange or sell, or solicitations of offers to
exchange or purchase, the securities offered by this document are unlawful, or
if you are a person to whom it is unlawful to direct these
8
<PAGE>
types of activities, then the offer presented in this document does not
extend to you. We are not aware, however, of any jurisdiction in which
transactions of this type would be unlawful. The information contained in
this document speaks only as of the date of this document unless the
information specifically indicates that another date applies.
9
<PAGE>
PROSPECTUS SUMMARY
THIS BRIEF SUMMARY DOES NOT CONTAIN ALL OF THE INFORMATION THAT SHOULD
BE IMPORTANT TO YOU. YOU SHOULD CAREFULLY READ THIS ENTIRE DOCUMENT AND THE
OTHER DOCUMENTS TO WHICH THIS DOCUMENT REFERS YOU TO FULLY UNDERSTAND THE OFFER.
SEE "WHERE YOU CAN FIND MORE INFORMATION."
THE TRUSTCO EXCHANGE OFFER (PAGE 36)
We are proposing a business combination of TrustCo and Hudson. For each
share of Hudson stock tendered and not withdrawn by you, we are offering to
exchange a combination of shares of TrustCo common stock and cash totaling
$17.00. More specifically, you would receive, for each of your Hudson shares,
TrustCo common stock having a market value of $6.80 (the number of shares to be
determined by the average closing price of TrustCo stock on the Nasdaq over a
20-day period ending 5 days before the closing on our offer) and $10.20 net in
cash. We intend, as soon as possible after completion of the offer, to merge
Hudson with a wholly owned subsidiary of TrustCo. Each share of Hudson stock
that has not been exchanged or accepted for exchange in the offer would be
converted into the same number of shares of TrustCo stock as is paid in the
offer. We may delay completion of this offer if the delay will allow us to
complete the TrustCo-Hudson merger. We cannot, however, provide any assurances
that we will be able to complete the TrustCo-Hudson merger within a short period
of time after completion of our exchange offer.
INFORMATION ABOUT TRUSTCO AND HUDSON (PAGES 19 AND 20)
TRUSTCO BANK CORP NY, 320 State Street, Schenectady, New York 12305
(518) 377-3311.
TrustCo is a New York corporation and a bank holding company registered
under the Bank Holding Company Act of 1956, headquartered in Schenectady, New
York. TrustCo provides a full range of financial and fiduciary services through
its subsidiaries, Trustco Bank, National Association and Trustco Savings Bank,
which have 54 banking offices in the upstate New York area. As of June 30, 2000,
TrustCo had, on a consolidated basis, total assets of approximately $2.4
billion, total deposits of approximately $2.0 billion and total shareholders'
equity of approximately $176.1 million. On February 21, 2000, TrustCo
entered into an agreement to acquire Landmark Financial Corp., Canajoharie, New
York, for $21.00 per share, cash. This transaction was completed on July 28,
2000. As of June 30, 2000, Landmark had, on a consolidated basis, total assets
of approximately $25.4 million, total deposits of approximately $21.9 million
and total shareholders' equity of approximately $1.9 million.
HUDSON RIVER BANCORP, INC. One Hudson City Centre, Hudson, New York 12534
(518) 828-4600
Hudson is a savings and loan holding company whose primary subsidiary
is Hudson River Bank & Trust Company, a New York-chartered savings bank that
operates 17 banking offices throughout New York's Capital Region. At June 30,
2000, Hudson had, on a consolidated basis, total assets of approximately $1.2
billion, total deposits of approximately $745.0 million and total
shareholders' equity of approximately $200.1 million.
REASONS FOR THE TRUSTCO EXCHANGE OFFER (PAGE 34)
We believe that our acquisition of Hudson represents an opportunity to
enhance value for both Hudson and TrustCo stockholders. Among the benefits that
we believe Hudson stockholders would obtain from the combination of TrustCo and
Hudson are the following:
- PREMIUM TO CURRENT VALUE. Our offer represents a premium over
the market price of Hudson common. The following table shows
the amount of the premium our offer would have represented
over the closing price of Hudson common on June 23, 2000 (the
last trading day prior to our announcement of our initial
offer for Hudson), August 18, 2000 (the date Cohoes announced
its shareholders had failed to approve the Hudson-Cohoes
merger) and October 2, 2000 (the last trading day prior to
announcement of our revised offer).
10
<PAGE>
<TABLE>
<CAPTION>
Premium
-------------------------
Closing Price of
Date Hudson Common Stock Amount Percentage
---- ------------------- ------ ----------
<S> <C> <C> <C>
June 23, 2000 $10.375 $6.63 64%
August 18, 2000 11.500 5.50 48
October 2, 2000 13.25 3.75 28
</TABLE>
- BETTER LONG-TERM GROWTH PROSPECTS. We believe that a
combination of TrustCo and Hudson has better long-term growth
prospects than Hudson individually, potentially
resulting in increased shareholder value over the long-term.
- IMPROVED CASH DIVIDENDS. We anticipate that Hudson
shareholders' pro forma dividends will exceed the Hudson
current annual dividend rate. The following table shows the
pro forma dividend that we would anticipate paying to Hudson
shareholders and the amount of the increase in that dividend
over Hudson's current annual dividend rate assuming an
exchange ratio based upon the closing price of TrustCo common
on June 23, 2000, August 18, 2000 and October 2, 2000.
TrustCo's current annualized dividend is $0.60 per share, and
Hudson's current annualized dividend is $0.20 per share.
Because the actual number of shares of TrustCo common stock
that Hudson's stockholders will receive is not yet fixed, the
estimated amount of cash dividends Hudson's stockholders will
receive will fluctuate with the value of TrustCo common stock.
<TABLE>
<CAPTION>
TrustCo Proposal
Closing Price of Exchange Pro Forma Equivalent Dividend
Date Trustco Common Stock Ratio Per Hudson Share
---- -------------------- -------- ------------------------------
<S> <C> <C> <C>
June 23, 2000 $10.875 0.625 $0.38
August 18, 2000 12.000 0.567 0.34
October 2, 2000 12.125 0.561 0.34
</TABLE>
- SUPERIOR PERFORMANCE. Based on past performance of TrustCo
stock (for example, TrustCo has realized more than a 23%
average annual total return for each of the three-year,
five-year and seven-year periods ended December 31, 1999), we
believe that Hudson stockholders will realize superior
performance over Hudson's common stock. It should be noted,
however, that each specific aspect of the performance of
TrustCo's common stock may not, in all cases, be superior to
that of Hudson's common stock.
COMPARATIVE MARKET PRICE INFORMATION
TrustCo, Hudson and Cohoes common stock trade on the Nasdaq under the
symbols "TRST", "HRBT" and "COHB", respectively.
The following table lists the closing prices on the Nasdaq of the stock
of TrustCo and Hudson, the value of the TrustCo offer per share of Hudson stock,
and the estimated number of whole shares of TrustCo stock to be exchanged for
each share of Hudson stock on June 23, 2000, the last trading day before we
announced our initial offer to acquire Hudson, and on October 2, 2000, the
last trading day prior to announcement of our revised offer. Because the
value of the TrustCo stock you will receive per share of Hudson stock is fixed
at $6.80, the number of shares of TrustCo stock you will receive will fluctuate
as the market price of TrustCo stock changes. The prices set forth below do not
reflect the effect of the 15% stock split declared by TrustCo's board of
directors on August 15, 2000, which is payable on November 13, 2000.
11
<PAGE>
<TABLE>
<CAPTION>
Value of Estimated
Hudson Number If you own 100
Common of Shares shares of Hudson,
Stock of TrustCo you receive the
Under Common following number
TrustCo Stock To of shares OF
Trustco Hudson Offer Be Received Trustco
------- ------ ------- ----------- -----------------
<S> <C> <C> <C> <C> <C>
June 23, 2000 $10.875 $10.375 $6.80 0.625 62
August 18, 2000 12.00 11.50 6.80 0.567 57
October 2, 2000 12.125 13.25 6.80 0.561 56
</TABLE>
Based upon the $11.00 closing price of TrustCo common stock on
October 27, 2000 (the last trading day prior to the date of this
Prospectus), Hudson stockholders would receive, upon completion of the
TrustCo offer, 0.618 shares of TrustCo common stock for each of shares of
Hudson common stock held by them.
The table below sets forth the high and low last sale prices for
TrustCo's, and Hudson's common stock for the periods indicated, as reported on
Nasdaq. TrustCo's fiscal year ends December 31 and Hudson's fiscal year ends
March 31. The prices set forth below do not reflect the effect of the 15% stock
split declared by TrustCo's board of directors on August 15, 2000, which is
payable on November 13, 2000.
<TABLE>
<CAPTION>
Trustco Common Hudson Common*
--------------- ----------------
Year Quarter Ended High Low High Low
---- ------------- ---- --- ---- ---
<S> <C> <C> <C> <C> <C>
1998 March 31 $12.88 $10.60 -- --
June 30 12.99 11.20 -- --
September 30 13.59 10.82 $13.75 $9.38
December 31 15.00 11.41 11.75 8.75
1999 March 31 15.00 12.47 12.00 10.06
June 30 14.50 12.50 11.75 9.88
September 30 15.28 12.22 12.13 10.75
December 31 15.44 12.75 11.25 9.75
2000 March 31 13.75 10.25 10.56 9.50
June 30 12.75 10.63 12.06 9.13
September 30 13.06 11.13 13.38 10.63
December 31** 11.11 10.38 15.00 13.25
(through October 27,
2000)
</TABLE>
* Hudson stock started trading in July 1998.
** TrustCo stock prices for this period have been adjusted for 15%
stock split payable November 13, 2000 to shareholders of record on
October 20, 2000.
You can obtain current stock price quotations for TrustCo and Hudson
from a newspaper, on the Internet or by calling your broker.
DIVIDEND POLICY OF TRUSTCO (PAGE 16)
The holders of TrustCo stock receive dividends if and when declared by
the TrustCo board of directors out of legally available funds. Our past
practice, as discussed on pages 33 and 34, has been to pay dividends at a rate
of 65% to 85% of operating earnings. For each of the past two fiscal quarters,
we have paid a quarterly cash dividend of $0.15 per share, and, on August 15,
2000, TrustCo's board of directors declared a quarterly dividend of $0.15 per
share, payable October 2, 2000 to shareholders of record on September 8, 2000.
Also on August 15, 2000, TrustCo's board approved a 15% stock split, with the
additional shares of TrustCo common stock to be payable on November 13, 2000 to
shareholders of record on October 20, 2000. Following completion of the offer
and a TrustCo-Hudson merger, we expect to continue paying quarterly cash
dividends on a basis consistent with our past practice. However, the declaration
and payment of dividends will depend upon business conditions,
12
<PAGE>
operating results, capital and reserve requirements and consideration of
other relevant factors. No assurance can be given that we will continue to
pay dividends on our stock in the future.
THE OFFER (PAGE 36)
WE ARE OFFERING TO EXCHANGE A COMBINATION OF SHARES OF TRUSTCO STOCK
AND CASH TOTALING $17.00 FOR EACH SHARE OF HUDSON STOCK
We are offering, upon the terms and subject to the conditions set forth
in this Prospectus and in the letter of transmittal, to exchange a combination
of shares of TrustCo stock and cash totaling $17.00 for each outstanding share
of Hudson stock that is validly tendered on or before the expiration date and
not properly withdrawn. The stock component of the exchange consideration will
consist of TrustCo stock an aggregate value of $6.80, and the cash component
will be $10.20. The term "expiration date" means 12:00 midnight, New York time,
on December 15, 2000, unless we extend the period of time for which this
offer is open, in which case the term "expiration date" means the latest time
and date on which the offer, as so extended, expires. We are not making any
assurance that we will exercise our right to extend our offer, although we
currently intend to do so until all conditions have been satisfied or waived.
The following table shows the number of shares of TrustCo stock we will
pay to Hudson stockholders in exchange for each share of Hudson stock assuming
various average closing prices of TrustCo stock. The actual number of shares of
TrustCo stock that Hudson stockholders will receive will be based upon the
average closing price of the TrustCo stock on the Nasdaq over a 20-day period
ending 5 days before the closing on our offer.
<TABLE>
<CAPTION>
AVERAGE CLOSING PRICE NUMBER OF
OF TRUSTCO STOCK OFFER PRICE CASH TRUSTCO SHARES
---------------------- ----------- ----- ---------------
<S> <C> <C> <C>
$15.00 $17.00 $10.20 0.453
14.00 17.00 10.20 0.486
13.00 17.00 10.20 0.523
12.00 17.00 10.20 0.567
11.00 17.00 10.20 0.618
10.00 17.00 10.20 0.680
</TABLE>
If the $11.00 closing price of TrustCo stock on October 27, 2000
were the average closing price for TrustCo's offer, Hudson shareholders would
receive 0.618 shares of TrustCo stock for each of their shares of Hudson stock.
OUR OFFER IS SUBJECT TO CERTAIN CONDITIONS
Our offer to exchange shares of TrustCo stock for shares of Hudson
stock is subject to several conditions referred to under "THE EXCHANGE
OFFER--Certain Conditions of the Exchange Offer," including the following
conditions:
- tender of enough shares of Hudson stock so that, after
completion of the offer, we own at least a majority of the
shares of Hudson stock (on a fully diluted basis);
- the valid termination of the Hudson-Cohoes option agreement;
- the execution of a definitive merger agreement between TrustCo
and Hudson and the approval thereof by Hudson's board of
directors and its shareholders;
- the execution of a definitive merger agreement
between TrustCo's subsidiary, Trustco Bank, N.A., and
Hudson's subsidiary, Hudson River Bank & Trust Company and
the approval thereof by Hudson River Bank & Trust Company's
board of directors and shareholder;
- the receipt of all required regulatory approvals for this
offer and the merger of TrustCo (or its subsidiary) and Hudson
and of Trustco Bank and Hudson River Bank & Trust Company;
13
<PAGE>
- our receipt at the time of closing of this offer of an
opinion that the offer and the TrustCo-Hudson merger can be
accomplished as a tax-free transaction;
- our being satisfied that the provisions of Section 203 of the
Delaware General Corporation Law and certain anti-takeover
provisions found in Hudson's Certificate of Incorporation do
not apply to or otherwise restrict our offer and the proposed
TrustCo-Hudson merger; and
- if required under the rules of the Nasdaq Stock Market, the
approval by our stockholders of the issuance of TrustCo stock
in our offer for Hudson.
These conditions must be satisfied or waived on or prior to the
expiration of our offer.
OUR OFFER IS CURRENTLY SCHEDULED TO EXPIRE ON December 15, 2000
Our offer is currently scheduled to expire at 12:00 midnight, New York
time, on December 15, 2000. However, we currently intend to extend our offer
from time to time as necessary until all the conditions to the offer have
been satisfied or waived. See "THE EXCHANGE OFFER--Extension, Termination and
Amendment."
OUR OFFER MAY BE EXTENDED, TERMINATED OR AMENDED
We expressly reserve the right, in our sole discretion, at any time or
from time to time, to extend the period of time during which our offer remains
open, and we can do so by giving oral or written notice of such extension to the
exchange agent. If we decide to extend our offer, we will make an announcement
to that effect no later than 9:00 A.M., New York time, on the next business day
after the previously scheduled expiration date. We are not making any assurance
that we will exercise our right to extend our offer, although we currently
intend to do so until all conditions have been satisfied or waived. During any
such extension, all shares of Hudson stock previously tendered and not withdrawn
will remain subject to the offer, subject to your right to withdraw your Hudson
shares.
Subject to the SEC's applicable rules and regulations, we also reserve
the right, in our sole discretion:
- to delay our acceptance for exchange or our exchange of any
shares of Hudson stock pursuant to our offer, or to terminate
our offer and not accept for exchange or exchange any shares
of Hudson stock not previously accepted for exchange or
exchanged, upon the failure of any of the conditions of the
offer to be satisfied on or prior to the expiration date, or
upon the failure of the condition relating to regulatory
approvals to be satisfied at any time after the expiration
date regardless of whether we previously accepted for exchange
or exchanged any shares of Hudson stock; and
- to waive any condition (other than the conditions relating to
any required TrustCo stockholder approval, regulatory
approvals and the effectiveness of the Registration Statement
for the shares of TrustCo stock to be issued in our offer) or
otherwise to amend the offer in any respect, by giving oral or
written notice of such delay, termination or amendment to the
exchange agent and by making a public announcement.
We will follow any extension, termination, amendment or delay, as
promptly as practicable, with a public announcement. Subject to applicable law
(including rules 14d-4(c) and 14d-6(d) under the 1934 Act, which require that
any material change in the information published, sent or given to the
stockholders in connection with the offer be promptly sent to stockholders in a
manner reasonably designed to inform them of such change) and without limiting
the manner in which we may choose to make any public announcement, we assume no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by making a release to the Dow Jones News Service.
Upon the terms and subject to the conditions of our offer (including,
if the offer is extended or amended, the terms and conditions of any such
extension or amendment), we will accept for exchange, and will exchange,
14
<PAGE>
shares of Hudson stock validly tendered and not properly withdrawn as
promptly as practicable after the expiration date, and promptly after they
are tendered during any subsequent offering period.
TENDERED SHARES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXCHANGE OF
SUCH SHARES
Your tender of shares of Hudson stock pursuant to the offer is
irrevocable, except that shares of Hudson stock tendered pursuant to
the offer may be withdrawn at any time prior to the execution date and
also after December 29, 2000 and prior to the time that your shares
have been exchanged for TrustCo stock following completion of our
offer.
WE MAY PROVIDE A SUBSEQUENT OFFERING PERIOD
We may, although we do not currently intend to, elect to provide a
subsequent offering period of three to twenty business days after the acceptance
of shares of Hudson stock pursuant to the offer if the requirements under rule
14d-11 of the 1934 Act have been met. You will not have the right to withdraw
shares of Hudson stock that you tender in the subsequent offering period, if
any.
PROCEDURE FOR TENDERING SHARES
For you to validly tender shares of Hudson stock pursuant to our offer:
- a properly completed and duly executed letter of transmittal,
along with any required signature guarantees, or an agent's
message (which is explained below) in connection with a
book-entry transfer, and any other required documents, must be
received by the exchange agent at its address set forth on the
back cover of this Prospectus, and certificates for tendered
shares of Hudson stock must be received by the exchange agent
at such address, or those shares must be tendered pursuant to
the procedures for a book-entry tender set forth in "THE
EXCHANGE OFFER--Procedure for Tendering Shares" (and a
confirmation of receipt of such tender received), in each case
before the expiration date; or
- you must comply with the guaranteed delivery procedures set
forth in "THE EXCHANGE OFFER--procedure for Tendering Shares."
NO APPRAISAL RIGHTS IN CONNECTION WITH THE OFFER (PAGE 76)
The offer does not entitle you to appraisal rights with respect to your
shares of Hudson stock. Hudson stockholders who have not validly tendered their
shares in the offer and do not vote in favor of the proposed TrustCo-Hudson
merger will not have the right under the Delaware General Corporation Law to
dissent and demand appraisal of their shares of Hudson stock.
TRUSTCO WILL ACCOUNT FOR THE MERGER USING THE "PURCHASE" METHOD (PAGE 53)
TrustCo will account for the TrustCo-Hudson merger as a purchase for
financial reporting purposes.
FORWARD-LOOKING STATEMENTS MAY PROVE INACCURATE (PAGE 23)
This Prospectus, including information included or incorporated by
reference in this document, contains forward-looking statements with respect to
the financial condition, results of operations, plans, objectives, future
performance and business of each of TrustCo, Hudson and Cohoes, as well as
information relating to the exchange offer. Also, statements preceded by,
followed by or that include the words "will," "may," "should," "continue,"
"believes," "expects," "intends," "anticipates," or similar expressions, are
forward-looking statements. These forward-looking statements involve various
risks and uncertainties. Actual results may differ materially from those
contemplated by the forward-looking statements due to various factors.
15
<PAGE>
OFFER TO ACQUIRE COHOES (PAGE 35)
On June 8, 2000, TrustCo made an offer to acquire all of the issued and
outstanding shares of Cohoes for TrustCo stock valued at $16.00 for each Cohoes
share. TrustCo has increased its offer to purchase each Cohoes share to $18.00,
consisting of a combination TrustCo stock valued at $7.20 and $10.80 in cash.
TrustCo intends to commence an exchange offer for Cohoes on November 1, 2000.
Neither this offer nor the proposed TrustCo-Hudson merger is conditioned on the
approval or consummation of TrustCo's offer to Cohoes.
SELECTED HISTORICAL AND PRO FORMA PER SHARE DATA
(unaudited)
The following tables show book value per share as of June 30, 2000
for each of TrustCo, Hudson, Cohoes, TrustCo/Hudson combined and
TrustCo/Hudson/Cohoes combined. The per share information for TrustCo does not
reflect the effect of the 15% stock split declared by TrustCo's board of
directors on August 15, 2000, which is payable on November 13, 2000. Also shown
is historical net income per share and dividends per share information for each
of TrustCo, Hudson and Cohoes for the six months ended June 30, 2000 and
the twelve months ended December 31, 1999 and similar pro forma information for
TrustCo/Hudson combined and TrustCo/Hudson/Cohoes combined for the six
months ended June 30, 2000. Also shown, for comparative purposes, is
historical net income per share information for Hudson for the twelve months
ended March 31, 2000 and Cohoes for the twelve months ended June 30, 2000, their
most recently reported fiscal year ends.
The information concerning Hudson and Cohoes is derived from previously
filed Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and previously
released press releases. TrustCo does not make any representation with respect
to either Hudson or Cohoes amounts and has not performed any procedures to
ensure their accuracy or reasonableness.
The information shown for TrustCo has been prepared from historical
financial information from previously filed Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and previously released press releases.
The information is for illustrative purposes only. The companies would
likely have performed differently had they always been combined. The information
should not be relied on as an indication of future results that the combined
company will experience after the transaction is completed. The pro forma
results are also not necessarily indicative of the future financial position or
future operating results of the combined company. In particular, TrustCo expects
to achieve operating cost savings as a result of the Hudson and Cohoes
transactions. See "BACKGROUND OF THE EXCHANGE OFFER--Benefits of the
transaction" No adjustments have been included in the combined pro forma
operating amounts for the anticipated operating cost savings.
16
<PAGE>
<TABLE>
<CAPTION>
6 MONTHS 12 MONTHS
ENDED ENDED FISCAL
JUNE 30, 2000 DECEMBER 31, 1999 YEAR-END (1)
------------- ----------------- ------------
<S> <C> <C> <C>
NET INCOME PER COMMON SHARE:
Historical - Basic
TrustCo $ 0.39 $ 0.71 $ 0.71
Hudson 0.37 0.59 0.65
Cohoes 0.42 0.70 0.74
Pro forma combined TrustCo/Hudson 0.34 0.61
Pro forma combined TrustCo/Hudson/Cohoes 0.32 0.58
Historical - Diluted
TrustCo $ 0.38 $ 0.68 $ 0.68
Hudson 0.37 0.59 0.65
Cohoes 0.42 0.70 0.74
Pro forma combined TrustCo/Hudson 0.33 0.59
Pro forma combined TrustCo/Hudson/Cohoes 0.31 0.56
DIVIDENDS PER COMMON SHARE (4):
Historical
TrustCo $ 0.30 $ 0.56
Hudson 0.08 0.09
Cohoes 0.14 0.18
Equivalent dividends per common share
Hudson (2) $ 0.17 0.31
Cohoes (3) 0.18 $ 0.33
<CAPTION>
TANGIBLE
PER COMMON SHARE AT JUNE 30, 2000: BOOK VALUE BOOK VALUE
-------------------------------------------
<S> <C> <C>
Historical
TrustCo $ 3.30 $ 3.30
Hudson 13.07 12.33
Cohoes 15.33 15.13
Pro forma combined TrustCo/Hudson 4.52 3.42
Pro forma combined TrustCo/Hudson/Cohoes 4.97 3.39
</TABLE>
(1) For the Fiscal Year-End amount, TrustCo has a fiscal year end of December
31, 1999, Cohoes has a fiscal year end of June 30, 2000 and Hudson has a
fiscal year end of March 31, 2000.
(2) Equivalent dividends per share are calculated for Hudson by multiplying the
historical TrustCo dividends per share by the estimated transaction exchange
rate of 0.56, which is calculated by dividing the Hudson acquisition price of
$6.80 by the $12.25 market value of TrustCo stock on September 28, 2000.
(3) Equivalent dividends per share are calculated for Cohoes by multiplying the
historical TrustCo dividends per share by the estimated transaction exchange
rate of 0.59, which is calculated by dividing the Cohoes acquisition price of
$7.20 by the $12.25 market value of TrustCo stock on September 28, 2000.
(4) Because the exact exchange ratio of TrustCo stock to Hudson stock has
not yet been determined, the pro forma estimated dividend rate is subject to
fluctuation.
17
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION FOR TRUSTCO
The following is a summary of selected consolidated financial data of
TrustCo for each of the years in the five-year period ended December 31, 1999
and the six-month periods ended June 30, 2000 and 1999. This information is
derived from reports previously filed by TrustCo with the SEC. See "WHERE YOU
CAN FIND MORE INFORMATION." You should read this summary together with these
financial statements and their accompanying notes. We believe that this
financial information includes all adjustments necessary for a fair presentation
of such information. Results for the interim periods do not necessarily indicate
results that may be expected for any other interim or annual period. This
information does not reflect the effect of our acquisition of Landmark,
which we completed on July 28, 2000.
TRUSTCO BANK CORP NY
SELECTED HISTORICAL FINANCIAL INFORMATION
(UNAUDITED)
(IN THOUSANDS EXCEPT RATIOS AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
AT JUNE 30, AT DECEMBER 31,
----------------- ------------------------------------------------------------
2000 1999 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Consolidated Financial Data:
Total assets $2,367,107 $2,409,016 $2,364,022 $2,485,080 $2,372,265 $2,261,780 $2,176,185
Loans, net 1,319,680 1,269,893 1,293,989 1,268,328 1,244,821 1,190,321 1,177,822
Securities available for sale 661,478 713,174 640,830 717,410 601,899 618,670 640,206
Deposits 1,979,144 2,044,731 1,994,909 2,107,414 2,021,863 1,953,146 1,930,649
Borrowings 162,109 142,178 152,782 147,924 127,850 111,662 56,654
Shareholders' equity 176,132 176,528 166,356 185,842 178,825 162,400 160,099
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, FOR THE YEAR ENDED DECEMBER 31,
------------------ -----------------------------------------------------------
2000 1999 1999 1998 1997 1996 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Selected Operating Data:
Interest income $85,276 $83,264 $167,205 $174,050 $172,005 $166,647 $161,552
Interest expense 36,026 37,852 74,013 88,347 86,520 82,342 80,200
-------- ------ -------- -------- -------- -------- --------
Net interest income 49,250 45,412 93,192 85,703 85,485 84,305 81,352
Provision for loan losses 1,650 3,013 5,063 4,610 5,414 6,577 12,698
-------- ------- -------- --------- -------- --------- --------
Net interest income after provision 47,600 42,399 88,129 81,093 80,071 77,728 68,654
Noninterest income 6,857 9,670 15,416 22,122 17,222 10,313 14,067
Noninterest expense 23,354 23,555 45,636 48,765 46,226 42,015 44,440
-------- ------ -------- -------- -------- -------- --------
Income before income taxes 31,103 28,514 57,909 54,450 51,067 46,026 38,281
Income tax expense 10,336 9,699 19,724 19,435 18,892 17,327 12,754
--------- ----- -------- -------- -------- -------- --------
Net income $ 20,767 $ 18,815 $ 38,185 $ 35,015 $ 32,175 $ 28,699 $ 25,527
======= ======== ======== ======== ======== ======== ========
Selected Operating Ratios and Other Data:(2)
Return on average assets 1.78% 1.56% 1.58% 1.44% 1.40% 1.29% 1.23%
Return on average shareholders' equity(1) 24.30 22.47 22.52 21.47 20.23 19.05 18.03
Cash dividend payout ratio 77.19 78.62 79.16 75.97 72.34 70.38 69.55
Efficiency ratio 37.84 39.79 38.62 40.26 40.61 39.51 42.52
Net interest margin 4.50 4.01 3.82 3.81 4.02 4.07 4.18
Book value per share $3.30 $3.29 $3.11 $3.47 $3.32 $3.01 $2.98
Cash dividends per share 0.30 0.275 0.56 0.50 0.43 0.38 0.33
Basic earnings per share 0.39 0.35 0.71 0.65 0.59 0.53 0.48
Diluted earnings per share 0.38 0.34 0.68 0.63 0.58 0.52 0.47
Basic earnings per share adjusted for 15% stock
split 0.34 0.30 0.62 0.56 0.51 0.46 0.42
Diluted earnings per share adjusted for 15% stock
split 0.33 0.29 0.59 0.54 0.50 0.45 0.41
</TABLE>
--------------------------------
(1) Calculated excluding the market value adjustment on securities available for
sale.
