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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 25, 1995
The Bank of New York Company, Inc.
(Exact Name of Registrant as Specified in Charter)
New York 1-6152 13-2614959
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
48 Wall Street
New York, New York 10286
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 495-1784
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On March 25, 1995, an Agreement and Plan of Merger (the "Merger
Agreement") was entered into between The Bank of New York Company, Inc.
("BNY") and The Putnam Trust Company of Greenwich ("Putnam Trust"). Copies
of the Merger Agreement and BNY's March 27, 1995 press release in connection
with the Merger Agreement are attached to this Current Report as exhibits
and are incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
The following exhibits, as required by Item 601 of Regulation
S-K, are attached to this Current Report:
2 - Agreement and Plan of Merger, dated as of the 25th day
of March, 1995, by and between BNY and Putnam Trust,
including all annexes to the Agreement but excluding
schedules. The omitted schedules will be furnished
supplementally upon request to the Securities and
Exchange Commission.
99 - Press release, dated March 27, 1995, issued by BNY and
Putnam Trust.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Phebe C. Miller
Name: Phebe C. Miller
Title: Corporate Secretary
Date: March 28, 1995
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Exhibit Index
Exhibit Item Page
2 - Agreement and Plan of Merger, dated as of the 25th
day of March, 1995, by and between The Bank of New
York Company, Inc. ("BNY") and The Putnam Trust
Company of Greenwich ("Putnam Trust"), including all
annexes to the Agreement but excluding schedules.
99 - Press release, dated March 27, 1995, issued by
BNY and Putnam Trust.
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Exhibit 2
Conformed Copy
AGREEMENT AND PLAN OF MERGER
dated as of the 25th day of March, 1995
by and between
THE BANK OF NEW YORK COMPANY, INC.
and
THE PUTNAM TRUST COMPANY OF GREENWICH
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TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. BNY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Putnam Trust . . . . . . . . . . . . . . . . . . . . . . . 1
C. The Merger . . . . . . . . . . . . . . . . . . . . . . . . 1
D. Certain Letters . . . . . . . . . . . . . . . . . . . . . . 1
E. Intention of the Parties . . . . . . . . . . . . . . . . . 2
F. Board Approvals . . . . . . . . . . . . . . . . . . . . . . 2
G. Shareholder and Regulatory Approvals . . . . . . . . . . . 2
ARTICLE I
The Merger; Effective Time;
Closing; Organization of the Merger Bank
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Effective Time . . . . . . . . . . . . . . . . . . . . . . 3
1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Organization of the Merger Bank . . . . . . . . . . . . . 4
ARTICLE II
Name, Main Office, Governing Documents, Capital,
Directors and Officers of the Surviving Bank
2.1 Name and Main Office of the Surviving Bank . . . . . . . . 4
2.2 Certificate of Incorporation of the
Surviving Bank . . . . . . . . . . . . . . . . . . 5
2.3 By-laws of the Surviving Bank . . . . . . . . . . . . . . 5
2.4 Directors of the Surviving Bank . . . . . . . . . . . . . 5
2.5 Certain Officers of the Surviving Bank . . . . . . . . . .
2.6 Capital Stock of the Surviving Bank . . . . . . . . . . . 5
ARTICLE III
Effect of Merger on Shares;
Election; Exchange Procedures
3.1 Conversion and Cancellation of Shares of
Putnam Trust Common Stock . . . . . . . . . . . . . 6
3.2 Exchange of Old Certificates for New
Certificates . . . . . . . . . . . . . . . . . . . 7
(a) Appointment of Exchange Agent . . . . . . . . . . . 7
(b) Exchange Procedures . . . . . . . . . . . . . . . . 7
(c) Fractional Shares . . . . . . . . . . . . . . . . . 8
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(d) Distributions with Respect to
Unexchanged Shares . . . . . . . . . . . . . 8
(e) Transfers . . . . . . . . . . . . . . . . . . . . . 9
(f) No Liability . . . . . . . . . . . . . . . . . . . . 9
3.3 Dissenters' Shares . . . . . . . . . . . . . . . . . . . . 9
3.4 Shares of Merger Bank Common Stock . . . . . . . . . . . . 9
ARTICLE IV
Representations and Warranties
4.1 Mutual Representations and Warranties
of BNY and Putnam Trust . . . . . . . . . . . . . . 10
(a) Recitals True . . . . . . . . . . . . . . . . . . . 10
(b) Corporate Qualification . . . . . . . . . . . . . . 10
(c) Corporate Authority . . . . . . . . . . . . . . . . 10
(d) Governmental Filings; No Violations . . . . . . . . 11
(e) Reports and Financial Statements . . . . . . . . . . 12
(f) Absence of Certain Events and Changes . . . . . . . 14
(g) Knowledge as to Conditions . . . . . . . . . . . . . 14
(h) Litigation . . . . . . . . . . . . . . . . . . . . . 14
(i) Brokers and Finders . . . . . . . . . . . . . . . . 15
4.2 Additional Representations and Warranties
of BNY . . . . . . . . . . . . . . . . . . . . . . 15
(a) Capital Stock . . . . . . . . . . . . . . . . . . . 15
(b) Representations Regarding the Merger Bank . . . . . 15
4.3 Additional Representations and Warranties
of Putnam Trust . . . . . . . . . . . . . . . . . . 16
(a) Capital Stock . . . . . . . . . . . . . . . . . . . 16
(b) Subsidiaries . . . . . . . . . . . . . . . . . . . . 17
(c) Loans; OREO . . . . . . . . . . . . . . . . . . . . 17
(d) Properties . . . . . . . . . . . . . . . . . . . . . 18
(e) Compliance with Laws . . . . . . . . . . . . . . . . 19
(f) Taxes . . . . . . . . . . . . . . . . . . . . . . . 20
(g) Material Agreements . . . . . . . . . . . . . . . . 22
(h) Labor Matters . . . . . . . . . . . . . . . . . . . 23
(i) Employee Benefits . . . . . . . . . . . . . . . . . 23
(j) Environmental Matters . . . . . . . . . . . . . . . 25
(k) Insurance . . . . . . . . . . . . . . . . . . . . . 26
(l) Interest of Certain Persons . . . . . . . . . . . . 27
(m) Administration of Fiduciary Accounts . . . . . . . . 27
(n) Interest Rate Risk Management Instruments;
Derivatives; Certain Other Securities . . . . . . . 28
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(o) Noncompete Provisions . . . . . . . . . . . . . . . 28
(p) Antitakeover Provisions Inapplicable . . . . . . . . 29
(q) Absence of Certain Developments . . . . . . . . . . 29
4.4 Exceptions to Representations and Warranties . . . . . . . 29
ARTICLE V
Covenants
5.1 Conduct of Business Pending the
Effective Time . . . . . . . . . . . . . . . . . . 30
5.2 Dividends . . . . . . . . . . . . . . . . . . . . . . . . 34
5.3 Certain Policies of Putnam Trust . . . . . . . . . . . . 35
5.4 Acquisition Proposals . . . . . . . . . . . . . . . . . . 35
5.5 Shareholder Approval . . . . . . . . . . . . . . . . . . 36
5.6 Filings; Other Actions . . . . . . . . . . . . . . . . . 36
5.7 Information Supplied . . . . . . . . . . . . . . . . . . 37
5.8 Accountants' Letters . . . . . . . . . . . . . . . . . . 38
5.9 Access and Information . . . . . . . . . . . . . . . . . 38
5.10 Notification of Certain Matters . . . . . . . . . . . . . 39
5.11 Publicity . . . . . . . . . . . . . . . . . . . . . . . . 40
5.12 Employee Benefit Plans . . . . . . . . . . . . . . . . . 40
5.13 Options . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.14 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 42
5.15 Indemnification; Directors' and
Officers' Insurance . . . . . . . . . . . . . . . . 42
5.16 Antitakeover Provisions . . . . . . . . . . . . . . . . . 44
5.17 Affiliate Agreements . . . . . . . . . . . . . . . . . . 44
5.18 Stock Exchange Listing . . . . . . . . . . . . . . . . . 44
5.19 Efforts to Consummate . . . . . . . . . . . . . . . . . . 44
5.20 Reports . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.21 Accounting and Tax Treatment . . . . . . . . . . . . . . 45
ARTICLE VI
Conditions
6.1 Conditions to Each Party's Obligation
to Effect the Merger . . . . . . . . . . . . . . . 45
(a) Shareholder Approval . . . . . . . . . . . . . . . . 45
(b) Governmental and Regulatory Consents . . . . . . . . 45
(c) Litigation . . . . . . . . . . . . . . . . . . . . . 46
(d) Registration Statement . . . . . . . . . . . . . . . 46
(e) Blue Sky Approvals . . . . . . . . . . . . . . . . . 46
(f) Listing . . . . . . . . . . . . . . . . . . . . . . 46
(g) Opinion of Tax Counsel . . . . . . . . . . . . . . . 47
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6.2 Conditions to Obligation of BNY . . . . . . . . . . . . . 47
(a) Representations and Warranties . . . . . . . . . . . 47
(b) Performance of Obligations of Putnam Trust . . . . . 48
(c) Opinion of Counsel . . . . . . . . . . . . . . . . . 48
6.3 Conditions to Obligation of Putnam Trust . . . . . . . . . 48
(a) Representations and Warranties . . . . . . . . . . . 48
(b) Performance of Obligations of BNY . . . . . . . . . 48
(c) Opinion of Counsel . . . . . . . . . . . . . . . . . 48
ARTICLE VII
Termination
7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . 49
7.2 Effect of Termination and Abandonment . . . . . . . . . . 50
7.3 Termination Fee . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VIII
Miscellaneous
8.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . 53
8.2 Modification or Amendment . . . . . . . . . . . . . . . . 54
8.3 Waiver of Conditions . . . . . . . . . . . . . . . . . . 54
8.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . 54
8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . 54
8.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.7 Entire Agreement, Etc. . . . . . . . . . . . . . . . . . 56
8.8 Definitions of "subsidiary", "prior
consultation" and "knowledge"; Covenants
with Respect to Subsidiaries . . . . . . . . . . . 56
8.9 Captions . . . . . . . . . . . . . . . . . . . . . . . . 57
8.10 Severability . . . . . . . . . . . . . . . . . . . . . . 57
8.11 No Third Party Beneficiaries . . . . . . . . . . . . . . 57
ANNEXES
1. Form of Letter Agreement
2. Form of Supplement
3. Form of Certificate of Incorporation
4. Schedule of Certain Employment Agreements
5. Form of Affiliate Agreement
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INDEX OF DEFINED TERMS
Location of
Term Definition
Acquisition Proposal . . . . . . . . . . . . . . . . . . . . . 5.4
Acquisition Transaction . . . . . . . . . . . . . . . . . . . . 7.3(b)(i)
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 5.17(a)
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Antitakeover Provisions . . . . . . . . . . . . . . . . . . . . 5.16
Asset Classification . . . . . . . . . . . . . . . . . . . . . 4.3(c)(ii)
BHC Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital A
Banking Regulators . . . . . . . . . . . . . . . . . . . . . . 4.1(h)
BNY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
BNY Common Stock . . . . . . . . . . . . . . . . . . . . . . . Recital A
BNY Person . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)(i)
By-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.15(a)
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . Recital G
Compensation Plans . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(i)
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(d)(ii)
CTBL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital G
Derivative Securities . . . . . . . . . . . . . . . . . . . . . 4.3(n)
Disclosure Letter . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)
Dissenters' Shares . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(i)
Environmental Law . . . . . . . . . . . . . . . . . . . . . . . 4.3(j)(i)
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(i)
ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(iii)
Exception Shares . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(d)(i)
Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . 3.2(a)
Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)(iii)
Exchange Ratio . . . . . . . . . . . . . . . . . . . . . . . . 3.1(a)(i)
Fair Lending Laws . . . . . . . . . . . . . . . . . . . . . . . 4.1(h)
FDI Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital G
FDIC Act . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital G
Federal Reserve . . . . . . . . . . . . . . . . . . . . . . . . Recital G
Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
Fee Termination Event . . . . . . . . . . . . . . . . . . . . . 7.3(a)
Fee Trigger Event . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2(a)
Governing Documents . . . . . . . . . . . . . . . . . . . . . . 4.1(b)(i)
Governmental Entity . . . . . . . . . . . . . . . . . . . . . . 4.1(d)(i)
Hazardous Substance . . . . . . . . . . . . . . . . . . . . . . 4.3(j)(i)
Indemnified Parties . . . . . . . . . . . . . . . . . . . . . . 5.15(a)
Internal Revenue Code . . . . . . . . . . . . . . . . . . . . . Recital E
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knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8(b)
Latest Balance Sheet . . . . . . . . . . . . . . . . . . . . . 4.3(c)
Letter Agreements . . . . . . . . . . . . . . . . . . . . . . . Recital D
Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(q)(i)
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(a)(ii)
Material Adverse Effect . . . . . . . . . . . . . . . . . . . . 4.4(c)
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital C
Merger Bank . . . . . . . . . . . . . . . . . . . . . . . . . . Recital C
NASD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(d)(i)
New Certificate . . . . . . . . . . . . . . . . . . . . . . . . 3.1(a)(ii)
NYBL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital F
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2(c)
Old Certificate . . . . . . . . . . . . . . . . . . . . . . . . 3.1(a)(ii)
Old Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(a)(ii)
OREO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(c)(iv)
Pension Plan . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(ii)
Permissible Activities . . . . . . . . . . . . . . . . . . . . 4.3(o)
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(b)
Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(i)(ii)
Preliminary Fee Trigger Event . . . . . . . . . . . . . . . . . 7.3(b)
prior consultation . . . . . . . . . . . . . . . . . . . . . . 8.8(b)
Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . 5.6
Putnam Trust . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Putnam Trust Common Stock . . . . . . . . . . . . . . . . . . . Recital B
Putnam Trust Meeting . . . . . . . . . . . . . . . . . . . . . 5.5
Putnam Trust Options . . . . . . . . . . . . . . . . . . . . . 5.13
Putnam Trust Preferred Stock . . . . . . . . . . . . . . . . . Recital B
Putnam Trust Stock Plans . . . . . . . . . . . . . . . . . . . 4.3(a)(i)
Registration Statement . . . . . . . . . . . . . . . . . . . . 5.6
Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . Recital G
Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(e)
Representatives . . . . . . . . . . . . . . . . . . . . . . . . 5.9
SCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(e)(i)
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . 4.1(d)(i)
Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . 4.1(e)(ii)
subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8(a)
Superintendent . . . . . . . . . . . . . . . . . . . . . . . . Recital G
Surviving Bank . . . . . . . . . . . . . . . . . . . . . . . . Recital C
Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3(f)(i)
Tender Offer . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)(iii)
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AGREEMENT AND PLAN OF MERGER, dated as of the 25th day of
March, 1995 (this "Agreement"), by and between The Bank of New York, Inc.
("BNY") and The Putnam Trust Company of Greenwich ("Putnam Trust").
RECITALS
A. BNY. BNY has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York, with
its principal executive offices located in New York, New York. As of the
date hereof, BNY has 350,000,000 authorized shares of common stock, par
value $7.50 per share ("BNY Common Stock"), of which not more than
188,500,000 shares are outstanding as of the date hereof, 5,000,000
authorized shares of preferred stock, no par value per share, of which not
more than 184,000 shares of 8.60% Cumulative Preferred Stock are
outstanding as of the date hereof, and 5,000,000 authorized shares of Class
A preferred stock, par value $2.00 per share, of which not more than
221,000 shares of Class A, 7.75% Cumulative Convertible Preferred Stock are
outstanding as of the date hereof (no other class or series of capital
stock being authorized). BNY is a bank holding company registered under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
B. Putnam Trust. Putnam Trust has been duly organized and is
an existing state bank and trust company in good standing under the laws of
Connecticut, with its principal executive offices located in Greenwich,
Connecticut. As of the date hereof, Putnam Trust has 10,000,000 authorized
shares of common stock, no par value ("Putnam Trust Common Stock"), of
which not more than 3,400,000 shares are outstanding as of the date hereof,
and 5,000,000 authorized shares of preferred stock, par value $100 per
share ("Putnam Trust Preferred Stock"), none of which is outstanding as of
the date hereof (no other class or series of capital stock being
authorized).
C. The Merger. At the Effective Time (as defined in
Section 1.2(a)), the parties to this Agreement intend to effect the merger
(the "Merger") of Putnam Trust with and into a state bank and trust company
that will be organized as a wholly owned subsidiary of BNY (the "Merger
Bank"), with the Merger Bank the surviving state bank and trust company in
the Merger (the "Surviving Bank"), but with the name changed to that of
Putnam Trust.
D. Certain Letters. As an inducement to and condition of
BNY's willingness to enter into this Agreement, the majority of the
directors of Putnam Trust have entered into letter agreements with BNY,
each in substantially the
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form of Annex 1 to this Agreement (collectively, the "Letter Agreements").
E. Intention of the Parties. It is the intention of the
parties to this Agreement that the Merger qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986,
as amended (including the rules and regulations thereunder, the "Internal
Revenue Code").
F. Board Approvals. The Board of Directors of BNY (at a
meeting duly called and held) has determined that this Agreement and the
transactions contemplated hereby are in the best short-term and long-term
interests of its shareholders and has approved this Agreement. The Board
of Directors of Putnam Trust (at a meeting duly called and held), taking
into consideration (i) the long-term as well as the short-term interests of
Putnam Trust, (ii) the interests of the shareholders of Putnam Trust, long-
term as well as short-term, including the possibility that those interests
may be best served by the continued independence of Putnam Trust, (iii) the
interests of Putnam Trust's employees, customers, creditors and suppliers,
(iv) community and societal considerations including those of each
community in which an office or facility of Putnam Trust is located and
(v) such other factors as the directors considered appropriate in
determining what the directors believe to be in the best interests of
Putnam Trust, has approved this Agreement.
G. Shareholder and Regulatory Approvals. Consummation of the
Merger is subject to (i) the prior approval of the shareholders of Putnam
Trust, (ii) the prior approval of the Board of Governors of the Federal
Reserve System (the "Federal Reserve") under the BHC Act, (iii) the prior
approval of the Federal Reserve under the Federal Deposit Insurance Act, as
amended (the "FDI Act"), and the Federal Reserve Act, as amended (in the
event that BNY shall elect in accordance with Section 1.4(c) for the Merger
Bank and/or the Surviving Bank to be organized as a member bank), (iv) the
prior approval of the Federal Deposit Insurance Corporation (the "FDIC")
under the FDI Act (in the event that BNY shall elect that the Merger Bank
shall not be a member bank), (v) the prior approval of the Banking Com-
missioner of the State of Connecticut (the "Commissioner") under The
Banking Law of Connecticut (the "CTBL") and (vi) the prior approval of the
New York Superintendent of Banks (the "Superintendent") under the New York
Banking Law (the "NYBL") (items (ii) through (vi) together with any other
regulatory approvals required for the transactions
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<PAGE> 3
contemplated hereby, collectively, the "Regulatory Approvals"), among other
conditions specified herein.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
The Merger; Effective Time;
Closing; Organization of the Merger Bank
1.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time, Putnam Trust and the Merger Bank shall
consummate the Merger, in which Putnam Trust shall be merged with and into
the Merger Bank, and the separate corporate existence of Putnam Trust shall
thereupon cease. The Merger shall have the effects specified in the CTBL.
1.2 Effective Time. (a) Subject to the terms and conditions
of this Agreement, the parties to this Agreement will cause a copy of this
Agreement and the approval of the Commissioner referred to in Recital G to
be filed with the Secretary of the State of Connecticut as provided in
Section 36-193u of the CTBL (the "Filing"). The Merger shall become
effective at such time as the Filing has been filed with such Secretary of
the State, or at such other time as the parties hereto may agree in writing
in accordance with applicable law. The date and time when the Merger shall
become effective is herein referred to as the "Effective Time".
(b) BNY and Putnam Trust will use reasonable efforts to cause
the Effective Time to occur at a time and date specified by BNY, which time
and date shall be not later than the opening of business on the first
business day of the month next commencing after the date of satisfaction or
waiver of the last of the conditions specified in Sections 6.1(a) and (b)
of this Agreement; provided, that if such first business day of a month is
to occur fewer than 5 days after such date of satisfaction or waiver, the
Effective Time shall be not later than the opening of business on the first
business day of the next succeeding month. Notwithstanding anything to the
contrary in this Section 1.2, the parties hereto may cause the Effective
Time to occur on such earlier or later day following the satisfaction or
waiver of such conditions as they may agree in writing, consistent with the
provisions of the CTBL.
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<PAGE> 4
1.3 Closing. The closing of the Merger (the "Closing") shall
take place at such place within The City of New York as the parties hereto
shall agree, at 8:00 a.m. on the date when the Effective Time is to occur.
The date upon which the Closing shall occur is herein referred to as the
"Closing Date".
1.4 Organization of the Merger Bank. (a) Subject to
Section 8.2 and the receipt of the applicable Regulatory Approvals, prior
to the Effective Time BNY will take all action necessary to (i) organize
the Merger Bank as a state bank and trust company under the laws of the
State of Connecticut and (ii) cause the Merger Bank to become a party to
this Agreement, to be evidenced by the execution by the Merger Bank and
each of the members of its Board of Directors of a supplement to this
Agreement, in substantially the form of Annex 2, and delivery thereof to
each of BNY and Putnam Trust.
(b) Putnam Trust agrees to, and BNY agrees to cause the
Merger Bank to, enter into any additional merger or related agreements
between Putnam Trust and the Merger Bank and make any additional regulatory
filings as BNY shall determine to be appropriate or necessary in order to
consummate the Merger.
(c) As promptly as reasonably practicable after the date
hereof, BNY shall elect, after prior consultation with Putnam Trust,
whether the Merger Bank and/or the Surviving Bank shall be organized as a
state member bank of the Federal Reserve System. BNY shall promptly notify
Putnam Trust upon the making of such election, and thereafter Putnam Trust
shall cooperate in the making of any applications and filings as may be
reasonably appropriate or necessary as a result thereof.
ARTICLE II
Name, Main Office, Governing Documents, Capital,
Directors and Officers of the Surviving Bank
2.1 Name and Main Office of the Surviving Bank. The name of
the Surviving Bank shall be "The Putnam Trust Company of Greenwich", and
the main office of the Surviving Bank shall be located in Greenwich,
Connecticut at the present main office of Putnam Trust. The Surviving Bank
shall continue as a state bank and trust company organized under the CTBL.
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<PAGE> 5
2.2 Certificate of Incorporation of the Surviving Bank. At
the Effective Time, the certificate of incorporation of the Merger Bank, as
then in effect, shall by virtue of the Merger be amended and restated to
read as set forth in Annex 3, until duly amended in accordance with the
terms thereof and the CTBL; such certificate of incorporation, as so
amended and restated, shall be the certificate of incorporation of the
Surviving Bank (the "Certificate").
2.3 By-laws of the Surviving Bank. By virtue of the Merger,
the by-laws of the Surviving Bank shall be amended to read as the by-laws
of Putnam Trust, as in effect at the Effective Time (the "By-laws"), until
duly amended in accordance with the terms thereof, the Certificate and the
CTBL.
2.4 Directors of the Surviving Bank. The directors of the
Merger Bank at the Effective Time shall continue as the directors of the
Surviving Bank and, together with such additional directors as may
thereafter be elected, shall hold such office until such time as their
successors are elected and qualified in accordance with the terms of the
CTBL, the Certificate and the By-laws. The board of directors of the
Surviving Bank shall initially consist of not less than seven nor more than
twenty-five members.
2.5 Certain Officers of the Surviving Bank. At the Effective
Time, the employment agreements set forth in Annex 4 to this Agreement and
relating to certain officers of Putnam Trust as of the date hereof shall,
by virtue of the Merger, be assumed by the Surviving Bank, and the Merger
Bank, by executing and delivering the supplement to this Agreement referred
to in Section 1.4, agrees as the Surviving Bank in the Merger to perform
each such agreement in the same manner and to the same extent that Putnam
Trust would have been required to perform such agreement absent
consummation of the Merger.
2.6 Capital Stock of the Surviving Bank. The amount of
capital stock of the Surviving Bank at the Effective Time shall consist of
not less than $4,000,000, divided into not less than 20,000 shares of
issued and outstanding common stock, par value $200 per share.
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<PAGE> 6
ARTICLE III
Effect of Merger on Shares;
Election; Exchange Procedures
3.1 Conversion and Cancellation of Shares of Putnam Trust
Common Stock. (a) At the Effective Time, by virtue of the Merger and
without any action on the part of any shareholder:
(i) Subject to Section 3.2(c), each share of Putnam Trust
Common Stock issued and outstanding immediately prior to the
Effective Time, other than Exception Shares (as defined in
Section 3.1(c)), shall be converted at the Effective Time into the
right to receive 1.312 (the "Exchange Ratio") duly authorized,
validly issued, fully paid and nonassessable shares of BNY Common
Stock (together with any related preferred stock purchase rights);
provided, that the Exchange Ratio may be adjusted in accordance with
Section 3.1(b) (whereupon any references in this Agreement to the
"Exchange Ratio" shall thereafter be deemed to refer to the Exchange
Ratio as so adjusted).
(ii) All shares of Putnam Trust Common Stock, other than
Dissenters' Shares (as defined in Section 3.1(c)), issued and
outstanding immediately prior to the Effective Time (collectively,
the "Old Shares") shall cease to be outstanding, shall be cancelled
and retired and shall cease to exist, and each holder of a
certificate (an "Old Certificate") formerly representing the Old
Shares shall thereafter cease to have any rights with respect to such
shares, except the right to receive, without interest, upon exchange
of such Old Certificate in accordance with Section 3.2, a certificate
representing the shares of BNY Common Stock (a "New Certificate") and
any payment to which such holder is entitled pursuant to this Article
III.
(b) In the event that, subsequent to the date of this
Agreement but prior to the Effective Time, the shares of BNY Common Stock
issued and outstanding shall, through a reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
similar change in the capitalization of BNY, increase or decrease in number
or be changed into or exchanged for a different kind or number of
securities, then an appropriate and proportionate adjustment shall be made
to the Exchange Ratio.
(c) For purposes of this Agreement, "Exception Shares" means
(i) shares of Putnam Trust Common Stock owned,
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<PAGE> 7
other than in a bona fide fiduciary capacity or in satisfaction of a debt
previously contracted in good faith, by BNY or a subsidiary (as defined in
Section 8.8) of BNY or held by Putnam Trust or a subsidiary of Putnam Trust
in treasury or (ii) shares of Putnam Trust Common Stock ("Dissenters'
Shares") that have not been voted in favor of approval of the Merger and
with respect to which dissenters' rights have been perfected in accordance
with Section 36-193u of the CTBL and Section 33-374 of the Connecticut
Stock Corporation Act (the "SCA").
3.2 Exchange of Old Certificates for New Certificates. (a)
Appointment of Exchange Agent. From and after the Effective Time until the
end of the six-month period following the Effective Time, BNY shall make
available or cause to be made available to an exchange agent (which may be
a subsidiary of BNY) appointed prior to the Effective Time by BNY and
reasonably satisfactory to Putnam Trust (the "Exchange Agent") New Certifi-
cates and cash in amounts sufficient to allow the Exchange Agent to make
all deliveries of New Certificates and payments that may be required in
exchange for Old Certificates pursuant to this Article III. At the end of
such six-month period, any such New Certificates and cash remaining in the
possession of the Exchange Agent (together with any dividends or earnings
in respect thereof) shall be returned to BNY. Any former holders of Old
Shares who have not theretofore exchanged their Old Certificates for New
Certificates and cash payment pursuant to this Article III shall thereafter
be entitled to look exclusively to BNY and only as general creditors
thereof for the shares of BNY Common Stock and any cash payment to which
they become entitled upon exchange of their Old Certificates pursuant to
this Article III. Notwithstanding the foregoing, neither the Exchange
Agent nor any party hereto shall be liable to any former holder of Old
Shares for any amount properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(b) Exchange Procedures. Promptly after the Effective Time,
BNY shall cause the Exchange Agent to mail or deliver to each person who
was, at the Effective Time, a holder of record of Old Shares (other than
Exception Shares) a form of letter of transmittal (designed by BNY and
reasonably satisfactory to Putnam Trust) containing instructions for use in
effecting the surrender of Old Certificates in exchange for New
Certificates and any payments pursuant to this Article III. Upon surrender
to the Exchange Agent of an Old Certificate for cancellation together with
such letter of transmittal, duly executed and completed in accordance with
the instructions thereto, the holder of such Old
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<PAGE> 8
Certificate shall be entitled to receive in exchange therefor a New
Certificate representing the shares of BNY Common Stock, and a check in the
amount, if any, to which such holder is entitled pursuant to this Article
III, and the Old Certificate so surrendered shall forthwith be cancelled.
No interest will be paid or will accrue on any amount payable upon
surrender of Old Certificates. If any New Certificate or cash payment is
to be issued or made in a name other than that in which the Old Certificate
surrendered in exchange therefor is registered, it shall be a condition of
such exchange that the person requesting such exchange shall pay any
transfer or other taxes required by reason of the issuance of such New
Certificate or the making of such cash payment in a name other than that of
the registered holder of the Old Certificate surrendered, or shall estab-
lish to the satisfaction of BNY that any such taxes have been paid or are
not applicable. An Affiliate (as defined in Section 5.17) of Putnam Trust
shall not be entitled to receive any New Certificate or cash payment pursu-
ant to this Article III until such Affiliate shall have duly executed and
delivered an appropriate agreement described in Section 5.17.
(c) Fractional Shares. Notwithstanding Section 3.1 or any
other provision of this Agreement, no fractional shares of BNY Common Stock
will be issued in exchange for Old Shares hereunder, and any holder of Old
Shares entitled hereunder to receive a fractional share of BNY Common Stock
but for this Section 3.2(c) will be entitled hereunder to receive instead a
cash payment in lieu thereof, without interest, in an amount equal to the
product of the fraction of a share to which such holder would otherwise
have been entitled and the per share closing sale price of BNY Common Stock
as reported on the New York Stock Exchange, Inc. (the "NYSE") Composite
Transactions Tape (or, in the absence thereof, as reported in such other
source upon which BNY and Putnam Trust shall agree) for the immediately
preceding day on which BNY Common Stock is traded on the NYSE.
(d) Distributions with Respect to Unexchanged Shares.
Notwithstanding any other provision of this Agreement, no dividends or
other distributions with a record date after the Effective Time shall be
paid to any person holding an Old Certificate until such Old Certificate
has been surrendered for exchange as provided herein. Following surrender
of any such Old Certificate, there shall be paid to the holder of the New
Certificate issued in exchange therefor, without interest, at the time of
such surrender, the amount of dividends or other distributions with a
record date after the Effective Time theretofore payable in respect of the
shares of BNY Common Stock represented thereby.
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<PAGE> 9
(e) Transfers. At and after the Effective Time, there shall
be no further registration or transfers of shares of Putnam Trust Common
Stock, and the stock ledgers of Putnam Trust shall be closed. After the
Effective Time, Old Certificates presented to the Surviving Bank for trans-
fer shall be cancelled and exchanged for the BNY Common Stock and any cash
payment to which the holder thereof is entitled pursuant to this
Article III (any certificates representing Dissenters' Shares so presented
for transfer shall be treated in accordance with the provisions of Sec-
tion 3.3).
(f) No Liability. In the event that any Old Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming such Old Certificate to be lost, stolen or
destroyed and, if required by BNY, the posting by such person of a bond in
such amount as BNY may direct as indemnity against any claim that may be
made against it with respect to such Old Certificate, BNY shall, in
exchange for such lost, stolen or destroyed Old Certificate, issue or cause
to be issued the shares of BNY Common Stock and pay or cause to be paid the
amounts, if any, deliverable in respect thereof pursuant to this
Article III.
3.3 Dissenters' Shares. Dissenters' Shares shall be purchased
and paid for in accordance with Section 33-374 of the SCA, and the holder
thereof shall not be entitled to the shares of BNY Common Stock and any
other amounts otherwise issuable and payable in connection with the Merger
in respect of such shares of Putnam Trust Common Stock.
3.4 Shares of Merger Bank Common Stock. Shares of common
stock of the Merger Bank issued and outstanding at the Effective Time shall
remain outstanding and unchanged as shares of common stock of the Surviving
Bank, shall not be affected by the Merger, and shall thereafter constitute
all of the issued and outstanding shares of capital stock of the Surviving
Bank.
ARTICLE IV
Representations and Warranties
4.1 Mutual Representations and Warranties of BNY and Putnam
Trust. Subject to Section 4.4, BNY hereby repre-
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<PAGE> 10
sents and warrants to Putnam Trust, and Putnam Trust hereby represents and
warrants to BNY, that:
(a) Recitals True. The statements of fact set forth in
Recitals A, B and F of this Agreement with respect to it are true.
(b) Corporate Qualification. (i) It is in good standing as a
foreign corporation (or, in the case of Putnam Trust, as a foreign
banking corporation) in each jurisdiction where the properties owned,
leased or operated or the business conducted by it require such
qualification. It has the requisite corporate power and authority to
own or lease its properties and assets and to carry on its businesses
as they are now being conducted. It has made available to the other
party hereto a complete and correct copy of its Governing Documents
(as defined below), each as amended to the date hereof and currently
in full force and effect. "Governing Documents" with respect to any
corporation or banking organization means, as of any time, (A) those
instruments that at such time constitute its charter as filed or
recorded under the general corporation or other applicable law of the
jurisdiction of its incorporation or organization, including the
articles or certificates of its incorporation or association, any
amendments thereto and any articles or certificates of merger or
consolidation, and (B) its by-laws.
(ii) Each of Putnam Trust and any subsidiary of BNY that accepts
demand deposits (other than any such subsidiary that accepts solely
trust funds) is an "insured depository institution" as defined in the
FDI Act and applicable regulations thereunder, having its deposits
insured by the FDIC, subject to applicable FDIC coverage limitations.
(c) Corporate Authority. (i) It has the requisite corporate
power and authority and has taken all corporate action necessary in
order to execute and deliver this Agreement and, subject only in the
case of Putnam Trust to the approval by the holders of two-thirds of
the outstanding shares of Putnam Trust Common Stock of the Merger
insofar as required by Section 36-193u of the CTBL, to consummate the
transactions contemplated hereby. This Agreement is a valid and
legally binding agreement of it enforceable against it in accordance
with the terms hereof.
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<PAGE> 11
(ii) Its Board of Directors (at a meeting duly called and held)
has by requisite vote authorized and approved this Agreement and the
transactions, including the Merger, contemplated hereby, and, in the
case of Putnam Trust, (A) directed that the Merger be submitted for
the approval of its shareholders in accordance with Section 36-193u
of the CTBL and (B) approved the Merger and each of the Letter
Agreements (at least one day prior to the execution by BNY of this
Agreement and by any director of Putnam Trust of any Letter
Agreement) in accordance with Sections 33-374a through 33-374f of the
SCA. In the case of Putnam Trust, the majority of its nonemployee
members of its Board of Directors (of which there are at least two)
have approved the Merger and each of the Letter Agreements in
accordance with Section 33-374e of the SCA.