(2) Where appropriate ratios have been presented on an annualized basis.
18
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION FOR HUDSON
The following is a summary of selected consolidated financial data of
Hudson and Hudson River Bank & Trust Company for each of the years in the
five-year period ended March 31, 2000 and the three-month periods ended June 30,
2000 and 1999. This information is derived from reports previously filed by
Hudson and Hudson River Bank & Trust Company with the SEC. See "WHERE YOU CAN
FIND MORE INFORMATION." You should read this summary together with Hudson's
financial statements and their accompanying notes. Certain Hudson financial
information has been reclassified to conform with TrustCo's financial
information. Results for the interim periods do not necessarily indicate results
that may be expected for any other interim or annual period.
HUDSON RIVER BANCORP, INC.
SELECTED HISTORICAL FINANCIAL INFORMATION
(UNAUDITED)
(DOLLARS IN THOUSANDS EXCEPT RATIOS AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
AT AND FOR THE THREE
MONTHS ENDED JUNE 30 , AT OR FOR THE YEARS ENDED MARCH 31,
---------------------- ----------------------------------------------------
2000 1999 2000 1999 1998 1997 1996
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Interest income $22,142 $16,824 $ 76,423 $ 63,526 $ 55,387 $ 52,881 $ 49,082
Interest expense 9,673 6,239 30,509 26,000 25,977 25,426 24,086
----- ----- -------- -------- -------- -------- --------
Net interest income 12,469 10,585 45,914 37,526 29,410 27,455 24,996
------ ------ -------- -------- -------- -------- --------
Provision for loan losses 1,425 1,700 6,200 7,341 8,491 3,826 1,090
Other operating income 694 592 2,588 2,418 2,845 1,825 1,635
Other operating expenses 7,580 6,301 27,788 26,612 19,030 16,187 14,199
----- ----- -------- -------- -------- -------- --------
Income before tax expenses 4,158 3,176 14,514 5,991 4,734 9,267 11,342
Tax expense 1,515 1,115 4,988 2,184 1,903 3,607 4,298
----- ----- -------- -------- -------- -------- --------
Net income $2,643 $2,061 $ 9,526 $ 3,807 $ 2,831 $ 5,660 $ 7,044
====== ====== ======== ======== ======== ======== ========
Per Share Data (1):
Basic earnings per share $0.19 $0.13 $0.65 $0.17 -- -- --
Diluted earnings per share $0.19 $0.13 0.65 0.17 -- -- --
Book value at period end,
including unallocated ESOP
shares and unvested RRP shares $13.07 12.43 12.85 12.39 -- -- --
Tangible book value per share, including
unallocated ESOP shares and
unvested RRP shares 12.33 12.25 12.11 12.21 -- -- --
Average Balances and Shares
Total assets $1,146,510 $868,415 $996,448 $809,385 $659,984 $640,867 $597,435
Earning assets 1,083,249 837,055 950,380 778,691 628,747 612,296 571,263
Loans 833,831 590,507 698,403 522,974 507,293 471,295 444,645
Securities available for sale 232,350 223,741 231,931 156,405 39,357 53,445 26,889
Securities held to maturity 8,384 19,508 14,899 47,738 71,966 83,343 92,243
Deposits 701,622 551,406 682,029 608,936 577,721 562,922 530,339
Short-term FHLB advances 138,021 38,469 65,542 2,916 3,699 4,459 745
Long-term FHLB borrowings 30,600 -- 18,386 -- -- -- --
Shareholders' equity 199,861 216,658 207,953 185,770 67,780 63,322 56,261
Shares outstanding (thousands):
Basic 13,672 15,293 14,556 16,302 -- -- --
Diluted 13,673 15,293 14,577 16,302 -- -- --
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
AT OR FOR THE THREE
MONTHS ENDED JUNE 30, AT OR FOR THE YEARS ENDED MARCH 31,
--------------------- --------------------------------------------------------------
2000 1999 2000 1999 1998 1997 1996
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Financial Ratios:
Return on average assets 0.92% 0.85% 0.96% 0.47% 0.43% 0.88% 1.18%
Return on average equity 5.30 3.83 4.58 2.05 4.18 8.94 12.52
Net interest margin 4.62 5.09 4.83 4.82 4.68 4.48 4.38
Efficiency ratio (2) 53.38 52.32 52.61 50.48 56.78 54.18 51.89
Expense ratio (2) 2.46 2.69 2.56 2.49 2.77 2.47 2.31
Equity to assets at period end 17.31 24.26 17.46 24.89 10.18 10.00 9.56
Tangible equity to tangible assets at 16.49 23.99
period end 16.62 24.62 10.10 9.96 9.50
Allowance to nonperforming loans 158.28 100.47 190.50 143.77 52.32 29.37 32.57
Allowance to loans 2.43 2.61 2.38 2.47 1.62 1.19 0.79
</TABLE>
(1) Per share data only applied to periods since Hudson's initial public
offering on July 1, 1998.
(2) Ratio does not include other real estate owned and repossessed property
expenses, net securities transactions, and goodwill and other intangibles
amortization for each period. The 1999 ratio does not include a charitable
contribution to the Hudson River Bank & Trust Company Foundation.
SELECTED HISTORICAL FINANCIAL INFORMATION FOR COHOES
The following is a summary of selected consolidated financial data of
Cohoes for each of the years in the five-year period ended June 30, 2000. This
information is derived from earnings releases and reports previously filed by
Cohoes and Cohoes Savings Bank with the SEC. See "WHERE YOU CAN FIND MORE
INFORMATION." You should read this summary together with Cohoes' financial
statements and their accompanying notes. Certain Cohoes financial information
has been reclassified to conform with TrustCo's financial information.
COHOES BANCORP, INC.
SELECTED HISTORICAL FINANCIAL INFORMATION
(UNAUDITED)
(DOLLARS IN THOUSANDS EXCEPT RATIOS AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
AT JUNE 30,
-------------------------------------------------------
2000 1999 1998 1997 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Selected Consolidated Financial Data:
Total assets $727,014 $650,470 $535,716 $491,700 $463,363
Cash and cash equivalents 12,658 11,114 14,229 16,664 8,900
Loans, net 600,413 521,005 412,759 398,530 393,970
Investment securities 55,129 54,455 45,424 25,273 25,969
Securities available for sale 32,570 44,742 48,720 35,475 20,886
Deposits 498,875 446,123 449,541 429,390 404,539
Borrowings 96,201 49,045 19,897 -- 2,116
Shareholders' equity 121,306 139,430 53,282 49,092 44,290
Real estate owned 561 724 509 1,874 421
Nonperforming loans 4,043 4,993 5,649 6,688 7,793
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
FOR THE FISCAL YEAR ENDED JUNE 30
-------------------------------------------------------
2000 1999 1998 1997 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Selected Operating Data:
Interest income $ 49,685 $43,038 $38,423 $36,285 $35,383
Interest expense 22,540 20,334 19,262 17,821 18,164
------ ------ ------ ------ ------
Net interest income 27,145 22,704 19,161 18,464 17,219
Provision for loan losses 1,600 1,235 1,400 1,325 490
------ ------ ------ ------ ------
Net interest income after provision for loan
losses 25,545 21,469 17,761 17,139 16,729
Noninterest income 2,381 2,916 2,743 2,790 2,467
Noninterest expense 18,655 20,443 13,767 12,314 11,919
------ ------ ------ ------ ------
Income before income taxes 9,271 3,942 6,737 7,615 7,277
Income tax expense 3,392 1,511 2,650 2,972 2,882
------- ------- ------- ------- -------
Net income $ 5,879 $ 2,431 $ 4,087 $ 4,643 $ 4,395
======= ====== ====== ===== =====
Selected Operating Ratios and Other Data:(2)
Performance ratios:
Yield on average interest-earning assets 7.42% 7.42% 7.96% 8.04% 7.98%
Rate paid on average interest-bearing
liabilities 4.02 4.06 4.33 4.27 4.42
Net interest rate spread 3.40 3.36 3.63 3.77 3.56
Net interest income after provision for loan
losses to noninterest expenses 136.93 105.02 129.01 139.18 140.36
Noninterest expenses as a percent of average
assets 2.69 3.40 2.75 2.62 2.59
Return on average assets 0.85 0.40 0.82 0.99 0.95
Return on average equity 4.62 2.53 7.88 9.87 10.28
Ratio of average equity to average assets 18.35 15.95 10.35 10.03 9.28
Efficiency ratio 63.18 79.79 62.85 57.94 60.55
Basic earnings per share (1) $0.74 $0.37 N/A N/A N/A
Diluted earnings per share (1) 0.74 0.37 N/A N/A N/A
Dividends per share 0.26 0.06 N/A N/A N/A
Dividend payout ratio 35.14% 16.22% N/A N/A N/A
Book value per share $15.33 $14.62 N/A N/A N/A
Weighted average shares outstanding (thousands):
Basic 7,998 8,798 N/A N/A N/A
Diluted 7,998 N/A N/A N/A N/A
Asset Quality Ratios:
Nonperforming loans as a percent of total loans 0.67% 0.95% 1.36% 1.66% 1.96%
Nonperforming assets as a percent of total assets 0.63 0.88 1.15 1.74 1.77
Allowance for loan losses as a percent of
total loans 0.83 0.77 0.85 0.77 0.82
Allowance for loan losses as a percent of
nonperforming loans 124% 81% 63% 46% 42%
</TABLE>
(1) Earnings per share for fiscal year 1999 reflects earnings since conversion.
21
<PAGE>
SELECTED PRO FORMA COMBINED FINANCIAL INFORMATION
The following tables show selected pro forma financial data for
TrustCo/Hudson combined, TrustCo/Cohoes combined and TrustCo/Hudson/Cohoes
combined.
The information concerning Hudson and Cohoes is derived from previously
filed Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and previously
released press releases. TrustCo does not make any representation with respect
to either Hudson or Cohoes amounts and has not performed any procedures to
ensure their accuracy or reasonableness.
The information shown for TrustCo has been prepared from historical
financial information from previously filed Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and previously released press releases.
The information is for illustrative purposes only. The companies would
likely have performed differently had they always been combined. The information
should not be relied on as an indication of future results that the combined
company will experience after the transaction is completed. The pro forma
results are also not necessarily indicative of the future financial position or
future operating results of the combined company. In particular, TrustCo expects
to achieve operating cost savings as a result of the Hudson and Cohoes
transactions. See "BACKGROUND OF THE EXCHANGE OFFER--Benefits of the
transaction". No adjustments have been included in the combined pro forma
operating amounts for the anticipated operating cost savings.
22
<PAGE>
The following table shows selected financial information for TrustCo and Hudson
on a pro forma combined basis:
TRUSTCO BANK CORP NY
AND
HUDSON RIVER BANCORP, INC.
PRO FORMA COMBINED SELECTED FINANCIAL DATA
(unaudited)
SUMMARY FINANCIAL INFORMATION
TRUSTCO/HUDSON COMBINED
<TABLE>
<CAPTION>
AT JUNE 30, 2000
----------------------
(in thousands, except per share information)
<S> <C>
Selected Consolidated Financial Data:
Total assets $3,428,925
Loans, net 2,142,181
Securities available for sale 827,288
Goodwill and other intangibles* 68,317
Deposits 2,724,176
Borrowings 344,533
Shareholders' equity 280,247
<CAPTION>
FOR THE SIX MONTHS FOR THE TWELVE MONTHS
Selected Operating Data: ENDED JUNE 30, 2000 ENDED DECEMBER 31, 1999
----------------------- -----------------------
<S> <C> <C>
Interest income $122,950 $228,699
Interest expense 54,668 101,571
------ -------
Net interest income 68,282 127,128
Provision for loan losses 4,575 11,263
Noninterest income 8,280 17,811
Noninterest expense 39,812 74,715
Income tax expense 11,287 21,159
------ ------
Net income $20,888 $37,802
======= =======
Net income per share:
Basic $ 0.34 $ 0.61
Diluted 0.33 0.59
Basic - Adjusted for TrustCo 15% stock split 0.29 0.53
Diluted - Adjusted for TrustCo 15% stock split 0.29 0.51
</TABLE>
*Goodwill to be amortized over 20 years using the
straight-line method.
NOTE:
The pro forma selected results of operations do not take into consideration
any potential cost savings or revenue enhancements that will likely be
realized as a result of these transactions. TrustCo currently estimates that
approximately 50% of the noninterest expense of Hudson can be eliminated
See the notes to the Unaudited Pro Forma Combined Financial Information.
23
<PAGE>
The following table shows selected financial information for TrustCo and Cohoes
on a pro forma combined basis:
TRUSTCO BANK CORP NY
AND
COHOES BANCORP, INC.
PRO FORMA COMBINED SELECTED FINANCIAL DATA
(unaudited)
SUMMARY FINANCIAL INFORMATION
TRUSTCO/COHOES COMBINED
<TABLE>
<CAPTION>
(in thousands, except per share information)
AT JUNE 30, 2000
----------------
<S> <C>
Selected Consolidated Financial Data:
Total assets $3,032,626
Loans, net 1,920,093
Securities available for sale 656,423
Goodwill and other intangibles* 26,165
Deposits 2,474,019
Borrowings 258,310
Shareholders' equity 233,098
<CAPTION>
FOR THE SIX MONTHS FOR THE TWELVE MONTHS
Selected Operating Data ENDED JUNE 30, 2000 ENDED DECEMBER 31, 1999
------------------- -----------------------
<S> <C> <C>
Interest income $107,849 $208,128
Interest expense 47,943 94,225
-------- --------
Net interest income 59,906 113,905
Provision for loan losses 2,300 6,888
--------
Noninterest income 8,506 17,281
Noninterest expense 33,746 63,458
Income tax expense 11,106 21,472
-------- --------
Net income $21,260 $ 39,366
======== ========
Net income per share:
Basic $ 0.37 $ 0.67
Diluted 0.36 0.65
Basic - Adjusted for TrustCo 15% stock split 0.32 0.59
Diluted - Adjusted for TrustCo 15% stock split 0.31 0.57
</TABLE>
*Goodwill to be amortized over 20 years using the straight-line method.
NOTE:
The pro forma selected results of operations do not take into consideration
any potential cost savings or revenue enhancements that will likely be
realized as a result of these transactions. TrustCo currently estimates that
approximately 50% of the noninterest expense of Cohoes can be eliminated.
See the notes to the Unaudited Pro Forma Combined Financial Information.
24
<PAGE>
The following table shows selected financial information for TrustCo, Hudson and
Cohoes on a pro forma combined basis:
TRUSTCO BANK CORP NY
HUDSON RIVER BANCORP, INC.
AND
COHOES BANCORP, INC.
PRO FORMA COMBINED SELECTED FINANCIAL DATA
(unaudited)
SUMMARY FINANCIAL INFORMATION
TRUSTCO/HUDSON/COHOES COMBINED
<TABLE>
<CAPTION>
(in thousands, except per share information)
AT JUNE 30, 2000
----------------
<S> <C>
Selected Consolidated Financial Data:
Total assets $4,094,444
Loans, net 2,742,594
Securities available for sale 822,233
Goodwill and other intangibles* 94,482
Deposits 3,219,051
Borrowings 440,734
Shareholders' equity 337,213
<CAPTION>
FOR THE SIX MONTHS FOR THE TWELVE MONTHS
Selected Operating Data: ENDED JUNE 30, 2000 ENDED DECEMBER 31, 1999
------------------- -------------------------
<S> <C> <C>
Interest income $145,523 $269,622
Interest expense 66,585 121,783
-------- --------
Net interest income 78,938 147,839
Provision for loan losses 5,225 13,088
Noninterest income 9,929 19,676
Noninterest expense 50,204 92,537
Income tax expense 12,057 22,907
-------- --------
Net income $ 21,381 $ 38,983
======== ========
Net income per share:
Basic $ 0.32 $ 0.58
Diluted 0.31 0.56
Basic - Adjusted for TrustCo 15% stock split 0.28 0.57
Diluted - Adjusted for TrustCo 15% stock split 0.27 0.49
</TABLE>
*Goodwill to be amortized over 20 years using the straight-line method.
NOTE:
The pro forma selected results of operations do not take into consideration
any potential cost savings or revenue enhancements that will likely be
realized as a result of these transactions. TrustCo currently estimates that
approximately 50% of the noninterest expense of Hudson and Cohoes can be
eliminated.
See the notes to the Unaudited Pro Forma Combined Financial Information.
25
<PAGE>
SUMMARY OF RECENT DEVELOPMENTS
TRUSTCO BANK CORP NY
The following is a summary of selected consolidated financial data of
TrustCo for the nine months ended September 30, 2000 and 1999. This information
is derived from unaudited consolidated financial statements. We believe that
this financial information includes all adjustments necessary for a fair
presentation of such information. Results for the interim periods do not
necessarily indicate results that may be expected for any other interim or
annual period.
<TABLE>
<CAPTION>
(UNAUDITED)
(IN THOUSANDS EXCEPT RATIOS AND PER SHARE AMOUNTS)
AT AT
SEPTEMBER 30, DECEMBER 31,
2000 1999
------------- ------------
<S> <C> <C>
Selected Consolidated Financial Data:
Total assets $2,395,659 $2,364,022
Loans, net 1,380,424 1,293,989
Securities available for sale 638,686 640,830
Deposits 1,993,313 1,994,909
Borrowings 166,454 152,782
Shareholders' equity 184,320 166,356
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
-------------------------
2000 1999
-------- --------
<S> <C> <C>
Selected Operating Data:
Interest income $129,374 $125,355
Interest expense 55,399 56,123
Net interest income 73,975 69,232
Provision for loan losses 2,560 4,013
Net interest income after provision 71,415 65,219
Noninterest income 10,824 13,568
Noninterest expense 35,101 35,055
Income before income taxes 47,138 43,732
Income tax expense 15,610 14.495
------ ------
Net income $ 31,528 $ 28,787
======== ========
Selected Operating Ratios and Other Data
Return on average assets 1.78% 1.59%
Return on average shareholders' equity(1) 24.31 22.72
Cash dividend payout ratio 76.28 77.08
Efficiency ratio 37.54 38.97
Net interest margin 4.50 4.09
Book value per share $3.45 $3.21
Cash dividends per share 0.45 0.41
Basic earnings per share 0.59 0.54
Diluted earnings per share 0.57 0.51
Basic earnings per share adjusted for
15% stock split 0.51 0.47
Diluted earnings per share adjusted for
15% stock split 0.50 0.45
</TABLE>
(1)Calculated excluding the market value adjustment on securities available
for sale.
TrustCo reported net income for the third quarter of 2000 of $10.8
million, or $0.195 diluted earnings per share, compared to $10.0 million, or
$0.178 diluted earnings per share, for the third quarter of
26
<PAGE>
1999. The third quarter results represent increases of 8% and 10% in net
income and diluted earnings per share, respectively, for 2000 compared to
1999.
Net income for the nine months ended September 30, 2000 was $31.5
million, or $0.571 diluted earnings per share, compared to $28.8 million, or
$0.514 diluted earnings per share, for the nine month period ended September 30,
1999. (The per share information does not reflect the effect of the 15% stock
split declared by TrustCo's board of directors on August 15, 2000, which is
payable on November 13, 2000.) The year to date results reflect increases of 10%
and 11% in net income and diluted earnings per share, respectively, for the nine
months ended September 30, 2000 compared to the similar period in 1999. Return
on equity was 24.3% for both the third quarter and year to date, compared to
23.2% and 22.7% for the comparable periods in 1999.
Net interest margin increased in the third quarter of 2000 to 4.50%
from 4.25% in 1999. Taxable equivalent net interest income increased by $1.1
million to $25.9 million in the third quarter of 2000, compared to $24.8 million
for the same quarter in 1999. Similarly, for the nine months ended September 30,
2000, taxable equivalent net interest income was $77.3, compared to $72.1 in
1999. The growth in margin and net interest income is the result of a plan
executed by TrustCo in 1999 to limit its dependency on high-cost deposits. As a
result, the average balance of deposits has decreased by $69.1 million for first
nine months of 2000 compared to the same period in 1999. The average balance of
deposits for the nine months ended September 30, 2000 and 1999 was $1.99 billion
and $2.06 billion, respectively.
27
<PAGE>
RISK FACTORS
In deciding whether to tender your shares of Hudson stock pursuant to
our offer, you should read carefully this Prospectus and the documents to which
we refer you. You should also carefully consider the following factors.
IF WE DO NOT SUCCESSFULLY INTEGRATE TRUSTCO'S AND HUDSON'S OPERATIONS, THE
ANTICIPATED BENEFITS OF THE ACQUISITION OF HUDSON MAY NOT BE FULLY REALIZED
If we complete the offer and our proposed merger, we will integrate two
companies that have previously operated independently. We have not previously
acquired an organization where there is the potential for management to be
uncooperative in the integration process, and we have acquired only one
organization, Trustco Savings Bank (with total assets of approximately $25.4
million), within the past nine years. There can be no assurance that we will not
encounter difficulties in our efforts to integrate the operations of Hudson with
our operations. The diversion of the attention of management to the integration
effort and any difficulties encountered in combining our operations could
adversely affect the combined company's business and results of operations.
These risks could be increased if we complete our proposed acquisition of Cohoes
in that we will integrate three companies that have previously operated
independently.
THERE IS NO GUARANTEE THAT WE WILL ACHIEVE OUR PROJECTED COST SAVINGS OF
APPROXIMATELY $15 MILLION ON A PRE-TAX BASIS
We have estimated that, by combining TrustCo and Hudson, we could
realize cost savings of approximately $15 million. See "BACKGROUND OF THE
EXCHANGE OFFER--Benefits of the Transaction." Because we have been unable to
discuss any of our cost savings assumptions or analyses with management of
Hudson and because we have had no access to Hudson's internal information about
its operations, in connection with the preparation of our cost savings
estimates, we have relied on publicly available information concerning Hudson,
our general knowledge of the markets in which we and Hudson compete and our past
experience with respect to our own operations and our integration of acquired
financial institutions. If we were permitted access to Hudson's internal
information about its operations or if we were able to discuss our assumptions
or analyses with Hudson's management, our cost savings estimate might differ. No
assurance can be given that the estimated cost savings will be achieved or will
occur in the time period anticipated. Furthermore, there can be no assurance
that cost savings which are realized will not be offset by increases in other
expenses, other charges to earnings or losses of revenue, including losses due
to problems in integrating the Hudson operations into TrustCo.
We expect to realize a significant portion of the cost savings
through merging our subsidiary, Trustco Bank, National Association, with
Hudson's subsidiary, Hudson River Bank & Trust Company, which will require
the approval of the Office of the Comptroller of Currency. We will file
applications seeking these approvals as soon as possible, and the execution
of a merger agreement and receipt of board, shareholder and regulatory
approval of this merger is a condition to completion of our offer. These
significant cost savings will not be realized unless and until we are able to
integrate these operations. While we are not able to specifically quantify
this portion of our estimated cost savings, we believe that it would
constitute a majority of our estimated cost savings.
THERE IS NO GUARANTEE THAT WE WILL NOT SUFFER NET REVENUE RUN-OFF AS A RESULT OF
INTEGRATING HUDSON'S BUSINESSES INTO OURS
In formulating our earnings estimates, we have not assumed any net
run-off of revenue attributable to our acquisition of Hudson. This assumption is
based on our prior acquisition experience where we have been able to grow net
interest income and non-interest income while achieving targeted
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cost savings. In addition, we have not made any decisions with respect to
branch closings because we do not have access to internal information of
Hudson from which we would expect to make such decisions. Accordingly, our
earnings estimates do not assume the closure of any Hudson (or TrustCo)
branches, although we would anticipate that certain branches will be closed.
We believe that any revenue reduction resulting from any branch closings
would be offset by additional cost savings associated with such branch
closings. If we were permitted access to non-public information regarding
Hudson's business plans and operations, our assumption of no net revenue
run-off might differ. Although we intend generally to integrate Hudson's
operations and implement our cost savings measures in a manner that is
designed to minimize the loss of revenues, there can be no assurance that
some revenue will not be lost. Factors that could cause a loss of revenues
include unanticipated loss of customers due to a lack of customer acceptance
of our deposit, lending and investment products.
THERE CAN BE NO ASSURANCE THAT THE INTEGRATION PROCESS WILL NOT BE ADVERSELY
AFFECTED IF HUDSON'S SENIOR EXECUTIVE MANAGEMENT OR OTHER EMPLOYEES ARE
UNCOOPERATIVE IN THAT PROCESS
As noted above, we have not previously engaged in an acquisition where
there is the potential for management and other employees to be uncooperative
with us in the integration process. Our proposal is not dependent upon the
retention of Hudson's senior executive management, and we have no reason to
believe that Hudson employees below the level of senior executive management
would be uncooperative in the integration process, either before the completion
of our proposed merger or thereafter. However, there can be no assurance that
there will not be some level of uncooperativeness on the part of Hudson's senior
executive management and/or its other employees which could adversely affect the
integration process.
YOUR BOARD OF DIRECTORS MAY DELAY SATISFACTION OF CERTAIN CONDITIONS TO OUR
OFFER
Several of the conditions to our offer will require action by the
Hudson board of directors. See "THE EXCHANGE OFFER--Certain Conditions of the
Exchange Offer." There can be no assurance that the Hudson board will take
action to cause the satisfaction of these conditions to our offer.
THERE IS NO GUARANTEE THAT WE WILL BE SUCCESSFUL IN OUR ATTEMPT TO MERGE WITH
BOTH HUDSON AND COHOES
TrustCo's separate exchange offers for each of Hudson and Cohoes are
not conditioned on the successful completion of the other. Accordingly, it is
possible that the exchange offers could result in: (i) a three-way
combination of TrustCo, Hudson and Cohoes; (ii) a combination of TrustCo and
Hudson; (iii) a combination of TrustCo and Cohoes; or (iv) neither exchange
offer could be successfully consummated. TrustCo does not anticipate,
however, that the nature of its business operations would vary materially as
a consequence of its combining with only one of, as opposed to both of,
Hudson and Cohoes. The businesses of Hudson and Cohoes are similar in that
both are community-oriented financial institutions with a primary focus on
obtaining deposit accounts from the general public and originating primarily
residential mortgage loans and, to a lesser extent, commercial and
multi-family real estate loans. The market areas of TrustCo, Hudson and
Cohoes are adjacent and complementary to one another, but, because the direct
overlap of their branch locations is not extensive, the costs savings and
efficiencies that could be anticipated to result from only a single
acquisition would not be materially different from those to be anticipated
from that acquisition even if both acquisitions were to be consummated. See
the pro forma financial information on pages 16 and 23, which reflects the
alternative possibilities for the successful completion of the respective
exchange offers described above.
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THE ACTUAL VALUE OF THE TRUSTCO COMMON STOCK RECEIVED BY HUDSON'S SECURITY
HOLDERS IN EXCHANGE FOR SHARES OF HUDSON COMMON STOCK MAY BE MORE THAN OR LESS
THAN $6.80 PER SHARE AT THE TIME OF EXCHANGE
The actual value of the TrustCo common stock received by Hudson's
security holders in exchange for shares of Hudson common stock may be more than
or less than $6.80 per share at the time of exchange. This results from the fact
that the exact number of shares of TrustCo common stock that will comprise the
stock component of the consideration offered by TrustCo in exchange for Hudson
common stock will be determined based upon the average closing price of the
TrustCo stock on the Nasdaq over a twenty-day period, with the twenty-day period
ending five days prior to the closing of the offer. It is possible that, in this
five day interim period, the closing price of TrustCo common stock may fluctuate
such that it is more or less than the foregoing average price used to calculate
the exact exchange ratio. If the value of TrustCo common stock decreases during
the five day interim period, the stock component of the exchange consideration
received by Hudson stockholders may have a value of less than $6.80 per Hudson
share and may comprise less than 40% of the total exchange consideration
received. In addition, the payment of cash in lieu of fractional shares may also
reduce the value of the stock component of the exchange consideration to less
than 40% of the total exchange consideration.