(d) Governmental Filings; No Violations. (i) Other than the
Regulatory Approvals (and it knows of no Regulatory Approvals other
than as specifically set forth in Recital G) and as provided in
Section 1.2, and other than as required under the Securities
Exchange Act of 1934, as amended (including the rules and regulations
thereunder, the "Exchange Act"), the Securities Act of 1933, as
amended (including the rules and regulations thereunder, the
"Securities Act"), state securities and "Blue Sky" laws, the CTBL,
the NYBL and the rules of the NYSE or the National Association of
Securities Dealers, Inc. (the "NASD"), no notices, reports or other
filings are required to be made by it with, nor are any consents,
registrations, approvals, permits or authorizations required to be
obtained by it from, any governmental or regulatory authority,
agency, court, commission or other entity, domestic or foreign
("Governmental Entity"), in connection with the execution, delivery
or performance of this Agreement by it and the consummation by it of
the transactions contemplated hereby.
(ii) The execution, delivery and performance of this Agreement
by it does not and will not, and the consummation by it of any of the
transactions contemplated hereby will not, constitute or result in
(A) a breach or violation of, or a default under, its Governing
Documents or the Governing Documents of any of its subsidiaries, or
(B) a breach or violation of, or a default under, or the acceleration
of or the creation of a Lien (as defined in Section 4.3(a)) pursuant
to, any provision of any agreement, lease, contract, note, mortgage,
indenture, arrangement or other obligation ("Contracts") of it or any
of its sub-
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<PAGE> 12
sidiaries or any law, rule, ordinance or regulation or judgment, decree,
order, award or governmental or non-governmental permit, franchise or
license to which it or any of its subsidiaries is subject, or any change
in the rights or obligations of any party under any of the Contracts (in
each case, with or without the giving of notice, the lapse of time or
both). Paragraph 4.1(d) of its Disclosure Letter (as defined in Section
4.4(a)) contains a list of all consents of third parties required under
any Contracts to be obtained by it or its subsidiaries prior to
consummation of the Merger.
(e) Reports and Financial Statements. (i) With respect to
periods since January 1, 1992, each of it and its subsidiaries has
filed all reports and statements, together with any amendments
required to be made with respect thereto, that it was required to
file with (A) the Securities and Exchange Commission (the "SEC"),
(B) the Federal Reserve, (C) the FDIC, (D) the Commissioner, (E) the
Superintendent, (F) any other applicable federal or state banking,
insurance, securities, or other regulatory authorities or (G) the
NYSE or the NASD, as the case may be, and has paid all fees and
assessments due or payable in connection therewith, and each such
report or statement, including the financial statements and exhibits
thereto, complied (or will comply, in the case of reports or
statements filed after the date of this Agreement) as to form in all
material respects with all applicable statutes, rules and regulations
as of the date thereof (and, in the case of reports or statements
filed prior to the date hereof, without giving effect to any amend-
ments or modifications filed after the date of this Agreement).
(ii) In the case of Putnam Trust, Putnam Trust has delivered to
BNY each registration statement, offering circular, report,
definitive proxy statement or information statement under the
Securities Act, the Exchange Act and state securities and "Blue Sky"
laws (collectively, the "Securities Laws") filed, used or circulated
by it with respect to periods since January 1, 1992 through the date
of this Agreement and will promptly deliver each such registration
statement, offering circular, report, definitive proxy statement or
information statement filed, used or circulated after the date hereof
(collectively, with respect to Putnam Trust, its "Reports"), each in
the form (including exhibits and any amendments thereto) filed with
the SEC, the FDIC or the Commissioner (or if not so filed, in the
form used or circulated), including, without limitation, its Annual
Report on Form F-2 for the year
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<PAGE> 13
ended December 31, 1993 and its Quarterly Reports on Form F-4 for the
periods ended March 31, 1994, June 30, 1994 and September 30, 1994.
(iii) In the case of BNY, BNY has delivered to Putnam Trust
copies of its Annual Report on Form 10-K for the year ended December
31, 1993 and its Quarterly Reports on Form 10-Q for the periods ended
March 31, 1994, June 30, 1994 and September 30, 1994 (collectively,
with respect to BNY, its "Reports") each in the form (including
exhibits and any amendments thereto) filed with the SEC.
(iv) As of their respective dates (and without giving effect to
any amendments or modifications filed after the date of this
Agreement), each of its Reports, including the financial statements,
exhibits and schedules thereto, filed, used or circulated prior to
the date hereof complied (and each of its Reports filed after the
date of this Agreement, will comply) in all material respects with
the applicable Securities Laws and did not (or in the case of
reports, statements, or circulars filed after the date of this
Agreement, will not) contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(v) Each of its consolidated balance sheets included in or
incorporated by reference into its Reports, including the related
notes and schedules, fairly presents (or, in the case of Reports
prepared after the date of this Agreement, will fairly present) the
consolidated financial position of it and its subsidiaries as of the
date of such balance sheet and each of the consolidated statements of
income, cash flows and stockholders' equity included in or incorpo-
rated by reference into its Reports, including any related notes and
schedules, fairly presents (or, in the case of Reports prepared after
the date of this Agreement, will fairly present) the consolidated
results of operations, retained earnings and cash flows, as the case
may be, of it and its subsidiaries for the periods set forth therein
(subject, in the case of unaudited statements, to normal year-end
audit adjustments), in each case in accordance with generally
accepted accounting principles consistently applied during the
periods involved, except as may be noted therein.
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<PAGE> 14
(f) Absence of Certain Events and Changes. Since September
30, 1994, there has not been, in the business directly or indirectly
conducted by it, any change or development or combination of changes
or developments affecting it but not similarly affecting financial
institutions in the Greater New York Metropolitan Area, in the case
of BNY, or the State of Connecticut, in the case of Putnam Trust,
that, individually or in the aggregate, has resulted or is reasonably
likely to result in a Material Adverse Effect (as defined in
Section 4.4(c)).
(g) Knowledge as to Conditions. As of the date of this
Agreement, to its knowledge (as defined in Section 8.8(b)) there is
no reason why the Regulatory Approvals and, to the extent necessary
for the consummation of the transactions contemplated hereby, any
other approvals, authorizations, filings, registrations and notices
should not be obtained without the imposition of any condition or
restriction described in the proviso to Section 6.1(b) or why the
opinion of tax counsel referred to in Section 6.1(g) cannot be
obtained.
(h) Litigation. Except as disclosed in its Reports filed with
the SEC or FDIC prior to the date hereof, there are no criminal or
administrative investigations or hearings of, before or by any
Governmental Entity, or civil, criminal or administrative actions,
suits, claims or proceedings of, before or by any person (including
any Governmental Entity) pending or, to its knowledge, threatened or
contemplated, against it or any of its subsidiaries (including, with-
out limitation, under the Equal Credit Opportunity Act, the Fair
Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act, the Truth in Lending Act, the Fair Credit Reporting
Act and any other applicable fair lending laws or other laws relating
to discrimination in the granting or denial of credit (collectively,
the "Fair Lending Laws")); and neither it nor any of its subsidiaries
(nor any officer, director, controlling person or property of it or
any of its subsidiaries) is a party to or is subject to any order,
decree, agreement, memorandum of understanding or similar arrangement
with, or in receipt of a commitment or supervisory letter or similar
submission from, any Governmental Entity charged with the supervision
or regulation of depository institutions or their affiliates or
engaged in the insurance of deposits, including, without limitation,
the Federal Reserve and the FDIC (collectively, the "Banking
Regulators") or the
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<PAGE> 15
supervision or regulation of it or any of its subsidiaries, and neither
it nor any of its subsidiaries has been advised by any such Governmental
Entity that such Governmental Entity is contemplating issuing or
requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of
understanding, commitment or supervisory letter or similar submission.
(i) Brokers and Finders. None of it, its subsidiaries or any
of their officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees, commissions
or finder's fees in connection with the transactions contemplated
herein, except for Putnam Trust's employment of Brown Brothers
Harriman & Co. pursuant to a letter agreement it has made available
to BNY, as currently in full force and effect.
4.2 Additional Representations and Warranties of BNY. In
addition to its representations and warranties in Section 4.1 and subject
to Section 4.4, BNY represents and warrants to Putnam Trust that:
(a) Capital Stock. The shares of BNY Common Stock to be
issued in the Merger, when so issued in accordance with this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable and not subject to any preemptive rights or other
Liens.
(b) Representations Regarding the Merger Bank. At the time
of the execution and delivery by the Merger Bank of the supplement to
this Agreement referred to in Section 1.4, BNY shall be deemed hereby
to represent and warrant to Putnam Trust that:
(i) Corporate Organization and Qualification. The
Merger Bank is a state bank and trust company duly organized,
validly existing and in good standing under the laws of
Connecticut and is a wholly owned subsidiary of BNY. The
Merger Bank is duly qualified to do business and is in good
standing in each jurisdiction in which the nature of its
business or the properties or the assets owned or leased by it
makes such qualification necessary.
(ii) Corporate Authority. The Merger Bank has requisite
corporate power and authority and has taken all action
necessary (including the receipt of any requisite vote by BNY
as sole
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<PAGE> 16
shareholder of the Merger Bank) in order to execute, deliver and
perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement is a valid and legally
binding agreement of the Merger Bank enforceable in accordance
with its terms.
4.3 Additional Representations and Warranties of Putnam Trust.
In addition to its representations and warranties in Section 4.1 and
subject to Section 4.4, Putnam Trust hereby represents and warrants to BNY
that:
(a) Capital Stock. (i) As of the date of this Agreement,
there were outstanding under the stock option and other plans
identified in paragraph 4.3(a) of its Disclosure Letter (the "Putnam
Trust Stock Plans"), options or rights to acquire not more than an
aggregate of 175,000 shares of Putnam Trust Common Stock (subject to
adjustment on the terms set forth in the Putnam Trust Stock Plans) on
the terms set forth in said paragraph 4.3(a) of its Disclosure
Letter. As of the date of this Agreement, Putnam Trust has no shares
of Putnam Trust Common Stock reserved for issuance, other than no
more than 404,500 shares for issuance under the Putnam Trust Stock
Plans, and has no shares of Putnam Trust Preferred Stock reserved for
issuance. All the outstanding shares of Putnam Trust Common Stock
have been duly authorized and validly issued, were not issued in
violation of any preemptive rights and are fully paid and nonassess-
able.
(ii) All the outstanding shares of capital stock of each of
Putnam Trust's subsidiaries owned by Putnam Trust or a subsidiary of
Putnam Trust have been duly authorized and validly issued and are
fully paid and nonassessable and owned by Putnam Trust or a
subsidiary of Putnam Trust free and clear of all liens, pledges,
security interests, claims, proxies, preemptive or subscriptive
rights or other encumbrances or restrictions of any kind
(collectively, "Liens").
(iii) Except as set forth above in Recital B and except for
Putnam Trust Common Stock to be issued after the date hereof pursuant
to the Putnam Trust Stock Plans, there are no shares of capital stock
of Putnam Trust authorized, issued or outstanding and there are no
preemptive rights or any outstanding subscriptions, options,
warrants, rights, convertible securities or other agreements or
commitments of Putnam Trust or any of its subsidiaries of any
character relating to the issued or unissued capital stock or other
securities of
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<PAGE> 17
Putnam Trust or any of its subsidiaries (including, without limitation,
those relating to the issuance, sale, purchase, redemption, conversion,
exchange, redemption, voting or transfer thereof).
(b) Subsidiaries. Paragraph 4.3(b) of its Disclosure Letter
lists all of the subsidiaries of Putnam Trust as of the date of this
Agreement and the amount and percent of its stock-ownership thereof;
except as so listed, neither Putnam Trust nor any of its subsidiaries
owns any stock, partnership, joint venture or limited liability
company interest or any other equity security issued by any other
corporation, organization or other entity (collectively, together
with any individual, a "Person") other than in a bona fide fiduciary
capacity. Each of its subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to do
business and in good standing in each jurisdiction where the property
owned, leased or operated, or the business conducted, by such
subsidiary requires such qualification. Each of its subsidiaries has
the requisite corporate power and authority to own or lease its
properties and assets and to carry on its business as it is now being
conducted. Putnam Trust has made available to BNY complete and
correct copies of the Governing Documents of each of its
subsidiaries, each such Governing Document as amended to the date
hereof and currently in full force and effect.
(c) Loans; OREO. (i) The allowance for possible loan losses
shown on Putnam Trust's Latest Balance Sheet (as defined below) was
(or, in the case of each Latest Balance Sheet as of a date after the
date hereof, will be) adequate as of the date thereof, to provide for
estimable and probable losses, net of recoveries relating to loans
previously charged off, inherent in its loan portfolio. The term
"Latest Balance Sheet" shall mean the latest balance sheet in the
most recent Report of Putnam Trust provided to BNY.
(ii) Paragraph 4.3(c) of its Disclosure Letter sets forth a
list, accurate and complete in all respects, of the aggregate amounts
of loans, leases, extensions of credit, commitments to extend credit
and other assets of Putnam Trust and its subsidiaries that have been
criticized or classified as of December 31, 1994 by it or any such
subsidiary, separated by category of classification or criticism (the
"Asset Classification"); no amounts of loans, leases, extensions,
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<PAGE> 18
commitments or other assets that have been classified or criticized as
of the date hereof by any representative of any Banking Regulator as
"Other Loans Especially Mentioned", "Substandard", "Doubtful", "Loss"
or words of similar import are excluded from the amounts disclosed in
the Asset Classification, other than amounts of loans, extensions of
credit or other assets that were charged off by it or its subsidiaries
prior to the date hereof; and no amounts of loans, leases, extensions,
commitments or other assets as of December 31, 1994 that have been or,
to its knowledge, should have been classified as "non-accrual",
"restructured", "90 days past due", "still accruing and doubtful of
collection" or any comparable classification are excluded from the
amounts disclosed in the Asset Classification.
(iii) As of December 31, 1994, there are no agreements or
commitments binding on Putnam Trust or any of its subsidiaries to
extend credit in the amount per "one borrower" (as defined for
purposes of 12 C.F.R. Part 32) of $1,000,000 or more.
(iv) The Other Real Estate Owned ("OREO") included in any non-
performing assets of Putnam Trust or its subsidiaries is carried net
of reserves at the lower of cost or market value based on current
independent appraisals or current management appraisals.
(d) Properties. (i) Except as disclosed in its Reports filed
with the FDIC prior to the date hereof, Putnam Trust and its
subsidiaries own good and marketable title to all of the real
property and all of the personal property, fixtures, furniture and
equipment reflected on the Latest Balance Sheet or acquired since the
date thereof (other than real property reflected on the Latest
Balance Sheet as OREO), free and clear of all Liens, except for
(A) encumbrances that do not affect the aggregate value of, or
interfere with the past or future use or ability to convey, the
property subject thereto or affected thereby, (B) Liens for current
taxes and special assessments not yet due and payable, (C) leasehold
estates with respect to multi-tenant buildings owned by it or any of
its subsidiaries (which leases are listed in paragraph 4.3(d)(i) of
its Disclosure Letter) and (D) property disposed of since the date of
the Latest Balance Sheet in the ordinary course of business.
(ii) Paragraph 4.3(d)(ii) of its Disclosure Letter correctly
sets forth a brief description, including the
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<PAGE> 19
term, of each lease for real or personal property to which Putnam Trust
or any subsidiary of it is a party as lessee with respect to (A) each
individual lease that involves a remaining aggregate balance of lease
payments payable of more than $100,000 or any group of related leases
which involves a remaining aggregate balance of lease payments payable
of more than $250,000, (B) each lease that is a "material contract"
within the meaning of Item 601(b)(10) of Regulation S-K promulgated by
the SEC or (C) each lease that was not entered into in the ordinary
course of business. Putnam Trust has delivered or made available to
BNY complete and accurate copies of each of the leases identified in
paragraphs 4.3(d)(i) or (ii) of its Disclosure Letter, and such leases
are in full force and effect and have not been amended or modified.
Putnam Trust or one of its subsidiaries has a valid and existing
leasehold interest under each lease described in paragraph 4.3(d)(ii)
of its Disclosure Letter for the term set forth therein, and neither it
nor any of its subsidiaries is in default, nor to its knowledge are any
of the other parties to any of such leases in default, and to its
knowledge no circumstances exist that could result in such a default
under any of such leases. To its knowledge, there has been no
cancellation, breach or anticipated breach by any other party to any
lease described in paragraphs 4.3(d)(i) or (ii) of its Disclosure Letter.
(iii) All the buildings, fixtures, furniture and equipment
necessary for the conduct of the business of Putnam Trust on a
consolidated basis are in good condition and repair, ordinary wear
and tear excepted, and are usable in the ordinary course of business.
Each of Putnam Trust and its subsidiaries owns, or leases under valid
leases, all buildings, fixtures, furniture, personal property, land
improvements and equipment necessary for the conduct of its business
as it is presently being conducted.
(e) Compliance with Laws. Putnam Trust and each of its
subsidiaries:
(i) is in compliance, in the conduct of its business,
with all applicable federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders or
decrees applicable thereto or to the employees conducting such
businesses, including, without limitation, the Fair Lending
Laws;
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<PAGE> 20
(ii) has all permits, licenses, certificates of authority,
orders, and approvals of, and has made all filings,
applications, and registrations with, any Governmental Entities
that are required in order to permit it or such subsidiary to
carry on its business as it is presently conducted;
(iii) has received since January 1, 1993 no notification or
communication from any Governmental Entity (including any
Banking Regulator and any insurance and securities regulatory
authorities) or the staff thereof (A) asserting that it or any
of its subsidiaries is not in compliance with any of the
statutes, regulations or ordinances that such Governmental
Entity enforces; (B) threatening to revoke any license, fran-
chise, permit or governmental authorization; or (C) threatening
or contemplating revocation or limitation of, or which would
have the effect of revoking or limiting, FDIC deposit insurance
(nor, to its knowledge, do any grounds for any of the foregoing
exist);
(iv) is not required to give prior notice to the FDIC of
the proposed addition of an individual to its board of
directors or the employment of an individual as a senior
executive;
(v) is not subject to the limitations on acceptance of
deposits set forth in Section 29 of the FDI Act; and
(vi) with respect to Putnam Trust, has been assigned a
rating of "outstanding record of meeting community credit
needs" or "satisfactory record of meeting community credit
needs" in its most recent examination under Section 4 of the
Community Reinvestment Act (no subsidiary of it being an
"insured depository institution" as defined in the FDI Act).
(f) Taxes. (i) For the purposes of this Agreement, the term
"Tax" shall mean any tax or governmental charge, withholding
obligation, assessment, impost or levy (including, without
limitation, any income, gross receipts, deposit, license, payroll,
employee withholding, foreign or domestic withholding, backup
withholding, excise, severance, stamp, occupation, premium, windfall
profits, environmental, capital stock, franchise, disability, real or
personal property, sales, use, transfer, ad valorem, alternative or
add-on
<PAGE>
<PAGE> 21
minimum or other taxes, any customs duty, unemployment insurance, social
security and workers' compensation), together with any related
liabilities, penalties, fines, additions to tax or interest (including
any penalties, fines or similar amounts related to any information
return or reporting obligations, notwithstanding that no Tax is payable
if such obligations are properly discharged), imposed by the United
States or any state, county, provincial, local or foreign government
or subdivision or agency thereof.
(ii) Each of Putnam Trust, its subsidiaries and all members of
any consolidated, affiliated, combined or unitary group of which it
or any such subsidiary is a member has filed or will file all Tax
returns or reports (including all Tax-related information returns or
reports) required to be filed (taking into account permissible
extensions) by them on or prior to the Effective Time, and have paid
(or have accrued or will accrue, prior to the Effective Time, amounts
for the payment of) all Taxes relating to the time periods covered by
such returns and reports. The accrued-taxes-payable accounts for
Taxes and provision for deferred income taxes, specifically
identified as such, on the Latest Balance Sheet are sufficient for
the payment of all unpaid Taxes of Putnam Trust and its subsidiaries
accrued for or applicable to all periods ended on or prior to the
date of the Latest Balance Sheet or which may subsequently be
determined to be owing with respect to any such period.
(iii) Neither Putnam Trust nor any of its subsidiaries has waived
any statute of limitations with respect to Taxes or agreed to any
extension of time with respect to an assessment or deficiency for
Taxes. No Tax returns or reports of Putnam Trust or its subsidiaries
have to its knowledge been audited by any Governmental Entity, and
there are no unresolved questions, claims or disputes asserted by any
relevant taxing authority concerning the liability for Taxes of
Putnam Trust or any of its subsidiaries. Neither Putnam Trust nor
any of its subsidiaries has made an election under Section 341(f) of
the Internal Revenue Code for any taxable years not yet closed for
statute of limitations purposes. No demand or claim has been made
against Putnam Trust or any of its subsidiaries with respect to any
Taxes arising out of membership or participation in any consolidated,
affiliated, combined or unitary group of which it or any of such
subsidiaries was at any time a member.
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<PAGE> 22
(iv) Each of Putnam Trust and its subsidiaries has paid or will
pay in a timely manner and as required by law all Taxes due and
payable by it or which it is obligated to withhold from amounts owing
to any employee or third party. All Taxes which will be due and
payable, whether now or hereafter, for any period ending on, prior to
or including the Effective Time shall have been paid by or on behalf
of Putnam Trust and its subsidiaries or shall be reflected on the
books of it and its subsidiaries as an accrued Tax liability
determined in a manner which is consistent with past practices and
the Latest Balance Sheet.
(g) Material Agreements. (i) Except for this Agreement and
as set forth in paragraph 4.3(g) of its Disclosure Letter or filed as
an exhibit to its Reports prior to the date hereof, neither Putnam
Trust nor any of its subsidiaries (A) is a party to any written or
oral contract for the employment of any officer, individual employee
or other person on a full-time or consulting basis, or relating to
severance pay for any such person, (B) is a party to any written or
oral agreement or understanding to repurchase assets previously sold
(or to indemnify or otherwise compensate the purchaser in respect of
such assets), except for securities sold under a repurchase agreement
that has been entered into in the ordinary course of business for
normal funding purposes and that provides for a repurchase date 30
days or less after the purchase date, (C) is a party to any (x)
contract or group of related contracts with the same party for the
purchase or sale of products or services under which the undelivered
balance of such products and services has a purchase price in excess
of $100,000 for any individual contract or $250,000 for any group of
related contracts in the aggregate, (y) other contract that is a
"material contract" within the meaning of Item 601(b)(10) of
Regulation S-K promulgated by the SEC or (z) other agreement that was
not entered into in the ordinary course of business and that is not
disclosed in paragraphs 4.3(d)(i) or (ii) of its Disclosure Letter or
(D) has any commitments for capital expenditures in excess of
$100,000.
(ii) To the knowledge of Putnam Trust, as of the date hereof no
customer has indicated that it will stop or decrease the rate of
business done with it or any of its subsidiaries (except for changes
in the ordinary course of such business).
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<PAGE> 23
(iii) Each of Putnam Trust and its subsidiaries has performed all
obligations required to be performed by it prior to the date hereof
in connection with the contracts or commitments set forth in
paragraph 4.3(g) of its Disclosure Letter, and none of it or any of
its subsidiaries is in receipt of any claim of default under any such
contract or commitment or has any present expectation or intention of
not fully performing any obligation pursuant to any such contract or
commitment. To the knowledge of Putnam Trust, there has been no
cancellation, breach or anticipated breach by any other party to any
such contract or commitment.
(h) Labor Matters. Neither Putnam Trust nor any of its
subsidiaries is a party to, or is bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor
union or labor organization, nor is it or any of its subsidiaries the
subject of any material proceeding asserting that it or any such sub-
sidiary has committed an unfair labor practice or seeking to compel
it or such subsidiary to bargain with any labor organization as to
wages or conditions of employment, nor is there any strike, work
stoppage or work slowdown involving it or any of its subsidiaries
pending or, to its knowledge, threatened, nor to the knowledge of
Putnam Trust is there any activity involving its or any of its sub-
sidiaries' employees seeking to certify a collective bargaining unit
or engaging in any other organizational activity.
(i) Employee Benefits. (i) As of the date of this Agreement,
paragraph 4.3(i)(i) of its Disclosure Letter sets forth a list of all
bonus, deferred compensation, pension, retirement, profit-sharing,
thrift, savings, employee stock ownership, stock bonus, stock
purchase, restricted stock and stock option plans, all employment or
severance contracts and all other employee benefit plans or
arrangements that cover employees or former employees of Putnam Trust
and its subsidiaries (its "Compensation Plans"). True and complete
copies of the Compensation Plans covering current or former employees
or directors of Putnam Trust or its subsidiaries (its "Employees"),
including, but not limited to, "employee benefit plans" within the
meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and all amendments thereto, have
been made available to BNY.
(ii) All of Putnam Trust and its subsidiaries' employee benefit
plans, within the meaning of Section 3(3) of ERISA, other than
"multiemployer plans"
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<PAGE> 24
within the meaning of Section 3(37) or 4001(a)(3) of ERISA, covering
Employees (collectively, the "Plans"), to the extent subject to ERISA,
are in substantial compliance with ERISA. Each of the Plans which is an
"employee pension benefit plan" within the meaning of Section 3(2) of
ERISA ("Pension Plan") and which is intended to be qualified under
Section 401(a) of the Internal Revenue Code has received a favorable
determination letter from the Internal Revenue Service, and Putnam Trust
is not aware of any circumstances likely to result in revocation of any
such favorable determination letter. There is no pending or, to Putnam
Trust's knowledge, threatened litigation relating to the Plans. Neither
Putnam Trust nor any of its subsidiaries has engaged in a transaction
with respect to any Plan that, assuming the taxable period of such
transaction expired as of the date hereof, could subject Putnam Trust or
any of its subsidiaries to a material tax or penalty imposed by either
Section 4975 of the Internal Revenue Code or Section 502(i) of ERISA.
(iii) No liability under Subtitle C or D of Title IV of ERISA
(other than payment of applicable premiums) has been or is expected
to be incurred by Putnam Trust or any of its subsidiaries with
respect to any ongoing, frozen or terminated "single-employer plan",
within the meaning of Section 4001(a)(15) of ERISA, currently or for-
merly maintained by any of them, or the single-employer plan of any
entity which is considered one employer with it under Section 4001 of
ERISA or Section 414 of the Internal Revenue Code (an "ERISA Affil-
iate"). Putnam Trust and its subsidiaries have not incurred and do
not expect to incur any withdrawal liability with respect to a multi-
employer plan under Subtitle E of Title IV of ERISA (regardless of
whether based on contributions of an ERISA Affiliate). No notice of
a "reportable event", within the meaning of Section 4043 of ERISA,
for which the 30-day reporting requirement has not been waived, has
been required to be filed for any of the Pension Plans or by any of
the ERISA Affiliates within the 12-month period ending on the date
hereof.
(iv) All contributions required to be made by Putnam Trust and
its subsidiaries under the terms of any of its Plans have been timely
made or have been reflected on its balance sheet. Neither any of its
Pension Plans nor any single-employer plan of any of its ERISA
Affiliates has an "accumulated funding deficiency" (whether or not
waived) within the meaning
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<PAGE> 25
of Section 412 of the Internal Revenue Code or Section 302 of ERISA.
Neither Putnam Trust nor its subsidiaries has provided, or is required to
provide, security to any Pension Plan or to any single-employer plan of
an ERISA Affiliate pursuant to Sections 401(a)(29) or 412(f)(3) of the
Internal Revenue Code or Sections 306 or 307 of ERISA.
(v) Under each of the Pension Plans which is a single-employer
plan, as of the last day of the most recent plan year ended prior to
the date of this Agreement, the actuarially determined present value
of all "benefit liabilities", within the meaning of Sec-
tion 4001(a)(16) of ERISA (as determined on the basis of the
actuarial assumptions contained in the Pension Plan's most recent
actuarial valuation), did not exceed the then current value of the
assets of such Pension Plan, and to its knowledge, there has been no
change in the financial condition of such Pension Plan since the last
day of the most recent plan year which reasonably could be expected
to change such conclusion. There would be no withdrawal liability of
Putnam Trust and its subsidiaries under each Benefit Plan that is a
multiemployer plan to which it, its subsidiaries or its ERISA
Affiliates has contributed during the preceding 12 months, if such
withdrawal liability were determined as if a "complete withdrawal",
within the meaning of Section 4203 of ERISA, had occurred as of the
date hereof.
(vi) Except as disclosed in paragraph 4.3(i)(vi) of its
Disclosure Letter, neither Putnam Trust nor its subsidiaries have any
obligations for retiree health and life insurance benefits. There
are no restrictions on the rights of Putnam Trust or its subsidiaries
to amend or terminate any Compensation Plan providing for such
benefits without incurring any liability thereunder.
(vii) Except as disclosed in paragraph 4.3(i)(vii) of its
Disclosure Letter, this Agreement and the transactions contemplated
hereby will not result in the vesting or acceleration of any amounts
under any Compensation Plan, any increase in benefits under any
Compensation Plan or payment of any severance or similar compensation
under any Compensation Plan.
(j) Environmental Matters. (i) For purposes of this
Section 4.3(j), "Environmental Law" means any current law,
regulation, order, decree, opinion, common law doctrine, requirement
or agency policy relating to
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<PAGE> 26
the protection of the environment or human health and safety, and
"Hazardous Substance" means any material, waste or mixture containing any
substance that is listed, classified or regulated under any Environmental
Law, including petroleum products, asbestos and polychlorinated biphenyls.
(ii) Putnam Trust and its subsidiaries are and have been in
compliance with all Environmental Laws.
(iii) No real property owned or operated by Putnam Trust or its
subsidiaries has been contaminated with any Hazardous Substances.
(iv) No real property formerly owned or operated by Putnam Trust
or its subsidiaries was contaminated with any Hazardous Substances
during the period of ownership or operation by it or such
subsidiaries.
(v) Putnam Trust and its subsidiaries are not liable under any
Environmental Law for any off-site disposal or contamination of
Hazardous Substances.
(vi) Putnam Trust and its subsidiaries have not received any
written claims or notices concerning their liability under any
Environmental Law.
(vii) There are no circumstances or conditions involving Putnam
Trust or its subsidiaries or their properties (including any
participation in the management of, or the holding of a security
interest in, a borrower or any other third party or property or
otherwise in a role as mortgagor, trustee or fiduciary) that could
reasonably be expected to result in any claims, liabilities, costs or
restrictions on the ownership, use or transfer of any property
pursuant to any Environmental Law.
(k) Insurance. (i) Each of Putnam Trust and its subsidiaries
has taken all requisite action (including without limitation the
making of claims and the giving of notices) pursuant to its
directors' and officers' liability insurance policy or policies in
order to preserve all rights thereunder with respect to all matters
(other than matters arising in connection with this Agreement and the
transactions contemplated hereby) that are known to it.
Paragraph 4.3(k) of its Disclosure Letter contains a list of all
directors' and officers' liability insurance policies maintained by
it or its subsidiaries.
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<PAGE> 27
(ii) Putnam Trust and its subsidiaries are presently, and since
December 31, 1990 have been, insured for reasonable amounts with
financially sound and reputable insurance companies against such
risks as companies engaged in a similar business would, in accordance
with good business practice, customarily be insured. All of the
insurance policies and bonds maintained by Putnam Trust and its
subsidiaries are in full force and effect, it and its subsidiaries
are not in default thereunder and all material claims thereunder have
been filed in due and timely fashion. In the reasonable judgment of
the management of Putnam Trust, such insurance coverage is adequate
and will be available in the future under terms and conditions
substantially similar to those in effect on the date hereof (assuming
operation of Putnam Trust or the Surviving Bank, as the case may be,
substantially in accordance with the operation of Putnam Trust at the
date hereof).
(l) Interest of Certain Persons. Except as disclosed in its
Proxy Statement for its 1994 Annual Meeting of Shareholders, no
officer or director of Putnam Trust, or any "associate" (as such term
is defined in Rule 14a-1 under the Exchange Act) of any of such
officer or director, has any interest in any contract or property
(real or personal), tangible or intangible, used in or pertaining to
the business of Putnam Trust or any of its subsidiaries meeting the
standards for disclosure under the Exchange Act.
(m) Administration of Fiduciary Accounts. Each of Putnam
Trust and, to the extent applicable, its subsidiaries has properly
administered all accounts for which it acts as a fiduciary, including
but not limited to accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing
documents and applicable state and federal law and regulation and
common law. None of Putnam Trust, any of its subsidiaries, or any
director, officer or employee of it or such subsidiary has committed
any breach of trust with respect to any such fiduciary account, and
the accountings for each such fiduciary account are true and correct
and accurately reflect the assets of such fiduciary account.
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<PAGE> 28
(n) Interest Rate Risk Management Instruments; Derivatives;
Certain Other Securities. (i) Paragraph 4.3(n)(i) of its Disclosure
Letter sets forth an accurate and complete list of (A) all interest
rate swaps, caps, floors, option agreements and other interest rate
risk management arrangements and other instruments generally known as
"derivatives" to which Putnam Trust or any of its subsidiaries is a
party or to which any of their properties or assets may be subject
and (B) all securities owned by Putnam Trust or its subsidiaries that
are generally known as "structured notes", "high risk mortgage
derivatives", "capped floating rate notes" or "capped floating rate
mortgage derivatives" (instruments or agreements of the type referred
to in clauses (A) and (B), collectively, "Derivative Securities").
Neither Putnam Trust nor any of its subsidiaries has purchased any
Derivative Security for, or invested in any Derivative Security any
assets of, any account or Person for which it or any such subsidiary
acts as a trustee, fiduciary or investment adviser.
(ii) All Derivative Securities to which Putnam Trust or any of
its subsidiaries is a party or to which any of their properties or
assets may be subject were entered into in the ordinary course of
business and, to its knowledge, in accordance with prudent banking
practice and applicable rules, regulations and policies of the
Banking Regulators and with counterparties believed to be financially
responsible at the time and are legal, valid and binding obligations
enforceable in accordance with their terms (except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting the rights of creditors generally, and the availability of
equitable remedies), and are in full force and effect. Putnam Trust
and each of the its subsidiaries has duly performed in all material
respects all of its obligations thereunder, and, to its knowledge,
there are no breaches, violations or defaults or allegations or
assertions of such by any party thereunder.
(o) Noncompete Provisions. Neither Putnam Trust nor any of
its subsidiaries are subject to, or obligated under, any agreement,
arrangement or understanding that restricts its ability to engage in
any and all activities permissible for banks, savings banks, bank
holding companies or savings and loan holding companies under
applicable laws and regulations ("Permissible Activities"). No
agreement, arrangement or understanding would materially limit or
restrict the ability of
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<PAGE> 29
BNY or its subsidiaries (including Putnam Trust and its subsidiaries
after the Merger) to engage in any and all Permissible Activities upon
consummation of the transactions contemplated hereby.
(p) Antitakeover Provisions Inapplicable. Putnam Trust has
taken all actions required to exempt irrevocably this Agreement, the
Letter Agreements and the transactions contemplated hereby and
thereby from the provisions of Sections 33-374a through 33-374f of
the SCA and any other state antitakeover law.
(q) Absence of Certain Developments. (i) Putnam Trust and
its subsidiaries have no obligations or liabilities (whether accrued,
absolute, contingent, unliquidated or otherwise, whether due or to
become due, and regardless of when asserted), including Taxes
(collectively, "Liabilities"), except: (A) as reflected on its Last
Balance Sheet or (B) Liabilities that have arisen in the ordinary
course of business after the date of the Last Balance Sheet; provided
that such Liabilities are included in the next following Report of it
provided to BNY.
(ii) During the period between September 30, 1994 and the date
hereof, neither Putnam Trust nor any subsidiary of it has taken, or
agreed, promised or committed to take, any action that, if taken or
agreed, promised or committed to after the date hereof, would violate
or conflict with Section 5.1.