IF TRUSTCO IS ABLE TO CONSUMMATE BOTH THE HUDSON MERGER AND THE COHOES MERGER,
THERE IS A RISK THAT TRUSTCO MAY ENCOUNTER DIFFICULTY IN MAINTAINING ITS CURRENT
DIVIDEND LEVEL
Because the actual number of shares of TrustCo common stock that Hudson
stockholders will receive is not yet fixed, the estimated amount of cash
dividends Hudson stockholders will receive will fluctuate with the value of
TrustCo common stock. In the past five years, on a compounded basis, TrustCo has
achieved an 16% annual growth rate in its per share dividend. During the year
ended December 31, 1999, TrustCo paid out approximately 79% of its net income in
the form of cash dividends. Although TrustCo believes that, upon the completion
of its proposed acquisition of Hudson, it will have the resources to continue to
pay dividends consistent with its past practices, the declaration and payment of
dividends is within the discretion of TrustCo's board of directors and, to the
extent that TrustCo's board determines that the payment of such dividends may
have an adverse effect upon TrustCo's growth potential, level of customer
service or financial condition, the board may decide to reduce dividend payment
rates.
IF SUCCESSFUL, THE OFFER WILL RESULT IN THE CREATION OF GOODWILL
If TrustCo's offers to acquire Hudson and Cohoes are successful,
TrustCo will account for the acquisitions as a purchase business combination and
will record goodwill on its financial statements in an amount equal to the
difference between the fair market value of Hudson's and Cohoes assets and
liabilities and the purchase price paid by TrustCo for Hudson and Cohoes. If the
transactions had occurred on June 30, 2000, TrustCo estimates that its
acquisitions of Hudson and Cohoes would have resulted in the creation of
goodwill in the amounts of $57.0 million and $24.6 million, respectively, and
that the total amount of goodwill recorded on TrustCo's financial statements
(including the existing amounts of goodwill on Cohoes' and Hudson's financial
statements) would total $94.5 million. TrustCo will amortize the goodwill over a
period of 15 to 20 years. The amortization of the goodwill will result in
charges against TrustCo's future earnings and could result in TrustCo having
fewer resources for paying dividends to shareholders. The section of this
prospectus headed "Pro Forma Combined Financial Information" contains a more
detailed analysis of the effect of the proposed acquisitions on the operations
of the resulting company. The actual amount of goodwill created in the proposed
acquisitions will depend upon the fair market value of Hudson's and Cohoes'
assets and liabilities at the time the acquisitions are completed. There can be
no assurance that the goodwill created by the acquisitions will be greater or
less than that projected in the pro forma data.
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IF SUCCESSFUL, THE OFFER WILL RESULT IN A BOOK VALUE PER SHARE DILUTION
If successful, TrustCo's offers to acquire Hudson and Cohoes would
result in dilution of the tangible book value per share of Hudson and Cohoes
stockholders. As of June 30, 2000, the tangible book value per share of TrustCo,
Hudson and Cohoes was $3.30, $12.33 and $15.13 respectively. Upon completion
of TrustCo's proposed acquisition of Cohoes and Hudson, TrustCo's pro forma
tangible book value would be $3.39 per share. If only the TrustCo-Hudson
merger occurs, TrustCo's pro forma tangible book value would be $3.42 per share.
IF COMPLETION OF OUR OFFER DOES NOT QUALIFY AS A REORGANIZATION UNDER THE
INTERNAL REVENUE CODE, YOU MAY BE TAXED ON THE FULL AMOUNT OF THE CONSIDERATION
YOU RECEIVE FROM US
In the opinion of our counsel, exchanges of Hudson common stock for
TrustCo common stock pursuant to the exchange offer and the merger of TrustCo
and Hudson should be treated for federal income tax purposes as a reorganization
within the meaning of Section 368 of the Internal Revenue Code. In such event,
holders of shares of Hudson common stock will recognize gain (but not loss) only
up to the extent of cash received (excluding cash received in lieu of fractional
shares). Cash received in lieu of a fractional shares of TrustCo common stock
will be treated as received in redemption of such fractional share interest, and
a Hudson shareholder will recognize gain or loss measured by the difference
between the amount of cash received and the portion of the basis of the TrustCo
common stock allocable to such fractional interest.
If we complete our offer in a manner in which the offer does not
qualify for the tax treatment described above, you may be taxed on any gain you
realize up to the full $17.00 per share exchange consideration. We have
conditioned this offer upon our receipt of an opinion of counsel at the time we
complete the offer that the offer qualifies as a reorganization under Section
368, although we may waive this condition. See "THE OFFER - Material Federal
Income Tax Consequences" for a more detailed discussion of the federal income
tax consequences of the transactions we propose.
BACKGROUND OF THE EXCHANGE OFFER
PAST CONTACTS
From time to time, TrustCo is involved in due diligence investigations,
discussions and negotiations concerning possible business combination
transactions with other financial institutions. TrustCo generally seeks to
acquire financial institutions that would: (i) complement its overall strategic
focus; (ii) provide opportunities for growth in markets where the target
financial institution conducts business; and (iii) improve TrustCo's retail
banking franchise.
On August 26, 1999, Robert A. McCormick, TrustCo's President and Chief
Executive Officer, and Robert T. Cushing, TrustCo's Vice President and Chief
Financial Officer, met with Carl A. Florio, Hudson's Chief Executive Officer, to
discuss TrustCo's plan of putting together approximately six local banks under
TrustCo management to produce a strong locally owned and managed entity. At that
meeting, McCormick proposed a price of $14 per share in TrustCo stock for each
share of Hudson, which was approximately 1.3 times the market price of Hudson
common stock at that time. At the August 26, 1999 meeting, Mr. Florio indicated
that Hudson had no present intention of engaging in such a transaction with
TrustCo and that he believed Hudson's board of directors supported this view.
Two days later, without further discussion or investigation, Mr. Florio
confirmed to TrustCo that Hudson had no interest in such a merger. According to
the proxy statement provided to shareholders by Hudson in connection with its
proposed merger with Cohoes, Mr. Florio had, prior to the meeting with Mr.
McCormick, already discussed a potential merger with Harry L. Robinson, Cohoes'
President and Chief Executive Officer, and the chief financial officers of
Hudson and Cohoes had also already met to discuss such a merger.
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On April 25, 2000, Hudson and Cohoes announced that they had entered
into their merger agreement and the related option agreement. Following
announcement of the proposed Hudson-Cohoes merger, TrustCo reviewed its
strategic options, including the possibility of proceeding with one or more
offers for either or both of Hudson and Cohoes.
On June 8, 2000, TrustCo sent a letter to Mr. Earl Schram, Jr., the
Chairman of the Board of Hudson, proposing a merger of TrustCo and Hudson.
Pursuant to the proposal, TrustCo would acquire Hudson in a merger (the
"TrustCo-Hudson Merger") in which each share of Hudson's common stock would be
exchanged for shares of TrustCo common stock valued at $14.00. On June 23, 2000,
Hudson informed TrustCo that Hudson's Board of Directors had unanimously
rejected the proposed TrustCo-Hudson Merger.
On June 26, 2000, TrustCo publicly announced its intention to commence
a tender offer to exchange shares of TrustCo common stock valued at $14.00 for
each share of Hudson's common stock. Also on June 26, 2000, Hudson publicly
announced that it remained fully committed to the proposed merger with Cohoes.
On July 7, 2000, TrustCo filed a Form 425 with the SEC for the purpose
of disclosing that it had published a newspaper notice to shareholders of Hudson
and Cohoes, briefly describing that the boards of both Hudson and Cohoes had
rejected the TrustCo offer, and emphasizing that a Hudson/Cohoes merger may not
be in the best interests of the Hudson and Cohoes shareholders.
On July 10, 2000, TrustCo sent a letter to Mr. Schram, requesting a
meeting to discuss the proposed TrustCo-Hudson combination. On July 21, 2000,
Hudson rejected TrustCo's request for such a meeting.
On July 11, 2000, TrustCo filed proxy materials with the SEC for the
purpose of soliciting votes by Hudson and Cohoes stockholders against the
proposed Hudson-Cohoes merger.
On July 14, 2000, TrustCo filed a Form 425 with the SEC for the purpose
of disclosing that it had published a newspaper notice to shareholders of Hudson
and Cohoes, briefly describing the parameters of the offer and asking for the
support of Hudson and Cohoes shareholders.
On July 21, 2000, TrustCo filed a Form 425 with the SEC for the purpose
of disclosing that it had published a newspaper notice to shareholders of Hudson
and Cohoes, comparing the dividend yield and other financial performance data of
Hudson, Cohoes and TrustCo.
On July 31, 2000, TrustCo began to solicit proxies from the
shareholders of both Hudson and Cohoes in opposition to the proxies solicited by
the management for the August 17, 2000 meetings of the shareholders of Hudson
and Cohoes to consider and vote upon the proposed merger of Hudson and Cohoes
(the "Hudson-Cohoes Merger").
On August 18, 2000, Cohoes announced that its shareholders did not
approve the Hudson-Cohoes Merger, although Hudson announced that its
shareholders had approved the merger.
On August 24, 2000, Mr. McCormick and Mr. Cushing met again with Mr.
Florio and Mr. Schram to discuss a potential business combination between
TrustCo and Hudson. Mr. Florio indicated that he would discuss TrustCo's
interest with Hudson's board of directors. On August 30, 2000, TrustCo sent a
letter to Mr. Schram and Mr. Florio that outlined the terms of a potential
transaction between TrustCo and Hudson. Mr. Florio subsequently advised TrustCo
that its proposal would be discussed at Hudson's board meeting on September 28,
2000. After that meeting, Hudson advised TrustCo that the Hudson board had
decided not to pursue a potential business combination with TrustCo.
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On September 28, 2000, Hudson and Cohoes publicly announced the
termination of the Hudson-Cohoes Merger agreement because it was not approved by
the requisite vote of the shareholders of Cohoes at the special meeting held on
August 17, 2000. Hudson and Cohoes also publicly announced the amendment of
their agreement granting each company an option to purchase up to 19.9% of the
issued and outstanding shares of the other should any third party pursue a
transaction with Hudson or Cohoes (the "Stock Option Agreements"). Hudson and
Cohoes publicly announced that the amendment capped the economic value of their
respective stock options in each other at $3.5 million.
PURPOSE OF THE EXCHANGE OFFER; THE TRUSTCO-HUDSON MERGER
The purpose of our offer (the "Exchange Offer") is to acquire control
of, and ultimately the entire equity interest in, Hudson and to consolidate the
operations of Hudson and TrustCo to achieve operational efficiencies and cost
savings. TrustCo will not complete the Exchange Offer if it cannot
effect the TrustCo-Hudson Merger and the merger of Trustco Bank, N.A.
("Trustco Bank") with Hudson River Bank & Trust Company (the "Trustco
Bank-Hudson River Bank & Trust Company Merger" and, consequently, the
Exchange Offer is conditioned upon the removal of various impediments to
consummation of the TrustCo-Hudson Merger, the execution of definitive merger
agreements and receipt of required board, shareholder and regulatory
approvals. As soon as practicable after consummation of the Exchange Offer,
TrustCo intends to cause to occur simultaneously: (i) the merger of Hudson
with a subsidiary of TrustCo pursuant to which each outstanding share of
Hudson common stock ("Hudson Common Stock") (except for treasury shares and
shares held by TrustCo or any subsidiary of TrustCo other than in a fiduciary
capacity) would be converted into the right to receive shares of TrustCo
common stock ("TrustCo Common Stock") with an aggregate value equal to $6.80
and $10.20 in cash; and (ii) the Trustco Bank--Hudson River Bank & Trust
Company Merger.
BENEFITS OF THE TRANSACTION
TrustCo believes that the merger of Trustco Bank and Hudson River
Bank & Trust Company will provide increased opportunities for growth and
diversification in and service to the market served by each organization and
added flexibility in responding to various factors currently influencing the
banking and financial services industries, including rapid technological and
regulatory changes, increased competition and the geographic expansion of
markets. The TrustCo-Hudson Merger will allow TrustCo to extend its natural
marketplace in New York and is expected to result in greater economies of scale
through coordination of intra-market operations and a stronger financial
position through an increased asset base. Although estimates of specific cost
savings resulting from the consolidation are inherently subjective, TrustCo
presently believes that, if the TrustCo-Hudson Merger and the integration of
Trustco Bank with Hudson River Bank & Trust Company are consummated, TrustCo
would be able to achieve pre-tax cost savings of approximately $8 million in the
first year, and an additional $7 million in the second year following the
TrustCo-Hudson Merger. See "SELECTED PRO FORMA COMBINED FINANCIAL INFORMATION."
OFFER TO ACQUIRE COHOES
On June 8, 2000, TrustCo sent a letter to Mr. Duncan MacAffer, the
Chairman of the Board of Cohoes, proposing the merger of TrustCo and Cohoes.
Pursuant to the proposal, TrustCo would acquire Cohoes in a merger (the
"TrustCo-Cohoes Merger") in which each share of Cohoes common stock would be
exchanged for shares of TrustCo Common Stock valued at $16.00. On June 23, 2000,
Cohoes informed TrustCo that a merger with TrustCo was contrary to Cohoes'
strategic business plan and declined to have any discussions with TrustCo.
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On June 26, 2000, TrustCo publicly announced its intention to commence
a tender offer to exchange shares of TrustCo Common Stock valued at $16.00 for
each share of Cohoes' common stock. Also on June 26, 2000, Cohoes publicly
announced that it remained fully committed to the proposed merger with Hudson.
TrustCo actively solicited Cohoes stockholders to vote against
the Hudson-Cohoes Merger. Although Hudson's stockholders approved the
Hudson-Cohoes Merger at Hudson's annual meeting of stockholders on August 17,
2000, Cohoes' stockholders, at a special meeting on the same date, failed to
approve the merger.
TrustCo has nominated M. Norman Brickman, Thomas P. Collins, Thomas O.
Maggs and Peter A. Pastore as candidates for election to Cohoes' board of
directors at Cohoes' 2000 annual meeting of shareholders and has filed a
preliminary proxy statement with the Securities and Exchange Commission with
respect to its solicitation of proxies for use at Cohoes' annual meeting for the
purpose of electing Messrs. Brickman, Collins, Maggs and Pastore.
TrustCo expects to commence its exchange offer for Cohoes on
November 1, 2000 by mailing a prospectus and the related letter of
transmittal to Cohoes stockholders. In the exchange offer, TrustCo would
exchange a combination of shares of TrustCo Common Stock and cash totaling
$18.00 for each outstanding share of Cohoes common stock validly tendered and
not withdrawn. The stock component of the Cohoes exchange consideration will
be comprised of TrustCo Common Stock with an aggregate value equal to $7.20,
and the cash component will be $10.80 net. If TrustCo's exchange offer is
successful, TrustCo intends to follow the exchange offer with the
TrustCo-Cohoes Merger. TrustCo will file applications with federal and state
bank regulatory agencies to obtain the regulatory approvals necessary to
complete that exchange offer, the TrustCo-Cohoes Merger and the merger of
Trustco Bank with Cohoes' subsidiary, Cohoes Savings Bank. Promptly after the
SEC declares that registration statement effective, TrustCo intends to file
with the SEC proxy materials to be used for soliciting the approval by
TrustCo's stockholders of the issuance of TrustCo Common Stock in the Cohoes
exchange offer and the TrustCo-Cohoes Merger, if such approval is required.
The consummation of the Cohoes exchange offer on the part of TrustCo is
subject to the same or similar conditions (or the waiver thereof) as this
Exchange Offer. However, neither the consummation of the Cohoes exchange offer
nor the TrustCo-Cohoes Merger is a condition precedent to this Exchange Offer.
MAXIMUM EXPECTED POST-MERGER DIVIDEND
During the year ended December 31, 1999, TrustCo paid out approximately
79% of its net income in the form of cash dividends. Assuming that TrustCo
realizes $7.0 million in cost savings from combining with Hudson in the
first year after that combination and an additional $8.0 million in cost savings
in the second year and also that TrustCo continues to pay the same percentage of
income in the form of cash dividends, TrustCo anticipates that the dividend
rate for the year ended December 31, 1999 would have been $0.54 per share in
the first year following completion of its acquisition of Hudson and $0.60 per
share, which is the same as TrustCo's annualized dividend rate of $0.60 per
share for 2000, in the second year. It is not anticipated that the Exchange
Offer will adversely affect TrustCo's ability to pay dividends. (The foregoing
dividend rates do not reflect the potential impact of TrustCo's proposed
acquisition of Cohoes.)
THE EXCHANGE OFFER
The following description contains, among other information, a summary
of the Exchange Offer and the related letter of transmittal (the "Letter of
Transmittal") and is qualified in its entirety by reference to the full text of
the Letter of Transmittal which is incorporated herein by reference and
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attached hereto as Appendix A to this Prospectus. SHAREHOLDERS ARE URGED TO
READ CAREFULLY THE LETTER OF TRANSMITTAL.
GENERAL
TrustCo hereby offers, upon the terms and subject to the conditions of
the Exchange Offer described in this Prospectus and the related Letter of
Transmittal, to exchange $17.00 in a combination of shares of TrustCo Common
Stock and cash (the "Exchange Consideration") for each outstanding share of
Hudson Common Stock validly tendered on or prior to the Expiration Date (as
defined herein) and not withdrawn. A tendering Hudson shareholder may, by
properly completing the Letter of Transmittal, elect to receive the Exchange
Consideration for his or her Hudson Common Stock.
The number of shares of TrustCo Common Stock constituting a part of the
Exchange Consideration for purposes of the Exchange Offer will be calculated
with reference to the average closing price of the TrustCo Common Stock on
the Nasdaq for the 20-day period ending 5 days prior to the closing date
under the Exchange Offer. Since the value of the TrustCo Common Stock
component of the Exchange Consideration is fixed at $6.80 per share of Hudson
Common Stock exchanged, the number of shares of TrustCo Common Stock that a
tendering Hudson shareholder will receive under the Exchange Offer will
fluctuate as the market price of the TrustCo Common Stock fluctuates. Based
on the $11.00 closing sales price of a share of TrustCo Common Stock as
reported on Nasdaq on October 27, 2000, tendering holders of Hudson Common
Stock would receive 0.618 shares of TrustCo Common Stock as the Exchange
Consideration. TRUSTCO RESERVES THE RIGHT TO AMEND THE EXCHANGE OFFER,
INCLUDING THE COMPOSITION OR AMOUNT OF THE EXCHANGE CONSIDERATION, FOR ANY
REASON. IF TRUSTCO SO AMENDS THE EXCHANGE OFFER, IT WILL EXTEND THE EXCHANGE
OFFER FOR A PERIOD OF TEN BUSINESS DAYS IF THE EXCHANGE OFFER IS SCHEDULED TO
EXPIRE PRIOR THERETO.
The term "Expiration Date" means 12:00 midnight, New York City time,
on December 15, 2000, unless and until TrustCo extends the period of time for
which the Exchange Offer is open, in which event the term "Expiration Date"
means the latest time and date at which the Exchange Offer, as so extended by
TrustCo, expires. TrustCo presently anticipates electing to extend the
Exchange Offer from time to time until such time as all of the conditions to
the Exchange Offer have been satisfied or waived; however, TrustCo will not
be obligated to do so. See "THE EXCHANGE OFFER--Certain Legal Matters" and
"-- Certain Conditions of the Exchange Offer."
Tendering shareholders will not be obligated to pay any charges or
expenses of ChaseMellon Shareholder Services, the exchange agent for this
Exchange Offer (the "Exchange Agent"), or any brokerage commissions. Except as
set forth in Instruction 6 of the Letter of Transmittal, transfer taxes on the
exchange of Hudson Common Stock pursuant to the Exchange Offer will be paid by
or on behalf of TrustCo.
TrustCo's obligation to exchange shares of TrustCo Common Stock and
cash for Cohoes Common Stock pursuant to the Exchange Offer is subject to a
number of conditions referred to below under "THE EXCHANGE OFFER--Certain
Conditions of the Exchange Offer," including a minimum tender condition, a
regulatory approval condition and the other conditions described below.
If by 12:00 midnight, New York City time, on December 15, 2000,
or any later time to which the Expiration Date and this Exchange Offer have been
extended, all of the above conditions have not been satisfied or waived, TrustCo
may elect either to: (i) extend the Expiration Date and this Exchange Offer and
retain all shares of Hudson Common Stock theretofore tendered until the
expiration of the Expiration Date and this Exchange Offer, as extended, subject
to the right of a tendering shareholder to withdraw his or her Hudson Common
Stock; (ii) waive the remaining conditions (other than the regulatory
approval condition, the TrustCo stockholder approval condition (if such approval
is required) and the effectiveness of the registration statement of which
this Prospectus
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is a part), extend the Exchange Offer for a period of ten business days if
the Exchange Offer is scheduled to expire prior thereto and thereafter
exchange all tendered shares of Hudson Common Stock; or (iii) terminate the
Exchange Offer and exchange none of the Hudson Common Stock and return all
tendered shares of Hudson Common Stock. TrustCo will not accept for exchange
any shares of Hudson Common Stock pursuant to the Exchange Offer until such
time as the Regulatory Approval Condition and the TrustCo Stockholder
Approval Condition have been satisfied and the Registration Statement has
become effective. See "THE EXCHANGE OFFER -- Certain Legal Matters" and
"--Certain Conditions of the Exchange Offer--REGULATORY APPROVAL CONDITION",
"--TRUSTCO STOCKHOLDER APPROVAL CONDITION" and "--EFFECTIVE REGISTRATION
STATEMENT."
A request is being made to Hudson for use of Hudson's shareholder list
and security position listing for the purpose of disseminating the Exchange
Offer to holders of Hudson Common Stock. The Prospectus and the related Letter
of Transmittal will be mailed to record holders of Hudson Common Stock and will
be furnished to brokers, banks and similar persons whose names or the names of
whose nominees appear on the shareholder list or, if applicable, who are listed
as participants in a clearing agency's security position listing for subsequent
transmittal to beneficial owners of Hudson Common Stock.
EXTENSION, TERMINATION AND AMENDMENT
TrustCo expressly reserves the right, in its sole discretion, at any
time on or prior to the Expiration Date, to extend the period of time during
which the Exchange Offer is to remain open by giving oral or written notice of
such extension to the Exchange Agent. There can be no assurance that TrustCo
will exercise its right to extend the Expiration Date and this Exchange Offer,
although it is presently anticipated that the Expiration Date and this Exchange
Offer will be extended in order to permit the conditions to be satisfied. If
TrustCo amends the Exchange Offer, it will extend the Expiration Date and this
Exchange Offer for a period of ten business days if the Exchange Offer is
scheduled to expire prior thereto. During any such extension, all shares of
Hudson Common Stock previously tendered and not withdrawn will remain subject to
the Exchange Offer, subject to the right of a tendering shareholder to withdraw
his or her Hudson Common Stock. See "THE EXCHANGE OFFER -- Withdrawal Rights."
TrustCo also reserves the right to delay acceptance for exchange of, or exchange
of, any Hudson Common Stock pursuant to the Exchange Offer, regardless of
whether such shares of Hudson Common Stock were theretofore accepted for
exchange, and to amend or terminate the Exchange Offer and not accept for
exchange or exchange any Hudson Common Stock not theretofore accepted for
exchange, or exchanged, upon the failure of any of the conditions of the
Exchange Offer to be satisfied or waived on or before the Expiration Date. Any
such extension, termination, amendment or delay will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be issued no later than 9:00 A.M., New York City time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which TrustCo may choose to make such public announcement, TrustCo
will not, unless otherwise required by rules of the SEC, have any obligation to
make any such public announcement other than by making a release to the Dow
Jones News Service. If, prior to the Expiration Date, TrustCo increases the
consideration offered to holders of Hudson Common Stock, such increase will be
applicable to all holders whose shares of Hudson Common Stock are accepted for
exchange pursuant to the Exchange Offer and, if at the time notice of such
increase is first published, sent or given to holders of Hudson Common Stock,
the Exchange Offer is scheduled to expire at any time earlier than the
expiration of a period ending on the tenth business day from and including the
date that such notice is first so published, sent or given, the Exchange Offer
will be extended until the expiration of such period of ten business days. For
purposes of the Exchange Offer, a "business day" means any day other than a
Saturday, Sunday or federal holiday and consists of the time period from 12:01
A.M. through 12:00 midnight, New York City time.
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EXCHANGE OF SHARES; EXCHANGE CONSIDERATION
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange and the exchange of the outstanding shares of Hudson
Common Stock validly tendered and not withdrawn will be made as soon as
practicable after the Expiration Date. Subject to applicable rules of the SEC,
TrustCo expressly reserves the right to delay acceptance for exchange or the
exchange of Hudson Common Stock in order to comply with any applicable law.
For purposes of the Exchange Offer, TrustCo will be deemed to have
accepted for exchange and thereby acquired tendered Hudson Common Stock as, if
and when TrustCo gives oral or written notice to the Exchange Agent of its
acceptance of the tenders of such shares of Hudson Common Stock. Delivery of the
Exchange Consideration in exchange for the Hudson Common Stock pursuant to the
Exchange Offer will be made by the Exchange Agent as soon as practicable after
receipt of such notice. The Exchange Agent will act as agent for tendering
shareholders for the purpose of receiving the Exchange Consideration from
TrustCo and transmitting such Exchange Consideration to tendering shareholders.
Under no circumstances will interest be paid by TrustCo by reason of any delay
in making such exchange.
If any tendered shares of Hudson Common Stock are not acceptable for
exchange pursuant to the terms and conditions of the Exchange Offer for any
reason, or if certificates are submitted for more shares of Hudson Common Stock
than are tendered, certificates for such un-exchanged Hudson Common Stock will
be returned to the tendering Hudson shareholder by the Exchange Agent as soon as
practicable following consummation or termination of the Exchange Offer.
CASH IN LIEU OF FRACTIONAL SHARES OF TRUSTCO COMMON STOCK
No certificates representing fractional shares of TrustCo Common Stock
will be issued by TrustCo pursuant to the Exchange Offer. In lieu thereof, each
tendering shareholder who would otherwise be entitled to a fractional share of
TrustCo Common Stock will receive additional cash in an amount equal to the
average closing price of one share of TrustCo Common Stock on Nasdaq over the
20-day period ending 5 days before the closing of the Exchange Offer multiplied
by the fractional share of TrustCo Common Stock that such tendering shareholder
was otherwise entitled to receive.
WITHDRAWAL RIGHTS
Shares of Hudson Common Stock tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date and also after
December 29, 2000 and prior to the expiration of the Exchange Offer and the
acceptance of Hudson Common Stock for exchange pursuant to the Exchange Offer.
For a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission notice of withdrawal must be timely received by the
Exchange Agent at its address set forth on the back cover of this Prospectus and
must specify the name of the person having tendered the shares of Hudson Common
Stock to be withdrawn, the number of shares of Hudson Common Stock to be
withdrawn and the name of the registered holder, if different from that of the
person who tendered such shares of Hudson Common Stock.
The signature(s) on the notice of withdrawal must be guaranteed by a
firm which is a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc. (the "NASD") or by a commercial
bank or trust company having an office or correspondent in the United States
(collectively, "Eligible Institutions") unless such shares of Hudson Common
Stock have been tendered for the account of any Eligible Institution. If
certificates have been delivered or otherwise identified to the Exchange Agent,
the name of the registered holder and the serial numbers of the particular
certificates evidencing the shares of Hudson Common Stock withdrawn must also be
furnished to the Exchange Agent as aforesaid prior to the physical release of
such certificates. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by TrustCo
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in its sole discretion, whose determination will be final and binding.
Neither TrustCo, the Exchange Agent nor any other person will be under any
duty to give notification of any defects or irregularities in any notice of
withdrawal or will incur any liability for failure to give any such
notification. Any shares of Hudson Common Stock properly withdrawn will be
deemed not to have been validly tendered for purposes of the Exchange Offer.
However, withdrawn shares of Hudson Common Stock may be re-tendered by
following one of the procedures described under "THE EXCHANGE OFFER --
Procedure for Tendering Shares" at any time prior to the Expiration Date.
PROCEDURE FOR TENDERING SHARES
To tender shares of Hudson Common Stock pursuant to the Exchange Offer,
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), together with the certificates representing the tendered Hudson Common
Stock and any other required documents, must be transmitted to and received by
the Exchange Agent at its address set forth on the back cover of this
Prospectus. THE METHOD OF DELIVERY OF ALL REQUIRED DOCUMENTS IS AT THE OPTION
AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
Signatures on all Letters of Transmittal must be guaranteed by an
Eligible Institution in cases where shares of Hudson Common Stock are tendered
by a registered holder of Hudson Common Stock who has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal. If the certificates are registered
in the name of a person other than the signer of the Letter of Transmittal, or
if certificates for un-exchanged shares of Hudson Common Stock are to be issued
to a person other than the registered holder(s), the certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
certificates, with the signature(s) on the certificates or stock powers
guaranteed as aforesaid.
By executing a Letter of Transmittal as set forth above, the tendering
shareholder irrevocably appoints designees of TrustCo as such shareholder's
proxies, each with full power of substitution, to the full extent of such
shareholder's rights with respect to the shares of Hudson Common Stock tendered
by such shareholder and accepted for exchange by TrustCo and with respect to any
and all other shares of Hudson Common Stock and other securities issued or
issuable in respect of the Hudson Common Stock on or after the Expiration Date.
Such appointment will be effective when, and only to the extent that,
TrustCo exchanges the Exchange Consideration for Hudson Common Stock tendered by
such shareholder. To such extent, all prior proxies appointed by such
shareholder will be revoked. Such designees will be empowered, among other
things, to vote such shares of Hudson Common Stock as they in their sole
discretion deem proper at any annual, special or adjourned meeting of Hudson's
shareholders or otherwise. TrustCo reserves the right to require that, in order
for shares of Hudson Common Stock to be deemed validly tendered, immediately
upon TrustCo's exchange of such Hudson Common Stock TrustCo must be able to
exercise full voting rights with respect to such shares of Hudson Common Stock.
If a shareholder desires to tender shares of Hudson Common Stock
pursuant to the Exchange Offer and such shareholder's certificates are not
immediately available or time will not permit his Letter of Transmittal, stock
certificates and any other required documents to reach the Exchange Agent prior
to the Expiration Date, his tender may nevertheless be effected if all the
following conditions are met: (i) such tender is made by or through an Eligible
Institution; (ii) a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by TrustCo herewith is received by
the Exchange Agent as provided below on or prior to the Expiration Date; and
(iii) the certificates for all tendered shares of Hudson Common Stock, together
with a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) and any other documents required by the Letter of Transmittal, are
received by the Exchange Agent within five business days after the date of
execution of such Notice of Guaranteed Delivery.
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The Notice of Guaranteed Delivery may be delivered by hand to the
Exchange Agent or transmitted by telegram, telex, facsimile transmission or mail
to the Exchange Agent and must include a signature guaranteed by an Eligible
Institution in the form set forth in such Notice.
In any event, the exchange of Exchange Consideration for Hudson Common
Stock tendered and accepted for exchange pursuant to the Exchange Offer will be
made only after timely receipt by the Exchange Agent of certificates therefor
properly completed, duly executed Letter(s) of Transmittal and any other
required documents.
To avoid backup federal income tax withholding with respect to the
Exchange Consideration received by a shareholder pursuant to the Exchange Offer,
the shareholder must provide the Exchange Agent with his correct taxpayer
identification number or certify that he or she is not subject to backup Federal
income tax withholding by completing the Substitute Form W-9 included in the
Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of any tender of Hudson Common Stock will be determined
by TrustCo in its sole discretion, whose determination will be final and
binding. TrustCo reserves the absolute right to reject any or all tenders
determined by it not to be in proper form or the acceptance of or exchange for
which may, in the opinion of TrustCo's counsel, be unlawful. TrustCo also
reserves the absolute right to waive on or prior to the Expiration Date any of
the conditions of the Exchange Offer which it is legally permitted to waive
(other than the Regulatory Approval Condition, the TrustCo Stockholder Approval
Condition and the effectiveness of the Registration Statement) or any defect or
irregularity in the tender of any shares of Hudson Common Stock. No tender of
Hudson Common Stock will be deemed to have been validly made until all defects
and irregularities have been cured or waived. TrustCo's interpretation of the
terms and conditions of the Exchange Offer (including the Letter of Transmittal
and instructions thereto) will be final and binding. Neither TrustCo, the
Exchange Agent nor any other person will be under any duty to give notification
of any defects or irregularities in the tender of any shares of Hudson Common
Stock or will incur any liability for failure to give any such notification.
A tender of Hudson Common Stock pursuant to the procedures described
above will constitute a binding agreement between the tendering shareholder and
TrustCo upon the terms and subject to the conditions of the Exchange Offer.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Lewis, Rice & Fingersh, L.C., counsel to TrustCo,
exchanges of Hudson Common Stock for TrustCo Common Stock pursuant to the
Exchange Offer and the TrustCo-Hudson Merger should be treated for federal
income tax purposes as a reorganization within the meaning of ss.368 of the
Code. In such event, no gain or loss will be recognized by holders of shares of
Hudson Common Stock, except as described below under "Tax Consequences to Hudson
Shareholders if the Exchange Offer and the TrustCo-Hudson Merger Qualify as a
Reorganization." This opinion is based on the view of Lewis, Rice & Fingersh,
L.C. that the Exchange Offer and the TrustCo-Hudson Merger should be treated as
a single transaction and on certain assumptions and representations, including
that: (i) each Hudson shareholder holds his or her shares of Hudson Common Stock
and will hold the TrustCo Common Stock to be received as a capital asset within
the meaning of ss.1221 of the Code; (ii) the continuity of shareholder interest
requirement applicable to corporate reorganizations (which requires the receipt
of an equity interest in TrustCo by holders owning a significant percentage of
the shares of Hudson Common Stock prior to the consummation of the Exchange
Offer) will be satisfied; (iii) TrustCo will continue Hudson's historic business
or will use a significant portion of Hudson's historic business assets in a
business; (iv) the Exchange Offer and the TrustCo-Hudson Merger will be
consummated as contemplated by this Prospectus; and (vi) there are valid
business reasons for undertaking the Exchange Offer and the TrustCo-Hudson
Merger.
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In rendering their opinion, Lewis, Rice & Fingersh, L.C. have further
assumed that: (i) upon consummation of the Exchange Offer, there will be no
significant contingencies preventing the prompt consummation of the
TrustCo-Hudson Merger; (ii) upon consummation of the Exchange Offer, TrustCo
will not have waived any of the conditions relating to its obligation to
consummate the Exchange Offer in a manner that could prevent a prompt
consummation of the TrustCo-Hudson Merger; and (iii) the TrustCo-Hudson Merger
will in fact be consummated promptly after the consummation of the Exchange
Offer. A significant delay in the consummation of the TrustCo-Hudson Merger
would substantially increase the risk that the Exchange Offer will not qualify
as part of a reorganization within the meaning of Section 368(a)(1)(A) of
the Code. The consequences of a failure to so qualify are discussed below
under "Tax Consequences if the Exchange Offer and the TrustCo-Hudson Merger
Do Not Qualify as a Reorganization."
In deciding whether two steps are part of a single transaction
qualifying as a reorganization, courts have applied three tests: (i) the binding
commitment test, which requires a binding commitment at the time of the first
step to complete the second step; (ii) the interdependence test which requires
that two steps be so interdependent that the first step would have been
fruitless without the second; and (iii) the end result test which requires that
the steps be pre-arranged parts of a single transaction. Because there is a lack
of uniformity in applying these tests, it is difficult to predict with certainty
whether the Internal Revenue Service (the "IRS") or a court would amalgamate two
steps into a single transaction for federal income tax purposes.
Furthermore, there is no authority directly on point addressing the transactions
described herein and the relevant authorities upon which this opinion is based
are subject to various interpretations. A decision by the IRS or a court to not
treat the Exchange Offer and the TrustCo-Hudson Merger as part of a single
transaction would substantially increase the risk that the Exchange Offer will
not qualify as part of a reorganization within the meaning of Section
368(a)(1)(A) of the Code. See "Tax Consequences if the Exchange Offer and
the TrustCo-Hudson Merger Do Not Qualify as a Reorganization." However,
based on all the facts and circumstances described herein, in the view of
Lewis, Rice & Fingersh, L.C., the Exchange Offer and the TrustCo-Hudson
Merger should be treated as part of a single transaction.
In order for the Exchange Offer and the TrustCo-Hudson Merger to
qualify as a reorganization within the meaning of Section 368(a)(1)(A) of the
Code, the so-called continuity of shareholder interest requirement must be
satisfied. As applied to the transaction described herein, the continuity of
shareholder interest requirement requires the Hudson Shareholders to exchange
a "substantial part" of the value of their shares of Hudson Common Stock for
TrustCo Common Stock. The IRS will not issue private letter rulings for
reorganizations under Section 368(a)(1)(A) of the Code. The IRS's position
has historically been not to issue such a ruling unless shareholders of the
target entity (in this instance, Hudson Shareholders) exchanged at least 50
percent by value of the total outstanding shares of Hudson Common Stock for
TrustCo Common Stock in the reorganization, such value being determined as of
the effective date of the reorganization. Because the Hudson Shareholders are
only exchanging 40 percent by value of the total outstanding shares of Hudson
Common Stock, the IRS would not issue a letter ruling on whether the
transaction described herein qualifies as a reorganization. However, this
failure to satisfy a requirement for the issuance of a private letter ruling
is not determinative of whether the Exchange Offer and TrustCo-Hudson Merger
will qualify as a reorganization within the meaning of Section 368(a)(1)(A)
of the Code. A federal court decision has previously determined a transaction
to be a valid reorganization in which 38 percent of the value of the acquired
corporation's stock was exchanged.
The Trustco Bank-Hudson River Bank & Trust Company Merger should
have no adverse effect on the qualification of the TrustCo-Hudson Merger as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code.
The following discussion summarizes the material federal income tax
consequences of the Exchange Offer to the shareholders of Hudson. This summary
does not address all aspects of federal
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taxation that may be relevant to particular Hudson shareholders, nor does
this summary address the effect of any applicable foreign, state, local or
other tax laws. This discussion may not apply to certain classes of
taxpayers, including, without limitation, insurance companies, tax-exempt
organizations, financial institutions, dealers in securities, foreign
persons, persons who acquired shares of Hudson Common Stock pursuant to an
exercise of employee stock options or rights or otherwise as compensation and
persons who hold shares of Hudson Common Stock as part of a straddle or
conversion transaction.
This discussion is based upon the opinion of Lewis, Rice & Fingersh,
L.C. and the existing provisions of the Code, currently applicable regulations
promulgated under the Code, current published administrative positions of the
IRS such as revenue rulings and revenue procedures, and existing judicial
decisions, all of which are subject to change either prospectively or
retroactively. Any change in such authorities may adversely affect the
discussion herein.
The opinion of Lewis, Rice & Fingersh, L.C. is based, among other
things, on the assumptions listed above, which assumptions have been made with
the consent of TrustCo, and the written representations of TrustCo. TrustCo will
not request a ruling from the IRS with respect to the federal income tax
consequences of the Exchange Offer and the TrustCo-Hudson Merger. An opinion of
counsel is not binding on the IRS, and the IRS is not precluded from taking
contrary positions.
HUDSON SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO
THE PRECISE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF THE
EXCHANGE OFFER.
TAX CONSEQUENCES TO HUDSON SHAREHOLDERS IF THE EXCHANGE OFFER AND
THE TRUSTCO-HUDSON MERGER QUALIFY AS A REORGANIZATION
In order for the Exchange Offer and the TrustCo-Hudson Merger to
qualify as a reorganization under the Code, it is necessary that Exchange Offer
and the TrustCo-Hudson Merger be viewed as a single transaction.
TrustCo has represented that it will not complete the Exchange
Offer unless it can also effect the TrustCo-Hudson Merger and, consequently, has
conditioned its obligation to accept shares of Hudson Common Stock under the
Exchange Offer by requiring the elimination of various impediments to
consummation of the TrustCo-Hudson Merger. See "THE EXCHANGE OFFER--Certain
Conditions of the Exchange Offer--Removal of Impediments Condition." Thus,
TrustCo views the Exchange Offer and the TrustCo-Hudson Merger as interdependent
parts of a single transaction. For federal income tax purposes, the IRS should
treat the Exchange Offer and the TrustCo-Hudson Merger as interrelated steps
which do not have economic significance independent of each other. Accordingly,
it is anticipated that the Exchange Offer and the TrustCo-Hudson Merger together
should qualify as a reorganization for federal income tax purposes and a Hudson
shareholder who receives the Exchange Consideration generally will realize gain
equal to the excess, if any, of: (1) the fair market value of the TrustCo Common
Stock and the amount of cash received over (2) such shareholder's adjusted tax
basis in the Hudson Common Stock exchanged therefor, but will recognize gain
(but not loss) only up to the extent of cash received (excluding cash received
in lieu of fractional shares, which will be taxed as described below).
Such recognized gain will constitute capital gain, unless as discussed
below, the receipt of the cash has the effect of a distribution of a dividend
for federal income tax purposes, in which case such recognized gain will be
treated as ordinary dividend income to the extent of such shareholder's ratable
share of TrustCo's accumulated earnings and profits. Any capital gain recognized
will constitute long-term capital gain if the Hudson shareholder's holding
period for the Hudson Common Stock exchanged is greater than one year as of the
date of the exchange.
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The aggregate tax basis of the TrustCo Common Stock received by a
Hudson shareholder, including for this purpose any fractional share of TrustCo
Common Stock for which cash is received, in exchange for Hudson Common Stock
pursuant to the Exchange Offer and the TrustCo-Hudson Merger generally will
equal that shareholder's aggregate tax basis of his Hudson Common Stock
surrendered in exchange therefor, decreased by the amount of the cash portion of
the Exchange Consideration received (excluding any cash received in lieu of
fractional shares) and increased by the amount of gain recognized. The holding
period of such shares of TrustCo Common Stock will include the holding period of
the Hudson Common Stock surrendered in exchange therefor, provided that the such
shares of Hudson Common Stock are held as capital assets at the time of the
Exchange Offer and TrustCo-Hudson Merger.
In general, the determination of whether the gain recognized by a
Hudson shareholder will be treated as capital gain or a dividend distribution
will depend upon whether and to what extent the exchange reduced the Hudson
shareholder's deemed percentage stock ownership interest in TrustCo. For
purposes of this determination, a Hudson shareholder will be treated as if such
shareholder first exchanged all of such shareholder's Hudson Common Stock solely
for TrustCo Common Stock and TrustCo immediately thereafter redeemed a portion
of such TrustCo Common Stock in exchange for the cash portion of the Exchange
Consideration that the Hudson shareholder actually received. The gain recognized
in the exchange followed by a deemed redemption will be treated as capital gain
if, with respect to the Hudson shareholder, the deemed redemption is (i)
"substantially disproportionate" or (ii) "not essentially equivalent to a
dividend."
In general, the determination of whether the deemed redemption will be
"substantially disproportionate" requires a comparison of (i) the percentage of
the outstanding voting stock of TrustCo that such Hudson shareholder is deemed
actually and constructively to have owned immediately before the deemed
redemption by TrustCo and (ii) the percentage of the outstanding voting stock of
TrustCo actually and constructively owned by such shareholder immediately after
the deemed redemption by TrustCo. Generally, the deemed redemption will be
substantially disproportionate with respect to a Hudson shareholder if the
percentage described in (ii) above is less than 80 percent of the percentage
described in (i) above. Whether the deemed redemption is "not essentially
equivalent to a dividend" with respect to a Hudson shareholder will depend on
the shareholder's particular circumstances. In order for the deemed redemption
to be "not essentially equivalent to a dividend," the deemed redemption must
result in a "meaningful reduction" in such Hudson shareholder's deemed
percentage stock ownership of TrustCo Common Stock. The IRS has ruled that a
minority shareholder in a publicly traded corporation whose relative stock
interest is minimal and that exercises no control with respect to corporate
affairs is considered to have a "meaningful reduction" generally if such
shareholder has some reduction in such shareholder's percentage stock ownership.
In applying the foregoing tests, a shareholder may be deemed to own
stock that is owned by other persons, such as a family member, a trust, or other
entities, in addition to stock actually owned. Because the constructive
ownership rules are complex, each Hudson shareholder should consult its own tax
advisor as to the applicability of these rules.
Cash received in lieu of a fractional shares of TrustCo Common Stock
will be treated as received in redemption of such fractional share interest, and
a Hudson shareholder will recognize gain or loss measured by the difference
between the amount of cash received and the portion of the basis of the TrustCo
Common Stock allocable to such fractional interest. Such gain or loss generally
will constitute capital gain or loss and will be long-term capital gain or loss
if the Hudson shareholder's holding period in the Hudson Common Stock exchanged
was greater than one year as of the date of the exchange.
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TAX CONSEQUENCES TO HUDSON SHAREHOLDERS IF THE EXCHANGE OFFER AND
THE TRUSTCO-HUDSON MERGER DO NOT QUALIFY AS A REORGANIZATION
If the TrustCo-Hudson Merger is not consummated or is consummated in a
way that causes the Exchange Offer and the TrustCo-Hudson Merger not to be a
"reorganization," or if the TrustCo-Hudson Merger is consummated but the
Exchange Offer is treated for federal income tax purposes as a separate
transaction, or if the Exchange Offer and the TrustCo-Hudson Merger together are
determined not to qualify as a reorganization as described above, exchanges
pursuant to the Exchange Offer will be taxable transactions for federal income
tax purposes. In that event, each exchanging shareholder of Hudson Common Stock
will recognize gain or loss for federal income tax purposes measured by the
difference between such shareholder's basis in the Hudson Common Stock exchanged
and the amount of cash plus the fair market value of the TrustCo Common Stock
received by such shareholder in the Exchange Offer. Such gain or loss will be
capital gain or loss if the shares of Hudson Common Stock were held as a capital
asset and will be long-term gain or loss if such Hudson Common Stock had been
held for more than one year at the time of the exchange.
Exchanges pursuant to the TrustCo-Hudson Merger may likewise be taxable
transactions if the Exchange Offer is treated as a separate taxable transaction.
However, even if the Exchange Offer were a taxable transaction, the
TrustCo-Hudson Merger itself might be considered a reorganization. In that
event, a shareholder of Hudson Common Stock receiving TrustCo Common Stock and
cash would be subject to the federal income tax rules concerning reorganizations
discussed above with respect to the TrustCo Common Stock and cash received in
the TrustCo-Hudson Merger (but not with respect to any TrustCo Common Stock and
cash received by such shareholder in the Exchange Offer).
If the TrustCo-Hudson Merger does not qualify as a reorganization for
tax purposes, the TrustCo-Hudson Merger could be treated as a taxable
acquisition of Hudson' assets by TrustCo. TrustCo could be treated as the
transferee of Hudson in connection with such sale and could be liable for
federal income tax on Hudson if the fair market value of such assets exceeds the
adjusted bases therein. As of the date of this Prospectus, TrustCo cannot
determine the amount of any such gain.
EFFECT OF EXCHANGE OFFER ON MARKET FOR SHARES
As of August 4, 2000, according to Hudson's Quarterly Report on
Form 10-Q filed on August 10, 2000, there were 15,310,560 shares of Hudson
Common Stock outstanding.
The exchange of Hudson Common Stock pursuant to the Exchange Offer will
reduce the number of shares of Hudson Common Stock that might otherwise trade
publicly and the number of holders of Hudson Common Stock and, pending
consummation of the TrustCo-Hudson Merger, could adversely affect the liquidity
and market value of the remaining Hudson Common Stock held by the public.
Hudson Common Stock is quoted in the over-the-counter market on Nasdaq.
If the Exchange Offer is consummated, the extent of the public market for the
remaining shares of Hudson Common Stock, and the availability of price
quotations, will depend upon the number of holders, the aggregate market value
of the Hudson Common Stock remaining, the interest of securities firms in
maintaining a market in the Hudson Common Stock and other factors.
RESALE OF TRUSTCO COMMON STOCK
The TrustCo Common Stock to be issued pursuant to the Exchange Offer
will be freely transferable under the 1933 Act except for shares issued to any
Hudson shareholder who may be deemed to be an "affiliate" of Hudson for purposes
of Rule 145 under the 1933 Act. Under Rule 145, such "affiliates" may not sell
their TrustCo Common Stock acquired in connection with the Exchange Offer except
pursuant to an effective registration statement under the 1933 Act covering such
shares or in compliance with Rule 145 promulgated under the 1933 Act or another
applicable exemption from the
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registration requirements of the 1933 Act. This Prospectus does not cover
resales of shares of TrustCo Common Stock received by any person who may be
deemed to be an "affiliate" of Hudson. Persons who may be deemed to be
"affiliates" of Hudson generally include individuals who, or entities that,
control, are controlled by or are under common control with Hudson, and may
include certain officers and directors of Hudson as well as principal
shareholders of Hudson.
CERTAIN LEGAL MATTERS
GENERAL
Except as set forth below, based upon an examination of publicly
available information filed by Hudson with the SEC and other publicly available
information with respect to Hudson, TrustCo is not aware of any license or
regulatory permit which appears to be material to the business of Hudson and
which is likely to be adversely affected by TrustCo's acquisition of Hudson
Common Stock pursuant to the Exchange Offer or, except as disclosed below, of
any approval or other action by any state, federal or foreign government or
governmental agency that would be required prior to the acquisition of Hudson
Common Stock pursuant to the Exchange Offer. TrustCo presently intends to take
such actions with respect to any approvals as will enable it to acquire the
Hudson Common Stock as expeditiously as possible. In this regard, TrustCo
expressly reserves the right to challenge the validity and applicability of any
state, foreign or other statutes or regulations purporting to require approval
of the commencement or consummation of the Exchange Offer and the TrustCo-Hudson
Merger.
There can be no assurance that any license, permit, approval or other
action, if needed, would be obtained and, if obtained, there can be no assurance
as to the date of any such license, permit or approval or the absence of any
litigation challenging any such license, permit or approval. Similarly, there
can be no assurance that adverse consequences might not result to Hudson or to
its business in the event of adverse regulatory action or inaction. TrustCo's
obligation under the Exchange Offer to accept for exchange and exchange Hudson
Common Stock is subject to satisfaction of the Regulatory Approval Condition as
well as other conditions which could be triggered by an adverse regulatory
development. See "THE EXCHANGE OFFER -- General" and "-- Certain Conditions of
the Exchange Offer."
REGULATORY MATTERS
The acquisition of Hudson Common Stock pursuant to the Exchange Offer
(the "Acquisition") and the consummation of the TrustCo-Hudson Merger are
subject to the prior approval by the Federal Reserve Board pursuant to the Bank
Holding Company Act of 1956, as amended (the B.H.C.A.) and the New York State
Banking Department (the "NYBD"). The Trustco Bank--Hudson River Bank & Trust
Company Merger is subject to the prior approval of the federal Office of the
Comptroller of the Currency (the "OCC") pursuant to the Bank Merger Act.
In determining whether to approve the Acquisition and the
TrustCo-Hudson Merger, the Federal Reserve Board, the OCC and the NYBD will
consider, among other things: (i) competitive factors; (ii) the financial and
managerial resources and future prospects of TrustCo and Hudson; (iii) the
convenience and needs of the community served by TrustCo and Hudson; and (iv)
supervisory factors. These factors are discussed herein. It is anticipated that
TrustCo's application to the Federal Reserve Board will be filed on or about
November 17, 2000 and that the application to the OCC and the NYBD will be
filed as soon as possible thereafter.
The federal bank regulatory agencies are prohibited from approving
any transaction under the applicable statutes which: (i) would result in a
monopoly or which would be in furtherance of any combination or conspiracy to
monopolize or to attempt to monopolize the business of banking in any part of
the United States; or (ii) may have the effect in any section of the United
States of substantially lessening competition, or tending to create a monopoly,
or resulting in a restraint of trade; unless in each case the agencies find
that the anti-competitive effects of the transaction are clearly outweighed in
the public interest by the probable effect of the transaction in meeting the
convenience and needs of the communities to be served.
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In reviewing a transaction under the applicable statutes, the
federal banking agencies will also consider the financial and managerial
resources of the companies and their subsidiary banks and the convenience and
needs of the communities to be served. As part of, or in addition to,
consideration of the above factors, it is anticipated that the agencies will
consider the regulatory status of TrustCo and Hudson and their subsidiaries and
the overall capital and safety and soundness standards established by the
Federal Deposit Insurance Corporation Improvement Act of 1991 and the
regulations promulgated thereunder.
Under the Community Reinvestment Act of 1977, as amended (the
"C.R.A."), the federal banking agencies must also take into account the
record of performance of each of TrustCo and Hudson and their subsidiaries in
meeting the credit needs of the entire community, including low and moderate
income neighborhoods, served by each company. As of the date of this Prospectus,
the Trustco Bank and Hudson River Bank & Trust Company received C.R.A.
ratings of satisfactory and outstanding, respectively, in their most recent
C.R.A. examinations.
The B.H.C.A. and the Bank Merger Act, the Federal Reserve Board and
OCC, regulations require publication of notice of, and the opportunity for
public comment on, the application submitted by TrustCo for approval of the
Acquisition and authorize the Federal Reserve Board to hold a public hearing in
connection therewith if the Federal Reserve Board determines that such a hearing
would be appropriate. Any such hearing or comments provided by third parties
could prolong the period during which the application is subject to review by
the Federal Reserve Board.
As noted above, the Acquisition may not be consummated until 30 days
after Federal Reserve Board approval, during which time the D.O.J. may challenge
the Acquisition on antitrust grounds and seek the divestiture of certain assets
and liabilities. With the approval of the Federal Reserve Board and the D.O.J.,
the waiting period may be reduced to no less than 15 days. The commencement of
an antitrust action by the D.O.J. would stay the effectiveness of Federal
Reserve Board approval of the Acquisition unless a court specifically orders
otherwise. In reviewing the Acquisition, the D.O.J. could analyze the effect of
the Acquisition on competition differently than the Federal Reserve Board and,
thus, it is possible that the D.O.J. could reach a different conclusion than the
Federal Reserve Board regarding the competitive effects of the Acquisition.
Failure of the D.O.J. to object to the Acquisition may not prevent the filing of
antitrust actions by private persons or state attorneys general.
In general, the Federal Reserve Board and the D.O.J. will examine the
impact of the Acquisition on competition in various product and geographic
markets, including competition for deposits and loans, especially loans to small
and middle market businesses.
ANTICIPATED APPROVALS
While TrustCo expects to receive the approvals from the Federal Reserve
Board, the OCC and the NYBD and other relevant agencies required to consummate
the Acquisition, TrustCo cannot predict when, or give any assurance that, such
approvals will be received. It is anticipated that, in any event, the approval
process (including the mandatory waiting periods) could take four to six months
from the date the applications are filed. Any such approvals may be issued
subject to prior compliance with material conditions, which conditions might be
unacceptable to TrustCo and would entitle TrustCo to terminate the Exchange
Offer. In any event, the receipt of all such regulatory approvals and the
expiration of all waiting periods is a non-waivable condition to the Exchange
Offer.
CERTAIN CONDITIONS OF THE EXCHANGE OFFER
TrustCo's obligation to accept Hudson Common Stock pursuant to the
Exchange Offer is subject to a number of conditions, which are described below.
TrustCo reserves the absolute right to waive on or before the Expiration Date
any of the conditions
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of the Exchange Offer other than the conditions regarding regulatory
approval, the TrustCo stockholder approval (if required) and the
effectiveness of the Registration Statement.
MINIMUM TENDER CONDITION
The Exchange Offer is conditioned upon there being validly tendered and
not withdrawn prior to the Expiration Date a number of shares of Hudson Common
Stock which, together with the shares of Hudson Common Stock beneficially owned
by TrustCo and its affiliates for their own respective accounts, would represent
at least a majority of the Hudson Common Stock outstanding on a fully diluted
basis (i.e., as though all options or other securities convertible into or
exercisable for shares of Hudson Common Stock had been so converted, exercised
or exchanged) on the date shares of Hudson Common Stock are accepted by TrustCo
pursuant to the Exchange Offer (the "Minimum Tender Condition"). According to
the Hudson Proxy Statement, there were 15,310,560 shares of Hudson Common Stock
outstanding on June 20, 2000 and 2,499,525 shares of Hudson Common Stock in the
aggregate reserved for issuance pursuant to Hudson's Stock Option and Incentive
Plan and Hudson's Recognition and Retention Plan. Based on the foregoing,
TrustCo believes that the Minimum Tender Condition would have been satisfied on
June 20, 2000 if, in addition to the 108,500 shares of Hudson Common Stock
currently owned beneficially by TrustCo and its affiliates for their own
respective accounts, at least an aggregate of 7,546,781 shares of Hudson Common
Stock outstanding on June 20, 2000, in addition to shares of Hudson Common Stock
in an amount at least equal to 50.1% of any outstanding options to acquire
Hudson Common Stock, had been validly tendered pursuant to the Exchange Offer
and not withdrawn. TrustCo reserves the right (but is not obligated), subject to
the rules and regulations of the SEC, to waive or amend on or before the
Expiration Date the Minimum Tender Condition and to purchase fewer than such
number of shares of Hudson Common Stock as would satisfy the Minimum Tender
Condition pursuant to the Exchange Offer.