4.4 Exceptions to Representations and Warranties. (a) On or
prior to the date hereof, BNY has delivered to Putnam Trust and Putnam
Trust has delivered to BNY a letter (as the case may be, its "Disclosure
Letter") setting forth, among other things, exceptions to any or all of its
representations and warranties in this Article IV; provided, that (i) no
such exception is required to be set forth in a Disclosure Letter if its
absence would not result in the related representation or warranty being
deemed untrue or incorrect under the standard established by Section 4.4(b)
and (ii) the mere inclusion of an exception in a Disclosure Letter shall
not be deemed an admission by a party that such exception represents a
material fact, event or circumstance or would result in a Material Adverse
Effect. Each exception set forth in a paragraph of a party's Disclosure
Letter corresponding to any representation and warranty in this Article IV
shall be deemed an exception to any other representations and warranties of
such party in this Article IV; provided, that the exception contains
disclosure reasonably sufficient to put the other party on notice that
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<PAGE> 30
the exception is applicable to such other representation and warranty; and
provided, further, that an exception set forth in a Disclosure Letter shall
be deemed an exception to any of the representations and warranties set
forth in Sections 4.1(d) through (h) and Sections 4.3(a), (e), (l), (o) or
(q)(ii), respectively, only if such exception is contained in the paragraph
of the Disclosure Letter corresponding to such representation and warranty.
(b) No representation or warranty of BNY or Putnam Trust con-
tained in this Article IV (other than Section 4.1(f)) shall be deemed
untrue or incorrect, and no party hereto shall be deemed to have breached a
representation or warranty, as a consequence of the existence or absence of
any fact, circumstance or event if such fact, circumstance or event,
individually or taken together with all other facts, circumstances or
events, would not, or is not reasonably likely to, have a Material Adverse
Effect.
(c) As used in this Agreement, the term "Material Adverse
Effect" means an effect that (i) is materially adverse to the business,
financial condition, results of operations or prospects of BNY or Putnam
Trust, as the case may be (or, with respect to 6.1(b)(i), of the Surviving
Bank), in each case together with the subsidiaries thereof taken as a
whole, (ii) significantly and adversely affects the ability of any party
hereto to consummate the transactions contemplated hereby by January 31,
1996 or to perform its material obligations hereunder or (iii) enables any
person to prevent the consummation by January 31, 1996 of the transactions
contemplated hereby.
ARTICLE V
Covenants
5.1 Conduct of Business Pending the Effective Time. Putnam
Trust agrees as to itself and its subsidiaries that, from and after the
date hereof until the Effective Time, except insofar as BNY shall otherwise
consent in writing or except as otherwise expressly contemplated by this
Agreement or as set forth in paragraph 5.1 of the Disclosure Letter of
Putnam Trust:
(a) The business of Putnam Trust and its subsidiaries will be
conducted only in the ordinary and usual course and, to the extent
consistent therewith, it and its subsidiaries will use all reasonable
efforts to preserve intact their business organizations and assets
and maintain their rights, franchises and existing
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<PAGE> 31
relations with customers, suppliers, employees and business associates.
(b) Putnam Trust and its subsidiaries will take no action that
would adversely affect or delay the ability of any party hereto to
obtain any necessary approvals, consents or waivers of Governmental
Entities required for the transactions contemplated hereby without
imposition of a condition or restriction of the type referred to in
the proviso to Section 6.1(b) or perform its obligations under this
Agreement or that is reasonably likely to have a Material Adverse
Effect.
(c) Other than in the ordinary course of business consistent
with past practice, Putnam Trust and its subsidiaries will not
(i) incur any indebtedness for borrowed money, (ii) assume, guaran-
tee, endorse or otherwise as an accommodation become responsible for
the obligations of any other Person or (iii) make any loan or
advance; provided, that, other than residential mortgage and consumer
loans made in accordance with their loan policies as in effect on the
date hereof, Putnam Trust and any of its subsidiaries will neither
make any agreements or commitments binding it to extend credit in the
amount per "one borrower" (as defined for purposes of 12 C.F.R.
Part 32) in excess of $500,000, nor, without prior consultation with
BNY, purchase any portfolio of loans with an aggregate principal
balance in excess of $500,000.
(d) Putnam Trust will not (i) adjust, split, combine or
reclassify any capital stock or (ii) sell or pledge or agree to sell
or pledge or permit any Lien to exist on any stock owned by it of any
of its subsidiaries.
(e) Neither Putnam Trust nor any of its subsidiaries will
(i) other than as permitted by Section 5.2, make, declare, set aside
or pay any dividend payable in cash, stock or other property with
respect to any of its capital stock; (ii) repurchase, redeem or
otherwise acquire, directly or indirectly, any shares of its capital
stock; or (iii) notwithstanding anything to the contrary contained in
Section 5.4, grant, issue, sell, pledge, dispose of or encumber, or
authorize the issuance, sale, pledge, disposition or encumbrance of,
any shares of, or securities convertible or exchangeable for, or
stock appreciation rights with respect to, or options, warrants,
calls, commitments or rights of any kind to acquire, any shares of
its capital stock of any class,
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<PAGE> 32
with the exception of Putnam Trust Common Stock issuable as of the date
hereof pursuant to the Putnam Trust Stock Plans.
(f) Neither Putnam Trust nor its subsidiaries will (i) trans-
fer, lease, license, guarantee, sell, mortgage, pledge or dispose of
any of it or its subsidiaries' material properties or assets or
encumber any property or assets other than in the ordinary and usual
course of business; (ii) cancel, release, assign or modify any
material amount of indebtedness of any other Person other than in the
ordinary and usual course of business; or (iii) authorize any capital
expenditures other than capital expenditures for replacements and
repairs in amounts less than $250,000 in the aggregate (provided,
that no capital expenditures shall relate to the replacement, upgrade
or other modification of existing branch banking information systems
or similar technology).
(g) Except for internal reorganizations involving existing
subsidiaries, neither Putnam Trust nor any of its subsidiaries will
make any material acquisition of, or investment in, the assets or
stock of any other Person except in satisfaction of a debt previously
contracted in good faith, including OREO.
(h) Neither Putnam Trust nor any of its subsidiaries will,
directly or indirectly, enter into or modify any employment,
severance or similar agreements or arrangements with, or grant any
bonuses, wage, salary or compensation increases, or severance or
termination pay to, or promote, any director, officer, employee,
group of employees or consultant or hire any employee with a title of
Vice President or above, other than (i) bonuses, increases or
promotions in the ordinary course and which have been previously
approved by BNY in writing or (ii) increases not exceeding $50,000
annualized in the aggregate and $5,000 annualized in the case of any
one person.
(i) Except as may be required to satisfy the requirements of
applicable law, neither Putnam Trust nor any of its subsidiaries will
establish, adopt, enter into or make any new, or amend any existing,
collective bargaining, bonus, profit sharing, thrift, compensation,
stock option, restricted stock, pension, retirement, employee stock
ownership, deferred compensation, employment, termination, severance
or other plan, agreement, trust, fund, policy or arrangement for the
benefit of any directors, officers or employees.
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<PAGE> 33
(j) Neither Putnam Trust nor any of its subsidiaries will
implement or adopt any accounting principles, practices or methods,
other than as may be required by generally accepted accounting
principles as concurred in by Putnam Trust's independent auditors,
and neither Putnam Trust nor any of its subsidiaries will reverse any
liabilities existing as of the date hereof for accrued expenses.
(k) Neither Putnam Trust nor any of its subsidiaries will
amend its Governing Documents or permit the amendment of the
Governing Documents of any of its subsidiaries.
(l) Except as provided for in the Letter Agreements, Putnam
Trust will not enter into or take any action to cause its
shareholders or any of them to enter into any shareholder agreement,
understanding or commitment or cooperate in any formation of any
voting trust relating to the right of shareholders of the Putnam
Trust to vote any shares of its capital stock; provided, that Putnam
Trust shall be permitted to vote any shares of its capital stock held
in a bona fide fiduciary capacity.
(m) Neither Putnam Trust nor any of its subsidiaries will (i)
take any action with respect to investment securities held or
controlled by it for its own account inconsistent with past
practices, (ii) alter its investment portfolio duration or practices
as heretofore in effect, (iii) purchase any Derivative Security for,
or invest in any Derivative Security any assets of, any account or
Person for which it acts as a trustee, fiduciary or investment
adviser or (iv) without prior consultation with BNY (A) purchase for
its own account any Derivative Security, (B) take any action that
would be inconsistent with its past practices with respect to holding
for its own account any Derivative Security or (C) take any action
that would have or could reasonably be expected to have a material
effect on Putnam Trust's consolidated asset/liability or interest
rate sensitivity position.
(n) Without prior consultation with BNY, neither Putnam Trust
nor any of its subsidiaries will enter into any settlement or similar
agreement with respect to, or take any other significant action with
respect to the conduct of, any action, suit, proceeding, order or
investigation that is set forth in paragraph 4.1(h) of its Disclosure
Letter or to which it or any of its subsidiaries becomes a party
after the date of this
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<PAGE> 34
Agreement (other than any action, suit, proceeding or order that both is
not or would not be required to be disclosed in its Reports filed with
the FDIC after the date of this Agreement and is related solely to the
collection of any loan or other extension of credit in default or to the
realization on any related collateral).
(o) With respect to properties leased by Putnam Trust or any
of its subsidiaries, neither Putnam Trust nor any such subsidiaries
will renew, exercise an option to extend, cancel or surrender any
lease of real property or allow any such lease to lapse, without
prior consultation with BNY.
(p) Putnam Trust and its subsidiaries will not effect a
significant change to their respective capital structures.
(q) Neither Putnam Trust nor any of its subsidiaries will
authorize or enter into an agreement to take any of the actions
referred to in paragraphs (a) through (p) above.
(r) Each of Putnam Trust and its subsidiaries will use all
reasonable efforts to cause its current insurance policies not to be
cancelled or terminated or any of the coverage thereunder to lapse,
unless simultaneously with such termination, cancellation or lapse,
replacement policies providing coverage substantially equal to the
coverage under the cancelled, terminated or lapsed policies are in
full force and effect.
5.2 Dividends. Putnam Trust agrees that, from and after the
date hereof until the Effective Time, (i) it may (to the extent legally and
contractually permitted to do so), but shall not be obligated to, declare
and pay regular quarterly cash dividends on the then issued and outstanding
shares of Putnam Trust Common Stock in an amount not to exceed $0.12 per
share and (ii) direct and indirect wholly owned subsidiaries of it may (to
the extent legally and contractually permitted to do so), but shall not be
obligated to, declare and pay dividends in cash, stock or other property.
Unless BNY otherwise agrees in writing, none of Putnam Trust or its
subsidiaries will declare or pay any dividend or distribution on shares of
its capital stock, whether payable in cash, stock or other property, other
than those dividends expressly permitted by the immediately preceding
sentence.
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<PAGE> 35
5.3 Certain Policies of Putnam Trust. At the request of BNY,
Putnam Trust shall modify and change its loan, litigation and real estate
valuation policies and practices (including loan classifications and levels
of reserves) immediately prior to the Effective Time on a mutually
satisfactory basis so as to be consistent with those of BNY and generally
accepted accounting principles. Putnam Trust's representations, warranties
and covenants contained in this Agreement shall not be deemed to be untrue
or breached in any respect for any purpose as a consequence of any modifi-
cations or changes undertaken solely on account of this Section 5.3.
5.4 Acquisition Proposals. Putnam Trust agrees that neither
it nor any of its subsidiaries nor any of its respective officers and
directors or the officers and directors of its subsidiaries shall, and it
shall direct and use all reasonable efforts to cause its employees, agents
and representatives (including, without limitation, any investment banker,
attorney or accountant retained by it or any of its subsidiaries) not to,
initiate, solicit or encourage, directly or indirectly, any inquiries or
the making or implementation of any proposal or offer with respect to a
merger, acquisition, consolidation or similar transaction involving, or any
purchase of all or any substantial part of the assets or any equity securi-
ties of, it or any of its subsidiaries (any such proposal or offer being
hereinafter referred to as an "Acquisition Proposal") or engage in any
negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any such person relating to an
Acquisition Proposal (other than any discussion limited solely to Putnam
Trust's disinterest in such Acquisition Proposal without regard to the
substantive terms thereof); provided, however, that, if Putnam Trust is not
otherwise in violation of this Section 5.4, the Board of Directors of
Putnam Trust may furnish or cause to be furnished information and may
participate in such discussions and negotiations directly or through its
representatives if such Board of Directors, after having consulted with and
considered the written advice of outside counsel (a copy of which advice
shall be provided to BNY), has determined that the failure to provide such
information or participate in such negotiations and discussions would cause
the members of such Board of Directors to breach their fiduciary duties
under applicable Connecticut law. If any such inquiries or proposals are
received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with,
Putnam Trust, it will promptly notify BNY. Putnam Trust will use all
reasonable efforts to enforce any confidentiality agreement with any third
party.
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<PAGE> 36
5.5 Shareholder Approval. Putnam Trust agrees to take, in
accordance with applicable law and its Governing Documents, all action
necessary to convene a meeting of holders of Putnam Trust Common Stock (the
"Putnam Trust Meeting") as promptly as practicable after the Registration
Statement (as defined in Section 5.6) is declared effective to consider and
vote upon the approval of the Merger. Subject to the next succeeding
sentence, the Board of Directors of Putnam Trust will recommend such
approval, and Putnam Trust will take all reasonable lawful action to
solicit such approval by its shareholders. The Board of Directors of
Putnam Trust may fail to make such a recommendation, or withdraw, modify or
change any such recommendation if and only if such Board of Directors,
after having consulted with and considered the written advice of outside
counsel (a copy of which advice shall be provided to BNY), has determined
that the making of such recommendation, or the failure so to withdraw,
modify or change its recommendation, would constitute a breach of the
fiduciary duties of such directors under applicable Connecticut law.
5.6 Filings; Other Actions. (a) BNY and Putnam Trust agree
to cooperate in the preparation of a registration statement on Form S-4 to
be filed by BNY with the SEC in connection with the issuance of BNY Common
Stock in the Merger (including the proxy statement for the Putnam Trust
Meeting and the prospectus and other proxy solicitation materials consti-
tuting a part thereof (the "Proxy Statement"), the "Registration State-
ment"). BNY agrees to use all reasonable efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly as
practicable after filing thereof. BNY also agrees to use all reasonable
efforts to obtain all necessary state securities law or "Blue Sky" permits
and approvals required to carry out the transactions contemplated by this
Agreement (provided, that in connection therewith BNY will not be required
to qualify as a foreign corporation or to file a general consent to service
of process in any jurisdiction), and Putnam Trust agrees to furnish all
information concerning Putnam Trust and the holders of Putnam Trust capital
stock as may be reasonably requested in connection with any such action.
(b) Each of BNY and Putnam Trust agrees to cooperate with the
other and, subject to the terms and conditions set forth in this Agreement,
use reasonable efforts to prepare and file all necessary documentation, to
effect all necessary applications, notices, petitions, filings and other
documents, to obtain all necessary permits, consents, orders, approvals and
authorizations of, or any exemption by, all third parties and Governmental
Entities, including
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<PAGE> 37
without limitation the Regulatory Approvals, and to take or do, or cause to
be taken or done, all actions or things necessary or reasonably advisable
to consummate the transactions contemplated by this Agreement (including,
without limitation, at the election of BNY to transfer to BNY or an
affiliate, or to divest or discontinue, the business of Putnam Travel, Inc.
at or subsequent to the Effective Time).
(c) Each party agrees, upon request, to furnish the other
parties with all information concerning itself, its subsidiaries,
directors, officers and shareholders and such other matters as may be
reasonably necessary or advisable in connection with the Registration
Statement or Proxy Statement or any other statement, filing, notice or
application made by or on behalf of such other party or any of its
subsidiaries to any Governmental Entity in connection with the Merger and
the other transactions contemplated by this Agreement.
(d) Putnam Trust agrees to use its best efforts to obtain, as
promptly as possible and in any event prior to the date of the Putnam Trust
Meeting, a Letter Agreement from each director of it that has not executed
and delivered to BNY a Letter Agreement as of the date hereof.
5.7 Information Supplied. Each of BNY and Putnam Trust
agrees, as to itself and its subsidiaries, that none of the information
supplied or to be supplied by it for inclusion or incorporation by
reference in (i) the Registration Statement will, at the time the
Registration Statement and each amendment and supplement thereto, if any,
become effective under the Securities Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(ii) the Proxy Statement and any amendment or supplement thereto will, at
the date of mailing to the shareholders of Putnam Trust and at the time of
the Putnam Trust Meeting, contain any statement which, in the light of the
circumstances under which such statement is made, will be false or mis-
leading with respect to any material fact, or which will omit to state any
material fact necessary in order to make the statements therein not false
or misleading or necessary to correct any earlier statement in the Proxy
Statement or any amendment or supplement thereto. Neither the Proxy
Statement nor the Registration Statement shall be filed, and, prior to the
termination of this Agreement, no amendment or supplement to the Proxy
Statement or the Registration Statement shall be filed, by BNY or Putnam
Trust without prior consultation with the other party and its counsel.
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<PAGE> 38
5.8 Accountants' Letters. (a) BNY agrees to use all
reasonable efforts to cause to be delivered to Putnam Trust a letter of
Deloitte & Touche, BNY's independent auditors, dated (i) the date on which
the Registration Statement shall become effective and (ii) the Closing
Date, each addressed to Putnam Trust, in form and substance customary for
"comfort" letters delivered by independent accountants in connection with
registration statements similar to the Registration Statement.
(b) Putnam Trust agrees to use all reasonable efforts to cause
to be delivered to BNY and its directors and officers who sign the
Registration Statement, a letter of Ernst & Young, LLP, Putnam Trust's
independent auditors, dated (i) the date on which the Registration State-
ment shall become effective and (ii) the Closing Date, each addressed to
BNY and such directors and officers, in form and substance customary for
"comfort" letters delivered by independent accountants in connection with
registration statements similar to the Registration Statement.