REGULATORY APPROVAL CONDITION
The Exchange Offer and the TrustCo-Hudson Merger are subject to the
receipt of all regulatory approvals sought by TrustCo in connection with the
transactions contemplated by the Exchange Offer and the TrustCo-Hudson Merger
and the Trustco Bank--Hudson River Bank & Trust Company Merger without the
imposition of any material condition unacceptable to TrustCo, the expiration
of all required waiting periods, and the compliance by TrustCo with any terms
or conditions of such approvals (the "Regulatory Approval Condition"). See
"THE EXCHANGE OFFER--Certain Legal Matters." While TrustCo expects to receive
the requisite governmental approvals, TrustCo cannot predict when, or give
any assurance that, such approvals will be received. TrustCo may not waive
the Regulatory Approval Condition.
REMOVAL OF IMPEDIMENTS CONDITION
Hudson's Certificate of Incorporation (the "Hudson Certificate")
provides that certain business combinations with an interested stockholder
require the affirmative vote of the holders of at least 80% of the voting power
of the outstanding shares of stock of Hudson entitled to vote in the election of
directors. Generally, an interested stockholder is any person, other than Hudson
or any subsidiary of Hudson, that is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the outstanding voting stock
of Hudson. The business combination provisions relating to interested
stockholders also apply to affiliates of interested stockholders. Business
combinations subject to the 80% stockholder approval requirement include, among
other things, any merger or consolidation of Hudson or any subsidiary of Hudson
with the interested stockholder or an affiliate of the interested stockholder. A
business combination with an interested stockholder may avoid the 80%
stockholder approval requirement, needing only an affirmative vote of a majority
of the voting power of the outstanding shares of stock of Hudson entitled to
vote in the election of directors, if the business combination has been approved
by a majority of the disinterested directors of Hudson, the fair market value of
the consideration received per share by the holders of Hudson Common Stock
equals or exceeds the higher of certain fair
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price determinations, the interested stockholder and its affiliates refrain
from engaging in certain self-dealing transactions with Hudson prior to
consummation of the business combination, and a proxy or information
statement describing the proposed business combination and complying with the
requirements of the 1934 Act has been mailed to stockholders of Hudson at
least 30 days prior to the consummation of such business combination.
Hudson's Certificate also provides that, with certain exceptions, a
beneficial owner of more than 10% of the voting stock of Hudson is prohibited
from voting more than 10% of the stock of Hudson (the "10% Limit").
The Delaware General Corporation Law (the "DGCL") contains a statute
designed to provide Delaware corporations with protection against certain
takeover attempts. The statute, which is codified in Section 203 of the DGCL
("Section 203"), among other things, prohibits Hudson (a Delaware corporation)
from engaging in certain business combinations (including a merger) with a
person who is the beneficial owner of 15% or more of Hudson's outstanding voting
stock (an "Interested Stockholder") during the three-year period following the
date such person became an Interested Stockholder. This restriction does not
apply if: (i) before such person became an Interested Stockholder, the board of
directors approved the transaction in which the Interested Stockholder becomes
an Interested Stockholder or approved the business combination; or (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
Interested Stockholder, the Interested Stockholder owned at least 85% of the
voting stock of Hudson outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding, those
shares owned by (a) persons who are directors and also officers and (b) employee
stock plans in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer; or (iii) on or subsequent to such date, the business
combination is approved by the board of directors and authorized at an annual or
special meeting of stockholders, and not by written consent, by the affirmative
vote of at least two-thirds of the outstanding voting stock which is not owned
by the Interested Stockholder. Section 203 provides that a Delaware corporation
may exempt itself from the requirements of the statute by adopting an amendment
to the corporation's certificate of incorporation. Hudson's Certificate does not
exempt Hudson from the requirements of Section 203. A copy of Section 203 is
attached hereto as Appendix B.
The New York charter of Hudson River Bank & Trust Company, the thrift
subsidiary of Hudson, contains a provision which currently prevents any person
from acquiring, directly or indirectly, more than ten percent of any class of
stock of Hudson River Bank & Trust Company. Because Hudson River Bank & Trust
Company is owned and controlled by Hudson, the acquisition of Hudson Common
Stock pursuant to the Exchange Offer may be deemed to be an indirect acquisition
of the equity securities of Hudson River Bank & Trust Company which,
accordingly, may result in a violation of the New York charter of Hudson River
Bank & Trust Company. This ownership limitation is being maintained on a
permissive basis by Hudson River Bank & Trust Company and may be lawfully
removed by amendment to its charter. The charter of Hudson River Bank & Trust
Company could be amended through the adoption of appropriate resolutions by the
board of directors of Hudson River Bank & Trust Company -- who are substantially
the same individuals as the directors of Hudson -- which resolutions would
thereafter be approved by the Hudson Board of Directors (the "Hudson Board")
acting on its behalf as the sole stockholder of Hudson River Bank & Trust
Company.
All of the above are impediments to the consummation of the
TrustCo-Hudson Merger. The Exchange Offer is subject to the condition (the
"Removal of Impediments Condition") that TrustCo is not required to exchange
shares of Hudson Common Stock and may terminate, amend or extend the Exchange
Offer on or prior to the Expiration Date, unless the above impediments are
removed. This can be satisfied in one of two ways; either: (i) the Hudson Board
approves the Exchange Offer and the Hudson Board and Hudson shareholders (by a
majority vote of the outstanding shares of Hudson stock) approve the
TrustCo-Hudson Merger; or (ii) TrustCo being satisfied, in its reasonable
discretion, that Section 203 and the anti-takeover provisions of Hudson's
Certificate and the charter of Hudson River Bank & Trust Company are invalid or
are not applicable to the transactions contemplated by the
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Exchange Offer and the TrustCo-Hudson Merger. The consideration offered
pursuant to the Exchange Offer meets the fair price requirements of the
business combination provisions of Hudson's Certificate and, except for the
required approval of Hudson's directors and shareholders, satisfaction of the
other conditions would be within TrustCo's control. Accordingly, the approval
of the Exchange Offer and the TrustCo-Hudson Merger by the Hudson Board
(other than any director nominated by TrustCo and thereafter elected to the
Hudson Board) would obviate the 80% vote requirement of Hudson's Certificate
and also make Section 203 inapplicable to the transaction. As part of its
approval of the TrustCo-Hudson Merger, the Hudson Board would also have to:
(a) make appropriate arrangements for amendment to the charter of Hudson
River Bank & Trust Company to eliminate the 10% or greater ownership
prohibition contained therein; and (b) call a meeting of shareholders of
Hudson to approve the TrustCo-Hudson Merger.
The exact timing and details of the closing of the TrustCo-Hudson
Merger between TrustCo and Hudson following the Exchange Offer will necessarily
depend upon a variety of factors, including the means and methods employed by
the Hudson Board in approving, and causing to be held a meeting of Hudson
shareholders for the purpose of approving, the TrustCo-Hudson Merger. Although
TrustCo intends to propose and to seek consummation of the TrustCo-Hudson Merger
as soon as reasonably practicable following the Exchange Offer, no assurances
can be given that the consummation of the Exchange Offer may not be delayed due
to the timing of the Hudson Board and shareholder approvals. TrustCo may delay
completion of the Exchange Offer if the delay will allow it to complete the
TrustCo-Hudson Merger.
TRUSTCO STOCKHOLDER APPROVAL CONDITION
The Exchange Offer is conditioned, among other things, upon the
approval of the issuance of shares of TrustCo Common Stock pursuant to the
Exchange Offer by the holders of a majority of the outstanding shares of TrustCo
Common Stock if required under the rules of the Nasdaq Stock Market. Pursuant to
the rules of the Nasdaq Stock Market, if the number of shares of TrustCo Common
Stock to be issued in the Exchange Offer and the TrustCo-Hudson Merger will
exceed 20% of the number of outstanding shares prior to such issuance, the
issuance must be approved by TrustCo's stockholders. While TrustCo does not
currently anticipate that the number of shares of TrustCo Common Stock to be
issued in the Exchange Offer and the TrustCo-Hudson Merger will exceed the 20%
of the currently outstanding numbers of shares, changes in the price of TrustCo
Common Stock or a determination that the TrustCo Common Stock is to be issued in
TrustCo's proposed acquisition of Cohoes should be aggregated with the shares of
TrustCo Common Stock to be issued in the Exchange Offer and the TrustCo-Hudson
Merger may result in a requirement under the Nasdaq Stock Market rules that
shareholder approval is required. This TrustCo Stockholder Approval Condition is
a non-waivable condition to the Exchange Offer if the rules of the Nasdaq Stock
Market require such an approval.
TAX OPINION
The Exchange Offer is conditioned, among other things, upon the
receipt by TrustCo at the time the Exchange Offer is completed of an opinion
of counsel that the Exchange Offer and the TrustCo-Hudson Merger qualify as a
reorganization under Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended (the "Code"). The law firm of Lewis, Rice & Fingersh, L.C.
has indicated that it will issue such opinion based upon and subject to the
assumptions and other matters set forth in "THE EXCHANGE OFFER--Material
Federal Income Tax Consequences."
MATERIAL ADVERSE EFFECT CONDITION
The Exchange Offer is subject to the condition (the "Material Adverse
Effect Condition") that, since June 30, 1999, there has been no material adverse
change, or any prospective material adverse change, in the financial condition,
business or assets of Hudson. This condition will be deemed satisfied
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unless, after June 30, 1999 and prior to the close of business on the
Expiration Date any of the following events occur:
(a) there is threatened, instituted or pending any action or
proceeding before any domestic or foreign court or governmental agency
or other regulatory or administrative agency or commission, including
but not limited to any such investigation, action or proceeding which
was in existence on or prior to June 30, 1999: (i) seeking to obtain
any material damages from Hudson; (ii) seeking to prohibit or restrict
Hudson's ownership or operation of any material portion of its business
or assets, or to compel Hudson to dispose of or hold separate all or
any material portion of Hudson's business or assets; (iii) which
otherwise is reasonably likely to materially adversely affect Hudson or
the value of the Hudson Common Stock; (iv) which imposes material
limitations on the ability of TrustCo effectively to acquire or hold or
to exercise full rights of ownership of the Hudson Common Stock,
including, without limitation, the right to vote the shares of Hudson
Common Stock acquired by it on all matters properly presented to the
stockholders of Hudson or any material condition unacceptable to
TrustCo; or (v) which is reasonably likely to enjoin, restrain or
prohibit, or result in material damages in respect of, or which is
related to or arises out of, the Exchange Offer or the TrustCo-Hudson
Merger or the consummation of the transactions contemplated hereby; or
(b) any change (or any condition, event or development
involving a prospective change) has occurred or is threatened in the
business, properties, assets, liabilities, capitalization,
stockholders' equity, financial condition, results of operations or
prospects of Hudson (including, without limitation, the disposition of
assets) which, in the reasonable judgment of TrustCo, is or may be
materially adverse to Hudson or to the value of the Hudson Common
Stock, or TrustCo becomes aware of any fact (including, but not limited
to, any such change, condition, event or development) which, in the
reasonable judgment of TrustCo, has or may have materially adverse
significance with respect to Hudson or any of its subsidiaries or to
the value of the Hudson Common Stock; and
which, in the reasonable judgment of TrustCo, makes it inadvisable to proceed
with the Exchange Offer.
The foregoing conditions are for the sole benefit of TrustCo and may be
asserted by TrustCo on or before the Expiration Date regardless of the
circumstances giving rise to any such conditions (including any action or
inaction by TrustCo) or may be waived on or before the Expiration Date by
TrustCo in whole or in part. The failure by TrustCo to exercise any of the
foregoing rights will not be deemed a waiver of any such right and each such
right will be deemed a continuing right which may be asserted at any time and
from time to time on or before the Expiration Date.
TERMINATION OF THE HUDSON-COHOES OPTION AGREEMENT
The Exchange Offer is conditioned, among other things, upon the
termination of the Stock Option Agreement, dated April 25, 2000, between Hudson
and Cohoes (the "Hudson-Cohoes Option Agreement") and the surrender by Cohoes to
Hudson of the options granted to Cohoes thereunder. The Hudson-Cohoes Option
Agreement was entered into in connection with the Hudson-Cohoes Merger
Agreement. Under the Hudson-Cohoes Option Agreement, Hudson granted Cohoes an
unconditional, irrevocable option to purchase up to $3.5 million of Hudson
Common Stock.
On September 28, 2000, Hudson and Cohoes announced that they had
amended the Hudson-Cohoes Option Agreement to cap the economic value of the
option at $3.5 million.
Cohoes may exercise the option if, but only if, both an "Initial
Triggering Event" and a "Subsequent Triggering Event" has occurred prior to the
occurrence of an "Exercise Termination Event."
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An "Initial Triggering Event" includes any of the following events
or transactions: (i) Hudson, without Cohoes' prior consent, enters into an
agreement to be acquired (i.e., 10% or more of the voting power of the Hudson
Common Stock), or the Hudson Board recommends that the Hudson shareholders
approve such an acquisition transaction with any person other than Cohoes;
(ii) any person other than Cohoes acquires beneficial ownership (or the right
to acquire beneficial ownership) of 10% or more of the outstanding shares of
Hudson Common Stock; (iii) any person publicly announces that it has made or
intends to make a proposal to engage in an acquisition transaction with
Hudson; (iv) the Hudson Board (without having received Cohoes' consent): (a)
withdraws its recommendation to the Hudson stockholders that they approve the
Hudson-Cohoes Merger; or (b) authorizes, recommends or proposes an agreement
to enter into an acquisition transaction with anyone other than Cohoes; or
(c) provides information to or engages in negotiations with a third party
relating to a possible acquisition transaction; (v) any person (other than
Cohoes) files with the SEC a registration statement or tender offer materials
with respect to a potential exchange offer than would constitute such an
acquisition transaction; (vi) Hudson willfully breaches any covenant or
obligation contained in the Hudson-Cohoes Merger Agreement after an overture
is made by a third party to Hudson or its shareholders to engage in a
possible acquisition transaction and such breach would entitle Cohoes to
terminate the Hudson-Cohoes Merger Agreement and has not been cured within
the time period prescribed in the Hudson-Cohoes Option Agreement or (vii) any
person (other than Cohoes and without Cohoes' consent) files an application
or notice with any federal or state thrift or bank regulatory or antitrust
authority to engage in such an acquisition transaction. The Exchange offer,
and TrustCo's activities in connection therewith and with the TrustCo-Hudson
Merger, constitute an "Initial Triggering Event."
A "Subsequent Triggering Event" means: (i) the acquisition by any
person (other than Cohoes) of beneficial ownership of 25% or more of the
outstanding Hudson Common Stock; or (ii) the occurrence of an "Initial
Triggering Event" described in clause (i) of the immediately preceding
paragraph (but by substitution 25% for 10%). The Exchange Offer, and
TrustCo's activities in connection therewith and with the TrustCo-Hudson
Merger, will constitute a "Subsequent Triggering Event."
An "Exercise Termination Event" means any of the following: (i) such
time as the Hudson-Cohoes Merger becomes effective; (ii) a termination of the
Hudson-Cohoes Merger Agreement in accordance with its term; or (iii) the
passage of certain prescribed times after termination of the Hudson-Cohoes
Merger Agreement if such termination follows the occurrence of an "Initial
Triggering Event." By its terms the Option Agreement is not expected to
terminate prior to August 17, 2001.
Since there has been an Initial Triggering Event, and since the
closing of the Exchange Offer and the TrustCo-Hudson Merger will constitute a
Subsequent Triggering Event, Hudson and Cohoes will need to mutually agree to
terminate the Hudson-Cohoes Option Agreement to satisfy this condition.
DEFINITIVE TRUSTCO-HUDSON MERGER AGREEMENT
The Exchange Offer is conditioned, among other things, upon TrustCo
and Hudson entering into a definitive agreement with respect to the
TrustCo-Hudson Merger which is approved by the Hudson Board and Hudson's
shareholders. TrustCo considers the Exchange Offer and the TrustCo-Hudson
Merger to be related steps in one overall transaction whereby TrustCo
acquires all of the issued and outstanding shares of Hudson Common Stock. See
"THE EXCHANGE OFFER--Material Federal Income Taxes." Whether this condition
can be satisfied depends upon the willingness of the Hudson Board to enter
into such a definitive agreement.
DEFINITIVE TRUSTCO BANK-HUDSON RIVER BANK & TRUST COMPANY MERGER
AGREEMENT
The Exchange Offer is conditioned, among other things, upon Trustco
Bank and Hudson River Bank & Trust Company entering into a definitive
agreement with respect to the Trustco Bank-Hudson River Bank & Trust Company
Merger which is approved by the Hudson River Bank & Trust Company board of
directors and shareholder. Whether this condition can be satisfied depends
upon the willingness of the Hudson Board to enter into such a definitive
agreement.
EFFECTIVE REGISTRATION STATEMENT
The Exchange Offer is conditioned, among other things, upon the
Registration Statement of which this Prospectus is a part becoming effective.
This is a non-waivable condition to the Exchange Offer. This condition has
been satisfied.
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WAIVER OF CONDITIONS
With the exception of the Regulatory Approval Condition, the TrustCo
Stockholder Approval Condition (to the extent the approval of TrustCo's
stockholders is required) and the effectiveness of this Registration Statement
condition, each of the conditions to the offer discussed above must either be
satisfied or waived by TrustCo on or before the Expiration Date.
FEES AND EXPENSES
TrustCo has engaged Georgeson Shareholder Communications Inc. to act
as TrustCo's information agent (the "Information Agent") with respect to the
Exchange Offer. TrustCo will pay the Information Agent a fee of $10,000 for
its services in connection with the Exchange Offer, plus reimbursement for
out-of-pocket expenses, and will indemnify the Information Agent against
certain liabilities and expenses in connection therewith, including
liabilities under the federal securities laws.
TrustCo will pay the Exchange Agent reasonable and customary
compensation for its services in connection with the Exchange Offer, plus
reimbursement for out-of-pocket expenses, and will indemnify the Exchange
Agent against certain liabilities and expenses in connection therewith,
including liabilities under the federal securities laws.
Brokers, dealers, commercials banks and trust companies will be
reimbursed by TrustCo for customary mailing and handling expenses incurred by
them in forwarding material to their customers.
ACCOUNTING TREATMENT
Upon consummation of the Exchange Offer, TrustCo will account for
the acquisition of the Hudson Common Stock as a purchase business
combination. See "PRO FORMA COMBINED FINANCIAL INFORMATION--Summary of
Purchase Accounting Adjustments June 30, 2000."
NASDAQ LISTING
The outstanding shares of TrustCo Common Stock are, and the shares
of TrustCo Common Stock to be issued in the Exchange Offer and the
TrustCo-Hudson Merger will be, included for quotation on the Nasdaq.
SOURCE OF FUNDS
TrustCo expects to fund the cash portion of the Exchange
Consideration, i.e. the $10.20 net in cash and the amounts necessary for
payments in lieu of fractional shares, from its existing cash assets and the
cash assets that will be available to TrustCo upon completion of the merger of
Trustco Bank and Hudson River Bancorp, Inc. To the extent the Exchange
Consideration is derived from securities TrustCo holds "available for sale",
such securities are readily marketable and a large and liquid market exists.
TrustCo does not anticipate any difficulty in attracting purchasers for such
securities. The aggregate cash portion of the Exchange Consideration totals
approximately $151.0 million. Currently, TrustCo has cash assets of
approximately $46.0 million on an unconsolidated basis. Upon completion of the
merger of Trustco Bank and Hudson River Bank & Trust Company, TrustCo expects
that it would have $125.5 million in additional cash assets available to it (in
the form of consideration for the bank merger paid by Trustco Bank or dividends
paid by Trustco Bank). TrustCo would use these additional cash assets as well as
its existing cash assets to pay the merger consideration. TrustCo believes
that the transaction as structured will ensure prompt payment of the cash
portion of the Exchange Consideration to Hudson stockholders. TrustCo
currently has no plan or arrangement in place with respect to alternate
sources of financing for the cash component of the Exchange Considertaion and
does not expect to obtain an advance from Trustco Bank to fund the cash
portion of the Exchange Consideration.
If TrustCo completes its proposed acquisition of Cohoes, it expects to
fund in a similar manner the cash portion of the consideration to be paid to
Hudson's stockholders. The aggregate
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cash portion of the consideration in the Cohoes transaction totals
approximately $86.0 million. Upon completion of the merger of Trustco Bank
and Cohoes' subsidiary, Cohoes Saving Bank, TrustCo expects that it would
have $83.1 million in additional cash assets available to it. The foregoing
amounts are in addition to the $46.0 million already available to TrustCo.
TREATMENT OF HUDSON STOCK OPTIONS
Hudson maintains an Employee Stock Ownership Plan ("ESOP") for its
employees and a Stock Option and Incentive Plan for directors, advisory
directors and key employees (collectively the "Option Plans"). Each
outstanding option under the Option Plans will be canceled prior to the
consummation date of the TrustCo-Hudson Merger and the holder thereof will
receive from TrustCo, in payment for such option, cash in the amount of
$17.00 less the exercise price of the stock option. Any resulting fractional
shares will be paid in cash. It is anticipated that the ESOP will be
terminated and any remaining unallocated ESOP shares would be allocated to
participants after repayment of the ESOP loan.
RECENT DEVELOPMENTS
COHOES AND HUDSON STOCKHOLDER MEETINGS
On August 17, 2000, Cohoes and Hudson each held meetings of
shareholders at which the Hudson-Cohoes Merger Agreement was submitted to
shareholders for their approval. On August 18, 2000, although Hudson announced
that its shareholders had approved the Hudson-Cohoes Merger, Cohoes announced
that its shareholders did not approve the Hudson-Cohoes Merger.
AMBANC TENDER OFFER
On July 27, 2000, Ambanc Holding Co., Inc. ("Ambanc") announced its
intent to commence a tender offer for all outstanding shares of Cohoes. The
announcement stated that Ambanc would offer Cohoes' shareholders $16.50 in cash
for each share of Cohoes Common Stock. Ambanc also solicited proxies from Cohoes
shareholders to vote against the Cohoes-Hudson Merger. On August 9, Ambanc
commenced its tender offer. Ambanc has also announced that it has nominated
three persons for election to the Cohoes board of directors at Cohoes' next
annual meeting of shareholders. On October 6, 2000, Ambanc announced that its
offer would expire at midnight, New York City Time, on October 6, 2000, without
the conditions to the offer being satisfied and that it had instructed its
depositary for the offer to promptly return all shares of Cohoes common stock
tendered pursuant to the Offer and not withdrawn.
TERMINATION OF HUDSON-COHOES MERGER AGREEMENT
On September 28, 2000, Hudson and Cohoes announced that they had
terminated the Hudson-Cohoes Merger Agreement. Also on September 28, 2000,
Cohoes announced that its board of directors and management, together with their
financial and legal advisors, would immediately begin a comprehensive
exploration of all strategic options, which could include the sale of Cohoes to
a larger financial institution, and that it had engaged Keefe, Bruyette & Woods,
Inc. to assist in the evaluation of Cohoes' strategic options. Cohoes also
indicated that its board continues to believe that Ambanc's unsolicited tender
offer and the price publicly announced by TrustCo were inadequate and not in the
best interests of Cohoes stockholders.
TRUSTCO'S DIRECTORS AND EXECUTIVE OFFICERS
Following is a list of TrustCo's Directors and Executive Officers,
their business background, business addresses and phone numbers:
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Barton A. Andreoli (President, Towne Construction and Paving) 828
Burdek Street, Schenectady, NY 12306, 518-956-4890; Lionel O. Barthold, RETIRED;
Joseph A. Lucarelli (President, Bellevue Builders Supply, Inc.) 504 Duanesburgh
Road, Schenectady, NY 12306, 518-355-7190; Anthony J. Marinello (M.D., Ph.D.,
Family Physician) 963 Route 146, Clifton Park, NY 12065, 518-383-0891 Ext. 222;
James H. Murphy, DDS (Orthodontist) 165 Manning Boulevard, Albany, NY 12203,
518-489-6241; Richard J. Murray, Jr., (President, R.J. Murray Company, Inc.)
4021 State Street, Schenectady, NY 12034, 518-372-4751; Kenneth C. Peterson
RETIRED; William D. Powers (Chairman, NY Republican State Committee), 315 State
Street, Albany, NY 12210, 518-462-2601; William J. Purdy (President, Welbourne &
Purdy) P.O. Box 1082, Schenectady, NY 12301; Robert A. McCormick (President and
CEO, Trustco Bank. N.A.) P.O. Box 1082, Schenectady, NY 12301, 518-377-3311;
Nancy A. McNamara (Senior Vice President, Trustco Bank, N.A.) P.O. Box 1082,
Schenectady, NY 12301, 518-377-3641; William F. Terry (Senior Vice President,
Trustco Bank, N.A.) P.O. Box 1082, Schenectady, NY 12301, 518-377-3611; Robert
T. Cushing (Senior Vice President and CFO, Trustco Bank, N.A.) P.O. Box 1082,
Schenectady, NY 12301, 518-377-3696.
None of the Directors or Executive Officers of TrustCo have been
convicted in a criminal proceeding within the last five years nor have any of
the Directors or Executive Officers of TrustCo been a party to any proceeding
resulting in the imposition of any restrictions relating to federal or state
securities laws.
Further, to the best of TrustCo's knowledge, none of the
above-named individuals own any shares of Hudson common stock nor are any of the
above-named individuals a party to any contract, understanding, relationship or
arrangement with respect to Hudson securities, nor have any of the above-named
individuals undertaken any transaction within the past sixty days with respect
to any Hudson securities.
Further, to the best of TrustCo's knowledge, none of the
above-named individuals have entered into or proposed or received any proposed
material agreements or arrangements with respect to Hudson.
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed balance sheet and income
statements have been prepared based on the historical results of operations and
financial condition of TrustCo, Hudson and Cohoes. Pro forma adjustments and
assumptions on which they are based are described in the notes following such
balance sheet and income statements. The purchase accounting adjustments were
calculated as of the dates indicated in the notes (primarily June 30, 2000).
TrustCo has not had access to the Hudson or Cohoes records as part of
its attempt to allocate the cost of its investment in the fair value of the
Hudson and Cohoes assets and liabilities. The allocation of the cost of the
investments reflected in the accompanying pro forma information has been made
based on available information in some instances and otherwise based on
assumptions TrustCo believes to be reasonable. In instances in which there was
no reliable basis to make a reasonable estimate, recorded values were considered
to approximate fair value. Accordingly, for purposes of these pro forma
financial statements, the fair value of loans, deposits and premises and
equipment were considered to be carrying value. The excess of the purchase price
over the fair value of the net assets has been treated as goodwill.
The information concerning Hudson and Cohoes is derived from previously
filed Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and previously
released press releases. TrustCo does not make any representation with respect
to either Hudson or Cohoes amounts and has not performed any procedures to
ensure their accuracy or reasonableness. Certain Hudson and Cohoes financial
information has been reclassified to conform to TrustCo's financial
presentation.
53
<PAGE>
The information shown for TrustCo has been prepared from historical
financial information from previously filed Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and previously released press releases. The
information is for illustrative purposes only. The companies would likely have
performed differently had they always been combined. The information should not
be relied on as an indication of future results that the combined company will
experience after the transactions are completed, because of a variety of
factors, including access to additional information and changes in value.
TrustCo also expects to achieve operating cost savings as a result of
the Hudson and Cohoes transactions. See "BACKGROUND OF THE EXCHANGE
OFFER--Benefits of the transaction" No adjustments have been included in the
combined pro forma operating amounts for the anticipated operating cost savings.
54
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET AT JUNE 30, 2000
TRUSTCO AND HUDSON COMBINED
<TABLE>
<CAPTION>
TRUSTCO
HUDSON
PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA
----------- ---------- ----------- ---------
(in thousands)
<S> <C> <C> <C> <C>
ASSETS
Cash and cash equivalents $287,227 15,481 15,583 (a) 218,132
(4,356) (g)
(2,100) (h)
(93,703) (i)
Securities available for sale 661,478 232,583 (2,904) (g) 827,288
(1,400) (h)
(62,469) (i)
Securities held to maturity - 5,020 - 5,020
Loans receivable, net 1,319,680 822,501 - 2,142,181
Other assets 98,722 69,265 - 167,987
Goodwill and other intangibles - 11,337 56,980 (b) 68,317
----------- ---------- ------------ ---------
TOTAL ASSETS $2,367,107 1,156,187 (94,369) 3,428,925
=========== ========== ============ =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Deposits $1,979,144 745,032 - 2,724,176
Borrowings 162,109 182,424 - 344,533
Other liabilities 49,722 28,633 (6,386) (d) 79,969
8,000 (f)
----------- ---------- ------------ -----------
Total liabilities 2,190,975 956,089 1,614 3,148,678
----------- ---------- ------------ -----------
Total shareholders' equity 176,132 200,098 (200,098)(e) 280,247
104,115 (i)
----------- ---------- ------------ -----------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $2,367,107 1,156,187 (94,369) 3,428,925
=========== ========== ============ ===========
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
55
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEETS AT JUNE 30, 2000
TRUSTCO AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO
COHOES
PRO FORMA COMBINED
TRUSTCO COHOES ADJUSTMENTS PRO FORMA
---------- --------- ------------ -----------
<S> <C> <C> <C> <C>
(in thousands)
ASSETS
Cash and cash equivalents $ 287,227 12,658 7,961 (a) 251,409
(3,067) (g)
(2,100) (h)
(51,270) (i)
Securities available for sale 661,478 32,570 (2,045) (g) 656,423
(1,400) (h)
(34,180) (i)
Securities held to maturity - 55,129 - 55,129
Loans receivable, net 1,319,680 600,413 - 1,920,093
Other assets 98,722 24,685 - 123,407
Goodwill and other intangibles - 1,559 24,606 (b) 26,125
---------- --------- ------------ -----------
TOTAL ASSETS $2,367,107 727,014 (61,495) 3,032,626
========== ========= ============ ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Deposits $1,979,144 494,875 - 2,474,019
Borrowings 162,109 96,201 - 258,310
Other liabilities 49,722 14,632 (5,155) (d) 67,199
8,000 (f)
---------- --------- ------------ -----------
Total liabilities 2,190,975 605,708 2,845 2,799,528
---------- --------- ------------ -----------
Total shareholders' equity 176,132 121,306 (121,306) (e) 233,098
56,966 (i)
---------- --------- ------------ -----------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $2,367,107 727,014 (61,495) 3,032,626
========== ========= ============ ===========
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
56
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEETS AT JUNE 30, 2000.
TRUSTCO, HUDSON AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO
TRUSTCO HUDSON
HUDSON COHOES
PRO FORMA COMBINED PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA COHOES ADJUSTMENTS PRO FORMA
---------- ---------- ------------- ---------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
(in thousands)
ASSETS
Cash and cash equivalents $ 287,227 15,481 15,583 (a) 218,132 12,658 7,961 (a) 182,314
(4,356)(g) (3,067)(g)
(2,100)(h) (2,100)(h)
(93,703)(i) (51,270)(i)
Securities available for sale 661,478 232,583 (2,904)(g) 827,288 32,570 (2,045)(g) 822,233
(1,400)(h) (1,400)(h)
(62,469)(i) (34,180)(i)
Securities held to maturity - 5,020 - 5,020 55,129 - 60,149
Loans receivable, net 1,319,680 822,501 - 2,142,181 600,413 - 2,742,594
Other assets 98,722 69,265 - 167,987 24,685 - 192,672
Goodwill and other intangibles - 11,337 56,980 (b) 68,317 1,559 24,606 (b) 94,482
---------- --------- ------------- ---------- --------- ----------- ----------
TOTAL ASSETS $2,367,107 1,156,187 (94,369) 3,428,925 727,014 (61,495) 4,094,444
========== ========= ============= ========== ========= =========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Deposits $1,979,144 745,032 - 2,724,176 494,875 - 3,219,051
Borrowings 162,109 182,424 - 344,533 96,201 - 440,734
Other liabilities 49,722 28,633 (6,386)(d) 79,969 14,632 (5,155)(d) 97,446
8,000 (f) 8,000 (f)
---------- --------- ------------- ---------- --------- ----------- ----------
Total liabilities 2,190,975 956,089 1,614 3,148,678 605,708 2,845 3,757,231
Total shareholders' equity 176,132 200,098 (200,098)(e) 280,247 121,306 (121,306)(e)
104,115 (i) 56,966 337,213
---------- --------- ------------- ---------- --------- ----------- ----------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $2,367,107 1,156,187 (94,369) 3,428,925 727,014 (61,495) 4,094,444
========== ========= ============= ========== ========= =========== ==========
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
57
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME FOR THE 12 MONTHS
ENDED DECEMBER 31, 1999
TRUSTCO AND HUDSON COMBINED
<TABLE>
<CAPTION>
TRUSTCO
HUDSON
PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA
---------- --------- ------------- ------------
<S> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $106,734 54,677 - 161,411
Interest and dividends on securities available for
sale 44,440 14,805 (4,707) (j) 54,538
Interest and dividends on securities held to
maturity - 1,321 - 1,321
Interest on federal funds sold/short-term
investments 16,031 396 (4,998) (j) 11,429
---------- --------- ------------- ------------
Total interest income 167,205 71,199 (9,705) 228,699
---------- --------- ------------- ------------
Interest expense:
Interest on deposits 68,041 24,695 - 92,736
Interest on short-term borrowings 5,972 2,863 - 8,835
---------- --------- ------------- ------------
Total interest expense 74,013 27,558 - 101,571
---------- --------- ------------- ------------
Net interest income 93,192 43,641 (9,705) 127,128
Provision for loan losses 5,063 6,200 - 11,263
---------- --------- ------------- ------------
Net interest income after
provision for loan losses 88,129 37,441 (9,705) 115,865
---------- --------- ------------- ------------
Noninterest income:
Trust department income 8,065 - - 8,065
Fees for services to customers 8,695 1,417 - 10,112
Net gain/(loss) on securities transactions (5,446) 86 - (5,360)
Other 4,102 892 - 4,994
---------- --------- ------------- ------------
Total noninterest income 15,416 2,395 - 17,811
---------- --------- ------------- ------------
Noninterest expense:
Salaries and employee benefits 24,994 13,001 - 37,995
Net occupancy and equipment expense 9,363 3,953 - 13,316
Net other real estate owned expense (income) (700) 1,430 - 730
Other 11,979 7,846 2,849 (c) 22,674
---------- --------- ------------- ------------
Total noninterest expense 45,636 26,230 2,849 74,715
---------- --------- ------------- ------------
Income before income taxes 57,909 13,606 (12,554) 58,961
Income taxes 19,724 4,735 (3,300) (j) 21,159
---------- --------- ------------- ------------
Net income $38,185 8,871 (9,254) 37,802
========== ========= ============= ============
Earnings per share:
Basic $ 0.71 $ 0.59 $ 0.61
Diluted $ 0.68 $ 0.59 $ 0.59
Basic - Adjusted for TrustCo 15% stock split $ 0.62 - $ 0.53
Diluted - Adjusted for TrustCo 15% stock split $ 0.59 - $ 0.51
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
58
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME FOR THE 12 MONTHS
ENDED DECEMBER 31, 1999
TRUSTCO AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO
COHOES
PRO FORMA COMBINED
TRUSTCO COHOES ADJUSTMENTS PRO FORMA
-------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $106,734 39,795 - 146,529
Interest and dividends on securities available
for sale 44,440 2,221 (2,653) (j) 44,008
Interest and dividends on securities held to
maturity - 3,300 - 3,300
Interest on federal funds sold/short-term
investments 16,031 1,076 (2,816) (j) 14,291
---------- --------- -------------- ------------
Total interest income 167,205 46,392 (5,469) 208,128
---------- --------- -------------- ------------
Interest expense:
Interest on deposits 68,041 16,478 - 84,519
Interest on short-term borrowings 5,972 3,734 - 9,706
---------- --------- -------------- ------------
Total interest expense 74,013 20,212 - 94,225
---------- --------- -------------- ------------
Net interest income 93,192 26,180 (5,469) 113,903
Provision for loan losses 5,063 1,825 - 6,888
---------- --------- -------------- ------------
Net interest income after
provision for loan losses 88,129 24,355 (5,469) 107,015
---------- --------- -------------- ------------
Noninterest income:
Trust department income 8,065 - - 8,065
Fees for services to customers 8,695 810 - 9,505
Net gain/(loss) on securities transactions (5,446) (944) - (6,390)
Other 4,102 1,999 - 6,101
---------- --------- -------------- ------------
Total noninterest income 15,416 1,865 - 17,281
---------- --------- -------------- ------------
Noninterest expense:
Salaries and employee benefits 24,994 9,601 - 34,595
Net occupancy and equipment expense 9,363 3,034 - 12,397
Net other real estate owned expense (income) (700) (140) - (840)
Other 11,979 4,097 1,230 (c) 17,306
---------- --------- -------------- ------------
Total noninterest expense 45,636 16,592 1,230 63,458
---------- --------- -------------- ------------
Income before income taxes 57,909 9,628 (6,699) 60,838
Income taxes 19,724 3,607 (1,859) (j) 21,472
---------- --------- -------------- ------------
Net income 38,185 6,021 (4,840) 39,366
========== ========= ============== ============
Earnings per share:
Basic $ 0.71 $ 0.70 $ 0.67
Diluted $ 0.68 $ 0.70 $ 0.65
Basic - Adjusted for TrustCo 15% stock split $ 0.62 - $ 0.59
Diluted - Adjusted for TrustCo 15% stock split $ 0.59 - $ 0.57
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
59
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME FOR THE 12 MONTHS
ENDED DECEMBER 31, 1999
TRUSTCO, HUDSON AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO TRUSTCO
HUDSON HUDSON COHOES
PRO FORMA COMBINED PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA COHOES ADJUSTMENTS PRO FORMA
------- ------ ----------- --------- ------ ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $106,734 54,677 - 161,411 39,795 - 201,206
Interest and dividends on securities
available for sale 44,440 14,805 (4,707)(j) 54,538 2,221 (2,653)(j) 54,106
Interest and dividends on securities
held to maturity - 1,321 - 1,321 3,300 - 4,621
Interest on federal funds sold/
short-term investments 16,031 396 (4,998)(j) 11,429 1,076 (2,816 (j) 9,689
-------- -------- ------------ ----------- --------- ------------ --------------
Total interest income 167,205 71,199 (9,705) 228,699 46,392 (5,469) 269,622
-------- -------- ------------ ----------- --------- ------------ --------------
Interest expense:
Interest on deposits 68,041 24,695 - 92,736 16,478 - 109,214
Interest on short-term borrowings 5,972 2,863 - 8,835 3,734 - 12,569
-------- -------- ------------ ----------- --------- ------------ --------------
Total interest expense 74,013 27,558 - 101,571 20,212 - 121,783
-------- -------- ------------ ----------- --------- ------------ --------------
Net interest income 93,192 43,641 (9,705) 127,128 26,180 (5,469) 147,839
Provision for loan losses 5,063 6,200 - 11,263 1,825 - 13,088
-------- -------- ------------ ----------- --------- ------------ --------------
Net interest income after
provision for loan losses 88,129 37,441 (9,705) 115,865 24,355 (5,469) 134,751
-------- -------- ------------ ----------- --------- ------------ --------------
Noninterest income:
Trust department income 8,065 - - 8,065 - - 8,065
Fees for services to customers 8,695 1,417 - 10,112 810 - 10,922
Net gain/(loss) on securities
transactions (5,446) 86 - (5,360) (944) - (6,304)
Other 4,102 892 - 4,994 1,999 - 6,993
-------- -------- ------------ ----------- --------- ------------ --------------
Total noninterest income 15,416 2,395 - 17,811 1,865 - 19,676
-------- -------- ------------ ----------- --------- ------------ --------------
Noninterest expense:
Salaries and employee benefits 24,994 13,001 - 37,995 9,601 - 47,596
Net occupancy and equipment expense 9,363 3,953 - 13,316 3,034 - 16,350
Net other real estate owned expense
(income) (700) 1,430 - 730 (140) - 590
Other 11,979 7,846 2,849(c) 22,674 4,097 1,230(c) 28,001
-------- -------- ------------ ----------- --------- ------------ --------------
Total noninterest expense 45,636 26,230 2,849 74,715 16,592 1,230 92,537
-------- -------- ------------ ----------- --------- ------------ --------------
Income before income taxes 57,909 13,606 (12,554) 58,961 9,628 (6,699) 61,890
Income taxes 19,724 4,735 (3,300)(j) 21,159 3,607 (1,859)(j) 22,907
-------- -------- ------------ ----------- --------- ------------ --------------
Net income $38,185 8,871 (9,254) 37,802 6,021 (4,840) 38,983
======== ======== ============ =========== ========= ============ ==============
Earnings per share:
Basic $ 0.71 $ 0.59 $ 0.61 $ 0.70 $ 0.58
Diluted $ 0.68 $ 0.59 $ 0.59 $ 0.70 $ 0.56
Basic - Adjusted for TrustCo
15% stock split $ 0.62 - $ 0.53 - $ 0.51
Diluted - Adjusted for TrustCo
15% stock split $ 0.59 - $ 0.51 - $ 0.49
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
60
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME FOR THE SIX
MONTHS ENDED JUNE 30, 2000
TRUSTCO AND HUDSON COMBINED
<TABLE>
<CAPTION> TRUSTCO
HUDSON
PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA
---------- ---------- -------------- ------------
<S> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $55,211 34,439 - 89,650
Interest and dividends on securities available
for sale 22,598 8,110 (2,447) (j) 28,261
Interest and dividends on securities held to
maturity - 600 - 600
Interest on federal funds sold/short-term
investments 7,467 2 (3,030) (j) 4,439
---------- ---------- -------------- ------------
Total interest income 85,276 43,151 (5,477) 122,950
---------- ---------- -------------- ------------
Interest expense:
Interest on deposits 32,245 13,798 - 46,043
Interest on short-term borrowings 3,781 4,844 - 8,625
---------- ---------- -------------- ------------
Total interest expense 36,026 18,642 - 54,668
---------- ---------- -------------- ------------
Net interest income 49,250 24,509 (5,477) 68,282
Provision for loan losses 1,650 2,925 - 4,575
---------- ---------- -------------- ------------
Net interest income after
provision for loan losses 47,600 21,584 (5,477) 63,707
---------- ---------- -------------- ------------
Noninterest income:
Trust department income 4,270 - - 4,270
Fees for services to customers 4,362 838 - 5,200
Net gain/(loss) on securities transactions (3,369) - - (3,369)
Other 1,594 585 - 2,179
---------- ---------- -------------- ------------
Total noninterest income 6,857 1,423 - 8,280
---------- ---------- -------------- ------------
Noninterest expense:
Salaries and employee benefits 12,108 7,119 - 19,227
Net occupancy and equipment expense 4,665 2,539 - 7,204
Net other real estate owned expense (income) (302) 586 - 284
Other 6,883 4,789 1,425 (c) 13,097
---------- ---------- -------------- ------------
Total noninterest expense 23,354 15,033 1,425 39,812
---------- ---------- -------------- ------------
Income before income taxes 31,103 7,974 (6,902) 32,175
Income taxes 10,336 2,813 (1,862) (j) 11,287
---------- ---------- -------------- ------------
Net income $20,767 5,161 (5,040) 20,888
========== ========== ============== ============
Earnings per share:
Basic $ 0.39 $ 0.37 $ 0.34
Diluted $ 0.38 $ 0.37 $ 0.33
Basic - Adjusted for TrustCo 15% stock split $ 0.34 - $ 0.29
Diluted - Adjusted for TrustCo 15% stock split $ 0.33 - $ 0.29
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
61
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 2000
TRUSTCO AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO
COHOES
PRO FORMA COMBINED
TRUSTCO COHOES ADJUSTMENTS PRO FORMA
------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $55,211 22,582 - 77,793
Interest and dividends on securities available
for sale 22,598 1,283 (1,379)(j) 22,502
Interest and dividends on securities held to
maturity - 1,680 - 1,680
Interest on federal funds sold/short-term
investments 7,467 114 (1,707)(j) 5,874
------- ------ ----------- ---------
Total interest income 85,276 25,659 (3,086) 107,849
------- ------ ----------- ---------
Interest expense:
Interest on deposits 32,245 9,369 - 41,614
Interest on short-term borrowings 3,781 2,548 - 6,329
------- ------ ----------- ---------
Total interest expense 36,026 11,917 - 47,943
------- ------ ----------- ---------
Net interest income 49,250 13,742 (3,086) 59,906
Provision for loan losses 1,650 650 - 2,300
------- ------ ----------- ---------
Net interest income after
provision for loan losses 47,600 13,092 (3,086) 57,606
------- ------ ----------- ---------
Noninterest income:
Trust department income 4,270 - - 4,270
Fees for services to customers 4,362 459 - 4,821
Net gain/(loss) on securities transactions (3,369) - - (3,369)
Other 1,594 1,190 - 2,784
------- ------ ----------- ---------
Total noninterest income 6,857 1,649 - 8,506
------- ------ ----------- ---------
Noninterest expense:
Salaries and employee benefits 12,108 5,884 - 17,992
Net occupancy and equipment expense 4,665 1,598 - 6,263
Net other real estate owned expense (income) (302) (168) - (470)
Other 6,883 2,463 615 (c) 9,961
------- ------ ----------- ---------
Total noninterest expense 23,354 9,777 615 33,746
------- ------ ----------- ---------
Income before income taxes 31,103 4,964 (3,701) 32,366
Income taxes 10,336 1,820 (1,050)(j) 11,106
------- ------ ----------- ---------
Net income $20,767 3,144 (2,651) 21,260
======= ====== =========== =========
Earnings per share:
Basic $ 0.39 $ 0.42 $ 0.37
Diluted $ 0.38 $ 0.42 $ 0.36
Basic - Adjusted for TrustCo 15% stock split $ 0.34 - $ 0.32
Diluted - Adjusted for TrustCo 15% stock split $ 0.33 - $ 0.31
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
62
<PAGE>
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 2000
TRUSTCO, HUDSON AND COHOES COMBINED
<TABLE>
<CAPTION>
TRUSTCO TRUSTCO
HUDSON HUDSON COHOES
PRO FORMA COMBINED PRO FORMA COMBINED
TRUSTCO HUDSON ADJUSTMENTS PRO FORMA COHOES ADJUSTMENTS PRO FORMA
------- ------ ----------- --------- ------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Statements of Income:
(in thousands, except per share data)
Interest income:
Interest and fees on loans $55,211 34,439 - 89,650 22,582 - 112,232
Interest and dividends on securities
available for sale 22,598 8,110 (2,447)(j) 28,261 1,283 (1,379)(j) 28,165
Interest and dividends on securities
held to maturity - 600 - 600 1,680 - 2,280
Interest on federal funds
sold/short-term investments 7,467 2 (3,030)(j) 4,439 114 (1,707)(j) 2,846
------- ------ ----------- --------- ------ ----------- -------------
Total interest income 85,276 43,151 (5,477) 122,950 25,659 (3,086) 145,523
------- ------ ----------- --------- ------ ----------- -------------
Interest expense:
Interest on deposits 32,245 13,798 - 46,043 9,369 - 55,412
Interest on short-term borrowings 3,781 4,844 - 8,625 2,548 - 11,173
------- ------ ----------- --------- ------ ----------- -------------
Total interest expense 36,026 18,642 - 54,668 11,917 - 66,585
------- ------ ----------- --------- ------ ----------- -------------
Net interest income 49,250 24,509 (5,477) 68,282 13,742 (3,086) 78,938
Provision for loan losses 1,650 2,925 - 4,575 650 - 5,225
------- ------ ----------- --------- ------ ----------- -------------
Net interest income after
provision for loan losses 47,600 21,584 (5,477) 63,707 13,092 (3,086) 73,713
------- ------ ----------- --------- ------ ----------- -------------
Noninterest income:
Trust department income 4,270 - - 4,270 - - 4,270
Fees for services to customers 4,362 838 - 5,200 459 - 5,659
Net gain/(loss) on securities
transactions (3,369) - - (3,369) - - (3,369)
Other 1,594 585 - 2,179 1,190 - 3,369
------- ------ ----------- --------- ------ ----------- -------------
Total noninterest income 6,857 1,423 - 8,280 1,649 - 9,929
------- ------ ----------- --------- ------ ----------- -------------
Noninterest expense:
Salaries and employee benefits 12,108 7,119 - 19,227 5,884 - 25,111
Net occupancy and equipment expense 4,665 2,539 - 7,204 1,598 - 8,802
Net other real estate owned
expense (income) (302) 586 - 284 (168) - 116
Other 6,883 4,789 1,425 (c) 13,097 2,463 615 (c) 16,175
------- ------ ----------- --------- ------ ----------- -------------
Total noninterest expense 23,354 15,033 1,425 39,812 9,777 615 50,204
------- ------ ----------- --------- ------ ----------- -------------
Income before income taxes 31,103 7,974 (6,902) 32,175 4,964 (3,701) 33,438
Income taxes 10,336 2,813 (1,862)(j) 11,287 1,820 (1,050)(j) 12,057
------- ------ ----------- --------- ------ ----------- -------------
Net income $20,767 5,161 (5,040) 20,888 3,144 (2,651) 21,381
======= ====== =========== ========= ====== =========== =============
Earnings per share:
Basic $0.39 $0.37 $0.34 $0.42 $0.32
Diluted $0.38 $0.37 $0.33 $0.42 $0.31
Basic - Adjusted for TrustCo 15%
stock split $0.34 - $0.29 - $0.28
Diluted - Adjusted for TrustCo 15%
stock split $0.33 - $0.29 - $0.27
</TABLE>
See the notes to the Unaudited Pro Forma Combined Financial Information.
63
<PAGE>
SUMMARY OF PURCHASE ACCOUNTING ADJUSTMENTS
(in thousands, except per share information)
ACQUISITION OF HUDSON:
ENTRY FOR PURCHASE ACCOUNTING ADJUSTMENTS:
<TABLE>
<S><C>
(in thousands, except per share information)
DR. CR.
(a) Cash $15,583
(b) Goodwill 56,980
(d) Other liabilities 6,386
(e) Shareholders' equity 200,098
(f) Other liabilities 8,000
(g) Cash (Federal funds) 4,356
(g) Available-for-sale securities 2,904
(h) Cash (Federal funds) 2,100
(h) Available-for-sale securities 1,400
(i) Cash (Federal funds) 93,703
(i) Available-for-sale securities 62,469
(i) Shareholders' equity 104,115
------- -------
279,047 279,047
======= =======
DETAIL OF THE TRUSTCO/HUDSON PURCHASE ACCOUNTING ADJUSTMENTS:
(a) To record the net effect of the cash received upon the payoff
of the ESOP loan.
Dr. Cash $ 15,583
Cr. Equity $ 15,583
(b) Goodwill was calculated as follows:
Number of Hudson common shares outstanding $15,311
TrustCo acquisition price 17.00
-------
260,287 $ 260,287
TrustCo acquisition price 17.00
Estimated weighted average option price 11.42
-------
5.58
Number of options outstanding 1,301
-------
7,260 7,260
Effective tax rate 34%
-------
Tax benefit of options (2,468) (2,468)
Value of Cohoes/Hudson special option
(no tax benefit) 3,500
Estimated transaction costs 8,000 8,000
Effective tax rate 34%
-------
Tax benefit of transaction costs (2,720) (2,720)
--------
Amount paid by TrustCo for Hudson 273,859
64
<PAGE>
Hudson historical equity at June 30, 2000 200,098
ESOP loan 15,583
Estimated Hudson RRP's 566
TrustCo per share acquisition price 17.00
-------
9,622
less: restricted RRP in equity (6,098)
-------
Additional RRP value 3,524
Effective tax rate 34%
-------
RRP tax benefit 1,198 1,198
======= -------
216,879 216,879
--------
Goodwill associated with acquisition of Hudson $ 56,980
========
(c) INCOME STATEMENT PRO FORMA ADJUSTMENTS
Annual amortization expense over 20 yrs 2,849
=====
Six month amortization expense 1,425
=====
(d) Tax benefit of options (2,468)
Tax benefit of transaction costs (2,720) All of these amounts
RRP tax benefit (1,198) were calculated in (b).
--------
(6,386)
========
Dr. Tax receivable 2,468
Cr. Goodwill 2,468
Dr. Tax receivable 2,720
Cr. Goodwill 2,720
Dr. Tax receivable 1,198
Cr. Equity (RRP) 1,198
(e) To eliminate Hudson historical equity of $200,098.
(f) To record estimate transaction costs of $8 million as a payable.
Dr. Goodwill 8,000
Cr. Accounts Payable 8,000
(g) The "cash-out" of Hudson options was calculated below. For pro
forma purposes, the cash used is presumed to come 60% from the
reduction of federal funds and 40% from the sale of
available-for-sale securities.
TrustCo acquisition price 17.00
Weighted average option price 11.42
------
Additional option value in acquisition 5.58
Number of options outstanding 1,301
------
Value (in thousands) 7,260
=====
Dr. Goodwill 7,260
Cr. Federal funds 60% 4,356
Cr. Available-for-sale securities 40% 2,904
(h) The "cash-out" of Hudson options (from the Cohoes/Hudson
special option) is calculated below. For pro forma purposes,
the cash used is presumed to come 60% from the sale of federal
funds and 40% from the sale of available-for-sale securities.
65
<PAGE>
Dr. Goodwill 3,500
Cr. Federal funds 60% 2,100
Cr. Available-for-sale securities 40% 1,400
(i) To record the purchase of the outstanding Hudson common stock.
For pro forma purposes, the cash used is presumed to come 60%
from the sale of federal funds and 40% from the sale of
available-for-sale securities.
15,311 Hudson shares outstanding at 17.00 per share = 260,287
Total purchase price 260,287
multiplied by 60% cash to be paid 60%
-------
total 156,172
-------
Cash to be taken from:
60% from Federal funds (Credit to cash) 93,703
40% from Available-for-sale securities (Credit) 62,469
-------
total 156,172
-------
Total purchase price 260,287
multiplied by 40% stock 40%
-------
Credit to equity 104,115
-------
(j) INCOME STATEMENT PRO FORMA ADJUSTMENTS FOR THE 12 MOS. ENDED 12/31/99
Loss of interest income on Federal funds (annualized) 100,159 * 4.99% 4,998
Loss of interest income on Available-for-sale securities
(annualized) 66,773 * 7.05% 4,707
------ -----
166,932 9,705
------ -----
Annual income tax benefit 9,705 * 34% 3,300
INCOME STATEMENT PRO FORMA ADJUSTMENTS FOR THE 6 MOS. ENDED 6/30/00
Loss of interest income on Federal funds (annualized) 100,159 * 6.05% 6,060
Loss of interest income on Available-for-sale securities
(annualized) 66,773 * 7.33% 4,894
------- ------
166,932 10,954
------- ------
Annual income tax benefit 10,954 * 34% 3,724
Yield on federal funds sold and available for sale securities
for the applicable periods are based on TrustCo's actual
results for the respective periods.
66
<PAGE>
ACQUISITION OF COHOES:
ENTRY FOR PURCHASE ACCOUNTING ADJUSTMENTS:
DR. CR.
(a) Cash $7,961
(b) Goodwill 24,606
(d) Other liabilities 5,155
(e) Shareholders' equity 121,306
(f) Other liabilities 8,000
(g) Cash (Federal funds) 3,067
(g) Available-for-sale securities 2,045
(h) Cash (Federal funds) 2,100
(h) Available-for-sale securities 1,400
(i) Cash (Federal funds) 51,270
(i) Available-for-sale securities 34,180
(i) Shareholders' equity 56,966
-------- -------
$159,028 159,028
======= =======
DETAIL OF THE TRUSTCO/COHOES PURCHASE ACCOUNTING ADJUSTMENTS:
(a) To record the net effect of the cash received upon the payoff of the ESOP loan.
Dr. Cash $ 7,961
Cr. Shareholders' Equity $ 7,961
(b) Goodwill was calculated as follows:
Number of Cohoes common shares outstanding 7,912
TrustCo acquisition price 18.00
-------
142,416 142,416
TrustCo acquisition price 18.00
Estimated weighted average option price 12.0625
-------
5.9375
Number of options outstanding 861
-------
5,112 5,112
Effective tax rate 34%
-------
Tax benefit of options (1,738) (1,738)
Value of Cohoes/Hudson special option (no tax benefit) 3,500
Estimated transaction costs 8,000 8,000
Effective tax rate 34%
-------
Tax benefit of transaction costs (2,720) (2,720)
-------
Amount paid by TrustCo for Cohoes 154,570
Cohoes historical equity at June 30, 2000 121,306
ESOP loan 7,961
Estimated Cohoes RRP's 345
TrustCo acquisition price 18.00
-------
67
<PAGE>
Subtotal 6,210
less: restricted RRP in equity (4,161)
-------
Additional RRP value
in acquisition 2,049
Effective tax rate 34%
-------
RRP tax benefit 697 697
==== -------
129,964 129,964
--------
Goodwill associated with acquisition of Cohoes $ 24,606
========
(c) INCOME STATEMENT PRO FORMA ADJUSTMENTS
Annual amortization expense over 20 yrs 1,230
=====
Six month amortization expense 615
====
(d) Tax benefit of options (1,738)
Tax benefit of transaction costs (2,720) All of these amounts
RRP tax benefit (697) were calculated in (b).
-------
(5,155)
=======
Dr. Tax receivable 1,738
Cr. Goodwill 1,738
Dr. Tax receivable 2,720
Cr. Goodwill 2,720
Dr. Tax receivable 697
Cr. Equity (RRP) 697
(e) To eliminate Cohoes historical equity of $121,306
(f) To record estimate transaction costs of $8 million as a payable.