5.9 Access and Information. (a) Upon reasonable notice,
Putnam Trust agrees to (and shall cause each of its subsidiaries to) afford
BNY's officers, employees, counsel, accountants and other authorized repre-
sentatives (its "Representatives") access (together with the right to
copy), during normal business hours throughout the period until the Closing
Date, to its books, properties, contracts and records (including without
limitation, tax returns and work papers of independent auditors) and,
during such period, shall (and shall cause each of its subsidiaries to)
furnish to BNY and its Representatives all information concerning its
business, property and personnel as may reasonably be requested and
instruct its officers, employees, counsel and accountants to be available
for, and respond to reasonable questions of, BNY and its Representatives at
reasonable hours and with reasonable notice and to cooperate with BNY in
planning for the integration of the business of Putnam Trust and its
subsidiaries with the business of BNY and its subsidiaries; provided, that
no investigation pursuant to this Section 5.9(a) shall affect or be deemed
to modify any representation or warranty made by Putnam Trust.
(b) Each of BNY and Putnam Trust agree that it will not, and
will cause its Representatives not to, use any nonpublic information ob-
tained from the other party in connection with or relating to this
Agreement, the investigation leading up to its execution or the
transactions contemplated hereby (including, without limitation, by BNY
pursuant to Section 5.9(a)) for any purpose unrelated to the consummation
of the transactions contemplated by this Agree-
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<PAGE> 39
ment. Pending consummation of the transactions herein contemplated, each
of BNY and Putnam Trust agrees that it will keep confidential, and will
cause its Representatives to keep confidential, all nonpublic information
and documents so obtained from the other party; provided, that the
obligation to keep such information or documents confidential shall not
apply to (i) any information or document that (A) was already in BNY or
Putnam Trust's possession prior to the disclosure thereof by the other
party, (B) was then generally known to the public, (C) became known to the
public through no fault of BNY or Putnam Trust, as the case may be, or
(D) was disclosed to BNY or Putnam Trust, as the case may be, by a third
party not bound by an obligation of confidentiality or (ii) disclosures
required by law, governmental or regulatory authority. Upon any
termination of this Agreement, each party will collect and deliver to the
other party all nonpublic documents obtained by it or any of its Repre-
sentatives and then in their possession (other than documents of the type
described in the proviso to the preceding sentence) and any copies thereof
and destroy or cause to be destroyed all notes, memoranda or other
documents in the possession of it or of its Representatives containing or
reflecting any nonpublic information obtained from the other party (other
than information of the type described in the proviso to the preceding
sentence), except to the extent that any such information may be embodied
in minutes of the meetings of such party's Board of Directors or in
filings, reports or submissions to or with any Governmental Entity.
Promptly after any such termination, each of BNY and Putnam Trust shall
deliver to the other a certificate signed on its behalf by a senior
executive officer to the effect of its compliance with the agreements of it
set forth in the preceding sentence.
(c) Without in any way limiting the provisions of
Section 5.9(a), Putnam Trust shall provide to BNY within 30 days of the end
of each calendar month between the date hereof and the Closing Date
(i) consolidated financial statements (including a balance sheet and income
statement) as of, and for the period ended, on such month-end that are in
conformity with generally accepted accounting principles and the
representations and warranties set forth in Section 4.1(e), (ii) a complete
and accurate copy of all information distributed to its directors in
connection with any meeting of the Board of Directors of Putnam Trust and
(iii) such other information customarily prepared by Putnam Trust as may be
reasonably requested by BNY.
5.10 Notification of Certain Matters. Each of BNY and Putnam
Trust will give prompt notice to the other of the occurrence or failure to
occur of any fact, event or
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<PAGE> 40
circumstance that would or is reasonably likely to result in (i) a Material
Adverse Effect, (ii) any of the representations or warranties of such party
contained herein being untrue or inaccurate when made (subject to
Section 4.4), at the Effective Time or at any time prior to the Effective
Time, (iii) a material breach of any of covenants or agreements of such
party contained herein or (iv) the failure of a condition to consummation
set forth in Article VI to be satisfied on or prior to January 31, 1996.
5.11 Publicity. The initial press release relating hereto
will be a joint press release and thereafter BNY and Putnam Trust shall
consult with each other prior to issuing any press releases or otherwise
making public statements with respect to the transactions contemplated
hereby and prior to making any filings with any Governmental Entity or with
the NYSE or the NASD with respect thereto.
5.12 Employee Benefit Plans. BNY shall, or shall cause the
Surviving Bank to, maintain for a period of two years immediately following
the Effective Time employee benefit plans, programs and policies (other
than stock option or other plans involving the issuance of capital stock of
Putnam Trust) that are no less favorable in the aggregate than the employee
benefit plans, programs and policies of Putnam Trust and its subsidiaries
that are set forth in paragraph 4.3(i)(i) of its Disclosure Letter and are
in effect immediately prior to the Effective Time (other than stock option
plans or other plans involving the issuance of capital stock of Putnam
Trust); provided, however, that the actions set forth in the Memorandum of
Understanding on behalf of BNY and the Board of Directors of Putnam Trust
shall be deemed to provide employee benefit plans, programs and policies
that, in the aggregate, meet such standard. Putnam Trust agrees to amend
its Retirement Plan for Employees to make it clear that the Merger will not
require that such Plan be terminated.
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<PAGE> 41
5.13 Options. (a) At the Effective Time, all options to
purchase Putnam Trust Common Stock granted by Putnam Trust under its
Incentive Stock Option Plan that are outstanding at the Effective Time
(collectively, "Putnam Trust Options"), whether or not exercisable, shall
be converted into and become options to purchase BNY Common Stock, and BNY
shall assume each of the Putnam Trust Options, in accordance with the terms
of the Incentive Stock Option Plan and the stock option agreement by which
such Putnam Trust Option is evidenced. From and after the Effective Time,
(i) each Putnam Trust Option assumed by BNY shall be exercisable solely for
shares of BNY Common Stock, (ii) the number of shares of BNY Common Stock
subject to such Putnam Trust Option shall be equal to the number of shares
of Putnam Trust Common Stock subject to such Putnam Trust Option
immediately prior to the Effective Time multiplied by the Exchange Ratio
and (iii) the per share exercise price under each such Putnam Trust Option
shall be adjusted by dividing the per share exercise price under each such
Putnam Trust Option immediately prior to the Effective Time by the Exchange
Ratio and rounding down to the nearest cent. It is intended that the
foregoing assumption by BNY shall be undertaken in a manner that will not
constitute a "modification" as defined in Section 424 of the Internal
Revenue Code, as to any Putnam Trust Option that is an "incentive stock
option". BNY agrees to take all necessary action to effectuate the
provisions of this Section 5.13(a), including causing the registration
under the Securities Act of shares of BNY Common Stock issuable upon
exercise of Putnam Trust Options converted in accordance with the terms
hereof.
(b) At the Effective Time, all options to purchase Putnam
Trust Common Stock granted by Putnam Trust under its Stock Option Plan that
are outstanding at the Effective Time, whether or not exercisable, shall be
converted into the right to receive cash in accordance with the provisions
of the Stock Option Plan and the stock option agreement by which such stock
option is evidenced; provided, that any such stock option shall be deemed a
Putnam Trust Option and converted in accordance with Section 5.13(a) if the
Putnam Stock Option Plan and/or the option agreement evidencing such stock
option are amended to so provide prior to the Effective Time.
(c) Putnam Trust shall take all appropriate action to cease
all payroll deductions and acceptance of lump sum payments under its
Employee Stock Purchase Plan as of the earlier of the Effective Time or
July 31, 1995, including the adoption of amendments to the Employee Stock
Purchase Plan (if necessary). If the Effective Time occurs prior to July
31, 1995, all options to purchase Putnam Trust
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<PAGE> 42
Common Stock related to accumulated payroll deductions and lump sum
payments under the Employee Stock Purchase Plan shall be converted into and
become options to purchase BNY Common Stock, BNY shall assume such options,
which shall be exercised as soon as practicable after the Effective Time
(i) solely for the number of shares of BNY Common Stock equal to the number
of shares of Putnam Trust Common Stock subject to each such option
immediately prior to the Effective Time multiplied by the Exchange Ratio
and (ii) at a per share exercise price equal to the per share exercise
price under each such option immediately prior to the Effective Time,
divided by the Exchange Ratio and rounded down to the nearest cent. It is
intended that the foregoing assumption by BNY shall be undertaken in a
manner that will not constitute a "modification" as defined in Section 424
of the Internal Revenue Code, as to any such option.
5.14 Expenses. Each of BNY and Putnam Trust shall bear and
pay all costs and expenses incurred by it or on its behalf in connection
with the transactions contemplated hereunder, including fees and expenses
of its own financial or other consultants, investment bankers, accountants
and counsel, except that BNY and Putnam Trust each shall bear and pay one-
half of the following expenses: (a) the costs (excluding the fees and
disbursements of counsel, financial advisors and accountants) incurred in
connection with the preparation (including copying and printing) of the
Registration Statement and applications to Governmental Entities for the
approval of the Merger and (b) all listing, filing or registration fees,
including, without limitation, fees paid for filing the Registration
Statement with the SEC and fees paid for filings with Governmental
Entities.
5.15 Indemnification; Directors' and Officers' Insurance. (a)
From and after the Effective Time, BNY agrees to indemnify, defend and hold
harmless each present and former director and officer of Putnam Trust and
its subsidiaries determined as of the Effective Time (the "Indemnified
Parties") against all losses, claims, damages, costs, expenses (including
reasonable attorneys' fees), liabilities or judgments of or in connection
with any claim, action, suit, proceeding or investigation arising out of
matters existing or occurring at or prior to the Effective Time (a "Claim")
in which an Indemnified Party is, or is threatened to be made, a party or a
witness based in whole or in part on, or arising in whole or in part out
of, the fact that such person is or was a director or officer of Putnam
Trust or any of its subsidiaries, regardless of whether such Claim is
asserted or claimed prior to, at or after the Effective Time to the full
extent to which such
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<PAGE> 43
Indemnified Parties were entitled under Putnam Trust or such subsidiaries'
Governing Documents or applicable law (and BNY shall pay expenses in
advance of the final disposition of any such action or proceeding to each
Indemnified Party to the extent permissible by applicable law; provided,
that the person to whom expenses are advanced provides an undertaking to
repay such expenses if it is ultimately determined that such person is not
entitled to indemnification).
(b) Any Indemnified Party wishing to claim indemnification
under Section 5.15(a), upon learning of any Claim, shall promptly notify
BNY, but the failure to so notify shall not relieve BNY of any liability it
may have to such Indemnified Party if such failure does not prejudice BNY.
In the event of any Claim, (i) BNY shall have the right to assume the
defense thereof and shall not be liable to such Indemnified Parties for any
legal expenses of other counsel or any other expenses subsequently incurred
by such Indemnified Parties in connection with the defense thereof, except
that, if BNY elects not to assume such defense or counsel for the
Indemnified Parties advises that there are issues which raise conflicts of
interest between BNY and the Indemnified Parties, the Indemnified Parties
may retain counsel satisfactory to them, and BNY shall pay all reasonable
fees and expenses of such counsel for the Indemnified Parties promptly as
statements therefor are received, (ii) the Indemnified Parties will
cooperate in the defense of any such Claim and (iii) BNY shall not be
liable for any settlement effected without its prior written consent (which
consent shall not unreasonably be withheld).
(c) From and after the Effective Time, the directors and
officers of Putnam Trust and its subsidiaries who become directors or
officers of BNY or any of its subsidiaries, except for the indemnification
rights set forth in Section 5.15(a), will have indemnification rights only
with respect to events occurring after the Effective Time and only to the
extent that other directors and officers of BNY or such subsidiaries are
entitled to indemnification for similar events under the provisions of the
Governing Documents of BNY and its subsidiaries as in effect from time to
time after the Effective Time, as applicable, and applicable law as in
effect from time to time after the Effective Time.
(d) For a period of three years after the Effective Time, BNY
will use its best efforts to provide that portion of directors' and
officers' liability insurance that serves to reimburse officers and
directors of Putnam Trust or any of its subsidiaries with respect to claims
against such officers and directors arising from facts or events that
occurred before the Effective Time of at least the same
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<PAGE> 44
coverage and amounts, and containing terms and conditions no less advan-
tageous, as that coverage currently provided by Putnam Trust; provided,
however, that the annual premiums for such coverage will not exceed 200% of
the annual premiums paid by Putnam Trust for such coverage as of the date
hereof, and that officers and directors of Putnam Trust or any of its
subsidiaries may be required to provide customary representations and
warranties to BNY's insurance carrier for the purpose of obtaining such
insurance.
5.16 Antitakeover Provisions. If any "business combination",
"moratorium", "control share" or other state antitakeover statute or
regulation (collectively, "Antitakeover Provisions") may become applicable
to the transactions contemplated hereby, Putnam Trust and the members of
its Boards of Directors will grant such approvals and take such actions as
are necessary so that the transactions contemplated by this Agreement may
be consummated as promptly as practicable on the terms contemplated hereby
and otherwise act to eliminate or minimize the effects of any Antitakeover
Provision on any of the transactions contemplated by this Agreement.
5.17 Affiliate Agreements. (a) As soon as practicable after
the date hereof, Putnam Trust shall identify to BNY all persons who are at
the date hereof (or at another reasonably proximate date) possible
"affiliates" of Putnam Trust as that term is used in paragraphs (c) and (d)
of Rule 145 under the Securities Act ("Affiliates"). Putnam Trust shall
use all reasonable efforts to obtain a written agreement in the form of
Annex 5 from each person who is so identified as a possible Affiliate and
shall deliver copies of such written agreements to BNY as soon as practic-
able.
(b) As soon as practicable after the date of the Putnam Trust
Meeting, Putnam Trust shall identify to BNY all persons who were, at the
time thereof, possible Affiliates and who were not previously identified in
accordance with Section 5.17(a). Putnam Trust shall use all reasonable
efforts to obtain a written agreement in the form of Annex 5 from each
person who is so identified and shall deliver copies of such written agree-
ments to BNY as soon as practicable.
5.18 Stock Exchange Listing. BNY agrees to use all reasonable
efforts to cause to be listed on the NYSE, subject to official notice of
issuance, the shares of BNY Common Stock to be issued in the Merger.
5.19 Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each of BNY and Putnam
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<PAGE> 45
Trust agrees to use reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective, as soon as practicable after
the date of this Agreement, the transactions contemplated hereby,
including, without limitation, using reasonable efforts to lift or rescind
any injunction or restraining order or other order adversely affecting the
ability of the parties to consummate the transactions contemplated hereby.
5.20 Reports. Each of BNY and Putnam Trust agrees to file,
and to cause its respective subsidiaries to file, all reports required to
be filed with all Governmental Entities pursuant to the Securities Laws or
Federal or state banking laws between the date of this Agreement and the
Effective Time, and to deliver to the other party copies of all such
reports promptly after the same are filed.
5.21 Accounting and Tax Treatment. Neither BNY nor Putnam
Trust will take, cause or to the best of its ability permit to be taken any
action that would adversely affect the qualification of the Merger as a
"reorganization" within the meaning of Section 368 of the Internal Revenue
Code.
ARTICLE VI
Conditions
6.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each of BNY and Putnam Trust to
consummate the Merger is subject to the fulfillment or written waiver by
BNY and Putnam Trust prior to the Effective Time of each of the following
conditions:
(a) Shareholder Approval. The Merger shall have been duly
approved by the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Putnam Trust Common Stock in
accordance with Section 36-193u of the CTBL, other applicable law and
the Governing Documents of Putnam Trust.
(b) Governmental and Regulatory Consents. The Regulatory
Approvals shall have been obtained and shall be in full force and
effect and all related waiting periods shall have expired; and all
other material approvals and authorizations of, filings and registra-
tions with, and notifications to, all Governmental Entities required
for the consummation of the Merger and for the prevention of any
termination of any
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<PAGE> 46
material right, privilege, license or agreement of either of BNY or
Putnam Trust or their respective subsidiaries shall have been obtained
or made and shall be in full force and effect and all waiting periods
required by law shall have expired; provided, however, that none of the
preceding shall be deemed obtained or made if it shall be conditioned
or restricted in a manner that (i) would result in a Material Adverse
Effect on the Surviving Bank or BNY or (ii) would both (A) reduce the
benefits of the transactions contemplated by this Agreement to BNY in
such a manner that BNY, in its good faith reasonable judgment, would
not have entered into this Agreement had such condition or restriction
been known at the date hereof and (B) would result in the imposition of
conditions or restrictions other than those customarily imposed by the
applicable Governmental Entity in similar circumstances (provided, that
divestiture of the business of Putnam Travel, Inc. shall be deemed not
to be such a condition or restriction).
(c) Litigation. No United States or state court or other
Governmental Entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) that is in effect and prohibits
consummation of the transactions contemplated by this Agreement or
would have a Material Adverse Effect on the Surviving Bank.
(d) Registration Statement. The Registration Statement shall
have become effective under the Securities Act, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued, and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(e) Blue Sky Approvals. All permits and other authorizations
under the Securities Laws (other than that referred to in
Section 6.1(d)) and other authorizations necessary to consummate the
transactions contemplated hereby and to issue the shares of BNY
Common Stock to be issued in the Merger shall have been received and
be in full force and effect.
(f) Listing. The shares of BNY Common Stock to be issued in
the Merger shall have been approved for listing on the NYSE, subject
to official notice of issuance.