Dr. Goodwill 8,000
Cr. Accounts Payable 8,000
(g) The "cash-out" of Cohoes options was calculated below. For pro
forma purposes, the cash used is presumed to come 60% from the
reduction of federal funds and 40% from the sale of
available-for-sale securities.
TrustCo acquisition price 18.00
Weighted average option price 12.0625
-------
Additional option value in acquisition 5.9375
Number of options outstanding 861
-------
Value (in thousands) 5,112
=====
Dr. Goodwill 5,112
Cr. Federal funds 60% 3,067
Cr. Available-for-sale securities 40% 2,045
(h) The "cash-out" of Cohoes options (from the Cohoes/Hudson
special option) is calculated below. For pro forma purposes,
the cash used is presumed to come 60% from the sale of federal
funds and 40% from the sale of available-for-sale securities.
Dr. Goodwill 3,500
Cr. Federal funds 60% 2,100
Cr. Available-for-sale securities 40% 1,400
68
<PAGE>
(i) To record the purchase of the outstanding Cohoes common stock.
For pro forma purposes, the cash used is presumed to come 60%
from the sale of federal funds and 40% from the sale of
available-for-sale securities.
7,912 Cohoes shares outstanding at 18.00 per share = 142,416
Total purchase price 142,416
multiplied by 60% cash to be paid 60%
-------
total 85,450
-------
Cash to be taken from:
60% from Federal funds (Credit to cash) 51,270
40% from Available-for-sale securities (Credit) 34,180
-------
total 85,450
-------
Total purchase price 142,416
multiplied by 40% stock 40%
-------
Credit to equity 56,966
-------
(j) INCOME STATEMENT PRO FORMA ADJUSTMENTS FOR THE 12 MOS. ENDED 12/31/99
Loss of interest income on Federal funds (annualized) 56,437 * 4.99% 2,816
Loss of interest income on Available-for-sale securities
(annualized) 37,625 * 7.05% 2,653
------ -----
94,062 5,469
------ -----
Annual income tax benefit 5,469 * 34% 1,859
INCOME STATEMENT PRO FORMA ADJUSTMENTS FOR THE 6 MOS. ENDED 6/30/00
Loss of interest income on Federal funds (annualized) 56,437 * 6.05% 3,414
Loss of interest income on Available-for-sale securities
(annualized) 37,625 * 7.33% 2,758
------ -----
94,062 6,172
------ -----
Annual income tax benefit 6,172 * 34% 2,099
Yield on federal funds sold and available for sale securities
for the applicable periods are based on TrustCo's actual
results for the respective periods.
</TABLE>
69
<PAGE>
DESCRIPTION OF TRUSTCO'S CAPITAL STOCK
GENERAL
TrustCo is presently authorized to issue 100,000,000 shares of
common stock, par value $1.00 per share (referred to in this Prospectus as
"TrustCo Common Stock"), and 500,000 shares of preferred stock, par value
$10.00 per share. At July 31, 2000, there were 53,548,191 shares of TrustCo
Common Stock issued and outstanding, and no shares of the preferred stock are
issued or outstanding.
COMMON STOCK
VOTING RIGHTS
Holders of TrustCo Common Stock possess exclusive voting rights in
TrustCo, except to the extent that shares of preferred stock issued in the
future may have voting rights, if any. Each holder of shares of TrustCo Common
Stock is entitled to one vote for each share held of record on all matters
submitted to a vote of holders of the TrustCo Common Stock.
DIVIDEND RIGHTS
Holders of TrustCo Common Stock are entitled to receive dividends when,
as and if declared by TrustCo's Board of Directors (the "TrustCo Board") out of
funds legally available therefor, subject to any preferential dividend rights
which may attach to preferred stock which may be issued by TrustCo in the
future. Under the New York Business Corporation Law (the "New York Law"),
TrustCo may pay dividends on TrustCo Common Stock unless TrustCo is or would
thereby be made insolvent. Moreover, TrustCo may pay dividends out of surplus
only such that the net assets of TrustCo remaining thereafter is at least equal
to the amount of its stated capital. If any dividend is paid by TrustCo, in
whole or in part, from sources other than earned surplus, the stockholders of
TrustCo must be notified of that fact. The ability of TrustCo Bank to pay cash
dividends, which is expected to be TrustCo's principal source of income, is
restricted by applicable banking laws. Such dividends have previously been
TrustCo's principal source of income.
LIQUIDATION RIGHTS
In the event of a liquidation, dissolution or winding up of TrustCo,
each holder of TrustCo Common Stock would be entitled to receive, after payment
of all debts and liabilities of TrustCo, a pro rata portion of all assets of
TrustCo available for distribution to holders of the TrustCo Common Stock. If
any preferred stock is issued, the holders thereof may have a priority in
liquidation or dissolution over the holders of the TrustCo Common Stock.
OTHER CHARACTERISTICS
Holders of TrustCo Common Stock do not have preemptive rights with
respect to any additional shares of TrustCo which may be issued. The shares of
TrustCo Common Stock presently outstanding are, and the shares of TrustCo Common
Stock to be issued pursuant to the Exchange Offer will be, when issued and
delivered as described herein, duly authorized, validly issued, fully paid and
non-assessable. There are no redemption or sinking fund provisions applicable to
the shares of TrustCo Common Stock.
TRANSFER AGENT
TrustCo Bank is the transfer agent for shares of TrustCo Common Stock.
70
<PAGE>
PREFERRED STOCK
None of the 500,000 authorized shares of preferred stock of TrustCo are
issued. The TrustCo Board is authorized to issue the preferred stock and to fix
and state voting powers, designations, preferences or other special rights of
such shares and the qualifications, limitations and restrictions thereof. The
preferred stock may rank prior to the common stock as to dividend rights or
liquidation preference, or both, and may have full or limited voting rights. The
TrustCo Board has no present intention to issue any of the preferred stock.
DESCRIPTION OF HUDSON'S CAPITAL STOCK
GENERAL
The following description of Hudson's capital stock is based on
information contained in the Annual Report on Form 10-K of Hudson for the year
ended March 31, 2000.
Hudson is authorized to issue 40,000,000 shares of common stock, par
value $.01 per share (referred to in this Prospectus as "Hudson Common Stock"),
and 5,000,000 shares of preferred stock, par value $.01 per share. At August 4,
2000, there were 15,360,560 shares of Hudson Common Stock issued and outstanding
and no shares of the preferred stock were issued and outstanding.
COMMON STOCK
The holders of shares of Hudson Common Stock are entitled to receive
dividends from funds legally available therefor when, as and if declared by the
Hudson Board, and are entitled upon liquidation to receive pro rata the net
assets of Hudson after satisfaction in full of the prior rights of creditors of
Hudson and holders of any shares of preferred stock.
The holders of shares of Hudson Common Stock are generally entitled to
one vote for each share of Hudson Common Stock held on all matters as to which
stockholders are entitled to vote, subject to the 10% Limit. The holders of
Hudson Common Stock do not have cumulative voting rights.
Registrar & Transfer Company, 10 Commerce Drive, Cranford, NJ
07016-3572 is the transfer agent and registrar for the shares of Hudson Common
Stock.
PREFERRED STOCK
None of the 5,000,000 authorized shares of preferred stock of Hudson
are issued. The Hudson Board is authorized to issue the preferred stock from
time to time in one or more series with such designation, powers, preferences
and rights, including voting rights, and any qualifications, limitations or
restrictions thereof, as may determined by the Hudson Board. The preferred stock
may rank prior to the common stock as to dividend rights or liquidation
preference, or both, and may have full or limited voting rights.
COMPARISON OF SHAREHOLDER RIGHTS
The rights of holders of Hudson Common Stock who receive TrustCo Common
Stock in the Exchange Offer will be governed by the New York Law, the state in
which TrustCo is incorporated, and by TrustCo's Amended and Restated Certificate
of Incorporation, as amended ("TrustCo's Certificate"), and Bylaws, as amended,
and other corporate documents of TrustCo. The rights of holders of Hudson Common
Stock, which are governed by the DGCL and Hudson's Certificate and Bylaws, as
amended, differ in certain respects from the rights which such holders would
have as stockholders of TrustCo. A summary of the material differences between
the respective rights of Hudson and TrustCo stockholders is set forth below.
71
<PAGE>
STOCKHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS
BUSINESS COMBINATIONS
TRUSTCO
The New York Law generally requires that mergers, consolidations and
sales, leases, exchanges, or other distributions of all of the assets of a
corporation be approved by a vote of not less than two-thirds of all outstanding
shares entitled to vote on such transactions. Moreover, generally, holders of
shares of any class or series have the right to vote, and to vote as a class, on
certain mergers and consolidations which contain provisions that exclude or
limit their right to vote, or adversely affect certain of their rights, or
authorize shares which have a preference over their shares. In such cases, in
addition to the vote of the holders of two-thirds of all outstanding shares
entitled to vote thereon, the merger or consolidation must be approved by the
holders of a majority of all outstanding shares of such class or series.
TrustCo's Certificate includes a so-called "fair consideration"
provision, which provides that a "business combination" (including a merger,
consolidation or acquisition of substantially all assets) involving TrustCo, or
any subsidiary of TrustCo, with any person or entity beneficially owning
directly or indirectly more than 5% of TrustCo's outstanding voting stock (a
"TrustCo 5% stockholder") may not be consummated, even if the normal statutory
requirements are met, unless: (i) the transaction is approved by at least
two-thirds of the members of the TrustCo Board who are not affiliated with the
TrustCo 5% stockholder; or (ii) the transaction meets certain minimum price
requirements (in either of which cases only the normal stockholder and director
approval requirements of the New York Law would govern the transaction). The
primary purpose of TrustCo's "fair consideration" provision is to provide
additional safeguards for the remaining stockholders in the event that an
individual or entity becomes a majority stockholder of TrustCo. If TrustCo comes
under the control of a single person or entity, substantial inequities could
befall the minority stockholders. Accordingly, this "fair consideration"
provision was included in TrustCo's Certificate to make it more likely that any
acquisition of TrustCo will involve payment of a fair price to all stockholders
of TrustCo.
HUDSON
Hudson's Certificate provides for a greater than majority stockholder
approval requirement for certain business combinations with interested
stockholders. Under Hudson's Certificate, certain business combinations with an
interested stockholder require the affirmative vote of the holders of at least
80% of the voting power of the outstanding shares of stock of Hudson entitled to
vote in the election of directors. Generally, an interested stockholder is any
person, other than Hudson or any subsidiary of Hudson, that is the beneficial
owner, directly or indirectly, of more than 10% of the voting power of the
outstanding voting stock of Hudson. The business combination provisions relating
to interested stockholders also apply to affiliates of interested stockholders.
Business combinations subject to the 80% stockholder approval requirement
include: (i) any merger or consolidation of Hudson or any subsidiary of Hudson
with an interested stockholder or affiliate thereof; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of assets of Hudson or
any Hudson subsidiary to an interested stockholder having an aggregate fair
market value equaling or exceeding 25% or more of the combined assets of Hudson
and its subsidiaries; (iii) the issuance or transfer by Hudson or any Hudson
subsidiary of any stock of Hudson or any Hudson subsidiary to an interested
stockholder for any property equaling or exceeding 25% of the combined assets of
Hudson and any Hudson subsidiaries; (iv) the adoption of any plan for the
liquidation or dissolution of Hudson proposed by or on behalf of an interested
stockholder or affiliate thereof; and (v) any reclassification of securities or
recapitalization of Hudson, or any merger or consolidation of Hudson with any of
its subsidiaries or any other transaction that has the effect of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of Hudson or any subsidiary of Hudson directly or
indirectly owned by an interested stockholder or affiliate thereof. A business
combination with an interested stockholder may avoid the 80% stockholder
72
<PAGE>
approval requirement, needing only an affirmative vote of a majority of the
voting power of the outstanding shares of stock of Hudson entitled to vote in
the election of directors, if: (a) the business combination does not involve
cash or other consideration being received by the stockholders of Hudson solely
in their capacity as stockholders of Hudson and the business combination has
been approved by a majority of the disinterested directors of Hudson; or (b) the
business combination has been approved by a majority of the disinterested
directors of Hudson, or each of the following conditions are met: (1) the fair
market value of the consideration received per share by the holders of Hudson
Common Stock equals or exceeds the higher of certain fair price determinations;
(2) there has been no reduction of dividends or failure to pay dividends after
the time the interested stockholder became an interested stockholder, except as
approved by a majority of disinterested directors; (3) the interested
stockholder and its affiliates have not become the beneficial owners of any
additional shares of voting stock of Hudson after the interested stockholder
became an interested stockholder; (4) the interested stockholder has not
received the benefit, directly or indirectly, of any loans, advances,
guarantees, pledges or other financial assistance; and (5) a proxy or
information statement describing the proposed business combination and complying
with the requirements of the 1934 Act has been mailed to stockholders of Hudson
at least 30 days prior to the consummation of such business combination.
REMOVAL OF DIRECTORS
TRUSTCO
The New York Law provides that any or all of the directors of TrustCo
may be removed for cause by a vote of the stockholders. TrustCo's Certificate
specifies that an affirmative vote of at least a majority of its outstanding
stock is needed to approve any matter on which stockholders are entitled to
vote.
HUDSON
Hudson's Certificate provides that any director or the entire Hudson
Board may be removed from office at any time, but only for cause and only by the
holders of at least 80% of the voting power of all of the outstanding shares of
capital stock of Hudson entitled to vote generally in the election of directors.
Hudson's 80% stockholder vote requirement for removal of directors precludes a
majority stockholder from circumventing Hudson's classified Hudson Board by
decreasing the size of the Hudson Board until its nominees have a numerical
majority or by removing directors not up for election, filling the resulting
vacancy with its nominees, and thereby gaining control of the Hudson Board.
Stockholders of Hudson may not remove directors without cause, making it more
difficult for a majority stockholder to control the Hudson Board. The
restriction on director removal found in Hudson's Certificate also makes it more
difficult for stockholders of Hudson to change the composition of the Hudson
Board even where the stockholders believe in good faith that such a change would
be beneficial to Hudson and to the stockholders of Hudson.
AMENDMENTS TO CERTIFICATE OF INCORPORATION AND BYLAWS
TRUSTCO
TrustCo's Certificate requires an affirmative vote of at least
two-thirds of TrustCo's voting stock to change, modify, or repeal any provision
of TrustCo's Certificate or Bylaws.
HUDSON
The DGCL provides that the certificate of incorporation of a Delaware
corporation may be amended only if first approved by the corporation's board of
directors and thereafter by a majority of the outstanding stock entitled to vote
thereon. The DGCL also provides that, if a greater than majority stockholder
vote is required to effect an action under a certain article of a Delaware
corporation's
73
<PAGE>
certificate of incorporation, then amending such an article likewise requires
such a greater than majority stockholder vote.
Hudson's Certificate provides that Hudson may amend or repeal any
provision contained in Hudson's Certificate in the manner prescribed described
above pursuant to the DGCL. Hudson's Certificate further provides that the
affirmative vote of at least 80% of the voting power of all of the outstanding
shares of the capital stock of Hudson entitled to vote generally in the election
of directors (after giving effect to the 10% Limit described herein under the
caption "COMPARISON OF SHAREHOLDER RIGHTS -- Anti-takeover Statutes and
Provisions -- HUDSON") is required to amend or repeal the provisions of: (i)
Article THIRTEENTH (relating to amending the Hudson's Certificate); (ii)
Sections B or C of Article FOURTH (relating to voting restrictions imposed on
stockholders owning in excess of 10% of the outstanding shares of Hudson Common
Stock); (iii) Sections C and D of Article FIFTH (relating to stockholder special
meetings and stockholder action by written consent); (iv) Article SIXTH
(relating to the number, classification, qualification, disqualification,
director nominations, filling of vacancies and removal of directors of Hudson);
(v) Article SEVENTH (relating to amending the Bylaws); (vi) Article EIGHTH
(relating to approval of business combinations with an interested stockholder or
its affiliates); (vii) Article TENTH (relating to Hudson's purchase of stock
from an interested person); and (viii) Article ELEVENTH (relating to
indemnification).
Hudson's Bylaws provide that the Hudson Board may amend or repeal the
Bylaws upon the vote of a majority of the whole board thereof. The stockholders
of Hudson, upon the affirmative vote of the holder of at least 80% of the voting
power of the voting stock (after giving effect to the 10% Limit), also have the
power to amend or repeal the Bylaws of Hudson.
VOTING RIGHTS
TRUSTCO
Holders of TrustCo Common Stock are entitled to one vote per share in
the election of directors and in all other matters to be voted upon by the
stockholders generally. A stockholder of TrustCo may vote in person or by proxy.
Directors of TrustCo are elected by a plurality of the stockholder votes cast
and stockholders of TrustCo Common Stock are not entitled to cumulative voting
in the election of directors. All other matters voted on by stockholders are
determined by a majority of the stockholder votes cast, except those matters
specifically requiring a greater than majority vote pursuant to the New York Law
or TrustCo's Certificate.
HUDSON
In accordance with the DGCL, and as provided in the Bylaws of Hudson,
each outstanding share of Hudson Common Stock is entitled to one vote on each
matter voted on at a stockholders' meeting. A stockholder of Hudson may vote in
person or by proxy. Directors of Hudson are elected by a plurality of the
stockholder votes cast, and stockholders of Hudson are not entitled to
cumulative voting in the election of directors. All other matters voted on by
stockholders are determined by a majority of the stockholder votes cast, except
those matters specifically requiring a greater than majority vote pursuant to
the DGCL or Hudson's Certificate. Notwithstanding the foregoing, Article FOURTH,
Section C, of Hudson's Certificate provides that no person who beneficially owns
more than 10% of the outstanding shares of Hudson Common Stock may vote shares
in excess of that limit. See "COMPARISON OF SHAREHOLDER RIGHTS -- Anti-Takeover
Statutes and Provisions -- HUDSON."
74
<PAGE>
SPECIAL MEETING OF STOCKHOLDERS; STOCKHOLDER ACTION BY WRITTEN CONSENT
TRUSTCO
The New York Law provides that special meetings of the stockholders of
a New York corporation may be called by the board of directors and by such
person or persons as may be so authorized by the certificate of incorporation or
the bylaws. TrustCo's Certificate provides that special meetings of stockholders
of TrustCo may be called at the request of at least two-thirds of the shares of
TrustCo Common issued and outstanding. In addition, the Bylaws provide that a
special meeting of the stockholders may be called at any time by the TrustCo
Board or by TrustCo's Chief Executive Officer.
Pursuant to the New York Law, stockholders of TrustCo may take any
action without a meeting by written consent, which consent must set forth the
action so taken and be signed by the holders of all of the outstanding shares
entitled to vote thereon. Written consent given by the holders of all
outstanding shares entitled to vote has the same effect as a unanimous vote of
stockholders.
HUDSON
In accordance with the DGCL, Hudson's' Bylaws provides that special
meetings of stockholders of Hudson may be called only by the Hudson Board
pursuant to a resolution adopted by a majority of the total number of directors
which Hudson would have if there were no vacancies on the Hudson Board.
Hudson's' Bylaws also provides that any action required or permitted to be taken
by the stockholders of Hudson must be effected at a duly called annual or
special stockholders' meeting and may not be effected by any consent in writing
by such stockholders. The DGCL, in the absence of this provision, permits action
by written consent of stockholders signed by the holders of the number of shares
that would be required to effect the action at a meeting. Hudson's' restriction
against stockholders' ability to call a special stockholders' meeting and
against stockholder action by written consent is more restrictive than TrustCo's
2/3 stockholder vote required to call a special meeting and stockholders' act by
written consent of all of TrustCo's stockholders. Hudson's more restrictive
provisions preclude attempts by stockholders to disrupt the business of Hudson
between annual stockholders' meetings, and make it impossible for a stockholder
or stockholder group to take action where such action is opposed by a majority
of the Hudson Board and management of Hudson. Hudson's' more restrictive
provisions also preclude the removal of directors, even if cause exists or a
director becomes disqualified, until the next annual stockholders' meeting,
where such removal is opposed by a majority of the Hudson Board.
DISSENTERS' RIGHTS
TRUSTCO
The New York Law provides that dissenting stockholders are entitled to
receive payment of the "fair value" of their shares in connection with certain
mergers or consolidations of which the corporation is a party and sales or
exchanges of all or substantially all of the assets of a corporation. Under the
New York Law, dissenting stockholders: (i) may withdraw their notice of election
to dissent within certain specific time periods prior to their acceptance of a
corporation's offer to purchase their shares; (ii) are entitled to an advance
payment which accompanies a corporation's offer to purchase their shares, if the
corporate action has been consummated; and (iii) bear their own costs and
expenses as to any court proceeding for a determination of the fair value of
their shares.
HUDSON
The DGCL provides that, unless the certificate of incorporation of a
Delaware corporation provides otherwise, no dissenters' appraisal rights are
available to holders of shares that are listed on a national securities exchange
or designated as a national market system security on an interdealer quotation
system by NASD, or are held of record by more than 2,000 stockholders. As the
shares of
75
<PAGE>
Hudson Common Stock are a national market system security traded on Nasdaq
and Hudson's Certificate does not provide for dissenters' appraisal rights,
holders of Hudson Common Stock have no dissenters' appraisal rights in any
merger, consolidation or disposition of assets. Stockholders of Hudson may
not, therefore, assert dissenters' appraisal rights in connection with the
Exchange Offer or the TrustCo-Hudson Merger.
ANTI-TAKEOVER STATUTES AND PROVISIONS
TRUSTCO
In general, the New York Law prohibits any business combination
(e.g. mergers, consolidations, and acquisitions of substantially all of the
assets) between a New York corporation and an "interested stockholder"
(defined as any owner of 20% or more of the voting stock of such corporation)
unless the corporation's board of directors has approved the business
combination or the stock acquisition by which the related party's interest
reached 20% (the "Stock Acquisition") prior to the date of the Stock
Acquisition. This restriction applies for five years after the date of the
Stock Acquisition. Thereafter, the corporation may enter into a business
combination with the related party: (i) if the combination is approved by a
majority of the corporation's voting stock beneficially owned by stockholders
other than the related party; or (ii) if such disinterested stockholders
receive a price for their shares equal to or greater than a price determined
in accordance with a statutory formula intended to assure that stockholders
receive an equitable price in the business combination. As a New York
corporation, TrustCo and any potential acquirer of TrustCo would be subject
to this provision.
TrustCo's Certificate and Bylaws contain several provisions which may
be deemed to be "anti-takeover" in nature. TrustCo's Certificate contains a
"fair consideration" provision which is discussed under "COMPARISON OF
SHAREHOLDER RIGHTS -- Stockholder Vote Required for Certain Transactions --
BUSINESS COMBINATIONS -- TRUSTCO." TrustCo's Certificate also provides for a
classified board of directors, under which one-third of the directors are
elected to three-year terms at each annual stockholders' meeting. In effect, the
classified board may increase the time required for any one or more persons
owning a majority or controlling block of stock to elect a majority of the
directors. Without a classified board, a change in control can be accomplished
at a single annual stockholders' meeting. In contrast, with a classified board,
at least two successive annual stockholders' meetings may be required to effect
a change in control. The TrustCo Board and management of TrustCo believe that a
classified board may help to moderate the pace of any change in control of the
TrustCo Board and, by increasing the stability of the TrustCo Board, may also
increase its effectiveness. Conversely, the additional time required to obtain
control of the TrustCo Board also tends to discourage a tender offer or takeover
bid, many of which are made at premium prices to stockholders.
HUDSON
The DGCL has a "freeze provision" that generally prohibits any business
combination, such as a merger or consolidation, between a Delaware corporation
and an interested stockholder (which is generally defined as any owner of 15% or
more of the outstanding voting stock of a corporation) for three years after the
date on which such stockholder becomes an interested stockholder. The Delaware
statute provides that if any of the following conditions are met, Delaware's
three-year freeze provision will not apply: (i) prior to such date the board of
directors of the corporation approved either the business combination or the
transaction by which the interested stockholder became an interested
stockholder; (ii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding shares held by persons who are directors and
also officers and by certain employee stock ownership plans); or (iii) on or
subsequent to such date the business combination is approved by the board of
directors of the corporation and authorized at an
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<PAGE>
annual or special meeting of the stockholders by the affirmative vote of at
least two-thirds of the outstanding voting stock of the corporation which is
not owned by the interested stockholder.
Under the terms of Hudson's Certificate, a record owner of Hudson
Common Stock who beneficially owns, directly or indirectly, in excess of 10% of
the outstanding shares of Hudson Common Stock is not entitled to vote the shares
held in excess of 10% of the outstanding shares of Hudson Common Stock. The
number of shares which may be voted by any record owner owning shares in excess
of the 10% Limit is equal to the total number of votes which a single record
owner of all Hudson Common Stock owned by such person would be entitled to cast,
multiplied by a fraction, the numerator of which is the number of shares
beneficially owned by such person and owned of record by such record owner and
the denominator of which is the total number of shares of Hudson Common Stock
beneficially owned by such person owning shares in excess of the 10% Limit.
As with TrustCo, Hudson's Certificate provides that the Hudson Board is
divided into three classes, as nearly equal in number as possible, which are
elected for staggered three-year terms. For additional discussion of provisions
which may be deemed to have an anti-takeover effect, see "COMPARISON OF
SHAREHOLDER RIGHTS -- Special Meeting of Stockholders; Stockholder Action by
Written Consent -- HUDSON", and "-- Stockholder Vote Required for Certain
Transactions -- REMOVAL OF DIRECTORS -- HUDSON."
INDEMNIFICATION
TRUSTCO
The New York Law contains provisions permitting indemnification of
officers and directors so long as such persons acted in good faith, and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to a criminal proceeding, if he
or she had no reason to believe his or her conduct was unlawful. TrustCo's
Bylaws generally permit indemnification, PROVIDED, HOWEVER, that no
indemnification will be made to any officer or director if a judgement or final
adjudication establishes that his or her acts were committed in bad faith or
were the result of an act of deliberate dishonesty, and were material to the
cause of action so adjudicated, or that he or she personally gained a financial
profit or other advantage to which he or she was not entitled.
HUDSON
The DGCL grants Delaware corporations broad indemnification powers,
including the authority to provide forms of indemnification in addition to the
types of indemnification specifically set forth within the DGCL. Hudson's
Certificate provides mandatory indemnification for each person who was or is
made a party or threatened to be made a party to or is otherwise involved in any
proceeding by reason of the fact that he or she is or was a director or officer
of Hudson or a subsidiary of Hudson or is or was serving at the request of
Hudson as a director, officer, employee or agent of another corporation. Such
mandatory indemnification covers the alleged action whether or not such person
was acting in their official capacity. Such indemnification covers all expense,
liability and loss, including attorneys' fees, judgments, fines, excise taxes or
penalties and amounts paid in settlement reasonably incurred by the indemnitee
in connection with the proceeding. Hudson's Certificate provides indemnification
to an indemnitee who initiates a proceeding only if the proceeding was
authorized by the Hudson Board or was initiated to enforce indemnification
rights. Hudson's Certificate provides for payment of indemnification expenses in
advance of a proceeding's final disposition provided the indemnitee first
delivers to Hudson an undertaking by or on behalf of such indemnitee to repay
all amounts so advanced if it is ultimately determined that the indemnitee is
not entitled to be indemnified for such expense. In addition to mandatory
indemnification, Hudson may in accordance with Hudson's Certificate, to the
extent authorized by the Hudson Board, grant rights to indemnification and to
the advancement of indemnification expenses to any employee or agent of Hudson
to the fullest extent that Hudson is
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<PAGE>
authorized to indemnify and advance expenses to the directors and officers of
Hudson. Hudson's Certificate also authorizes Hudson to maintain insurance to
protect Hudson and any director, officer, employee or agent of Hudson or
another corporation against any expense, liability or loss, whether or not
Hudson would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
LIMITATION OF LIABILITY OF DIRECTORS
TRUSTCO
TrustCo's Certificate provides that, to the fullest extent that the New
York Law permits elimination or limitation of the liabilities of directors, no
director of TrustCo will be liable to the corporation or its stockholders for
any breach of duty in such capacity. The New York Law provides that a director
will not be liable if he or she performed his or her duties as a director,
including duties as a member of any committee thereof, in good faith and with
that degree of care which an ordinarily prudent person in a like position would
use under similar circumstances.
HUDSON
Hudson's Certificate provides that a director of Hudson will not be
personally liable to Hudson or the stockholders of Hudson for monetary damages
for breach of fiduciary duty as a director, except for liability resulting from:
(i) any breach of the director's duty of loyalty to Hudson or the stockholders
of Hudson; (ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) unlawful payment of dividend or
unlawful stock purchases or redemptions; or (iv) any transaction from which the
director derived an improper personal benefit. Stockholders of Hudson do not,
therefore, have a cause of action against a director based upon negligent
business decisions, including those relating to attempts to acquire control of
Hudson. Hudson's Certificate does not, however, preclude all equitable remedies
for breach of the duty of care, although such remedies might not be available as
a practical matter. Hudson's limitation of director liability may reduce the
likelihood of derivative litigation against directors and discourage or deter
stockholders or management from bringing a lawsuit against directors for breach
of their duty of care, even though such an action, if successful, might
otherwise have been beneficial to Hudson and its stockholders.
CONSIDERATION OF NON-STOCKHOLDER INTERESTS
TRUSTCO
The New York Law specifically authorizes directors, in considering the
best interests of a corporation, to consider the short-term and long-term
interests of the corporation and its stockholders as well as the short-term or
long-term effects of any action upon: (i) the corporation's prospects for
potential growth, development, productivity and profitability; (ii) the
corporation's current employees; (iii) the corporation's retired employees and
other beneficiaries receiving or entitled to receive retirement, welfare or
similar benefits from or pursuant to any plan sponsored, or agreement entered
into, by the corporation; (iv) the corporation's customers and creditors; and
(v) the ability of the corporation to provide, as a going concern, goods,
services, employment opportunities and employment benefits and otherwise to
contribute to the communities in which it does business. The New York Law does
not create any duties of any director to any person or entity to consider or
afford any particular weight to any of the foregoing criteria, nor does it
abrogate any duty of the directors, either statutory or recognized by common law
or court decisions.
HUDSON
The DGCL does not address a Delaware director's ability to consider
non-stockholder interests when discharging his or her duties. Delaware case law,
however, provides that in discharging his or her
78
<PAGE>
responsibilities, a board of directors of a Delaware corporation must limit
consideration of non-stockholder interests, and that a board of directors of
a Delaware corporation may consider non-stockholder interests only if those
interests are rationally related to benefits accruing to the stockholders of
the Delaware corporation. REVLON, INC. V. MACANDREWS & FORBES HOLDINGS, INC.,
506 A.2d 173 (Del. 1986). Delaware case law further provides that, when a
board of directors of a Delaware corporation decides to sell a Delaware
corporation, concern for non-stockholder interests is inappropriate. ID.
Hudson's Certificate grants the Hudson Board broader discretion than
that authorized by Delaware case law. Specifically, Hudson's Certificate
provides that the Hudson Board may, when evaluating any tender or exchange
offer, any offer to merge or consolidate Hudson with another entity or any offer
to purchase all or substantially all of the assets of Hudson, give due
consideration to all relevant factors including, without limitation, the social
and economic effect of acceptance of any such offer on present and future
customers and employees of Hudson and subsidiaries of Hudson, the communities in
which Hudson and its subsidiaries operate or are located, and the ability of
Hudson and its subsidiaries to fulfill their respective corporate or banking
objectives.
LEGAL OPINION
The legality of the TrustCo Common Stock offered hereby will be passed
upon by the law firm of Lewis, Rice & Fingersh, L.C., St. Louis, Missouri.
Members of, and attorneys employed by, Lewis, Rice & Fingersh, L.C., owned,
directly or indirectly, approximately 11,041 shares of TrustCo Common Stock.
EXPERTS
The consolidated financial statements contained in TrustCo's Annual
Report on Form 10-K for the year ended December 31, 1999 have been audited by
KPMG LLP and are incorporated by reference in this document in reliance on that
firm's expertise in accounting and auditing. The consolidated financial
statements contained in Hudson's Annual Report on Form 10-K for the year ended
June 30, 2000 have been audited by Arthur Andersen LLP and are incorporated by
reference in this document in reliance on that firm's expertise in accounting
and auditing.
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<PAGE>
The Exchange Agent for the Exchange Offer is:
CHASEMELLON SHAREHOLDER SERVICES
<TABLE>
<S> <C> <C>
By mail: By hand: By overnight:
Reorganization Department Reorganization Department 85 Challenger Road
P.O. Box 3301 120 Broadway, 13th Floor Mail Stop - Reorg
South Hackensack, NJ 07606 New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
Facsimile (for eligible institutions only): (201) 296-4293
Confirm facsimile by telephone ONLY: (201) 296-4860
80
<PAGE>
APPENDIX A
IMPORTANT
PLEASE SIGN, DATE AND, IF NECESSARY, HAVE YOUR SIGNATURE
GUARANTEED IN THE BOX ENTITLED "SIGN HERE" ON PAGE 3 OF THIS
DOCUMENT WHERE INDICATED BY THE ARROWS.
LETTER OF TRANSMITTAL
TO TENDER SHARES
OF
COMMON STOCK
OF
HUDSON RIVER BANCORP, INC.
(THE "COMPANY")
PURSUANT TO THE EXCHANGE OFFER
DATED October 30, 2000
BY
TRUSTCO BANK CORP NY
TO: CHASEMELLON SHAREHOLDER SERVICES
<TABLE>
<S> <C> <C>
By mail: By hand: By overnight:
Reorganization Department Reorganization Department 85 Challenger Road
P.O. Box 3301 120 Broadway, 13th Floor Mail Stop - Reorg
South Hackensack, NJ 07606 New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
Facsimile (for eligible institutions only): (201) 296-4293
Confirm facsimile by telephone ONLY: (201) 296-4860
A-1
<PAGE>
TENDER, PROXY AND POWER OF ATTORNEY
The undersigned, the registered holder of shares of common stock
(the "Shares") of the Company as described in the Exchange Offer referred to
above, or the legal representative of the registered holder, hereby accepts,
with respect to the Shares tendered, the offer of TrustCo Bank Corp NY
("Offeror"), receipt of which is hereby acknowledged, to acquire the Shares
upon the terms and subject to the conditions of the Exchange Offer.
Accordingly, subject to and effective upon the acquisition by
Offeror (pursuant to the Exchange Offer) of the Shares tendered herewith, the
undersigned hereby assigns and transfers to or upon the order of Offeror such
Shares, including any and all declared but unpaid dividends and other
distributions on such Shares, and hereby constitutes and appoints ChaseMellon
Shareholder Services (the "Exchange Agent") the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares with full
power of substitution (such power of attorney is deemed to be an irrevocable
power coupled with an interest) to: (i) deliver the Shares, together with any
and all evidences of transfer and authenticity which may be required by the
Exchange Agent, to or upon the order of Offeror upon receipt by the Exchange
Agent, as the undersigned's agent, of the shares of Offeror's common stock as
set forth in the Exchange Offer; (ii) do all things necessary and appropriate
for the transfer of such Shares on the Company's books; (iii) exercise all
rights of legal and beneficial ownership of such Shares to which the
undersigned would be entitled by virtue of the ownership of such Shares, in
accordance with the terms of the Exchange Offer; and (iv) receive all
dividends and other distributions due or rights issued in respect to the
Shares to which the undersigned would be entitled by virtue of the ownership
of such Shares, all in accordance with the terms of the Exchange Offer. Upon
such acceptance for acquisition, all prior proxies and powers of attorney
given by the undersigned with respect to such Shares will, without further
action, be revoked and no subsequent proxies or powers of attorney may be
given and, if given, will not be deemed effective.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to tender, exchange, assign and transfer the
Shares and that Offeror will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges, voting agreements and
encumbrances and not subject to any adverse claim. The undersigned will, upon
request, execute and deliver any additional documents deemed by the Exchange
Agent or Offeror to be necessary or desirable to complete the exchange,
assignment and transfer of the Shares.
All authority herein conferred or agreed to be conferred survives
the death or incapacity of the undersigned and any obligations of the
undersigned hereunder are binding upon the heirs, personal representatives,
successors and assigns of the undersigned. Except as stated in the Exchange
Offer, this tender is irrevocable.
The undersigned understands that acceptance of the offer contained
in the Exchange Offer constitutes an agreement between the undersigned and
Offeror, in accordance with the terms and conditions precedent of the
Exchange Offer, only when a duly executed and properly completed copy of this
Letter of Transmittal, together with any other required documents (including,
but not limited to, the Shares), are received by the Exchange Agent. The
undersigned further acknowledges receipt and has read the contents of the
Exchange Offer and recognizes the various conditions to the offer that are
set forth in the Exchange Offer.
Unless otherwise indicated herein under "Special Payment
Instructions," please issue the shares of Offeror's common stock as set forth
in the Exchange Offer in the name of the undersigned. Similarly, please mail
such shares, unless otherwise indicated herein under "Special Delivery
Instructions," and/or send any appropriate documents if a Share is not
exchanged, to the undersigned at the address shown below the undersigned's
signature. The undersigned recognizes that Offeror has no obligation to
transfer any Shares from the name of the registered holder thereof if Offeror
does not acquire such Shares pursuant to the Exchange Offer.
A-2
<PAGE>
DESCRIPTION OF SHARES
[to be completed by the tendering Holder]
<TABLE>
<CAPTION>
Name and Address of Registered Holder Certificate Number Number of Shares
------------------------------------- ------------------ ----------------
<S> <C> <C>
</TABLE>
SIGN HERE
__________________________________
__________________________________
(Signature(s) of Owner(s))
Dated: ________________, 2000
(must be signed by registered holders(s) exactly as names(s) appear(s) under
"Description of Shares" above. If signature is by a person acting in
fiduciary capacity or as the registered owners legal representative, please
set forth full title. See instruction 4.)
Name(s)__________________________________________
(Please Print)
_________________________________________________
(Address)
_________________________________________________
(Include Zip Code)
Phone Number: (___)______________________________
Taxpayer Identification or
Social Security Number: ________________________
SIGNATURE(S) GUARANTEED
_________________________________________________
_________________________________________________
(See INstruction 1)
SPECIAL PAYMENT INSTRUCTIONS
To be completed ONLY if shares of Offeror's common stock and/or the check for
cash payable in lieu of fractional shares is to be issued in the name of
someone other than the registered owner:
Name ____________________________________________
Address: ________________________________________
________________________________________
(Include Zip Code)
________________________________________
Tax Identification or Social Security Number
SPECIAL DELIVERY INSTRUCTIONS
To be completed ONLY if shares of Offeror's common stock and/or the check for
cash payable in lieu of fractional shares is to be sent to someone other than
the registered owner at any address other than that shown under "Description
of Shares" above.
Name: ___________________________________________
Address: ________________________________________
________________________________________
(Include Zip Code)
________________________________________
Tax Identification or Social Security Number
A-3
<PAGE>
INSTRUCTIONS
FORMING PART OF THE
TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. SIGNATURE GUARANTEE. No signature guarantee is required if this Letter of
Transmittal is signed by the registered owner of the Shares tendered with this
Letter of Transmittal and delivery is to be made directly to such registered
owner. If such registered owner has completed either the box entitled "Special
Payment Instructions" or the box entitled "Special Delivery Instructions" on the
previous page, all signatures on this Letter of Transmittal must be guaranteed
by a firm which is a member of a registered national securities exchange or of
the National Association of Securities Dealers, Inc. or by a commercial bank or
trust company having an office or correspondent in the United States of America.
2. EXECUTION AND DELIVERY. This Letter of Transmittal or a facsimile thereof
must be properly filled in and signed by the registered owner or owners of the
Shares being tendered and should be mailed or delivered with the Shares to the
Exchange Agent at the appropriate address set forth herein. The method of
delivery of all documents is at the election and risk of the owners of the
Shares being tendered. However, it is suggested that all documents be delivered
to the Exchange Agent in person or, if sent by mail, be sent by registered mail,
return receipt requested, properly insured. No alternative, conditional or
contingent tenders will be accepted. All tendering owners of a Share, by
execution of this Letter of Transmittal, waive any right to receive any notice
of the acceptance of their tender.
3. DESCRIPTION OF SHARES. The Holder should complete the Description of Shares
on the preceding page. The name of the "registered holder" should be the name on
the certificate or a duly executed stock power or comparable document.
4. COMPLETION OF LETTER OF TRANSMITTAL. Signatures on all documents must
correspond with the name of the registered holder of the tendered Shares as set
forth on page 3 of this Letter of Transmittal (under the heading "Description of
Shares") without alteration, enlargement or any change whatsoever, unless an
authorized representative is signing on behalf of the registered owner. If the
Shares tendered hereby are owned of record by two or more joint owners, all such
owners must sign this Letter of Transmittal. If this Letter of Transmittal is
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to Offeror of their authority so to act must be submitted to the
Exchange Agent.
5. ADDITIONAL COPIES. Additional copies of the Exchange Offer and this Letter of
Transmittal may be obtained from the Information Agent at its address set forth
on the last page of this Letter of Transmittal.
6. TRANSFER TAXES. Transfer taxes imposed as a result of the purchase pursuant
to the Exchange Offer, if any, will be paid by Offeror, except that applicable
transfer taxes will be deducted from a cash payment where such payment is to be
made to other than the registered holder, thus involving an additional transfer.
7. WAIVER OF CONDITIONS. The conditions set forth in this Letter of Transmittal
are for the sole benefit of Offeror and may be asserted on or before the
Expiration Date by Offeror regardless of the circumstances giving rise to any
such conditions or may be waived at any one time and from time to time on or
before the Expiration Date in Offeror's sole discretion.
8. TAXPAYER IDENTIFICATION NUMBER, SUBSTITUTE FORM W-9. The tendering holder of
a Share is required to provide the Exchange Agent with his correct Taxpayer
Identification Number ("TIN") on Substitute Form W-9 on the page following the
last page of these instructions. Failure to provide the information on the form
may subject the tendering holder to 31% withholding on the payment of the
exchange consideration. If such holder is an individual, the taxpayer
identification number is his social security number. The box in Part 3 of the
form may be checked if the tendering holder has not been issued a TIN and has
applied for a number or intends to apply for a number in the near future. If the
box in Part 3 is checked and the Exchange Agent is not provided with a TIN
within 60 days, the Exchange Agent will withhold 31% on all payments of the
exchange consideration thereafter until a TIN is provided to the Exchange Agent,
and the holder may be subject to a $500 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such holder with respect to an
exchanged Share pursuant to the Exchange Offer may be subject to backup
withholding. If the backup withholding applies, the Exchange Agent is required
to withhold 31% of any payments made to the holder of a Share. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained.
A-4
<PAGE>
SUBSTITUTE FORM W-9
SUBSTITUTE FORM W-9 REQUEST FOR
TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION
PAYOR'S NAME: CHASEMELLON SHAREHOLDER SERVICES
--------------------------------------------------------------------------------
Name as shown on account (if joint, list first and circle name of the person or
entity whose number you enter below):
Name____________________________________________________________________________
Address_________________________________________________________________________
City, State and Zip Code________________________________________________________
--------------------------------------------------------------------------------
<TABLE>
-------------------------------------- ------------------------------------- -----------------------------------
<S> <C> <C>
SUBSTITUTE TAXPAYER IDENTIFICATION NO.
FORM W-9 FOR ALL ACCOUNTS Social Security Number
Department of the Treasury Enter your taxpayer identification __________________________________
Internal Revenue Service number in the appropriate box.
Payer's Request for For most individuals this is your Employer Identification No.
Taxpayer Identification Number (TIN) social security number. If you do
not have a number, see the enclosed __________________________________
Guidelines.
Note: If the account is more than
one name, see the chart in the
enclosed Guideline on which number
to give the payor.
-------------------------------------- ------------------------------------- -----------------------------------
</TABLE>
CERTIFICATION - Under penalties of perjury, I certify that:
(1) the number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me) and
(2) I am not subject to backup withholding either because I have not been
notified by the Internal Revenue Service ("IRS") that I am subject to
backup withholding as a result of a failure to report all interest or
dividends, or the IRS has notified me that I am no longer subject to backup
withholding.
CERTIFICATION INFORMATION - You must cross out Item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of under
reporting interest on dividends on your tax returns. However, if after being
notified by the IRS that you were subject to backup withholding you received
another notification from the IRS that you are no longer subject to backup
withholding, do not cross out Item (2). The certification requirement does not
apply to real estate transactions, mortgage interest paid, the acquisition or
abandonment of secured property, contributions as to an individual retirement
account, and payments other than interest and dividend. Also see "Signing the
Certification" under "Specific Instructions" in the enclosed Guidelines.
SIGNATURE:____________________________________ DATE:_________________________
--------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING,
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN THE SPACE FOR
THE TIN" ON SUBSTITUTE FORM W-9.
--------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under the penalty of perjury that a taxpayer identification number has
not been issued to me and either (a) I have mailed an application to receive a
taxpayer identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (b) I intend to mail or
deliver an application in the near future. I understand that if I do not provide
a taxpayer identification number within 60 days, 31% of all reportable payments
made to me thereafter will be withheld until I provide a number.
SIGNATURE:____________________________________ DATE:_________________________
--------------------------------------------------------------------------------
A-5
<PAGE>
Any questions or requests for assistance or additional copies of the
Prospectus and the Letter of Transmittal may be directed to Georgeson
Shareholder Communications Inc. at the telephone number and location listed
below. You may contact your broker, dealer, commercial bank or other nominee for
assistance concerning the Exchange Offer.
THE INFORMATION AGENT FOR THIS EXCHANGE OFFER IS:
GEORGESON SHAREHOLDER COMMUNICATIONS INC.
17 STATE STREET, 10TH FLOOR
NEW YORK, NEW YORK 10004
TOLL FREE 1-800-223-2064
A-6
<PAGE>
APPENDIX B
SECTION 203 OF THE DELAWARE GENERAL BUSINESS CORPORATION LAW 203
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS.
(a) Notwithstanding any other provisions of this chapter, a corporation
shall not engage in any business combination with any interested stockholder for
a period of 3 years following the time that such stockholder became an
interested stockholder, unless:
(1) prior to such time the board of directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an interested stockholder, or
(2) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested stockholder owned
at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding those shares owned (i) by persons who are directors and also
officers and (ii) employee stock plans in which employee participants do not
have the right to determine confidentially whether shares held subject to the
plan will be tendered in a tender or exchange offer, or
(3) at or subsequent to such time the business combination is approved
by the board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least
66-2/3% of the outstanding voting stock which is not owned by the interested
stockholder.
(b) The restrictions contained in this section shall not apply if:
(1) the corporation's original certificate of incorporation contains a
provision expressly electing not to be governed by this section;
(2) the corporation, by action of its board of directors, adopts an
amendment to its bylaws within 90 days of the effective date of this section,
expressly electing not to be governed by this section, which amendment shall not
be further amended by the board of directors.
(3) the corporation, by action of its stockholders, adopts an amendment
to its certificate of incorporation or bylaws expressly electing not to be
governed by this section, provided that, in addition to any other vote required
by law, such amendment to the certificate of incorporation or bylaws must be
approved by the affirmative vote of a majority of the shares entitled to vote.
An amendment adopted pursuant to this paragraph shall be effective immediately
in the case of a corporation that both (i) has never had a class of voting stock
that falls within any of the three categories set out in subsection (b)(4)
hereof, and (ii) has not elected by a provision in its original certificate of
incorporation or any amendment thereto to be governed by this section. In all
other cases, an amendment adopted pursuant to this paragraph shall not be
effective until 12 months after the adoption of such amendment and shall not
apply to any business combination between such corporation and any person who
became an interested stockholder of such corporation on or prior to such
adoption. A bylaw amendment adopted pursuant to this paragraph shall not be
further amended by the board of directors;
(4) the corporation does not have a class of voting stock that is (i)
listed on a national securities exchange, (ii) authorized for quotation on The
Nasdaq Stock Market or (iii) held of record by more than 2,000 stockholders,
unless any of the foregoing results from action taken, directly or indirectly,
by an interested stockholder or from a transaction in which a person becomes an
interested stockholder;
(5) a stockholder becomes an interested stockholder inadvertently and
(i) as soon as practicable divests itself of ownership of sufficient shares so
that the stockholder ceases to be an interested stockholder and (ii) would not,
at any time within the 3 year period immediately prior to a
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business combination between the corporation and such stockholder, have been
an interested stockholder but for the inadvertent acquisition of ownership;
(6) the business combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required hereunder of a proposed transaction which (i) constitutes one of
the transactions described in the second sentence of this paragraph; (ii) is
with or by a person who either was not an interested stockholder during the
previous 3 years or who became an interested stockholder with the approval of
the corporation's board of directors or during the period described in paragraph
(7) of this subsection (b); and (iii) is approved or not opposed by a majority
of the members of the board of directors then in office (but not less than 1)
who were directors prior to any person becoming an interested stockholder during
the previous 3 years or were recommended for election or elected to succeed such
directors by a majority of such directors. The proposed transactions referred to
in the preceding sentence are limited to (x) a merger or consolidation of the
corporation (except for a merger in respect of which, pursuant to Section 251(f)
of the chapter, no vote of the stockholders of the corporation is required); (y)
a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), whether as part of a dissolution or
otherwise, of assets of the corporation or of any direct or indirect
majority-owned subsidiary of the corporation (other than to any direct or
indirect wholly-owned subsidiary or to the corporation) having an aggregate
market value equal to 50% or more of either that aggregate market value of all
of the assets of the corporation determined on a consolidated basis or the
aggregate market value of all the outstanding stock of the corporation; or (z) a
proposed tender or exchange offer for 50% or more of the outstanding voting
stock of the corporation. The corporation shall give not less then 20 days
notice to all interested stockholders prior to the consummation of any of the
transactions described in clauses (x) or (y) of the second sentence of this
paragraph; or
(7) The business combination is with an interested stockholder who
became an interested stockholder at a time when the restrictions contained in
this section did not apply by reason of any paragraphs (1) through (4) of this
subsection (b), provided, however, that this paragraph (7) shall not apply if,
at the time such interested stockholder became an interested stockholder, the
corporation's certificate of incorporation contained a provision authorized by
the last sentence of this subsection (b).
Notwithstanding paragraphs (1), (2), (3) and (4) of this subsection, a
corporation may elect by a provision of its original certificate of
incorporation or any amendment thereto to be governed by this section; provided
that any such amendment to the certificate of incorporation shall not apply to
restrict a business combination between the corporation and an interested
stockholder of the corporation if the interested stockholder became such prior
to the effective date of the amendment.
(c) As used in this section only, the term:
(1) "affiliate" means a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(2) "associate," when used to indicate a relationship with any person,
means (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock, (ii) any
trust or other estate in which such person has at least a 20% beneficial
interest or as to which such person serves as trustee or in a similar fiduciary
capacity, and (iii) any relative or spouse of such person, or any relative of
such spouse, who has the same residence as such person.
(3) "business combination," when used in reference to any corporation
and any interested stockholder of such corporation, means:
(i) any merger or consolidation of the corporation or any
direct or indirect majority-owned subsidiary of the corporation with (A) the
interested stockholder, or (B) with any other corporation, partnership,
unincorporated association or other entity if the merger or consolidation is
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caused by the interested stockholder and as a result of such merger or
consolidation subsection (a) of this section is not applicable to the surviving
entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions), except
proportionately as a stockholder of such corporation, to or with the interested
stockholder, whether as part of a dissolution or otherwise, of assets of the
corporation or of any direct or indirect majority-owned subsidiary of the
corporation which assets have an aggregate market value equal to 10% or more of
either the aggregate market value of all the assets of the corporation
determined on a consolidated basis or the aggregate market value of all the
outstanding stock of the corporation;
(iii) any transaction which results in the issuance or
transfer by the corporation or by any direct or indirect majority-owned
subsidiary of the corporation of any stock of the corporation or of such
subsidiary to the interested stockholder, except (A) pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable for or
convertible into stock of such corporation or any such subsidiary which
securities were outstanding prior to the time that the interested stockholder
became such, (B) pursuant to a merger under Section 251(g) of this title; (C)
pursuant to a dividend or distribution paid or made, or the exercise, exchange
or conversion of securities exercisable for, exchangeable for or convertible
into stock of such corporation or any such subsidiary which security is
distributed, pro rata to all holders of a class or series of stock of such
corporation subsequent to the time the interested stockholder became such, (D)
pursuant to an exchange offer by the corporation to purchase stock made on the
same terms to all holders of said stock, or (E) any issuance or transfer of
stock by the corporation, provided however, that in no case under (C)-(E) above
shall there be an increase in the interested stockholder's proportionate share
of the stock of any class or series of the corporation or of the voting stock of
the corporation;
(iv) any transaction involving the corporation or any direct
or indirect majority-owned subsidiary of the corporation which has the effect,
directly or indirectly, of increasing the proportionate share of the stock of
any class or series, or securities convertible into the stock of any class or
series, of the corporation or of any such subsidiary which is owned by the
interested stockholder, except as a result of immaterial changes due to
fractional share adjustments or as a result of any purchase or redemption of any
shares of stock not caused, directly or indirectly, by the interested
stockholder; or
(v) any receipt by the interested stockholder of the benefit,
directly or indirectly (except proportionately as a stockholder of such
corporation) of any loans, advances, guarantees, pledges, or other financial
benefits (other than those expressly permitted in subparagraphs (i)-(iv) above)
provided by or through the corporation or any direct or indirect majority owned
subsidiary.
(4) "control," including the term "controlling," "controlled by" and
"under common control with," means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting stock, by contract, or
otherwise. A person who is the owner of 20% or more of the outstanding voting
stock of any corporation, partnership, unincorporated association or other
entity shall be presumed to have control of such entity, in the absence of proof
by a preponderance of the evidence to the contrary. Notwithstanding the
foregoing, a presumption of control shall not apply where such person holds
voting stock, in good faith and not for the purpose of circumventing this
section, as an agent, bank, broker, nominee, custodian or trustee for one or
more owners who do not individually or as a group have control of such entity.
(5) "interested stockholder" means any person (other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation) that (i) is the owner of 15% or more of the outstanding voting
stock of the corporation, or (ii) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within the 3-year period immediately prior to the
date on which it is sought to be determined whether such person is an interested
stockholder; and the affiliates and associates of such person; provided,
however, that the term "interested stockholder" shall not include (x) any person
who (A) owned shares in excess of the 15%
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limitation set forth herein as of, or acquired such shares pursuant to a
tender offer commenced prior to, December 23, 1987, or pursuant to an
exchange offer announced prior to the aforesaid date and commenced within 90
days thereafter and either (I) continued to own shares in excess of such 15%
limitation or would have but for action by the corporation or (II) is an
affiliate or associate of the corporation and so continued (or so would have
continued but for action by the corporation) to be the owner of 15% or more
of the outstanding voting stock of the corporation at any time within the
3-year period immediately prior to the date on which it is sought to be
determined whether such a person is an interested stockholder or (B) acquired
said shares from a person described in (A) above by gift, inheritance or in a
transaction in which no consideration was exchanged; or (y) any person whose
ownership of shares in excess of the 15% limitation set forth herein is the
result of action taken solely by the corporation provided that such person
shall be an interested stockholder if thereafter such person acquires
additional shares of voting stock of the corporation, except as a result of
further corporate action not caused, directly or indirectly, by such person.
For the purpose of determining whether a person is an interested stockholder,
the voting stock of the corporation deemed to be outstanding shall include
stock deemed to be owned by the person through application of paragraph (8)
of this subsection but shall not include any other unissued stock of such
corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
(6) "person" means any individual, corporation, partnership,
unincorporated association or other entity.
(7) "Stock" means, with respect to any corporation, capital stock and,
with respect to any other entity, any equity interest.
(8) "Voting stock" means, with respect to any corporation, stock of any
class or series entitled to vote generally in the election of directors and,
with respect to any entity that is not a corporation, any equity interest
entitled to vote generally in the election of the governing body of such entity.
(9) "owner" including the terms "own" and "owned" when used with
respect to any stock means a person that individually or with or through any of
its affiliates or associates:
(i) beneficially owns such stock, directly or
indirectly; or
(ii) has (A) the right to acquire such stock (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided, however,
that a person shall not be deemed the owner of stock tendered pursuant to a
tender or exchange offer made by such person or any of such person's affiliates
or associates until such tendered stock is accepted for purchase or exchange; or
(B) the right to vote such stock pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be deemed the owner of
any stock because of such person's right to vote such stock if the agreement,
arrangement or understanding to vote such stock arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made to 10
or more persons; or
(iii) has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (B) of clause (ii) of this paragraph), or
disposing of such stock with any other person that beneficially owns, or whose
affiliates or associates beneficially own, directly or indirectly, such stock.
(d) No provision of a certificate of incorporation or bylaw shall
require, for any vote of stockholders required by this section a greater vote of
stockholders than that specified in this section.
(e) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all matters with respect to this section. (Last amended by
Ch. 79, L. `95, eff. 7-1-95.)
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