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<PAGE> 47
(g) Opinion of Tax Counsel. BNY and Putnam Trust shall have
received an opinion of Sullivan & Cromwell, dated the Closing Date,
to the effect that (i) the Merger is a "reorganization" within the
meaning of Section 368(a) of the Internal Revenue Code, (ii) no gain
or loss will be recognized by BNY, Putnam Trust or Merger Bank as a
result of the Merger, (iii) no gain or loss will be recognized by
shareholders of Putnam Trust who exchange their shares of Putnam
Trust Common Stock for BNY Common Stock in the Merger (except to the
extent of any cash paid in lieu of fractional shares or any state and
local transfer taxes paid on behalf of a shareholder), (iv) the
adjusted tax basis of whole shares of BNY Common Stock received by
shareholders of Putnam Trust who exchange their shares of Putnam
Trust Common Stock for BNY Common Stock in the Merger will be the
same as the adjusted tax basis of the shares of Putnam Trust Common
Stock exchanged therefor (reduced by any amount allocable to a
fractional share interest for which cash is received) and (v) the
holding period of the shares of BNY Common Stock received in the
Merger will include the period during which the shares of Putnam
Trust Common Stock exchanged therefor were held, provided such shares
of Putnam Trust Common Stock were held as capital assets at the
Effective Time. In rendering their opinion, Sullivan & Cromwell may
require and rely on representations contained in certificates of
officers of Putnam Trust and BNY and of any holder of 5% or more of
the outstanding shares of Putnam Trust Common Stock immediately prior
to the Effective Time.
6.2 Conditions to Obligation of BNY. The obligation of BNY to
consummate the Merger is also subject to the fulfillment or written waiver
by BNY prior to the Effective Time of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Putnam Trust set forth in this Agreement shall be true
and correct (subject to Section 4.4) as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing
Date (except that representations and warranties that by their terms
speak as of the date of this Agreement or some other date shall be
true and correct as of such date), and BNY shall have received a
certificate, dated the Closing Date, signed on behalf of Putnam Trust
by the Chief Executive Officer and the Chief Financial Officer of
Putnam Trust to such effect.
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<PAGE> 48
(b) Performance of Obligations of Putnam Trust. Putnam Trust
shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to
the Closing Date, and BNY shall have received a certificate, dated
the Closing Date, signed on behalf of Putnam Trust by the Chief
Executive Officer and the Chief Financial Officer of Putnam Trust to
such effect.
(c) Opinion of Counsel. BNY shall have received an opinion,
dated the Closing Date, of counsel to Putnam Trust, reasonably
satisfactory to BNY, covering such matters as are reasonably
requested by BNY, including matters of Connecticut law, and which
otherwise shall be in the form and substance (and shall contain such
opinions) as BNY shall reasonably request.
6.3 Conditions to Obligation of Putnam Trust. The obligation
of Putnam Trust to consummate the Merger is also subject to the fulfillment
or written waiver by Putnam Trust prior to the Effective Time of each of
the following conditions:
(a) Representations and Warranties. The representations and
warranties of BNY set forth in this Agreement shall be true and
correct (subject to Section 4.4) as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date
(except that representations and warranties that by their terms speak
as of the date of this Agreement or some other date shall be true and
correct as of such date), and Putnam Trust shall have received a
certificate, dated the Closing Date, signed on behalf of BNY by a
senior executive officer and the Chief Financial Officer of BNY to
such effect.
(b) Performance of Obligations of BNY. BNY shall have
performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date,
and Putnam Trust shall have received a certificate, dated the Closing
Date, signed on behalf of BNY by a senior executive officer and the
Chief Financial Officer of BNY to such effect.
(c) Opinion of Counsel. Putnam Trust shall have received an
opinion, dated the Closing Date, of counsel to BNY, reasonably
satisfactory to Putnam Trust, covering such matters as are reasonably
requested by Putnam Trust, and which otherwise shall be in the form
and substance (and shall contain such opinions) as Putnam Trust shall
reasonably request.
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<PAGE> 49
ARTICLE VII
Termination
7.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, before or
after the approval by the shareholders of Putnam Trust of the Merger:
(a) By the mutual written consent of BNY and Putnam Trust;
(b) By action of the Board of Directors of either BNY or
Putnam Trust if (i) the Merger shall not have been consummated by
January 31, 1996, (ii) any approval or authorization of any
Governmental Entity, the lack of which would result in the failure to
satisfy the closing condition set forth in Section 6.1(b), shall have
been denied by such Governmental Entity or such Governmental Entity
shall have requested the permanent withdrawal of any application
therefor or indicated an intention to deny, or impose a condition of
a type referred to in the proviso to Section 6.1(b) with respect to,
such approval or authorization or (iii) the approval of the
shareholders of Putnam Trust referred to in Section 6.1(a) shall not
have been obtained at the Putnam Trust Meeting or at any adjournment
thereof (provided, that in the case of termination by the Board of
Directors of Putnam Trust pursuant to this clause (iii), Putnam Trust
is not then in material breach of its obligations under Section 5.4);
(c) By action of the Board of Directors of BNY if (i) Putnam
Trust shall have breached any representation, warranty, covenant or
agreement contained herein that would result in the failure to
satisfy the closing condition set forth in Section 6.2(a) or 6.2(b)
and such breach cannot be or has not been cured within 30 days after
the giving of a written notice to Putnam Trust of such breach,
(ii) the Board of Directors of Putnam Trust shall have withdrawn,
modified or changed in a manner adverse to BNY its approval or
recommendation of this Agreement or (iii) the Board of Directors of
Putnam Trust shall have authorized or engaged in any negotiations as
permitted by the proviso to the first sentence of Section 5.4;
(d) By action of the Board of Directors of Putnam Trust if BNY
shall have breached any representation, warranty, covenant or
agreement contained herein that
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<PAGE> 50
would result in the failure to satisfy the closing condition set forth in
Section 6.3(a) or 6.3(b) and such breach cannot be or has not been cured
within 30 days after the giving of a written notice to BNY of such breach;
or
(e) By action of the Board of Directors of Putnam Trust as of
the first date, if any, after the date hereof but before the Closing
Date on which the BNY Average Price (as defined below) shall be less
than $25.00; provided, that Putnam Trust give notice to BNY of an
election to terminate pursuant to this Section 7.1(e) within the
fifteen-day period commencing with such first date (after the
expiration of such fifteen-day period, Putnam Trust shall have no
further rights under this Section 7.1(e)). For purposes of this
Agreement, "BNY Average Price" means, as of any date, the average of
the per share closing sale prices of BNY Common Stock as reported on
the NYSE Composite Transactions Tape (or, in the absence thereof, as
reported in such other source upon which BNY and Putnam Trust shall
agree) during the twenty consecutive NYSE trading days on which BNY
Common Stock is traded on the NYSE ending on, and including, the NYSE
trading day immediately prior to such date.
7.2 Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to
Section 7.1, no party to this Agreement shall have any liability or further
obligation to any other party hereunder except (i) as set forth in Sections
7.3 and 8.1 and (ii) termination will not relieve a breaching party from
liability for any breach directly or indirectly giving rise to such
termination.
7.3 Termination Fee. (a) Putnam Trust hereby agrees to pay
to BNY, and BNY shall be entitled to payment of, a fee (the "Fee") of
$7,000,000 following the occurrence of a Fee Trigger Event (as defined
below); provided that BNY's right to receive the Fee shall terminate if any
of the following (a "Fee Termination Event") occurs prior to a Fee Trigger
Event:
(i) The Effective Time;
(ii) Termination of this Agreement in accordance with the
provisions hereof if such termination occurs prior to the occurrence
of a Preliminary Fee Trigger Event (as defined below), other than a
termination by BNY pursuant to Section 7.1(c) at a time when Putnam
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<PAGE> 51
Trust is not entitled to terminate pursuant to Section 7.1(d); or
(iii) Eighteen months after the date of termination of this
Agreement if such termination (A) follows, or occurs at the same time
as, the occurrence of a Preliminary Fee Trigger Event or (B) is a
termination by BNY pursuant to Section 7.1(c) at a time when Putnam
Trust shall not have been entitled to terminate pursuant to
Section 7.1(d).
(b) The term "Preliminary Fee Trigger Event" means the
occurrence of any of the following events or transactions after the date
hereof:
(i) Putnam Trust or any subsidiary of it shall have agreed to
engage in an Acquisition Transaction (as defined below) with any
person (the term "person" for purposes of this Section 7.3 having the
meaning assigned thereto in Sections 3(a)(9) and 13(d)(3) of the
Exchange Act), other than BNY or any subsidiary of BNY (each a "BNY
Person"), or the Board of Directors of Putnam Trust shall have
recommended that the shareholders of Putnam Trust approve or accept
any Acquisition Transaction (as defined below) with any person other
than a BNY Person. The term "Acquisition Transaction" means (A) a
merger or consolidation, or any similar transaction, involving Putnam
Trust or any of its subsidiaries, (B) a purchase, lease or other
acquisition of all or substantially all of the assets or deposits of
Putnam Trust or any of its subsidiaries or (C) a purchase or other
acquisition (including by way of merger, consolidation, share
exchange or otherwise) of securities representing 20% or more of the
voting power of Putnam Trust or any of its subsidiaries;
(ii) (A) Any person, other than a BNY Person, alone or together
with such person's affiliates and associates (as the terms
"affiliate" and "associate" are defined in Rule 12b-2 under the
Exchange Act), shall have acquired beneficial ownership or the right
to acquire beneficial ownership of 20% or more of the outstanding
shares of Putnam Trust Common Stock (the term "beneficial ownership"
for purposes of this Section 7.3 having the meaning assigned thereto
in Section 13(d) of the Exchange Act) or (B) any group (as such term
"group" is defined for purposes of Section 13(d)(3) of the Exchange
Act), other than a group of which a BNY Person is a member, shall
have been formed that beneficially owns 20% or more of the Putnam
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<PAGE> 52
Trust Common Stock then outstanding; provided, that no Preliminary Fee
Trigger Event shall occur based on the acquisition of beneficial ownership
of additional shares of Putnam Trust Common Stock by any Person who is an
Affiliate of Putnam Trust on the date hereof and has executed and
delivered to BNY a Letter Agreement or any group of Persons each of whom
is such an Affiliate.
(iii) Any person, other than a BNY Person, shall have made a bona
fide proposal to Putnam Trust or its shareholders, by public
announcement or written communication that is or becomes the subject
of public disclosure, to engage in an Acquisition Transaction
(including, without limitation, any situation in which any person
other than a BNY Person, shall have (A) filed an application with any
Governmental Entity for approval to engage in such Acquisition
Transaction or (B) commenced (as such term is defined in Rule 14d-2
under the Exchange Act), or filed a registration statement under the
Securities Act with respect to, a tender offer or exchange offer to
purchase any shares of Putnam Trust Common Stock such that, upon
consummation of such offer, such person would own or control 20% or
more of the then outstanding shares of Putnam Trust Common Stock
(such an offering referred to in this Section 7.3 as a "Tender Offer"
or an "Exchange Offer", respectively));
(iv) After a proposal is made by any person, other than a BNY
Person, to Putnam Trust or its shareholders to engage in an
Acquisition Transaction, or such person states its intention to
Putnam Trust to make such a proposal, Putnam Trust shall have
breached any representation, covenant or obligation contained in this
Agreement and such breach would entitle BNY to terminate this
Agreement under Section 7.1(c)(i) of this Agreement (without regard
to any grace period provided for therein unless such breach promptly
is cured without jeopardizing consummation of the Merger in
accordance with the terms of this Agreement);
(v) The Putnam Trust Meeting shall not have been held or
shall have been cancelled prior to termination of this Agreement, or
the Board of Directors of Putnam Trust fails to recommend approval
(or withdraws its recommendation of approval) of the Merger, or such
Board of Directors modifies such recommendation in a manner adverse
to the interests of BNY; or
(vi) Any person, other than a BNY Person, shall have filed an
application or notice with the Federal
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<PAGE> 53
Reserve, or other federal or state bank regulatory authority, which
application or notice has been accepted as informationally complete, for
approval to engage in an Acquisition Transaction.
(c) The term "Fee Trigger Event" means the occurrence of
either of the following events or transactions after the date hereof:
(i) The acquisition by any Person, other than a BNY Person or
any Person who is an Affiliate of Putnam Trust on the date hereof and
has executed and delivered to BNY a Letter Agreement or any group of
Persons each of whom is such an Affiliate, alone or together with
such person's affiliates and associates, or any group, of beneficial
ownership of 35% or more of the Putnam Trust Common Stock; or
(ii) The occurrence of a Preliminary Fee Trigger Event
described in Section 7.3(b)(i), except that the percentage referred
to in clause (C) of the definition of "Acquisition Transaction" shall
be 25%.
(d) Putnam Trust shall notify BNY promptly in writing of its
knowledge of the occurrence of any Preliminary Fee Trigger Event or Fee
Trigger Event; provided, however, that the giving of such notice by Putnam
Trust shall not be a condition to the right of BNY to the Fee.
(e) BNY shall give written notice to Putnam Trust of its
exercise of its right to payment of the Fee within 90 days of receipt of
notice of a Fee Trigger Event. Putnam Trust shall pay the Fee to BNY in
immediately available funds not later than the fifth business day after its
receipt of such notice from BNY.
ARTICLE VIII
Miscellaneous
8.1 Survival. Only those agreements and covenants of the
parties that by their express terms apply in whole or in part after the
Effective Time shall survive the Effective Time. All other
representations, warranties, agreements and covenants shall be deemed only
to be conditions of the Merger and shall not survive the Effective Time.
If the Merger shall be abandoned and this Agreement terminated, the
provisions of Sections 7.2 and 7.3 shall apply and the agreements of the
parties in Sections 5.9(b), 5.11 and 5.14 shall survive such abandonment.
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<PAGE> 54
8.2 Modification or Amendment. (a) Subject to the applicable
provisions of the CTBL and SCA, at any time prior to the Closing Date, the
parties hereto may modify or amend this Agreement by written agreement
executed and delivered by duly authorized officers of the respective
parties.
(b) At any time prior to the Effective Time, BNY shall be
entitled to revise the structure of the Merger or the other transactions
contemplated hereby or the manner of effecting such transactions; provided,
that each of the transactions comprising such revised structure or manner
shall not, as a result of such revision, (i) subject any of the
shareholders of Putnam Trust to adverse Tax consequences, (ii) adversely
affect the consideration to be received by any such shareholder or
(iii) result in any material delay in the consummation of the transactions
contemplated hereby. This Agreement and any related documents shall be
appropriately amended in order to reflect any such revised structure.
8.3 Waiver of Conditions. The conditions to each party's
obligation to consummate the Merger are for the sole benefit of such party
and may be waived by such party in whole or in part to the extent permitted
by applicable law. No waiver shall be effective unless it is in a writing
signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver.
8.4 Counterparts. For the convenience of the parties hereto,
this Agreement may be executed in any number of separate counterparts, each
such counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
8.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within such State.
8.6 Notices. Any notice, request, instruction or other
document to be given hereunder by any party to the other shall be in
writing and shall be deemed to have been duly given (i) on the date of
delivery if delivered personally or by telefacsimile upon confirmation of
receipt, (ii) on the first business day following the date of dispatch if
delivered by a recognized next-day courier service or (iii) on the third
business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices
hereunder
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<PAGE> 55
shall be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice.
(a) If to BNY:
The Bank of New York Company, Inc.
Attention: Chief Legal Officer
One Wall Street
New York, New York 10286
Facsimile: (212) 635-1698
with copies to:
The Bank of New York Company, Inc.
Attention: Corporate Secretary's Office
48 Wall Street
New York, New York 10286
Facsimile: (212) 495-2456
and
H. Rodgin Cohen
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile: (212) 558-3988
(b) If to Putnam Trust:
Michael M. Cassell
President and Chief Executive Officer
The Putnam Trust Company of Greenwich
10 Mason Street
P.O. Box 989
Greenwich, Connecticut 06836
Facsimile: (203) 863-2725
with copies to:
David W. Wallace
Two Greenwich Plaza
Suite 100
P.O. Box 2505
Greenwich, Connecticut 06836
Facsimile: (203) 869-3120
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<PAGE> 56
and
Paul G. Hughes
Cummings & Lockwood
4 Stamford Plaza
107 Elm Street
P.O. Box 120
Stamford, Connecticut 06836
Facsimile: (203) 351-4499
8.7 Entire Agreement, Etc. (a) This Agreement (including the
Annexes hereto and the Disclosure Letters) constitutes the entire agree-
ment, and supersedes all other prior agreements, understandings,
representations and warranties, both written and oral, between the parties,
with respect to the subject matter hereof, and (b) this Agreement shall not
be assignable by operation of law or otherwise (any attempted assignment in
contravention hereof being null and void).
8.8 Definitions of "subsidiary", "prior consultation" and
"knowledge"; Covenants with Respect to Subsidiaries. (a) When a reference
is made in this Agreement to a subsidiary of a person, the term "subsidi-
ary" means those corporations, banks, savings banks, associations and other
entities of which such person owns or controls 25% or more of the outstand-
ing equity securities either directly or through an unbroken chain of
entities as to each of which 25% or more of the outstanding equity
securities is owned directly or indirectly by its parent; provided,
however, that, except for purposes of Section 4.3(j), there shall not be
included any such entity to the extent that the equity securities of such
entity were acquired in satisfaction of a debt previously contracted in
good faith or are owned or controlled in a bona fide fiduciary capacity.
(b) When a reference is made in this Agreement to prior
consultation with respect to any action, the term "prior consultation"
means advance notice of such action and a reasonable opportunity to discuss
such action in good faith prior to the taking thereof. For purposes of
this Agreement, references to a party's "knowledge" refer to the knowledge
of the executive officers of such party after reasonable investigation of
the relevant matters, including without limitation inquiries of the
officers or employees of the party or its subsidiaries that reasonably
should be expected to have knowledge regarding such matters.
(c) Insofar as any provision of this Agreement shall require
a subsidiary to take or omit to take any action, such provision shall be
deemed a covenant by BNY or
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<PAGE> 57
Putnam Trust, as the case may be, to cause such action or omission to
occur.
8.9 Captions. The Article, Section and paragraph captions
herein are for convenience of reference only, do not constitute part of
this Agreement and shall not be deemed to limit or otherwise affect any of
the provisions hereof.
8.10 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court
of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions hereof, or the application of such provision to
persons or circumstances other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to
agree upon a suitable and equitable substitute provision to effect the
original intent of the parties.
8.11 No Third Party Beneficiaries. Nothing contained in this
Agreement, expressed or implied, is intended to confer upon any person or
entity other than the parties hereto, any benefit right or remedies except
that the provisions of Section 5.13 shall inure to the benefit of the
holders of stock options and Section 5.15 shall inure to the benefit of the
persons referred to therein.
<PAGE>
<PAGE> 58
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the
date first hereinabove written.
THE BANK OF NEW YORK
COMPANY, INC.
By: /s/ Thomas A. Renyi
Name: Thomas A. Renyi
Title: President
THE PUTNAM TRUST COMPANY
OF GREENWICH
By: /s/ David W. Wallace
Name: David W. Wallace
Title: Chairman of the Board
<PAGE>
<PAGE> 59
Pursuant to the requirements of Section 36-193u of The Banking Law of
Connecticut, this Agreement has been signed by the following persons, each
in the capacity of member of the Board of Directors of The Putnam Trust
Company of Greenwich:
/s/ Michael M. Cassell /s/ Robert H. Clark, Jr.
Michael M. Cassell Robert H. Clark, Jr.
_________________________ /s/ Philip M. Drake
George F. Clements, Jr. Philip M. Drake
/s/ R. Michael Dunne _________________________
R. Michael Dunne Desmond G. FitzGerald
/s/ Michael E. Gellert /s/ Mary Grant Lynch
Michael E. Gellert Mary Grant Lynch
_________________________ /s/ David W. Wallace
Andrew Rockefeller David W. Wallace
/s/ Joan M. Warburg /s/ Clark M. Whittemore, Jr.
Joan M. Warburg Clark M. Whittemore, Jr.
_________________________
Joseph S. Wilcox, Jr.<PAGE>
<PAGE> 1
Annex 1
[Form Director and Executive Officer
Letter Agreement]
[Date], 1995
The Bank of New York Company, Inc.,
One Wall Street,
New York, New York 10286.
Re: Proposed Agreement and Plan of
Merger by and between The Bank
of New York Company, Inc. and
The Putnam Trust Company of Greenwich
Ladies and Gentlemen:
The undersigned is a director of The Putnam Trust Company of
Greenwich, a Connecticut state bank and trust company ("Putnam Trust"), and
is the beneficial holder of the number of shares of common stock of Putnam
Trust set forth next to the signature line of this Letter Agreement (the
"Shares").
Putnam Trust and The Bank of New York Company, Inc. ("BNY") are
considering execution of an Agreement and Plan of Merger (the "Merger
Agreement") contemplating a statutory merger of Putnam Trust with and into
a wholly owned subsidiary of BNY (the "Merger"), such execution being
subject in the case of BNY to the execution and delivery of this Letter
Agreement. In consideration of the substantial expenses and other
obligations BNY will incur in connection with the transactions contemplated
by the Merger Agreement and in order to induce BNY to execute the Merger
Agreement and to proceed to incur such expenses, the undersigned agrees and
undertakes, in the undersigned's capacity as a shareholder of Putnam Trust
and not in the undersigned's capacity as a director or executive officer of
Putnam Trust, as follows:
1. The undersigned will vote or cause to be voted for approval
of the Merger all of the Shares; provided, that, with respect to any Shares
held by the undersigned in a bona fide fiduciary capacity, the undersigned
may otherwise vote or cause to be voted such shares if, after having
consulted with and considered the written advice of counsel (a copy of
which shall be provided to BNY), the undersigned has determined that to
vote or cause to be voted such Shares in favor of the Merger would cause
the undersigned to breach his/her fiduciary duties under applicable
Connecticut law.
<PAGE>
<PAGE> 2
2. The undersigned will not effect any voluntary transfer or
other disposition of any of the Shares or of any interest therein, unless
the person acquiring the Shares agrees to be bound by the terms hereof;
provided, that, with respect to any Shares held by the undersigned in a
bona fide fiduciary capacity, the undersigned may transfer or dispose of
such Shares other than in compliance with the preceding clause if, after
having consulted with and considered the written advice of counsel (a copy
of which shall be provided to BNY), the undersigned has determined that to
not so transfer or dispose of such Shares would cause the undersigned to
breach his/her fiduciary duties under applicable Connecticut law. In the
case of any transfer by operation of law, this Letter Agreement shall be
binding upon and inure to the transferee. Any transfer or other
disposition in violation of the terms of this paragraph 2 shall be null and
void.
3. The undersigned shall take or cause to be taken all action
reasonably necessary or desirable on the undersigned's part so as to permit
consummation of the Merger at the earliest possible date and shall not
take, or cause or to the best of the undersigned's ability permit to be
taken, any action which would substantially impair the prospects of
completing the Merger pursuant to the Merger Agreement.
4. This letter agreement shall terminate at the time of the
termination of the Merger Agreement, except that any such termination shall
be without prejudice to your rights arising out of any willful breach of
any covenant or representation contained herein.
This Letter Agreement constitutes the complete understanding
between the undersigned and BNY concerning the
<PAGE>
<PAGE> 3
subject matter hereof. This Letter Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York applicable to contracts made and to be performed within such state.
Very truly yours,
____________________________
Number of Shares Held: Signature
__________________________ ____________________________
Print Name
ACCEPTED
THE BANK OF NEW YORK
COMPANY, INC.
By: ______________________
<PAGE>
<PAGE> 1
Annex 2
[Form of Supplement for Merger Bank]
SUPPLEMENT, dated as of the [day] day of [month], 1995 (this
"Supplement"), to the Agreement and Plan of Merger, dated as of the 25th
day of March, 1995 (the "Merger Agreement"), by and between The Bank of New
York Corporation, Inc. ("BNY") and the Putnam Trust Company of Greenwich.
WHEREAS, pursuant to Section 1.4 of the Merger Agreement, BNY
has agreed to have the undersigned become a party to the Merger Agreement.
NOW, THEREFORE, by its execution of this Supplement, as of the
date hereof the undersigned adopts and becomes a party to the Merger
Agreement, as required by Section 1.4 thereof, and agrees to perform all
obligations and agreements of it set forth therein.
IN WITNESS WHEREOF, this Supplement has been duly executed and
delivered by the undersigned officer duly authorized thereunto as of the
date first hereinabove written.
[Name of Merger Bank]
By: __________________________
Name:
Title:
<PAGE>
<PAGE> 2
Pursuant to the requirements of Section 36-193u of The Banking Law of
Connecticut, this Supplement has been signed by the following persons, each
in the capacity of member of the Board of Directors of [name of Merger
Bank].
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
_________________________ _________________________
[name] [name]
<PAGE>
<PAGE> 1
Annex 3
CERTIFICATE OF INCORPORATION
OF
THE PUTNAM TRUST COMPANY OF GREENWICH
FIRST. The corporation is a capital stock state bank and trust
company. The name of the corporation is The Putnam Trust Company of
Greenwich.
SECOND. The main office of the corporation is located in
Greenwich, Connecticut.
THIRD. The authorized capital stock of the corporation is
$4,000,000, and the total number of shares that the corporation shall have
authority to issue is 20,000 shares of Common Stock, with a par value of
$200 per share.
FOURTH. The minimum amount of equity capital with which the
corporation shall commence business is $5,000,000.
FIFTH. A director of the corporation shall not be liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such exemption from
liability or limitation thereof is not permitted under the Banking Law of
Connecticut as currently in effect or as the same may hereafter be amended.
No amendment, modification or repeal of this Article FIFTH shall adversely
affect any right or protection of a director that exists at the time of
such amendment, modification or repeal.
<PAGE>
<PAGE> 2
SIXTH. The name and business address of the sole organizer is
[ABC], [address], New York, New York [zip code]. The organizer is a bank
holding company registered under the Bank Holding Company Act of 1956, as
amended.
SEVENTH. The name, occupation and business address of each
prospective initial director of the corporation are:
Full Name Occupation Business Address
[name]
[name]
[name]
IN WITNESS WHEREOF, this certificate of incorporation has been
executed and acknowledged by a duly authorized officer of the organizer
named herein this [day] day of [month], 199[5].
ABC
By: __________________________
Name:
Title:
<PAGE>
<PAGE> 3
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this _____ day of _______, 199[5] personally appeared before
me [name] to me known to be the person described in and who executed the
foregoing certificate, and acknowledged that he executed the same.
_________________________
<PAGE>
<PAGE> 1
Annex 4
Schedule of Certain Assumed Employment Agreements
1. Employment Agreement, dated as of the 14th day of March 1995, between
The Putnam Trust Company of Greenwich ("Putnam Trust") and Michael M.
Cassell.
2. Employment Agreement, dated as of the 9th day of March 1995, between
Putnam Trust and Michael A. Selikoff.
3. Employment Agreement, dated as of the 22nd day of April 1985, between
Putnam Trust and James F. McLean (as extended and amended on March
28, 1994).
4. Employment Agreement, dated as of the 25th day of July 1984, between
Putnam Trust and John H. Kuck (as extended and amended on March 28,
1994).
5. Employment Agreement, dated as of the 15th day of June 1990, between
Putnam Trust and Robert E. O'Brien, Jr. (as extended and amended on
March 28, 1994).
6. Employment Agreement, dated as of the 25th day of July 1984, between
Putnam Trust and William R. Moller (as extended and amended on March
28, 1994).
7. Employment Agreement, dated as of the 18th day of November 1991,
between Vincent A. Griffin, Jr. and Putnam Trust.
8. Employment Agreement, dated as of the 25th day of July 1984, between
Putnam Trust and Haven A. Knight.
9. Employment Agreement, dated as of the 25th day of July 1984, between
Putnam Trust and Donald R. Blair.
10. Employment Agreement, dated as of the 25th day of July 1984, between
Putnam Trust and John A. Murray.
<PAGE>
<PAGE> 1
Annex 5
[Form of Affiliate Agreement]
The Bank of New York Corporation, Inc.,
One Wall Street,
New York, New York 10286.
Re: Agreement and Plan of Merger by
and between The Bank of New York
Company, Inc. and The Putnam
Trust Company of Greenwich
Ladies and Gentlemen:
I have been advised that I may be considered an "affiliate" of
The Putnam Trust Company of Greenwich ("Putnam Trust") for purposes of
Rule 145 of the General Rules and Regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "SEC") under the Securities
Act of 1933, as amended (the "Securities Act"). Pursuant to the Agreement
and Plan of Merger, dated as of the 25th day of March, 1995 (the "Merger
Agreement"), by and between you and Putnam Trust, I will receive shares of
common stock of The Bank of New York Company, Inc. (the "Shares") in
exchange for the shares of stock of Putnam Trust owned by me at the
effective time of the merger provided for in the Merger Agreement (the
"Merger").
I represent and warrant to, and agree with, you that:
A. I will not make any sale, transfer or other disposition of
my Shares in violation of the Securities Act or the Rules and
Regulations.
B. I have been advised that the offering, sale and delivery of
the Shares to me in the Merger have been registered under the
Securities Act on a Registration Statement on Form S-4. I have also
been advised, however, that, since I may be considered an "affiliate"
of Putnam Trust at the time the Merger is submitted for a vote of the
shareholders of Putnam Trust, any public offering or sale by me of
any of the Shares will, under current law, require either (i) the
further registration under the Securities Act of the Shares to be
offered and sold, (ii) compliance by me with SEC Rule 145 under the
Securities Act in connection with such offer and sale or (iii) the
availability of
<PAGE>
<PAGE> 2
another exemption from registration of such Shares under the Securities
Act for such offer and sale.
C. I have carefully read this Letter Agreement and the Merger
Agreement and have discussed their requirements and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of
the Shares, to the extent I felt necessary, with my counsel or
counsel for Putnam Trust.
D. I have been informed by Putnam Trust that the Shares have
not been registered under the Securities Act for distribution by me
and that the Shares must be held by me for at least two years unless
(i) such Shares have been registered for distribution under the
Securities Act, (ii) a sale of the Shares is made in conformity with
the volume and other limitations of SEC Rule 145 under the Securities
Act or (iii) in the opinion of counsel reasonably acceptable to you,
some other exemption from registration under the Securities Act is
available with respect to any such proposed sale, transfer or other
disposition of the Shares.
E. I understand you are under no obligation to register the
sale, transfer or other disposition of the Shares by me or on my
behalf under the Securities Act or to take any other action necessary
in order to make compliance with an exemption from such registration
available to me.
F. I also understand that stop transfer instructions will be
given to all transfer agents for the Shares and that there will be
placed on the certificates for the Shares issued to me, or any
replacements or substitutes therefor, a legend stating in substance:
"The shares represented by this certificate were
issued in a transaction to which Rule 145 under the
Securities Act of 1933 applies. The shares represented
by this certificate may only be transferred in accordance
with the terms of an agreement, dated [date], 1995,
between the registered holder hereof and the issuer, a
copy of which agreement will be mailed to the holder
hereof without charge promptly after receipt by the
issuer of a written request therefor."
<PAGE>
<PAGE> 3
G. I also understand that, unless the transfer by me of my
Shares has been registered under the Securities Act or is a sale made
in conformity with the provisions of SEC Rule 145, you shall have the
right to place the following legend on the certificates issued to any
transferee of such Shares:
"The shares represented by this certificate have
not been registered under the Securities Act of 1933 and
were acquired from a person who received such shares in a
transaction to which Rule 145 under the Securities Act of
1933 applies. The shares may not be sold, pledged or
otherwise transferred except in accordance with an
exemption from the registration requirements of the
Securities Act of 1933."
It is understood and agreed that the legends set forth in
paragraphs F and G above shall be removed by the delivery of substitute
certificates without such legend if I shall have delivered to you a copy of
a letter from the staff of the SEC, or an opinion of counsel in form and
substance reasonably satisfactory to you, to the effect that such legend is
not required for purposes of the Securities Act.
By your acceptance hereof, you agree, for a period of three
years after the effective time of the Merger, that you will file on a
timely basis all reports required to be filed by you pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, so that the public
information provisions of SEC Rule 144(c) under the Securities Act are
satisfied and the resale provisions of SEC Rules 145(d)(1) and (2) are
therefore available to me in the event I desire to transfer any Shares
issued to me in the Merger.
This letter constitutes the complete understanding between us
concerning the subject matter hereof. Any notice required to be sent to
any party hereunder shall be sent by registered or certified mail, return
receipt requested, using the addresses set forth herein or such other
address
<PAGE>
<PAGE> 4
as shall be furnished in writing by the parties. This letter shall be
governed by, and construed and interpreted in accordance with, the laws of
the State of New York applicable to contracts made and to be performed
within such state.
Very truly yours,
______________________________
(Name of Affiliate)
Address for notices:
ACCEPTED:
THE BANK OF NEW YORK
COMPANY, INC.
By:________________________
<PAGE> 1 Exhibit 99
The Bank of New York Company, Inc. NEWS
48 Wall Street
New York, N.Y. 10286
Contact:
FOR RELEASE: PUBLIC AND INVESTOR
RELATIONS DEPT.
IMMEDIATELY The Putnam Trust The Bank of New York
Company of Greenwich Company Inc.
James F. McLean, SVP Paul J. Leyden, SVP
(203) 863-2646 (212) 495-2066
Rhonda Barnat, AVP
(212) 495-1725
THE BANK OF NEW YORK TO ACQUIRE PUTNAM TRUST COMPANY
OF GREENWICH, CONNECTICUT
NEW YORK, NY/GREENWICH, CT, March 27, 1995 -- The Bank of New York Company,
Inc. (NYSE: BK) and The Putnam Trust Company of Greenwich (NASDAQ: PTNM),
headquartered in Greenwich, Connecticut announced today that they had
signed a merger agreement.
The agreement calls for shareholders of Putnam Trust Company to receive
1.312 shares of The Bank of New York Company's common stock for each share
of Putnam Trust Company's common stock. Putnam Trust Company has
approximately 3.3 million shares outstanding which brings the total value
of the transaction to approximately $140 million based upon The Bank of New
York Company's closing price on March 24, 1995.
The transaction is expected to close in the second half of 1995 and is
subject to Putnam Trust Company shareholder approval as well as regulatory
approval. The Bank of New York Company presently plans to repurchase
shares of its common stock in an amount equal to the number of shares it
will issue in the transaction. The acquisition is expected to be accretive
to earnings.
Putnam Trust Company, founded in 1914, has 8 branches in Fairfield County,
with $686 million in assets, $316 million in loans and $624 million in
deposits. It holds over $2 billion in trust assets and is a respected
manager of personal investment portfolios.
<PAGE>
<PAGE> 2
Upon completion of the transaction, Putnam Trust Company will operate as a
wholly-owned subsidiary of The Bank of New York Company, Inc.
"We are delighted to be entering the Connecticut market where Putnam Trust
has an outstanding franchise in personal trust and investment management
and retail banking," said J. Carter Bacot, Chairman and Chief Executive
Officer. "This acquisition is a natural extension of our suburban branch
network and enhances our ability to expand our private banking as well as
our small business and professional lending activities."
"We are delighted to have signed an agreement with The Bank of New York
Company. The combination of our two institutions will be highly beneficial
to our customers, our communities and our shareholders. The Bank of New
York will bring a wide array of products and services to Fairfield County,"
said David W. Wallace, Chairman of Putnam Trust Company.
The Bank of New York was founded in 1784 by Alexander Hamilton and is the
nation's oldest bank operating under its original name. The Bank of New
York currently has 382 branches in 24 counties in New York and New Jersey,
and is the dominant retail bank in the suburban New York area. It is the
principal subsidiary of The Bank of New York Company, Inc., one of the
largest bank holding companies in the United States, with total assets of
$49 billion as of December 31, 1994. The Company provides a complete range
of banking and other financial services to corporations and individuals
worldwide through its six basic businesses: Securities and Other
Processing; Credit Cards; Retail Banking; Corporate Banking; Trust,
Investment Management and Private Banking; and Financial Market Services.
* * * * *
